The prosecutor in her motions has asked the judge to throw out every possibility of a fair trial by pretty much asking the judge
disregard the fact that.
Items are missing from evidence.
Witnesses are all felons known for forgery.
(DOCUMENTED) Police miss- conduct.
Testimony by lawrence police officers acknowledging they broke the law.
Search warrant issues (illegal search of the residence and then some)
The police searched the neighbors home @ 9am in the morning but they did not have a search warrant. It was not until 1:30pm did they request a search warrant and the warrant was not for stolen goods as the police are trying to claim guy and carrie were fencing stolen goods it was for 5 specific items yet the police took over $30,000.00 in personal affects
Also the signatures on the search warrants for the store location and the home are completely different yet they were supposedly signed by the same judge.
Some of this is pretty unbelievable you have to read the motions for your self to get the full effect of the lies the gov't prosecutor is trying to pass off on the judge.
-------------------------------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(Kansas City Docket)
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. ))
CARRIE MARIE NEIGHBORS, )
and )
GUY MADISON NEIGHBORS, )
)
Defendants. )
Case No. 07-20124-01/02-CM
08-20105-01/02-CM
UNITED STATES’ RESPONSE TO DEFENDANTS’ JOINT MOTION
FOR DISCOVERY OF ALL INFORMATION IN THE POSSESSION
OF THE LAWRENCE POLICE DEPARTMENT AND THE UNITED STATES
PERTAINING TO ANNETTE MILLER
Comes now the United States of America by and through the undersigned
Assistant United States Attorneys, and in opposition to the Joint Motion for Discovery of
Information Pertaining to Annette Miller states the following:
Defendants assert that they should be provided with a variety of documents in
the custody or under the control of the Lawrence Police Department and/or the United
States pertaining to Annette Miller because “she may (judging from the nature of her
information) have been an informant for the Lawrence Police Department.” Document
[Doc.] 192 at p. 2. (emphasis added) The United States respectfully submits that the
defendants do not request production under any viable theory of discovery and allege
no facts that support a reasonable conclusion that police or prosecutorial misconduct
2
has occurred with respect to Annette Miller. Furthermore, the government has already
met its Rule 16 discovery obligations by providing the defendants will copies of all of the
reports and documents from the investigation and has given them access to all of the
physical evidence collected or seized in these cases as directed by the Court. It should
be obvious to the defendants, from the discovery already provided, that the government
does not intend to call Miller as a witness in either of the above-referenced cases and
that Miller has had no part in the government’s investigation of these defendants..
The only legal basis the defendants cite to support their motion is that found in
“Massiah v. United States, 377 U.S. 201 (1964) which prohibits questioning of a
defendant by law enforcement officers or their agents after the defendant has obtained
counsel,” (Doc. 192 at p. 4). They acknowledge, however, that they do not know if such
contact occurred. (“If any law enforcement officer was involved in directing or working
with Ms. Miller....”) Id. (emphasis added). They base their claims of entitlement to all
information relating to Annette Miller contained in the files of the United States and
Lawrence Police Department on nothing more than their unsupported contention that
Ms. Miller “often seemed to have ‘inside’ information about their case and the workings
of the police department that reasonably would be known only to someone who had a
contact or source within or connected with the Lawrence Police Department.” Id at p. 3.
This conclusion ignores the fact that they have not cited a single fact that supports their
contention that Miller had “inside” information or that information about the Lawrence
Police Department could have come only from that agency or an agent of the United
States. The United States submits that there are other explanations for whatever
3
allegedly “inside” information provided by Annette Miller and that those other
explanations are more reasonable and persuasive than the theory of police misconduct
now being spun by the defendants.
For example, given the number and frequency of the contacts between the
defendants and Miller, a more reasonable explanation for her knowledge of the inner
working of the Lawrence Police Department is that the defendants themselves passed
on information to Miller about their cases during the “almost daily” telephone
conversations1 they had with her. Thereafter, if one can believe that Miller was actually
providing false information to the defendants, it is reasonable to assume that Miller was
merely feeding information back to them in later phone calls, representing that it had
come from her “investigator,” relying on the Neighbors’ lack of recall of information they
had already passed on to her.
Additionally, their claim of “inside information” ignores the fact that the Lawrence
Police Department is not the only source of information about the inner workings of law
enforcement offices. For example, the defendants’ own investigators have extensive
experience as law enforcement officers, one a retired F.B.I. agent and the other a
former county deputy sheriff. It is reasonable to assume that during contacts between
the defendants and their investigators, the subject of investigative techniques and
police procedures were discussed.
Based on the defendants’ past conduct, it is reasonable to assume that in their
zeal to vilify law enforcement agents involved in this investigation in order to secure a
2 These allegations and this motion appear to be yet another instance
where the defendants have conjured up an unfounded theory of government
misconduct in the hope that if they throw enough mud at the government, something
will stick. For example, in a recorded telephone conversation on July 24, 2009, from
CCA where Guy Neighbors is held on pretrial detention, the defendant Carrie
Neighbors, says to her co-defendant/husband “I don’t know, though. Parker – nothing
appears to scandalize her into submission,” an obvious reference to the defendant’s
lack of success at getting the prosecutors to dismiss charges by publishing false and
defamatory allegations of personal and professional misconduct against them.
Other conversations establish that, although the defendants allege that “Ms.
Miller is now believed to be hiding in Mexico,” (Doc. 192 at 4), they know perfectly well
where she is and why she is there because they are in direct contact with her in Mexico.
Recorded conversations from CCA between the defendants establish that on several
occasions Miller has told them that she went to Mexico to join her boyfriend who was
deported. Clearly, Miller is not “hiding” from the Neighbors as they allege, but to reveal
the truth about Miller’s trip to Mexico would not advance their spurious claim here, so
they simply tell that part of the truth that suits their purpose.
4
dismissal of the charges, they now theorize that this allegedly “inside” information
came from Miller through her “investigator” and that only a law enforcement officer
posing as an investigator could have passed the information on to Miller. This is not a
reasonable conclusion, however
As the defendants’ blogs establish, they are masters at taking snippets of
information, inventing stories to fit their theories of law enforcement misconduct and
then publishing the unfounded stories of police or prosecutorial misconduct in their
efforts to have the charges dismissed against them. (See Doc. 150, transcript of
detention hearing in July, 2008.) The United States respectfully submits that this
scenario is again being played out with the Miller allegations.2
Finally, and tellingly, the defendants provide no information, “inside” or
otherwise, to substantiate their claim of possible law enforcement contact with the
defendants through a third person. They concede that the information provided to
5
Miller were “outlandish and preposterous stories,” but they turn around and ask this
Court to treat their allegations as believable facts. They have not pointed to, let alone
proven, a single fact that would establish that the requested material exists or what it
might contain. See United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002) (request
for rule 17(c) subpoena properly denied where defendant’s only speculated on the
existence of exculpatory evidence and court found request for production nothing more
than an impermissible fishing expedition); Peek v. United States, 321 F.2d 934, 942 (9th
Cir. 1963) (No abuse of discretion when court denied defendant’s motion for discovery
and inspection when it concluded that request was fishing expedition” rather than quest
for vital trial preparation information.)
The United States submits that the facts of this case are similar to those
presented in United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977) where the
defendants argued on appeal that the district court erred when it refused to order ”the
Government to produce the F.B.I. investigative files on the ground that these files would
demonstrate that the [defendants’] investigation was tainted.” Id. at 712-13. As here,
the defendant did not seek disclosure under the Jencks Act. Rather, in Spagnuolo, the
defendants asserted that they were entitled to the requested material on the grounds
that “disclosure should be required on the basis of either the constitutional right of
compulsory process to obtain the appearance of witnesses or the disclosure
requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963).”
In affirming the trial court’s denial of the defendant’s request for production of the
6
files, the reviewing court found that the defendants’ “arguments are not well taken.
Both assume that the material indicative of a taint existed. No evidence in the record
supports this assumption. Appellants have embarked upon the type of fishing
expedition condemned b y this court in Ogden v. United States, 303 F.2d. 724 (19th Cir.
1962).” Id. at 713. Here, as in Spagnuolo, the defendants have embarked on a fishing
expedition asking this court to order production of documents based on arguments not
well taken.
Because the defendants have failed to establish a single fact that would support
their contention that Miller’s actions were being directed by law enforcement agents
engaged in the investigation of their cases, that the records they seek exist and that
they may contain information favorable to their case, the United States submits that this
motion is frivolous and should be denied in its entirety.
Respectfully submitted,
LANNY D. WELCH
United States Attorney
s/Marietta Parker
MARIETTA PARKER KS Dist. Ct. # 77807
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: marietta.parker@usdoj.gov
s/Terra D. Morehead
TERRA D. MOREHEAD KS S.Ct # #12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
7
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: terra.morehead@usdoj.gov
Certificate of Service
I hereby certify that on the 5th day August, 2009, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system which will send a notice of
electronic filing to the following:
John Duma
303 E. Poplar
Olathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors
I further certify that on this date the foregoing document and the notice of
electronic filing were mailed by first-class mail to the following non-CM/ECF
participants:
None
s/Marietta Parker
Assistant United States Attorney
-------------------------------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case Nos. 07-20073-CM
) 07-20124-CM
GUY M. NEIGHBORS, ) 08-20105-CM
and )
CARRIE NEIGHBORS, )
)
Defendants. )
GOVERNMENT’S CONSOLIDATED RESPONSE TO
DEFENDANTS’ PRETRIAL MOTIONS PERTAINING TO DISCOVERY ISSUES
The United States of America, by and through Lanny D. Welch, United States
Attorney for the District of Kansas, Terra D. Morehead, and Marietta Parker, Assistant
United States Attorneys for said District, and hereby respond to the following motions filed
by the defendants: Defendants’ Joint Motion for Discovery of Exculpatory and Impeaching
Information Under Brady v. Maryland and for Discovery Under Rule 16 (Case No. 07-
20073-CM, Doc. #113; Case No. 07-20124-CM, Doc. #188; Case No. 08-20105-CM, Doc.
#67), all filed on July 27, 2009, and all of which are identical. In response to the
defendants’ motions, the Government offers the following:
The defendants’ motions obviously relate to discovery; motions the Government
would characterize as the “kitchen sink” motions. The Government would advise the Court
that full and complete discovery has been provided to defense counsel, over and above
what case law or Rule 16 require. The motions seem to be a request by defendants to
have the Government pour over the thousands of pages of discovery provided and isolate
material that somehow might benefit the defendants, so that defense counsel doesn’t have
2
to do their own tedious review of the materials provided.
The same General Order of Discovery and Scheduling was issued by the Court with
regards to all three cases, as follows: Case No. 07-20073-CM, Doc. #13; Case No. 07-
20124-CM, Doc. #11; Case No. 08-20105-CM, Doc. #33. This General Order of Discovery
and Scheduling makes some of defendants’ discovery requests moot, unless they are
seeking more than what this Order provides. Based upon the defendants’ motions seeking
discovery, the Government requests under the provisions of F.R.C.P. 16(b), that
defendants provide reciprocal discovery, forthwith.
