Case Nos. 07-CR-20124-CM

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
vs. ))
Case Nos. 07-CR-20124-CM,
GUY M. NEIGHBORS ) 08-CR-20105-CM
)
and ))
CARRIE NEIGHBORS )
)
Defendants. )
DEFENDANTS’ JOINT MOTION FOR DISCOVERY OF
EXCULPATORY AND IMPEACHING INFORMATION UNDER
BRADY v. MARYLAND AND FOR DISCOVERY UNDER RULE 16
Defendants Guy Neighbors and Carrie Neighbors, by and through their respective
counsel Cheryl Pilate and John Duma, move this Honorable Court to enter an Order
directing the timely production of all exculpatory and impeaching evidence as demanded
by the due process clause of the Fifth Amendment, and as described by the Supreme
Court in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S.
150 (1972). “The essence of the Brady rule is the proposition that nondisclosure of
material exculpatory evidence violates a defendant’s due process right to a fair trial.”
Smith v. Sec’y of New Mexico Dep’t of Corrections, 50 F.3d 801, 823 (10th Cir. 1995).
Mr. Neighbors and Mrs. Neighbors further seek all discovery to which they are entitled
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under Federal Rule of Criminal Procedure 16. In further support of this motion, the
Defendants refer the Court to the following Memorandum.
MEMORANDUM IN SUPPORT
I. Factual Background
Mr. Neighbors and Mrs. Neighbors are charged in three federal cases, the most
complex of which charges 18 counts, including conspiracy, fraud, and money laundering,
in connection with the operation of a second-hand store in Lawrence called Yellow
House. The Neighbors are also charged in a marijuana case, Case No. 07-20073, and in a
third case charging obstruction of justice, Case No. 08-20105.
Among those three cases, there are dozens of witnesses and potentially hundreds
of exculpatory and impeaching facts. Some of these facts will concern just one of these
cases, while others may be relevant to two cases or to all three. In the interest of
efficiency and economy, Defendants seek the timely production of all Brady/Giglio
material and all Rule 16 material in this single, unified motion.
As part of the discovery process, the government has produced more than 70 CDs
containing evidence, including audio and video surveillance, as well as thousands of
pages of reports and documents obtained from the Yellow House business. They now
seek additional evidence, favorable to their defense, that they reasonably believe may be
in the possession or control of the government.
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The heart of the government’s massive prosecutorial effort is the Yellow House or
E Bay case, which involves allegations that Mr. Neighbors and Mrs. Neighbors purchased
various household, recreational and apparel items, including appliances and computers,
from various sellers, “knowing that the property had been stolen,” and then re-sold the
property on E-Bay. The marijuana case involves essentially a separate matter (a small
indoor garden allegedly used to cultivate marijuana plants), but the obstruction case is
linked, at least tangentially, to the E-Bay case in that it involves the receipt of allegedly
stolen property and alleged “obstruction” that occurred when authorities investigated the
sale of that property (computers) by Yellow House.
The prosecution of the E-Bay and obstruction cases essentially rests on: (1) the
perceived credibility of the cooperating witnesses or informants; (2) the Neighbors’
purported knowledge that the property was stolen; and (3) whether the characterization of
the property as stolen may be inferred from the surrounding circumstances. Absent
credible evidence that the property was stolen and that the Neighbors either knew or had
reason to believe it was stolen, the government’s case may fail.
Clearly, the ability to obtain and use exculpatory and impeaching evidence in this
case will be vital to Mr. Neighbors’ and Mrs. Neighbors’ efforts to mount a defense. The
right of a criminal defendant to due process is, “in essence, the right to a fair opportunity
to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294
(1973). This necessarily includes the “right to present a defense” so that the jury may
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hear “the defendant’s version of the facts as well as the prosecution’s” and then decide
“where the truth lies.” Webb v. Texas, 409 U.S. 95 (1972). In the present case, the
Neighbors must have access to exculpatory and impeaching evidence that is vital to their
ability to defend against the government’s accusations and to present their theory of
defense.
II. The Requirements of Due Process
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution.” Id. at 87. In 1972, the Supreme Court
extended that rule to impeachment evidence, recognizing that because the credibility of a
witness may “well be determinative of guilt or innocence,” the prosecution is bound to
disclose such impeachment evidence. Giglio v. United States, 405 U.S. 150 (1972).
The prosecutor cannot limit his or her duty to produce exculpatory and impeaching
evidence by relying solely on what is in the prosecutor’s file. To the contrary, the
prosecutor “has a duty to learn of any favorable evidence known to others acting on the
government’s behalf in the case, including the police” and to disclose that evidence to the
defense. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). The prosecutor’s duty to
disclose favorable, material evidence “is inescapable.” Id.