The defendants’ make a blanket assertion in their motions that a “review of the
authorities cited above shows that Defendants are conclusively entitled to the above-listed
information and evidence.” The defendants are seeking many items under the “sink” that
they simply are not entitled to have or that the Government is not required to produce, i.e.,
just because they ask for it, doesn’t mean that they conclusively get it.
The Governments responses as to the specific requests by the defendant are as
follows:
1. Any information showing items seized by the government or being relied on in the
government’s case are not stolen.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
2. 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.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
3. Any information showing Guy Neighbors or Carrie Neighbors turned down certain
items offered or brought in by sellers or informants.
3
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel, which is
included in statement(s) of witnesses and in interviews of the defendants.
4. Any information showing that any items relied on in this case were not new or
appeared to be used.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel. It should
be noted that some items were in fact not new, but nevertheless stolen.
5. Any information showing that the sellers had receipts or other proof of ownership
or lawful possession.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
6. Any information showing that either Guy Neighbors or Carrie Neighbors, individually,
was not involved with a particular transaction.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
7. Any information supporting the seller’s representations to Guy Neighbors or Carrie
Neighbors about how the seller came to lawfully possess the item.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel. It should
be noted that the Government has not included in its prosecution, items sold to the
Neighbors, in which the sellers were in otherwise lawful possession of item(s) sold.
8. 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.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
9. Any information concerning other transactions that cooperating witnesses or
informants had with the Defendants in which the items were not stolen.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
4
10. 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.
– This information is irrelevant to the current prosecution and the defendants are not
otherwise entitled to investigations by the Lawrence Police Department of pawn
shops concerning unrelated matters. Yellow House is not a pawn shop or pawn
broker, but instead is a “used goods store.” Pawn shops are licensed by the City
of Lawrence and therefore operate under very strict rules and regulations –
information which was provided in the discovery. The defendants are fully aware
of the requirements to become a pawn broker as evidenced when they opted not
to follow through with the application process to become a licenced pawn store.
This is nothing more than a fishing expedition, which Rule 16 and the cases
dictating its application, wholly denounce.
11. Any information concerning whether the cooperating witnesses or informants in this
case also sold to Lawrence pawn shops.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel. The
Government is certainly mindful of its ongoing duty to disclose Brady material and
will disclose any additional information if the same becomes known.
12. 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.
– The Government’s investigation dealt with individuals who indicated Guy and
Carrie Neighbors were not fair or honest and did buy and sell stolen property. The
Government has no duty or obligation to seek out such information. As such, all
such information known by the Government and in the Government’s possession
has been produced in discovery provided to defense counsel.
13. 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.
– The defendants are in an equal position to be aware of this information. However,
the Government believes this information constitutes inculpatory information. There
have been many occasions, including one on July 29, 2009, in which victims have
located their stolen property at the Yellow House Store or police have located
confirmed stolen property at the Yellow House Store, and, in which police respond
and confiscate confirmed stolen property. The Government would take exception
with any representation that this amounts to “cooperation” on the part of the
Neighbors’, but in fact confirms and corroborates that this business has historically
5
and continues to traffic in stolen property. The defendants are obviously in the
same position to be aware of and have knowledge of these facts and
circumstances.
14. 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.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel. The
Government is certainly mindful of its ongoing duty to disclose Brady material and
will disclose any additional information if the same becomes known..
15. Records of any surveillance or any video or audio tapes or photographs or tangible
evidence of any kind not turned over to government prosecutors.
– All such information known by the Government and in the Government’s
possession has been produced in discovery provided to defense counsel.
16. Complete information concerning the criminal history of each testifying or
cooperating witness or informant, including all arrests, charges, convictions and
sentences.
– The defendants’ suggestions that they are entitled to “criminal history” information
in total is wholly misplaced. The only part of a criminal record subject to disclosure
would be a conviction for a felony crime (FED. R. EVID. 609) or for conviction of a
crime that would have the effect of affecting the credibility of a witness (FED. R.
EVID. 608). Rule 609 further requires the Court to determine the probative value of
admitting the evidence regarding any prior felony outweighing its prejudicial effect.
These rules certainly do not require disclosure of criminal arrests, charges, any
other types of convictions, or sentences. The Government is certainly mindful of the
duty and responsibility to provide information concerning consideration, benefits,
and/or leniency provided to witnesses, which is ongoing, but this certainly does not
impose a carte blanche requirement to provide such information.
17. Complete information about all pending warrants or pending charges against any
cooperating witness.
– The defendants are not entitled to such information. The Government is certainly
mindful of the duty and responsibility to provide information concerning
consideration, benefits, and/or leniency provided to witnesses, which is ongoing, but
this certainly does not impose a carte blanche requirement to provide such
information unless promises or assurances have been made by the Government.
6
18. 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.
– The defendants are not entitled to such information. The Government is certainly
mindful of the duty and responsibility to provide information concerning
consideration, benefits, and/or leniency provided to witnesses, which is ongoing, but
this certainly does not impose a carte blanche requirement to provide such
information unless promises or assurances have been made by the Government.
19. Complete information about any pending warrants or any outstanding parole or
probation violations by any witness or informant.
– The defendants are not entitled to such information. The Government is certainly
mindful of the duty and responsibility to provide information concerning
consideration, benefits, and/or leniency provided to witnesses, which is ongoing, but
this certainly does not impose a carte blanche requirement to provide such
information unless promises or assurances have been made by the Government.
20. Complete information about all consideration, benefits, and/or leniency, – extended,
promised or offered as a possibility – to any witness, including but not limited to:
a. evidence of plea bargains offered for cooperation, including all terms stated
in any plea agreements.
– The Government has already produced some of the requested information
in discovery provided to defense counsel. The Government is continuing to
evaluate what witness testimony will be produced at trial, as such, the
Government is aware this will remain a continuing duty/obligation to disclose.
The Government will assure that all such information of testifying cooperating
witnesses is supplied prior to the presentation of their testimony.
b. copies of proffer letters, plea agreements and 5K motions concerning
witnesses and informants.
– The Government has already produced some of the requested information
in discovery provided to defense counsel. The Government is continuing to
evaluate what witness testimony will be produced at trial, as such, the
Government is aware this will remain a continuing duty/obligation to disclose.
The Government will assure that all such information of testifying cooperating
witnesses is supplied prior to the presentation of their testimony.
c. records of any money or other valuable benefit paid to any witness or
informant in this case.
7
– The Government will assure that all such information of testifying
cooperating witnesses is supplied prior to the presentation of their testimony.
d. 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.
– This is a redundant request. The Government is certainly mindful of the
duty and responsibility to provide information concerning consideration,
benefits, and/or leniency provided to witnesses, which is ongoing. The
Government will assure that all such information of testifying cooperating
witnesses is supplied prior to the presentation of their testimony.
e. 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.
– This is an overbroad request. The Government is certainly mindful of the
duty and responsibility to provide information concerning consideration,
benefits, and/or leniency provided to witnesses, as it relates to their
cooperation in the cases at hand. However, the Government takes
exception that the defendants’ would be entitled to information that relates
to benefits conferred upon them as a result of good institutional conduct or
that relate to institutional security issues. This is obviously nothing more
than a “fishing expedition.”
f. 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.
– This is an overbroad and redundant request. The Government is certainly
mindful of the duty and responsibility to provide information concerning
consideration, benefits, and/or leniency provided to witnesses, as it relates
to their cooperation in the cases at hand. However, the Government takes
exception that the defendants’ would be entitled to information that relates
to benefits conferred upon them as a result of good institutional conduct
21. 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
8
present.
– The defendants are not carte blanche entitled to such information. The
Government is certainly mindful of its ongoing duty to disclose Brady material and
will disclose any such information as the same becomes known.
22. Handwritten notes of any federal law enforcement agent or Lawrence police officer
or other law enforcement agent concerning this case.
– The law does not require the production of these notes unless there is a manifest
necessity, i.e, they have been “adopted” by an interviewed witness. The
Government has already provided through discovery reports of law enforcement
personnel pertaining to the investigation, including interviews with witnesses or
potential witnesses. However, this discovery does not include any notes the law
enforcement personnel took during the course of the investigation, to include
interviews, which were used to create the respective reports. Because there has
been no “adoption” of these notes or reports by any potential witnesses and there
is no indication that these notes or reports would be useful to the defendants to
impeach these witnesses, there are no grounds to provide these notes. However,
in the event that these notes may be “adopted” by the witnesses and would be
useful to impeach any witness, Government counsel has directed the agents in this
case to preserve and maintain their notes of interviews with witnesses or potential
witnesses in this case.
23. Handwritten or typewritten notes of any prosecutor reflecting any meeting with or
conversation, on the phone or in person, with any witness in this case.
– The defendants are not entitled to such information as the same would constitute
work product/trial preparation. The Government is certainly mindful of its ongoing
duty to disclose Brady material and will disclose any such information.
24. 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.
– The defendants are not carte blanche entitled to such information. The
Government is certainly mindful of its ongoing duty to disclose Brady material and
will disclose any such information. However, the obligation to disclose Brady
material is only extended to that material that is known to the Government. The
Government is not required to go on a “fishing expedition” on behalf of the
defendants in an attempt to seek information that can be used to conform to the
defendants twisted theory of a conspiracy.
25. All information concerning any relationship that any witness in this case has with the
9
Defendants or a member of their immediate family.
– The defendants are obviously in a superior position to know or be aware of such
information.
26. All statements made by any witness or informant in the case, including all prior
inconsistent statements.
– The Government has not duty to provide such information for individuals that may
have provided information during the investigation who will not be called as
witnesses, unless such information about that individual would be exculpatory.
Similarly, the Government will provide statements of likely witnesses, but will not
provide statements of cooperating individuals who will not be called as witnesses,
unless the information contained in the statement is exculpatory.
27. 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.
– The defendants are not entitled to this information as the same is wholly
irrelevant. Annette Miller is not and has never been a Government witness. The
response to this request will more fully be addressed in the Government’s response
to Defendants’ Joint Motion for Discovery of All Information in the Possession of the
Lawrence Police Department and the United States Pertaining to Annette Miler (sp),
(Case No. 07-20124, Doc. #192; Case No. 08-20105, Doc. #69).
28. All information concerning the substance abuse history and current drug use of any
witness or informant in the case.
– The defendants are not carte blanche entitled to such information. The
Government is certainly mindful of its ongoing duty to disclose Brady material and
will disclose any such information. However, the obligation to disclose Brady
material is only extended to that material that is known to the Government. The
Government is not required to go on a “fishing expedition” on behalf of the
defendants in an attempt to seek information.
29. 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.
– The defendants are not entitled to such information. While the defendants may
be entitled to be advised if a witness or informant has or has not cooperated in
10
other, unrelated cases, that certainly does not entitle the defendants to investigative
reports of those matters. These matters may be ongoing criminal investigations or
prosecutions and the defendants are certainly not entitled to materials under the
premise that they “may” be helpful to the defense. The Government is certainly
mindful of its ongoing duty to disclose Brady material and will disclose any such
information as the same becomes known. The defendants have the same
opportunity to request and obtain courtroom transcripts as the Government, but the
Government is not under an obligation to acquire the same for the defendants’
purported benefit.
30. All information concerning any history of serious mental illness of any witness or
informant in this case.
– The defendants are not carte blanche entitled to such information. The
Government is certainly mindful of its ongoing duty to disclose Brady and Rule 16
material and will disclose any such information. However, the obligation to disclose
Brady and Rule 16 material is only extended to that material that is known to or in
possession of the Government. The Government is not required to go on a “fishing
expedition” on behalf of the defendants in an attempt to seek information.
31. 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).
– The defendants are not carte to such information. The defendants cannot create
a situation (“blogging” or “blast emails”) about wholly baseless accusations and then
seek or demand that the Government produce information to support their baseless
claims. The Government will make any appropriate Giglio disclosures pertaining to
law enforcement personnel, however, under no circumstances would the
defendants be entitled to the officers’ “personnel records” to further their fishing
expedition.
Therefore, the defendant’s motion for disclosure of all of this information should be
overruled and denied as moot because of the Court’s General Order of Discovery and
Scheduling or because the information has already been provided, or alternatively because
the information sought by the defendant far exceeds what is required to be provided under
the Rules of Criminal Procedure and applicable case law.
11
Respectfully submitted,
LANNY D. WELCH
Acting United States Attorney
s/ Terra D. Morehead
Terra D. Morehead, #12759
Assistant U.S. Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730
Terra.Morehead@usdoj.gov
s/ Marietta Parker
Marietta Parker, #77807
Assistant U.S. Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730
Marietta.Parker@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of August, 2009, I electronically filed the
foregoing response with the clerk of the court by using the CM/ECF system which will send
a notice of electronic to all counsel of record.
s/ Terra D. Morehead
Terra D. Morehead
Assistant United States Attorney
-------------------------------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES, ))
Plaintiff, )
)
v. ) Case No. 07-20124-CM
)
CARRIE MARIE NEIGHBORS, )
and )
GUY MADISON NEIGHBORS, )
)
Defendants. )
______________________________)
UNITED STATES’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
FORFEITURE ALLEGATION II OF SECOND SUPERSEDING INDICTMENT
Comes now the United States, by and through its counsel, Assistant United States
Attorney Marietta Parker, and responds to the defendants’ joint motion to dismiss the Forfeiture
Allegation II of the Second Superseding Indictment. The defendants contend that the forfeiture
statute cited in the Forfeiture Allegation II does not permit forfeiture for the crimes charged
against the defendants and that the $525,000.00 amount sought as a forfeiture judgment against
the defendants has no rational relationship with the amount of money alleged to have been
received illegally. As shown below, the defendants’ contentions have no merit and their motion
should be denied.
I. NATURE OF THE CASE
1. The Second Superseding Indictment charges the defendants with conspiracy to
commit wire fraud, mail fraud, and money laundering (Count 1), wire fraud (Counts 2-15), and
money laundering (Counts 16-18). There are two forfeiture allegations included in the Second
Superseding Indictment. The first forfeiture allegation pertains to the money laundering
2
violations (Counts 1, 16-18) pursuant to 18 U.S.C. § 982. This allegation is not the subject of the
defendants’ motion. The second forfeiture allegation seeks forfeiture based upon the wire fraud
violations, Counts 1-15. It is this allegation that the defendants seek to have dismissed.
2. Forfeiture for the criminal conduct alleged in Count 1 (conspiracy) is included in
both Forfeiture Allegations. This is because forfeiture for money laundering and forfeiture for
wire fraud are different. Forfeiture for money laundering covers all property involved in the
money laundering offense, while forfeiture for wire fraud covers any property constituting or
derived from proceeds traceable to the wire fraud offense. Forfeiture brought in a criminal
proceeding for money laundering violations is pursuant to 18 U.S.C. § 982 (a)(1). Forfeiture
brought in a criminal proceeding for wire fraud violations is pursuant to 18 U.S.C. § 981(a)(1)(C)
and 28 U.S.C. §2461(c).
II. ARGUMENTS AND AUTHORITIES
A. Forfeiture For Wire Fraud Allegations Is Specifically Authorized By Statute
3. The authority for criminal forfeiture arising from wire fraud offenses is 18 U.S.C.
§ 981(a)(1)(C) which is a civil forfeiture statute that is made applicable to this criminal case
pursuant to 28 U.S.C. § 2461(c). 18 U.S.C. §981(a)(1)(C) provides:
(a)(1) The following property is subject to forfeiture to the United States:
. . . . . .
(C) Any property, real or personal, which constitutes or is derived from
proceeds traceable to any offense constituting “specified unlawful activity” (as
defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.
4. The next step is to determine if 18 U.S.C. §1956(c)(7) includes wire fraud (18
U.S.C. § 1343) is a specified unlawful activity. Pursuant to 18 U.S.C. §1956(c)(7)(A), the term
“specified unlawful activity” includes any act or activity constituting an offense listed in 18
3
U.S.C. § 1961(1). Title 18 U.S.C. §1961(1)(B) which also defines “racketeering activity”,
includes 18 U.S.C. §1343 in the long list of crimes enumerated in that section. Thus, since wire
fraud is included in 18 U.S.C. 1961(1)(B), it is also incorporated into 18 U.S.C. §1956(c)(7) and
18 U.S.C. § 981(a)(1)(C), and accordingly, there is civil forfeiture for wire fraud violations.
5. Although 18 U.S.C. § 981 is a civil forfeiture statute, it is applicable to the present
criminal case pursuant to 28 U.S.C. §2461 (c). Section 28 U.S.C. § 2461(c) provides:
If a forfeiture of property is authorized in connection with a violation of an
Act of Congress, and any person is charged in an indictment or information with
such violation but no specific statutory provision is made for criminal forfeiture
upon conviction, the Government may include the forfeiture in the indictment or
information . . . . If the defendant is convicted of the offense giving rise to the
forfeiture, the court shall order the forfeiture of the property as part of the
sentence in the criminal case . . . .
As demonstrated above, wire fraud is included as a crime for which there is civil forfeiture under
18 U.S.C. § 981. It follows then that there is also criminal forfeiture for wire fraud as a result of
the application of 28 U.S.C. §2461(c).
B. Criminal Forfeiture For Wire Fraud Is Supported by Case Law.
6. Not only is criminal forfeiture statutorily provided for wire fraud, but several
courts have found that 28 U.S.C. § 2461(c) authorizes criminal forfeiture whenever civil
forfeiture is authorized, and so held that there is criminal forfeiture for wire fraud offenses. In
United States v. Razmilovic, 419 F.3d 134 (2d Cir. 2005), which was a wire fraud case, the court
held that 28 U.S.C. § 2461(c) “authorizes criminal forfeiture as a punishment for any act for
which civil forfeiture is authorized, and allows the government to combine criminal conviction
and criminal forfeiture in a consolidated proceeding.” Razmilovic, 419 F.3d at 136. Although
criminal forfeiture for mail fraud violations was the issue in United States v. Vampire Nation,
4
451 F.3d 189 (3d Cir. 2006), mail fraud and wire fraud appear together in the relevant statutes,
18 U.S.C. §§ 981, 1956, and 1961. In Vampire Nation, the defendant claimed the court lacked
statutory authority to issue a criminal forfeiture of the mail fraud proceeds he had obtained. The
court disagreed and read that the plain language of Section 2461(c), by virtue of the chain of
cross-references leading to §1956(c)(7) and §1961(1), explicitly permits criminal forfeiture for
general mail fraud, not just for mail fraud against financial institutions. Vampire Nation, 451
F.3d at 199-201. See also, United States v. Jennings, 487 F.3d 564, 584-585 (8th Cir. 2007);
United States v. Silvious, 512 F.3d 364, 369 (7th Cir. 2008); United States v. Schlesinger, 514
F.3d 277 (2nd Cir. 2008) (mail and wire fraud ); and, United States v. Foley, 508 F3d 627 (11th
Cir. 2007). Lastly, in United States v. Wittig, 333 F. Supp.2d 1048 (D. Kan. 2004), the
defendant was charged with conspiracy to commit wire fraud and money laundering. The court
stated,
Specifically, the civil forfeiture provision found at 18 U.S.C. § 981(a)(1)(C)
provides for forfeiture of property “which constitutes or is derived from proceeds
traceable to” a violation of “specified unlawful activity” or a “conspiracy to
commit such offense.” “Specified unlawful activity” includes both money
laundering under 18 U.S.C. § 1957 and wire fraud under 18 U.S.C. § 1343.
Section 981(a)(1)(C) authorizes criminal forfeiture through the application of 28
U.S.C. § 2641(c), which allows for the criminal forfeiture of property based on
conviction of a violation of a statute where “no specific statutory provision is
made for criminal forfeiture upon conviction” of a violation of that statute.
Wittig, 333 F. Supp.2d at 1051.
7. As demonstrated above, criminal forfeiture for defendants’ wire fraud charges is
specifically authorized by statute and case law. Accordingly, defendants’ motion to dismiss the
Forfeiture Allegation II (Wire Fraud Forfeiture) on this basis should be denied.
5
C. The Forfeiture Judgment Sought In Forfeiture Allegation II Is Proper
8. Forfeiture Allegation II (Wire Fraud Forfeiture) seeks a forfeiture money
judgment against the defendants in an amount up to $525,000.00 which sum represents the
proceeds allegedly obtained as a result of the wire fraud violations (Count 1 - Conspiracy and
Counts 2-15 - substantive wire fraud counts). In their motion to dismiss this forfeiture allegation,
the defendants claim that the United States has provided no basis for the claim that $525,000.00
was obtained through illegal means. However, as demonstrated below, a forfeiture allegation
serves only as a general notice that forfeiture will be sought and a specific dollar amount is not
required to be stated in the indictment. Additionally, if a forfeiture judgment amount is alleged,
the United States is not required to state in the indictment how it arrived at the judgment amount.
9. Forfeiture allegations are put in indictments because they are required by Fed. R.
Crim. Pro. 32.3 (a) in order to give notice to the defendant that upon conviction forfeiture will be
sought. The Rule provides:
(a) Notice to the Defendant. A court must not enter a judgment of
forfeiture in a criminal proceeding unless the indictment or information contains
notice to the defendant that the government will seek the forfeiture of property as
part of any sentence in accordance with the applicable statute.
Rule 32.2 and its legislative history make clear that a defendant is not entitled to an itemized list
of the property to be forfeited as part of the indictment. United States v. Lazarenko, 504
F.Supp.2d 791, 796-796 (N.D. Cal. 2007). The Rule only requires that the United States give the
defendant general notice that it will be seeking forfeiture in accordance with the applicable
statute. Id.