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The prosecutor must make these disclosures “whether a general request is made or
whether no request is made.” Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995)
(emphasis added). Because the exculpatory nature of particular evidence “can seldom be
predicted accurately until the entire record is complete,” the prosecutor “must resolve
close cases and ‘doubtful questions in favor of disclosure.’” Banks, 54 F.3d at 1517
(quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). The prosecutor is not
required to disclose all evidence, only that which is exculpatory and material. In Kyles v.
Whitley, 514 U.S. 419 (1995), the Supreme Court stated that the requirement of
“materiality” means that, in the absence of producing such evidence, the trial could not be
regarded as fair and the verdict would not be “worthy of confidence.” Id. at 434; see also
Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (citing Kyles materiality
standard); see also Banks, 54 F.3d at 1518. A prosecutor who is “anxious about tacking
too close to the wind will disclose a favorable piece of evidence.” Kyles, 115 S. Ct. at
1568.
The primary consideration under Brady is fairness. Banks, 54 F.3d at 1516. As
the Tenth Circuit recognized in Smith, the essence of the Brady rule rests on the
proposition that nondisclosure of material exculpatory evidence violates a defendant’s
due process right to a fair trial. Smith, 50 F.3d at 823. Under the Brady framework, “no
distinction is recognized between evidence that exculpates a defendant and ‘evidence that
the defense might have used to impeach the [State’s] witnesses by showing bias and
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interest.’” Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009) United States v.
Bagley, 473 U.S. 667, 676 (1985).
These principles are so critical to a fair trial that the Department of Justice issued
in 2006 a revised version of a portion of the United States Attorneys’ Manual to
emphasize the prosecutor’s Brady/Giglio obligations. Indeed, the DOJ stated that its
position required prosecutors “to go beyond the minimum obligations imposed by the
Constitution” and adhere to broad standards for the disclosure of exculpatory and
impeaching information. See Exhibit A. This view was recently reflected by United
States Attorney General Eric Holder when he dismissed the prosecution against former
Senator Ted Stevens because prosecutors had not complied with their obligations under
Brady and had, among other things, failed to turn over prosecutorial notes that were
favorable to the defense. See Exhibit B.
The present case is precisely the kind of case in which the production of
exculpatory and impeaching evidence is especially critical to fulfilling the constitutional
guarantees of due process and a fair trial. The discovery in this case is voluminous, and
the federal case agent and local police officers have worked on it for years. Numerous
issues in the case are hotly contested. Many of the government’s witnesses are
“cooperating” witnesses or informants who have received some dispensation,
consideration or leniency for their statements and testimony. Moreover, there are
substantial disputes about core issues probative of guilt or innocence, including whether
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there is evidence to support the claims that the items are stolen and whether the
Neighbors satisfied their legal obligations to inquire into the items’ origins. There is a
enormous amount of potentially exculpatory and impeaching evidence that is exclusively
within the hands the government. That evidence must now be produced.
III. Evidence Requested by Defendants
A. Brady Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Any information showing items seized by the government or being relied on in
the government’s case are not stolen.
– Any information showing such items were obtained by the seller by means other
than stealing, including but not limited to, in a transaction involving the trading of goods.
– Any information showing Guy Neighbors or Carrie Neighbors turned down
certain items offered or brought in by sellers or informants.
– Any information showing that any items relied on in this case were not new or
appeared to be used.
– Any information showing that the sellers had receipts or other proof of
ownership or lawful possession.
– Any information showing that either Guy Neighbors or Carrie Neighbors,
individually, was not involved with a particular transaction.
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– Any information supporting the seller’s representations to Guy Neighbors or
Carrie Neighbors about how the seller came to lawfully possess the item.
– Any information concerning queries made or questions asked by Guy Neighbors
or Carrie Neighbors to determine the origin of a particular item or whether the seller
lawfully owned or possessed the item.
– Any information concerning other transactions that cooperating witnesses or
informants had with the Defendants in which the items were not stolen.
– Any information concerning the Lawrence Police Department’s treatment,
inspection or regulation of pawn shops, including whether Lawrence pawn shops have
been investigated for selling stolen property.
– Any information concerning whether the cooperating witnesses or informants in
this case also sold to Lawrence pawn shops.
– Any information or statements from any witnesses who stated that Guy
Neighbors or Carrie Neighbors were fair or honest or did not buy or sell stolen property.
– Any information showing that Guy Neighbors and/or Carrie Neighbors have
cooperated in the past with any law enforcement agency investigating the origin of items
sold at their store or on E-Bay.
– Reports of any interviews or statements with any witness or informant
concerning the Neighbors or Yellow House that has not been turned over to government
prosecutors.