10. Likewise, the United States is not required to put in the exact amount it seeks as a
6
forfeiture judgment in the forfeiture allegation. In United States v. Segal, 495 F.3d 826 (7th Cir.
2007), the indictment sought “at least $20,000,000, including but not limited to all salary,
bonuses, dividends, pension and profit sharing benefits received by defendant.” Segal, 495 F.3d
at 838. Segal tried to argue that the forfeiture allegation must be interpreted to mean that only his
salary of $120,000 per year, the cash he took from petty cash, and the claims for personal
expenses were subject to forfeiture. The Court disagreed and stated that while certain items were
specifically mentioned, the forfeiture was not limited to those items and “at least”
$20,000,000.00 was subject to forfeiture. Segal, 495 F.3d 838-839. In addition to allowing the
use of qualifiers such as “at least” in forfeiture allegations, the United States is not required to
specify the amount of the forfeiture judgment it will be seeking in the indictment. See, United
States v. McKay, 506 F. Supp.2d 1206, 1210-1211 (S.D. Fla. 2007); and, United States v.
DeFries, 129 F.3d 1293, 1315 n. 17 (D.C.Cir.1997).
11. In the present case, the United States has complied with Rule 32.2 when it put the
defendants on notice that it would seek forfeiture of up to $525,000.00. Nothing in the Rule
requires the United States to explain in the indictment how or why it chose this particular figure.
In fact, pursuant to McKay and Defries, the United States did not have to put any dollar amount
for the forfeiture judgment allegation. Instead, the indictment could have generally ought a
forfeiture judgment for any and all proceeds obtained from the wire fraud violations. See, United
States v. Rupley, 706 F. Supp. 751, 754 (Nev. 1989) (indictment that makes the defendant aware
that all property arising from drug trafficking is subject to forfeiture is sufficient to allow
defendant to formulate his dismiss; motion to dismiss denied).
7
12. Count 1 charges a conspiracy to commit wire fraud that lasted from January 2,
2004 until July, 7, 2006. If the defendants are convicted of the conspiracy and wire fraud
charges, the United States is entitled to a forfeiture money judgment for the entire amount of
proceeds derived from these convictions. Where the convictions involve a continuing scheme to
defraud or a conspiracy, the amount involved in the entire scheme is forfeitable. United States v.
Hasson, 333 F.3d 1264, 1279 (11th Cir. 2003); United States v. Boesen, 473 F. Supp. 2d 932,
952-953 (S.D. Iowa 2007). It will be up to the trier of fact to determine by a preponderance of
the evidence the total amount of proceeds obtained from the wire fraud conspiracy and scheme to
defraud. This amount will constitute the amount of the forfeiture judgment despite the amount
alleged in the Forfeiture Allegation II of the Second Superseding Indictment. See, United States
v. Di Gilio, 667 F. Supp. 191, 198, (D.N.J. 1987) (the government must establish its forfeiture
allegations at trial; indictment that alleges defendants received financial benefits and sought
forfeiture of those benefits is sufficient to withstand a motion to dismiss).
III. CONCLUSION
13. Wherefore, for the reasons state herein and based upon the relevant statutes and
case law, the United States respectfully requests that the Court deny the defendants’ motion to
dismiss the Forfeiture Allegation II.
Respectfully submitted,
Lanny D. Welch
United States Attorney
8
s/Marietta Parker
MARIETTA PARKER KS Dist. Ct. # 77807
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: marietta.parker@usdoj.gov
s/Terra D. Morehead
TERRA D. MOREHEAD KS S.Ct # #12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: terra.morehead@usdoj.gov
-------------------------------------------------------------------------------------
Defendants d 1 o not cite a single case or statute to support their claims that
various types of evidence should be excluded at trial.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(Kansas City Docket)
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. ))
CARRIE MARIE NEIGHBORS, )
and )
GUY MADISON NEIGHBORS, )
)
Defendants. )
Case No. 07-20124-01/02-CM
UNITED STATES RESPONSE TO DEFENDANTS’
JOINT MOTION IN LIMINE
Comes now the undersigned Assistant United States Attorneys and in response
to the defendants’ Joint Motion in Limine states the following with respect to the
particular types of evidence the defendants seek to exclude from the trial of this case:1
1. Any evidence outside the direct evidence associated with the sales or
transactions identified by specific dates in pages 3 through 16 in the second
superseding indictment.
The defendants apparently are requesting that this Court exclude any evidence
pertaining to acts not specifically charged in the indictment. This request is not
2
supported by relevant legal principles, however, and should be denied.
While rule 404(b) precludes evidence of “other crimes, wrongs or acts,” it
does not apply to testimony offered as direct evidence of charged crimes.
In a conspiracy prosecution, uncharged acts “committed in furtherance of
the charged conspiracy are themselves part of the act charged.” United
States v. Green, 175 F.2d 822, 831 (10th Cir. 1999) Such evidence is
“therefore intrinsic [to the crime] and simply does not implicate the
requirements of 404(b). Id. In sum, conduct which occurs during the life
of a conspiracy and is a part of the same is direct evidence of the
conspiracy and therefore not subject to Rule 404(b). United States v.
Pace, 981 F.2d 1123, 1135 (10th Cir. 1992)
United States v. Portillo-Quezada, 469 F.3d 1345, 1353 (10th Cir. 2006) (Not error for
trial court to admit murder evidence in drug trafficking trial as direct proof of conspiracy
and defendant’s willingness to employ violence to ensure conspiracy’s success.) In this
case, the government will call witnesses to testify about events that are not specifically
set out in the second superseding indictment but which constitute acts that are intrinsic
to the conspiracy charged in Count 1 and constitute additional overt acts committed in
furtherance of that conspiracy. Under the well-established line of cases cited in Portillo-
Quezada, this information is admissible.
2. Any evidence of a transaction in which the government cannot show
that the transaction involved stolen property by producing evidence from the
owner of the property from which the same was allegedly stolen.
“A ‘scheme to defraud or obtain money or property by means of false pretenses,
representations or promises’ is conduct intended to or reasonably calculated to deceive
persons of ordinary prudence or comprehension. A ‘scheme to defraud’ includes a
scheme to deprive another of money, property or the intangible right of honest services.
Tenth Circuit Pattern Jury Instructions 2.57. In this case, the government will call
3
witnesses who will testify that they stole property from various merchants and
individuals in the eastern Kansas/western Missouri area and sold the stolen property to
the defendants. This evidence is sufficient to establish the stolen nature of the property
that the defendants then resold for much higher prices on the eBay web site and is
sufficient to establish the scheme to deprive the rightful owners of their property.
Absent authority to the contrary, the United States is not limited to proving fraud through
the testimony of the victims of the thefts.
3. Any evidence relating to transactions outside of the time period listed in
the conspiracy in the second superseding indictment.
As stated previously, “[i]In a conspiracy prosecution, uncharged acts ‘committed
in furtherance of the charged conspiracy are themselves part of the act charged.’”
United States v. Portillo-Quezada, 469 F.3d at 1353 (quoting United States v. Green,
175 F.2d at 831. Uncharged prior acts that are “inextricably intertwined” with the
charged crime are admissible. See United States v. Record, 873 F2d. 1363, 1372 n. 5
(10th Cir. 1989) Consequently evidence of prior contacts and transactions that occurred
before January 1, 2004, between witnesses and the defendants are admissible so long
as the government establishes that they are inextricably intertwined with the conspiracy.
The government will establish the necessary foundation by eliciting testimony
from witnesses who had dealings with the defendants during the period of the
conspiracy charged, January 2004 to July, 2006, concerning their initial contacts with
the defendants to explain how their participation in the defendants’ conspiracy and
scheme to defraud began. This is relevant and admissible evidence. The defendants’
4
motion in limine on this point is not well taken and should be denied.
4. Any evidence regarding any blogging or internet communication not
directly related to the transactions specifically enumerated in pages 3 thru [sic]
16 in the second superseding indictment.
As stated previously, the United States is not limited to proof of the specific acts
charged in the indictment so long as the evidence relates to acts done in furtherance of
the conspiracy. Consequently, the government is not limited to offering statements
made by the defendants that pertain only to the specific enumerated in the indictment.
Furthermore, the blogs in question constitute statements by a party opponent and are
admissible under Fed.R.Evid. 801(d)(2). So long as the government can lay the proper
foundation to establish that the blogs were published by the defendants, thereby
establishing that they are statements of a party opponent, written statements made by
the defendants in those blogs are admissible.
5. Any statements given by Carrie Neighbors during her proffer.
The United States acknowledges that it may not offer evidence in its case-inchief
about the statements made by Carrie Neighbors during her proffer pursuant to the
terms of that proffer and agrees that it will not do so. However, should the defendant
offer testimony that is different from statements she made during her proffer, she has
agreed in her formal, written proffer letter, that the United States may use her
inconsistent proffer statements during cross-examination of her. (Exhibit 1, Proffer
Letter of C. Neighbors, attached, at p. 2)
6. Any information regarding drugs or drug usage or drug manufacturing.
5
7. Any information regarding any allegations that the government intends
to support their allegations of obstruction as charged in Case 08-20105.
The United State acknowledges that it may not offer evidence of unrelated
criminal charges in this case unless the defendants inject these issues into the case
causing this evidence to be relevant. The United States agrees that if it determines that
the defendants have opened the door to this evidence, counsel for the government will
approach the bench and obtain the court’s permission before any inquiry about either of
these cases is made. Under these circumstances, these issues are moot.
Respectfully submitted,
LANNY D. WELCH
United States Attorney
s/Marietta Parker
MARIETTA PARKER KS Dist. Ct. # 77807
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: marietta.parker@usdoj.gov
s/Terra D. Morehead
TERRA D. MOREHEAD KS S.Ct # #12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: terra.morehead@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff
6
Certificate of Service
I hereby certify that on the 5th day of August, 2009, the foregoing was
electronically filed with the clerk of the court by using the CM/ECF system which will
send a notice of electronic filing to the following:
John Duma
303 E. Poplar
Olathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors
I further certify that on this date the foregoing document and the notice of
electronic filing were mailed by first-class mail to the following non-CM/ECF
participants:
None
s/Marietta Parker
Assistant United States Attorney
-------------------------------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, ))
Plaintiff, )
)
vs. ) Case No. 07-20124-01/02-CM
)
CARRIE MARIE NEIGHBORS )
and )
GUY MADISON NEIGHBORS, ))
Defendants. )
)
RESPONSE TO DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE
The United States of America, by and through undersigned counsel, responds in
opposition to the defendants’ Joint Motion to Suppress Evidence filed July 27, 2009. In
their motion, the defendants seek an order of the Court suppressing evidence seized
pursuant to search warrants issued on November 30, 2005, and executed on December
2, 2005, and evidence seized pursuant to search warrants issued on July 5 and July 6,
2006, for a residence located at 1104 Andover Street, and a business located at 1904
Massachusetts Street, both in Lawrence, Douglas County, Kansas. Specifically the
defendants raise three claims: first that there was insufficient probable cause for issuance
of the first search warrant on November 30, 2005, for the Andover residence (Document
[Doc.] 190 at pp. 1-6); second that the seizure of evidence during the execution of the
warrants for the Andover residence on December 2, 2005, exceeded the scope of the
warrants (Doc. 190 at pp. 6-9); and last, that the warrants issued on July 6 and July 7,
1The defendants make no claim that the information was stale, false or provided
in reckless disregard of the truth.
2
2006, were based upon on evidence that was the fruit of the poisonous tree because it was
based on evidence illegally seized from the first warrants executed on December 2, 2009.
(Doc. 190 at pp 9-11). The defendants request that all evidence seized during each of the
searches be suppressed.1 As the following discussion will establish, none of these claims
are meritorious and the motion to suppress should be denied in its entirety.
I. First Search Warrant for 1104 Andover
In the search warrant affidavit, Officer Mickey Rantz of the Lawrence, Kansas,
Police Department, provided certain information that established probable cause to search
the residence at 1104 Andover Street, Lawrence, Kansas, for evidence relating to the state
crime of receiving stolen property in violation of KSA 21-3701 (A)(4) and to the federal
offenses of conspiracy in violation of 18 U.S.C. § 371 and wire fraud in violation of 18
U.S.C. § 1343. The defendants do not challenge the sufficiency of the evidence of criminal
conduct by the defendant, Carrie Neighbors, that formed the basis for the searches of the
defendants’ residence on Andover Street and of their business establishment, the Yellow
House store at 1904 Massachusetts Street, Lawrence, Kansas. (“In the case before this
court the defendants concede that the affidavit for the first search executed on December
2, 2005, would satisfy the probable cause requirements and nexus for the search of the
‘Yellow House’ store.”) (Doc. 190 at p. 7) The same information was provided to the district
judge with respect to the search of the residence on Andover Street. Instead, their motion
to suppress is premised on their claim that the information obtained from two trash pulls
conducted on November 16 and November 30, 2005, did not establish probable cause to
3
believe that evidence of the crimes described in the affidavit would be found at the Andover
residence.
A. Probable Cause Existed to Issue the Search Warrant.
In this case, probable cause clearly existed to justify the issuance of the search
warrant for the first search warrant issued on December 2, 2005, for the residence at 1104
Andover. A copy of that affidavit and the warrant for the search of the residence are
attached hereto as Exhibit 1.
Courts in this District have stated on several occasions that a determination of
probable cause by a neutral judge or magistrate is to be accorded “great deference.” See
United States v. Reno, 196 F.Supp.2d 1150, 1157 (D.Kan. 2002) (citing United States v.
Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997)); see also, United States v. Downes, 2001
WL 121951, *3 (D.Kan., decided Jan. 12, 2001). They have also stated that:
“In deciding a suppression motion based upon the asserted failure of
the affidavits to provide probable cause for the warrant, the reviewing court
must remember that the magistrate is permitted to draw reasonable
inferences from the affidavits. . . See United States v. Edmonson, 962 F.2d
1535, 1540 (10th Cir. 1992); United States v. Peveto, 881 F.2d 844, 850
(10th Cir. 1989), cert. denied, 493 U.S. 943 (1989). When reviewing a
magistrate's issuance of a search warrant the court must determine whether
the magistrate had a substantial basis for concluding that probable cause
existed. Illinois v. Gates, 462 U .S. 213, 236 (1983).”
United States v. Pierce, 2000 WL 821386, *1 (D.Kan. 2000).
According to Gates, supra, the test to be employed by a reviewing court is the
totality of the circumstances, because “[p]robable cause is a fluid concept – turning on the
assessment of probabilities in particular factual contexts – not readily, or even usefully,
reduced to a neat set of legal rules.” Gates, 462 U.S. at 232. The Tenth Circuit Court of
4
Appeals has stated that “[t]he ‘affidavit’ should be considered in a common sense,
nontechnical manner.” Edmonson, 962 F.3d at 1540 (quoting United States v. Massey,
687 F.2d 1348, 1355 (10th Cir. 1982)).
After a practical, common-sense review of the facts asserted in the Application for
a warrant to search the residence on Andover Street, Judge Steven Six of the District Court
of Douglas County found probable cause for the issuance of the warrant. That
determination of probable cause must be given great deference, and should be overturned
only if lacking a "substantial basis."Illinois v. Gates, 462 U.S. at 236. The Supreme Court
instructs that close calls regarding probable cause determinations should be resolved in
favor of the issuing magistrate judge. Massachusetts v. Upton, 466 U.S. 727, 734
(1984)(per curiam). Furthermore, when “reviewing the denial of a motion to suppress, [the
circuit] court considers the totality of the circumstances and views the evidence in the light
most favorable to the government. United States v. Colonna, 360 F.3d 1169, 1173 (10th
Cir. 2004) (quoting United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir. 2002))
According to the United States Constitution, a valid search must be based on a
warrant which was issued on the basis of probable cause. U.S. Const. Amend. IV. The
proponent of the motion to suppress bears the burden of demonstrating that sufficient
probable cause to issue the warrant was not shown. See United States v. Madrid, 30 F.3d
1269, 1274 (10th Cir. 1994) (citing United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.
1991), cert. denied, 513 U.S. 1007 (1994); United States v. Moore, 22 F.3d 241, 243 (10th
Cir.), cert. denied, 513 U.S. 891 (1994).
5
Probable cause requires a nexus between suspected criminal activity and the place
to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th Cir. 1998).
Probable cause to issue a search warrant exists when the supporting affidavit sets forth
sufficient facts that would lead a prudent person to believe that a search of the described
premises would uncover contraband or evidence of a crime. Id. (citing United States v.
Burns, 624 F.2d 95, 99 (10th Cir. 1980). To establish the required nexus, the affidavit
supporting the search warrant need not contain direct evidence or personal knowledge that
the items sought are located at the place to be searched. Rather, the issuing magistrate
judge “may draw reasonable inferences from the material provided in the warrant
application.” United States v. Rosand, 145 F.3d at 1205.
The Government respectfully submits that the information contained in the affidavit,
when considered in combination with the reasonable inferences Judge Six was allowed to
draw from that information, provided the judge with probable cause to believe that items
sought might be found at the residence. In addition, the trash pull on November 16, 2005,
produced numerous documents, many of which bore the business address of the Yellow
House Store at 1904 Massachusetts St., Lawrence, Kansas, relating to the sale and
shipping of items. (Exhibit 1 at p. 20.) The evidence from that trash pull alone was
sufficient to establish probable cause to believe that “books, record sheets, receipts,
check/check ledgers, eBay documents and other documentation recording the sale, deliver
and possession of items be sold or purchased by or through the business located at 1904
Massachusetts,” including computers and various types of computer equipment and
“[p]ersonal property tending to establish identities of persons(s) in control of the business
. . . and the residence. . .” would be found at the Andover residence. Exhibit 1 at p. 34.
6
A subsequent trash pull on November 30, 2005, confirmed that at least one
additional document pertaining to the sale and/or shipment of items by the Yellow House
Store on Massachusetts had been transferred to the Andover residence. (Exhibit 1 at p.
31). That fact, considered together with the evidence recovered from the November 16
trash pull, gave rise to the reasonable inference that the Yellow House owners transferred
documents relating to the Yellow House business to the residence on Andover and would
be found at that location. See United States v. Berrocal, 232 F.3d 902, 2000 WL 1629437
*2 (10th Cir. 2000) (Probable cause established even though court relied only on
information from a citizen informant and evidence obtained from a single trash cover.)
Viewing the evidence contained in the affidavit for the first search warrant for the
residence at 1104 Andover Street in the light most favorable to the government, it is clear
that, under the totality of the circumstances, there was a substantial basis for Judge Six’s
conclusion that probable cause existed and that conclusion is to be accorded great
deference. According Judge Six’s determination the deference it deserves, under the facts
presented here, defendants’ challenges to the probable cause contained in the first
affidavit for 1104 Andover Street should be overruled and denied.
B. Good Faith
Even if the affidavit fails to establish probable cause, the court should apply the
good faith exception to the exclusionary rule as set forth in United States v. Leon, 468 U.S.
897, reh'g denied, 468 U.S. 1250 (1984). In Leon, the Court reasoned that when an officer
relies in good faith on a neutral magistrate's judgment that probable cause justifies the
issuance of a warrant, excluding evidence acquired pursuant to the warrant does not
7
further the deterrent function of the exclusionary rule. "As the court made clear in Leon,
the exclusionary rule is designed to deter police misconduct rather than to punish the
errors of judges and magistrates." United States v. Cook, 854 F.2d 371, 374 (10th Cir.
1988).
There is no suggestion that the Douglas County district court judge issued the
warrant in reliance on a deliberately or recklessly false affidavit, or that he abandoned his
judicial role and failed to perform in a neutral and detached manner, or that the warrant
itself was so facially deficient that an officer could not reasonably have believed it to be
valid. The only issue is whether the warrant was based on an affidavit "so lacking in indicia
of probable cause as to render official belief in its existence entirely unreasonable." United
States v. Leon, 468 U.S. at 923. Absent such a finding the defendant’s motion must fail.
The search team reasonably relied on the validity of the search warrant was
executed at 1104 Andover. In United States v. Ross, 456 U.S. 798, 823 (1982), the
Supreme Court held that a warrant issued by a magistrate normally suffices to establish
that a law enforcement officer has “acted in good faith in conducting the search.” Officer
Rantz, the affiant, will testify at the motion hearing of his belief that the issuing magistrate
had made an appropriate determination of existing probable cause. Clearly good faith was
objectively and reasonably present in the execution of the search warrant in question.
II. All Warrants were Properly Executed on December 2, 2005
Defendants next allege that the warrant must be suppressed because the evidence
seized as a result of the second warrant, the “piggy back” warrant, executed on the
Andover property on December 2, 2005, and the first search warrant executed on the same
2 Here, the defendants do not challenge the probable cause determination made
with respect to the warrant for the store or for the piggy back warrant for the residence
which issued on December 2, 2005, or claim that the information in either of the
affidavits was stale, false or provided in reckless disregard of the truth
8
day at the Yellow House business property “grossly exceeded the scope of the property
which was seized.” This claim is without merit.2
”The proponent of a motion to suppress bears the burden of proof.” United States
v. Moore, 22 F.3d 241, 243 (10th Cir. 1994). The defendants fail to articulate in their
Motion to Suppress which evidence they contend was improperly seized by an over-broad
application of the terms of these warrants. Consequently, they have not sustained their
burden of proof on this issue. Furthermore, the government respectfully submits that a
review of the information in the affidavit and the return establishes that they cannot sustain
that burden.
A. “Piggy back” warrant of December 2, 2005 for Andover property
Defendants next argue that the executions of the second search warrants for the
residence and the business executed December 2, 2005, were over-broad and require
suppression of all evidence seized at that time. (Doc. 190 at pp. 9-11). These claims are
without merit.