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– Records of any surveillance or any video or audio tapes or photographs or
tangible evidence of any kind not turned over to government prosecutors.
B. Giglio (Impeachment) Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Complete information concerning the criminal history of each testifying or
cooperating witness or informant, including all arrests, charges, convictions and
sentences.
– Complete information about all pending warrants or pending charges against any
cooperating witness.
– Complete information about any pending investigations of any witness, including
any investigation in which the witness may avoid criminal charges by cooperating in the
prosecution of the Defendants.
– Complete information about any pending warrants or any outstanding parole or
probation violations by any witness or informant.
– Complete information about all consideration, benefits, and/or leniency, –
extended, promised or offered as a possibility – to any witness, including but not limited
to:
– evidence of plea bargains offered for cooperation, including all terms
stated in any plea agreements.
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– copies of proffer letters, plea agreements and 5K motions concerning
witnesses and informants.
– records of any money or other valuable benefit paid to any witness or
informant in this case.
– any document reflecting any communication by a prosecutor with a state
or federal prosecutor or any official of any prison, jail or law
enforcement agency on behalf of any witness or informant in this
case which seeks any benefit, leniency, or special consideration of
any kind for the witness or informant.
– any special favors or benefits to detained inmates, including but limited
to, grants of housing preferences, protective custody, special
privileges, provision of commissary items or special foods or snacks,
provision of clothing items including sneakers, gym shoes, athletic
shoes or any other item of special apparel not otherwise available.
– any other special favors or benefits to detained inmates, such as special
telephone privileges, access to media or computers or any other
benefit that is not generally available to other detainees at the
facility.
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– Correspondence, notes or email from any cooperating witness or informant in
this case to any law enforcement agent or officer or Prosecutor in this case, written at any
time from the beginning of the witness’s cooperation in this case up to the present.
– Handwritten notes of any federal law enforcement agent or Lawrence police
officer or other law enforcement agent concerning this case.
– Handwritten or typewritten notes of any prosecutor reflecting any meeting with
or conversation, on the phone or in person, with any witness int his case.
– All information concerning any relationship between or among any witnesses in
this case, including information that any witnesses participated in drug trafficking
together, or are related to each other, or live together.
– All information concerning any relationship that any witness in this case has with
the Defendants or a member of their immediate family.
– All statements made by any witness or informant in the case, including all prior
inconsistent statements.
– All information about Annette Miller, including her contacts with the police
department; her filing of any Internal Affairs complaints; her cooperation in other
prosecutions, state or federal; her status or role as an informant for the police, if any; and
her relationships, as an informant or otherwise, with any member of the Lawrence Police
Department.
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– All information concerning the substance abuse history and current drug use of
any witness or informant in the case.
– All information about any other case in which any witness or informant in this
case has cooperated, including copies of any courtroom transcripts and investigative
reports.
– All information concerning any history of serious mental illness of any witness
or informant in this case.
– Police Department personnel records of all testifying law enforcement officers,
including Officer Bialek, Officer Rantz and Officer McAtee. (This is especially critical if
the prosecution attempts to bring in evidence of the Neighbors’ “blogging” or “blast
emails” concerning alleged corruption in the police department).
A review of the authorities cited above shows that Defendants are conclusively
entitled to the above-listed information and evidence, as the production of this evidence is
essential to their right to fairly defend themselves, consistent with the Fifth and Sixth
Amendments of the United States Constitution.
IV. Rule 16
Guy Neighbors and Carrie Neighbors further request that the government produce
any remaining evidence under Federal Rule of Criminal Procedure 16. They note that
they are not only entitled to their own statements, but also to the production of all
documents and tangible things in the government’s possession which the government
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intends to use in its case-in-chief or which were obtained from the Defendants. Rule 16
further requires that the government produce a written summary of any testimony to be
offered by an expert witness, in the event such a witness exists.
CONCLUSION
WHEREFORE for all of the above-stated reasons, Guy Neighbors and Carrie
Neighbors respectfully request that this Court enter an order directing the United States to
provide all information and evidence requested above, as required by the Fifth
Amendments due process clause, the Sixth Amendment right to a fair trial and by Rule
16, and, further, that this Court allow the parties to address this matter fully at a hearing
so that Defendants can take all appropriate steps to ensure proper compliance with the
demands of the Constitution and Rule 16.
Respectfully Submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors
AND
/s/ John Duma
John Duma, KS No. 10760
Attorney at Law
303 E. Poplar
Olathe, KS 66061
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Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors
CERTIFICATE OF SERVICE
I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and
foregoing motion was served electronically on the Clerk of the Court and the government
pursuant to the ECF system on this 27th day 2009.
/s/ Cheryl A. Pilate