1. Warrant was sufficiently particularized
While inside the residence executing the first search warrant for the Andover
property on December 2, 2005, the agents discovered a hidden room next to the
defendants’ bedroom that contained a marijuana grow operation. It was immediately
apparent to the experienced searching officers that the plants were marijuana, establishing
probable cause to seize them as contraband. Because the marijuana plants were
9
unrelated to the crimes listed in the affidavit in support of the first warrant for the residence,
in an abundance of caution the officers applied for and obtained the second, piggy back
warrant which authorized them to seize various items of evidence relating to the marijuana
grow operation. (Exhibit 2, Affidavit and Piggy Back Search Warrant for 1104 Andover,
attached)
The items that the piggy back search warrant for 1104 Andover Street authorized
the agents to seize included:
1. Marijuana, marijuana plants, and marijuana seeds.
2. Plastic baggies, scales, and other drug paraphernalia used in the
cultivation, processing, use and possession of the above mentioned
drug(s).
3. Any books, record sheets, ledgers and other documentation recording
the sale, delivery and possession of the above mentioned drug(s).
4. Physical property to include but not limited to, items that appear new,
items that are in their original packaging, and items with their origianl
sale tag(s) attached.
5. New and discarded packaging material used to ship and receive
items.
(Exhibit 2, at p. 6.) Because the agents had unexpectedly observed new, labeled or boxed
items of merchandise and packaging materials at the residence that matched items known
to have been stolen, they included a request to search for and seize new physical property
as described in the warrant. Thereafter, with few exceptions, only items covered by the
first warrant and this piggy back warrant were seized at the residence on December 2,
2005.
Items seized during the execution of both search warrants at the residence which
arguably were not authorized by either warrant were: several bicycles (Exhibit 3, Evidence
Hereafter, 3 all references to item numbers will refer to the Evidence Custody
Sheet for the date and place relating to the search in question. Here, Ex. 3 relates to
the search on December 2, 2005 or the Andover residence.
10
Custody Sheet for search of Andover residence on December 2, 2005, Item Nos. 44, 45,
48, 49, 50, 51 and 52)3, 11 firearms and ammunition (Item Nos. 56, 57, 58, 59, 60, 61, 62,
63, 64, 65, 66), and a prescription pill bottle with drugs dispensed in the name of Anthony
Reyes. (Item No. 67). These items were seized because the officers had probable cause
to believe that they were contraband or were evidence of a crime.
When determining the admissibility of evidence seized in plain view, "[t]he courts
have required the government to satisfy a three-prong test: (1) the officer was lawfully in
a position from which to view the object seized in plain view; (2) the object's incriminating
character was immediately apparent -- i.e. the officer had probable cause to believe the
object was contraband or evidence of a crime; and (3) the officer had a lawful right of
access to the object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994),
quoting Horton v. California, 496 U.S. 128, 136-37 (1990); see also United States v. Evans,
966 F.2d 398, 400 (8th Cir.), cert. denied ___ U.S. ___, 113 S. Ct. 502 (1992). The
defendants do not claim that the officers were not lawfully in a position to view the objects
or that they did not have a lawful right of access to the object itself.
The "immediately apparent" standard does not require that a "police officer 'know'
that certain items are contraband or evidence of a crime." Texas v. Brown, 460 U.S. 730,
741 (1983). Rather, it requires "probable cause to associate the property with criminal
activity." Id., 460 U.S. at 741-42 (emphasis deleted) (citations omitted). Probable cause
demands not that an officer be "sure" or "certain" but only that the facts available to a
11
reasonably cautious man would warrant a belief "that certain items may be contraband or
stolen property or useful as evidence of a crime." Id., at 742.
Furthermore, “[I]tems named in an impermissibly broad portion of a warrant may
nevertheless be seized pursuant to the plain view doctrine so long as the government’s
plain view seizure scrupulously adheres to the three-prong Horton test.” United States v.
Soussi, 29 F.3d at 572.
During the investigation, the officers had been informed that on several occasions
stolen bicycles had been recovered at the Yellow House Store. (See Exhibit 1 at pp. 8 &
10.) The officers also knew that the officers searching the store on December 2 had
verified that a bicycle found at the Yellow House Store had been stolen and that they had
seized it as evidence and as contraband. That information gave rise to the reasonable
inference on the part of the officers searching the residence that the used bicycles were
being kept in the basement of the residence rather than in the store where most secondhand
merchandise could be found, because the defendants knew that they were stolen
and did not want them in a place open to the public where they could be located by police
officers and confiscated for return to the rightful owners. Under these circumstances,
"probable cause to associate the property with criminal activity was immediately apparent
to the searching officers and they acted reasonably when they determined that the bicycles
were contraband and evidence of the crime of receiving stolen property.
The firearms were clearly contraband because they were found in close proximity
to the marijuana plants and to a large bag of dried marijuana and marijuana pipes, giving
rise to the reasonable conclusion that the guns were contraband and evidence because
they were in the possession of drug manufacturers and/or drug users, who are prohibited
12
under both state and federal criminal statutes from possessing firearms. (See K.S.A. 21-
4204(1) and 18 U.S.C. § 922(g)(3)). Finally, the drugs in the pill bottle dispensed in the
name of Anthony Reyes were possessed in violation of state and federal criminal statutes
prohibiting the possession of medications without a proper medical prescription.
Clearly, the warrants were sufficiently particularized to provide the necessary
guidance to the seizing agent about what items could properly be seized. The seizure of
items arguably not covered by the warrant was done because they were in plain view and
there was probable cause to believe that the items were contraband or evidence because
they were similar in kind to stolen property referenced in the affidavit. Given these facts,
it is clear that the second search warrant was not overly broad and that the agents properly
executed the search of the residence on Andover on December 2, 2005, because the
agents were clearly able to determine which items the warrant authorized them to seize.
The other items seized constituted contraband or evidence of a crime found in plain view.
Consequently, defendant’s claims that the search of the residence on December 2, 2005,
pursuant to the warrants was overly broad is without merit and the motion to suppress the
items seized from that location on that date should be denied.
2. Severability
Assuming, arguendo, that the Court determines that the provision of the piggy back
warrant that authorized the agents to seize “[p]hysical property to include but not limited
to, items that appear new, items that are in their original packaging, and items with their
original sale tag(s) attached” was overly broad, suppression is not required where the valid
portions of a warrant are
13
“sufficiently particularized, distinguishable from the invalid portions and make
up the greater part of the warrant,“(citation omitted) we agree with the district
court that severance was appropriate in this case. Under the severance
doctrine, evidence seized pursuant to the invalid portions of the warrant must
be suppressed, but evidence seized pursuant to the valid portions of the
warrant or lawfully seized during the execution of the valid portions is
admissible.
United States v. Sells, 463 F.3d 1148, 1161 (10th Cir. 2006) (quoting United States v.
Naugle, 997 F.2d 819, 822-23 (10th Cir. 1993) (Doctrine of severability applies if “valid
portions of the warrant are sufficiently particularized, distinguishable from the invalid
portions, and make up the greater part of the warrant”). The holding in Naugle has been
more generously characterized to prohibit severability only when the valid portions of the
warrant is not substantial,
expressed not in terms of what was seized but rather in terms of what search
and seizure would have been permissible if the warrant had only named
those items as to which probable cause was established. (footnotes
omitted). Accordingly, we reject the proposition that the extent of the actual
search or the number of items seized is the relevant criteria to determine
whether the valid portions of the warrant make up “the greater part of the
warrant.’
United States v. Sells, 463 F.3d at 1159. “The ‘greater part of the warrant’ analysis
focuses on the warrant itself rather than upon an analysis of the items actually seized
during the search.” Id.
In this case, the valid parts of both warrants for the Andover residence executed on
December 2, 2005 are clearly distinguishable from the one provision in the piggy back
warrant that could arguably be invalid and the valid portions make up the greater part of
the warrants. Consequently, if the Court determines that the provision allowing for the
search and seizure of physical property to include but not limited to, items that appear new,
items that are in their original packaging, and items with their original sale tag(s) was overly
14
broad, only evidence seized pursuant to that provision should be suppressed. That
evidence is easily distinguishable from that evidence that was seized under the valid
portions of the warrants and included seizure of documents listed in the first search warrant
and for marijuana and drug-related items and packaging .
B. Search of Yellow House business on December 2, 2005.
1. Items seized pursuant to the search warrant.
The defendants next claim that the evidence seized at the Yellow House Store on
December 2, 2005, should be suppressed because the officers grossly exceeded the
scope of the property that was to be seized. As before, they do not identify which items
they claim were improperly seized or how the scope of the warrant was exceeded.
Consequently, the United States again asserts that failure to do so causes this claim to fail
because the defendants have not satisfied their burden. In an abundance of caution,
however, the United States will address what it believes are the issues raised by the
defendant’s motion to suppress the search of the business in December, 2005.
A review of the warrant in question reveals that the warrant authorizing the entry
on to the Yellow House property was drawn with particularity. The items that the search
warrant authorized the agents to seize included:
Any book, record sheets, receipts, checks/check ledgers, eBay documents,
and other documentation recording the sale, delivery and possession of
items being sold or purchased by or through the business located at 1904
Massachusetts, including any: CPUs, floppy disks, hard disks, or any other
means of storing electronic date. The data stored on any computer, or
removable media located at the above listed business. Personal property
tending to establish the identities of person(s) in control or employed at the
business to be searched including, but not limited to, employment
applications, tax information and personnel files. Physical property to include
Items 4 that were purchased by Carrie Neighbors during the three dates
mentioned in the affidavit were listed with particularity in the search warrant.
5 See Exhibit No. 4 relating to items seized pursuant to the warrant which
included: documents, Item Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 15, 16 17, 18, 25, 26, 32, 99,
101,102 amd 1-3; items capable of storing electronic data, Item Nos. 11, 12, and 14;
computers, Item Nos. 13, 19, 24 and 110; items purchased by C. Neighbors from
undercover officer between 11/07 and 11/30/2005, 80, 82, 84, 85 and 95
15
(Items from sale on 11/07/2005)... Items from sale of 11/18/2005) ... (items
from sale on 11/29/2005).4
(Exhibit 1 at p. 35.) The specificity of the items authorized to be seized clearly establishes
that the warrant itself was not overly broad and it legally justified the seizure of all of the
items that fall within the scope of the warrant. Those items include all of the documents
seized at the business on December 2, 2005, the devices capable of storing data, and any
items of merchandise that were purchased by Carrie Neighbors from the affiant on
11/07/2005, 11/18/2005 and 11/29/2005, dates on which Carrie Neighbors had actual
knowledge that the seller claimed the property had been “swiped” or “nabbed.”5 (Exhibit
1 at pp. 17, 24.)
2. Items in plain view seized pursuant to probable cause
The defendants argue that the number of items seized by the officers that were not
specifically authorized to be seized under the warrant converted what may have been a
valid search into a general search requiring suppression of all of the evidence seized at the
business on December 2, 2005. This claim is without merit because the warrant was
narrowly drawn and the additional items not covered by the warrant consisting of new
personal property were seized because the agents found them in plain view and had
probable cause to believe each was contraband or evidence of a crime. The agents
16
scrupulously followed the Horton requirements: (1) the officer was lawfully in a position
from which to view the object seized in plain view; (2) the object's incriminating character
was immediately apparent -- i.e. the officer had probable cause to believe the object was
contraband or evidence of a crime; and (3) the officer had a lawful right of access to the
object itself." United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994), quoting Horton
v. California, 496 U.S. 128, 136-37 (1990). The officers were lawfully in the Yellow House
Store pursuant to the search warrant and authorized to search areas, like closets, where
documents could be stored.
If the interest in privacy has been invaded, the violation must have occurred
before the object came into plain view and there is no need for an
inadvertence limitation on seizures to condemn it .... reliance on privacy
concerns that support [the prohibition on general searches and general
warrants] is misplaced when the inquiry concerns the scope of an exception
that merely authorizes an officer with a lawful right of access to an item to
seize it without a warrant.
Horton v. California, 110 S.Ct. at 2310.
Because that warrant authorized the agents to search for and seize documents, they
were authorized to be in any place in the store and look in any place where it was
reasonable to believe documents may be found, including closets, the officers’ presence
in the place where they could view the items seized did not violate any privacy concerns.
“[Officers may properly seize articles of incriminating character that they come across while
performing a search in a given area pursuant to a valid search warrant.” United States v.
Uzenski, 434 F.3d 690, 707 (4th Cir. 2006) citing Horton v. California, 496 U.S. at 135.
Consequently, the only issue in controversy is whether the agents had reasonable grounds
to believe that the items seized under the plain view doctrine were contraband or evidence
It is important t 6 o note that the Yellow House Store is in the business of selling
second hand/used merchandise.
17
of a crime, and as the following discussion will establish, those grounds existed and
justified the seizure of the items of merchandise.
As stated previously, probable cause demands not that an officer be "sure" or
"certain" but only that the facts available to a reasonably cautious man would warrant a
belief "that certain items may be contraband or stolen property or useful as evidence of a
crime." Texas v. Brown, 460 U.S. at 742, 103 S. Ct. at 1543; see also United States v.
Giannetta, 909 F.2d 571, 578-79 (1st Cir. 1990) (agent need not be convinced beyond a
reasonable doubt, but merely have probable cause to believe evidence was incriminatory.)
A review of the information in the possession of the officers searching the Yellow House
Store on December 2, 2005 and the types of evidence seized as contraband or evidence
or a crime will establish that their decision to seize the items of merchandise was
supported by probable cause.
The Evidence Custody Sheet for the search of the store on December 2, 2005,
(attached as Exhibit 4), reveals that the evidence seized as contraband or evidence of a
crime fell within several specific categories which included: cameras, electronic equipment,
clothing, tools, musical instruments, and a few miscellaneous new items including
perfume/cologne and earring sets. All of the items seized appeared to be new, unused
merchandise - the vast majority of the items still had the store tags attached or were in
original packaging - and were similar in nature to the types of new stolen items that the
officers knew had been recently purchased by the Yellow House.6 The merchandise was
seized from one limited area, a storage closet located in the back room of the store where
7 The search warrant authorized the officers to seize all items that had been sold
by the undercover officer to Carrie Neighbors on 11/07, 11/18 and 11/29/2005.
8 See Exhibit 4, Item Nos. 21A-N, 23A-D, ,29, 30, 34 A-D, 40, 43, 44, 45, 49, 51,
52, 53, 58, 62, 65, 68, 69, 72, 73, 80, 82, 83, 84, 85, 87, 89, 95, 96, 97, 98, 105, 106,
107, 109, 111, and 113.
18
it had been comingled with other items that the officers knew had been represented to
Carrie Neighbors as stolen property before she purchased them.
. Electronics: The officers seized numerous electronic items that were similar to
items sold to Carrie Neighbors by the undercover officer in November, 2005, on three
occasions.7 Carrie Neighbors had purchased numerous new items from the affiant even
after he had told her that the items he was selling had been “swiped” or “nabbed” off the
back of a truck. Those items consisted of various types of electronic equipment8 including
I-Pod Nanos (Ex. 1 at p. 16), Apple I-Pod Shuffles (Ex. 1 at 29, an Apple i-Pod U2 Special
Edition (Ex. 1 at p. 29), a Sonicare toothbrush (Ex. 1 at p. 16), i-Pod stations (Ex. 1 at p.
16,), a Kitchen Aid mixer (Ex. 1 at p. 23), DVD players (Ex. 1 at 16, 29), a digital telephone
(Ex. 1 at p. 29), and a DVD system. (Ex. 1 at 29).
In addition to the various types of electronics sold to Carrie Neighbors on the abovereferenced
dates, the officers also knew that other types of stolen new electronics had
been sold to Carrie Neighbors. They knew that an e-Bay vendor identifying itself as
“yellowhair-bargains” contained a greeting from a person named Carrie Neighbors and that
a Super Target investigator had viewed the web site and found postings for the sales of
electronic merchandise that was similar to types of merchandise that were missing from
the Lawrence, Kansas, Super Target such as Kitchen Aid mixers, vacuum cleaners and
other electronic items. (Ex. 1 at p. 5) Nicolle Beach had admitted to stealing and selling
9 See Exhibit 4, Item Nos. 20A-Z & AA, 46, 47, 48 54, 55, 56, 57, 59A-J, 74, 75,
76, 86 A-E and 92.
19
to Carrie Neighbors vacuum cleaners from the Lawrence, Kansas, Super Target, and to
stealing and selling a computer and a Kitchen Aid mixer to Carrie Neighbors (Ex. 1 at pp.
4, 6-7) Beach also told the officers that Carrie Neighbors paid more money for items in
unopened boxes, that Carrie Neighbors told her, in sum or substance, that Carrie
Neighbors had been required to return two of the stolen vacuums sold at Yellow House by
Beach because they had been sitting out when the police came to inquire about them and
that she had not returned the Kitchen Aid mixer because it had not been in the store when
the officer came to investigate. (Ex. 1 a p.7).
The officers also knew that a stolen computer had been recovered at the Yellow
House Store on November14, 2003 (Ex. 1 at p. 8), and that on October 27, 2005, a Sony
microsystem stereo similar to one stolen from a Super Target that day had been posted
for sale on the yellowhair-bargains eBay site. (Ex. 1 at pp. 9 -10). All of this information
clearly provided probable cause for the officers to believe that the new electronic items
seized on December 2, 2005, were either stolen or were evidence of the aforementioned
crimes.
Clothing
Many of the items in plain view were pieces of clothing that still had the store tags
on them.9 These items were seized because the officers knew that an employee of the
store had been interviewed on November 16, 2005, and had said, in sum or substance that
the whole business looked like a theft ring (Ex. 1 at p. 21), that he believed that there was
lots of stolen property in the business (Ex. 1 at p. 21), and that two persons, Averitt and
10 See Exhibit No. 4, Item Nos. 11, 36, 37, 38, 39, 63, 64, 65, 108, 112.
11 Exhibit 4, Item Nos. 20H, 35, 66, 67, 70 71, 93 and 94.
20
Lately, were coming into the Yellow House all day selling brand new clothes, mostly pants.
(Ex. 1 at p. 21). Averitt and Lately were well known to the Lawrence Police Department as
prolific shop lifters. Numerous items of new clothing consisting of twenty (20) pairs of
jeans, numerous shirts, gloves and hats, still bearing the merchant’s store tags were
discovered in the Yellow House when the officers executed the warrant. Clearly, the
officers had probable cause to believe that the new clothes were contraband and evidence
of the crimes under investigation and seizure of those items was lawful.
Cameras:
The officers seized nine new cameras during the search of the Yellow House
Store,10 seven of which were Sony Cybershot brand cameras and two were Kodak Easy
Share cameras. The sheer number of new Sony Cybershot cameras constituted a fact
sufficient to cause a reasonably cautious man to believe that those items may be
contraband or stolen property or useful as evidence of a crime." Texas v. Brown, 460 U.S.
at 742, 103 S. Ct. at 1543. Additionally, the officers knew that the undercover officer had
sold two Fuji cameras to Carrie Neighbors on November 18, 2005, after telling her that the
items he was selling her that day had been “swiped” from an overstock bin. (Ex. 1 at p. 23)
Clearly, the seizure of the new cameras was based on probable cause and was proper.
Tools
Eight new tool sets were seized during the search11 which included four (4) sets of
DeWalt tools and two sets of Husky tools. The officers knew that the employee
12 Exhibit 4, Item No. 77.
21
interviewed on November 16, 2005, had said that “two guys” were constantly bringing in
new tools like DeWalt brand tools. (Ex. 1 at p. 21). Carrie Neighbors confirmed that
information on November 29, 2005, during a discussion with the undercover officer about
his desire to purchase a Husky brand tool set that he saw in the store that day. Ms.
Neighbors said that the tool sets that were out had already been sold but that “her guy”
brought her tools every week or two. She went on to say that he is a truck driver who was
able to get DeWalt and Husky tools. C. Neighbors further stated that the guy is able to get
the tools, depending on what is available, off of his truck shipments and that “He gets to
buy the overstock.” (Ex. 1 at p. 30) Clearly, the information provided by the employee and
confirmed by Carrie Neighbors was sufficient to establish probable for the seizure of the
new tools as evidence of the crimes under investigation and contraband.
Musical Instruments
The officers seized a Dean electric guitar12 because the officers knew that in August,
2005, the Lawrence Police Department had determined that stolen credit cards had been
used to purchase musical instruments including flutes, trumpets and clarinets, at two music
stores in Lawrence, Kansas. The person who picked up the instruments was identified by
employees of the stores as Stacy Barnes Catlett. (Ex. 1 at p. 9). The Yellow House
employee reported during his interview on November 16, 2005, that Stacey Barnes Catlett
had come in to the Yellow House Store a few weeks earlier selling lots of brand new
instruments such as flutes and clarinets. He stated that Carrie Neighbors had purchased
new instruments from Barnes Catlett until information about the thefts was published in the
13 Exhibit 4, Item Nos. 20 E, F, I, 23, 23 E and 23 F (new perfume and cologne);
20 U, (blood pressure cuff), 22, ((3) VHF tapes); 60 (OBDZ card reader), 79 ((3) PCI
sound cards), 81 (Microsoft software), 88 (Microsoft software) and 91 ((4) DVDs)
22
newspaper and then she stopped buying from Barnes Catlett. (Ex. 1 at p. 22) This
information provided sufficient probable cause to justify the seizure of the new Dean
electric guitar on December 2, 2005.
Miscellaneous items
The officer seized a few items that had not been previously identified as the types
of stolen items purchased by Carrie Neighbors.13 Because these items were new and
were comingled in the back closet with other new items, including items purchased by
Carrie Neighbors from the undercover officer believing them to have been stolen, the
incriminatory nature of those miscellaneous items was immediately apparent. See United
States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999) (once agent came across false licenses
and credit cards, incriminatory nature of any other items in those names became
immediately apparent to the agent.) Consequently, seizure of these items was warranted.
Here, the search and seizures were reasonable because the officers seized only
items that were covered by the warrant or which they reasonably believed were contraband
or evidence based upon information they possessed when they entered the business to
execute the warrant. With few exceptions, all of the seized items that were not
enumerated in the search warrant were new, as evidenced either by in-tact sales tags or
by original packaging, and all were found in a closet in the back of the store where items
The one used 14 item that was seized was a bicycle. Police officers had
recovered stolen bicycles from the Yellow House Store in the recent past. Knowing
that, the officers compared the serial number of a used bicycle found on the premises
with information in the police records and determined that the item had been reported
stolen, clearly establishing the bicycle as an item of contraband. The vast majority of
items in the Yellow House Store on December 2, 3005, were used, and except for the
one stolen bicycle recovered that day, no other used merchandise was seized.
23
purchased from the affiant by Carrie Neighbors, which she believed had been “swiped,”
had been co-mingled with the other new merchandise. 14
Based on the foregoing, the United States respectfully submits that all of the
evidence collected either at the Yellow House Store or at the residence was properly
seized, either because it was seized pursuant to the terms of three valid search warrants
or because it was contraband or evidence of the crimes under investigation and was in
plain view when discovered.
3. Severability
A search is not invalidated in its entirety merely because some seized items
were not identified in the warrant. See United States v. Hargus, 128 F.3d
1358, 1363 (10th Cir. 1997). Rather, invalidation of an entire search based
on a seizure of items not named in the warrant is an “extraordinary remedy”
that “should be used only when the violations of the warrant’s requirements
are so extreme that the search is essentially transformed into an
impermissible general search.” United State v. Chen, 979 F.2d 714, 717 (9th
Cir. 1992). Put another way, searching officers may be said to have
flagrantly disregarded the terms of a warrant when they engage in
“indiscriminate fishing” for evidence.” Id.
United States v. Robinson, 275 F.3d 371, 381-82 (9th Cir. 2001). In this case, the
searching officers did not engage in an indiscriminate fishing expedition. Rather, they
seized only items from among many pieces of merchandise that reasonably appeared to
be new and of the type that they knew from their earlier investigation were often purchased
by Carrie Neighbors from persons who had stolen them. The vast majority of items in the
24
Yellow House on December 2, 2005, were not seized. The officers cannot be said to have
turned their search in to a general one by flagrantly disregarding the terms of the warrant
for the search of the Yellow House store. Consequently, the extraordinary remedy of total
suppression is not warranted.
Here, should the court determine that there was insufficient probable cause to seize
the items of merchandise, it should exercise its discretion and order the suppression of
only those items of merchandise that were not authorized to be seized in the warrant. See
United States v. Naugle, 997 F.2d at 822-23 (10th Cir.1993) (Doctrine of severability
applies if “valid portions of the warrant are sufficiently particularized, distinguishable from
the invalid portions, and make up the greater part of the warrant”). The entire warrant for
the search of the Yellow House Store on December 2, 2005 was valid so if any evidence
is suppressed, the United States respectfully submits that it should include only the items
of new merchandise recovered on December 2, 2005.
C. Warrants for Searches on July 7, 2005 were Valid
Finally, the defendants claim that the two federal search warrants in Case Nos. 06-
M-8075-01-JPO and 06-M-8075-02-JPO and the piggy back state search warrant (Exhibit
5, attached) that issued on July 7, 2006, were based on evidence that was the fruit of the
poisonous tree because it was obtained during allegedly illegal searches on December 2,
2005. As the foregoing discussion establishes, the searches and seizures of evidence at
the Yellow House Store and at the Andover residence in December, 2005, were legal and
appropriate, thus causing this argument to fail.
Assuming, for the sake of argument only, that the Court determines that the
evidence seized during the searches in December 2005, should be suppressed, such
15 The applications for the warrants that issued on November 30, 2005 were
attached to each of the affidavits for the federal search warrants, but the information in
those documents was obtained prior to and independently of the searches on
December 5, 2005, so cannot be characterized as “tainted.” Further, none of the
information in ¶ ¶ 9 - 12 of the July, 2006 affidavits was included in the application
submitted to the Douglas County district court judge on July 7, 2006, but it was
disclosed to him that the piggy back warrant was based upon evidence found in plain
view of the officers when they went into the Andover residence that day to execute the
federal search warrant.
25
finding does not require suppression of the evidence seized during the July, 2006
searches.
An affidavit containing erroneous or unconstitutionally obtained information
invalidates a warrant if that information was crucial to establishing probable
cause. United States v. Karo, 468 U.S. 705, 179 104 S.Ct. 3296, 82 L.Ed.2d
530 (1984). If however, the affidavit contained sufficient accurate or
untainted information, the warrant is nevertheless valid. Id.
United States v. Morgan, 106 Fed.Appx 694, 2005 WL 3475864 *3 (C.A.10(Kan)).
With respect to the affidavits submitted for the three warrants issued on July 7,
2006, each contained sufficient untainted information to establish probable cause that
evidence of a crime or contraband would be found at the Yellow House Store or at the
Andover residence. The evidence that the defendants contest was found in the
applications for the federal warrants at paragraphs 9 - 12 which referred to several items
of stolen property that were recovered during the December searches of the store and the
residence and the results of law enforcement review of certain documents recovered
during the December searches.15 However, even if all information obtained from the
December searches, is excised from the July 6 affidavits, the remaining untainted
information overwhelming supports the probable cause finding for all three of the July
warrants. Id.
26
All of the information contained in paragraphs 13 - 44 of the July 7, 2006, search
warrant described evidence pertaining to the execution of a wire fraud/ mail fraud scheme
in violation of 18 U.S.C. §§ 2343 and 1341. That information was obtained from
investigative procedures unrelated to information or items seized in December, 2005 and
included trash pulls, witness interviews concerning the sale of stolen vacuum cleaners to
Carrie Neighbors, undercover sales to and recorded conversations with Ms. Neighbors.
The additional evidence collected independently of any evidence or information seized
during the December searches clearly established probable cause for the issuance of the
federal warrants in July, 2006. Consequently, the defendants’ claims that all of the
evidence collected during the executions of the July warrants must be suppressed because
it is fruit of the poisonous tree is not supported by the untainted facts available to the
magistrate judge on July 6, 2006, and their motion to suppress should be denied.
IV. Conclusion
For the reasons enumerated herein, the United States respectfully submits that
defendant’s motion to suppress the evidence seized on December 2, 2005 and that seized
on July 7, 2006, should be denied in its entirety.
Respectfully submitted,
LANNY D. WELCH
United States Attorney
s/Marietta Parker
MARIETTA PARKER KS Dist. Ct. # 77807
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: marietta.parker@usdoj.gov
27
s/Terra D. Morehead
TERRA D. MOREHEAD KS S.Ct # #12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: terra.morehead@usdoj.gov
28
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of August, 2009, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system which will send a notice of
electronic filing to the following:
John Duma
303 E. Poplar
Olathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors
I further certify that on this date the foregoing document and the notice of electronic
filing were mailed by first-class mail to the following non-CM/ECF participants:
None
s/Marietta Parker
Assistant United States Attorney
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http://www.scribd.com/doc/18218102/-Lawrence-kansas-police-Department-illegal-search-warrant
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http://www.scribd.com/doc/18219022/Lawrence-police-departments-Illegal-search-warrant-with-judges-signature-forged
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(Kansas City Docket)
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. ))
CARRIE MARIE NEIGHBORS, )
and )
GUY MADISON NEIGHBORS, )
)
Defendants. )
Case No. 07-20124-01/02-CM
UNITED STATES MOTION IN LIMINE
Comes now the United States of America, plaintiff herein, by and through the
undersigned Assistant United States Attorney, and moves for rulings in limine and
provides notice of the following issues for the Court to consider prior to the presentation
of evidence in the present case. The defendants, through various postings on several
internet web sites and during cross examination at several pretrial hearings, have made
repeated inaccurate, untrue and spurious allegations of misconduct against witnesses,
law enforcement agents and attorneys involved in the investigation and prosecution of
this case. Based upon these allegations, the government reasonably believes that the
defendants will attempt to inject these issues into the trial of the case and requests that
before any inquiry into any of these unfounded and untrue allegations be made during
the trial of this case, the defendant be required to establish relevancy and their good
faith basis for the allegation.
2
While the “right to confrontation may be violated if the trial court precludes
an entire relevant area of cross-examination[,]” Parker v. Scott, 394 F.3d
1302, 1316 (10th Cir. 2005), the presentation of evidence nevertheless
“must comply with established rules of evidence and procedure,” United
States v. Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005). The Sixth
Amendment does not guarantee “cross-examination that is effective in
whatever way and to whatever extent, the defendant might wish.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 106 S.Ct. 1431, 80 L.Ed.2d
674 (1986). In sum, “a criminal defendant states a violation of the
Confrontation clause by showing that he was prohibited from engaging in
”otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby “to expose to the jury
the facts from which jurors could appropriately draw inferences relating to
the reliability of the witness.” Id. at 680.
United States v. Turner, 553 F.3d 1337, 1349 (10th Cir. 2009)
Rule 608, Fed.R.Crim.P.
Impeachment with specific acts of misconduct is governed by the provisions of
Rule 608, Fed.R.Evid., which provides in pertinent part:
(B) Specific instances of conduct. Specific instances of
conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness, other than
conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’ character for truthfulness
or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.
Id.
In this case, the defendants have filed motions for disclosure of the government
witnesses’ substance abuse history and current drug use, their criminal histories
including arrests and charges filed, and any pending warrants. Clearly, the defendants
seek information relating to prior bad acts and the government requests that the
3
defendants be directed not to refer to any of those matters or to any of the following
matters during cross examination or during their cases-in-chief without first establishing,
out of the presence of the jury, the good faith basis for each allegation of misconduct or
other bad act and the relevance of each allegation to the issues in this case:
1. Evidence missing from the evidence room of the Lawrence, KS, Police
Department;
2. Guns seized by Lawrence Police Department being sold in area pawn shops;
3. Drug or alcohol use or investigations of drug/alcohol use by law enforcement
officers;
4. Disciplinary actions imposed upon law enforcement officers;
5. Planting or falsifying evidence;
6. Theft of money or property belonging to arrested persons;
7. Impersonation of FBI agents;
8. Use of racial epithets by prosecutor or witnesses;
9. Racially motivated investigation and prosecution;
10. Any other specific instance of misconduct offered to impeach the credibility
of a witness called by the government
[C]ourts require a “good faith” basis before permitting a party to cross
examine regarding prior bad acts. See, for example, U.S. v. Ovalle-
Marquez, 36 F.3d 212, 219 (1st Cir.1994) cert. denied, 514 U.S. 1007,
115 S.Ct. 1322, 131 L.Ed.2d 202 (1995). While the purpose of crossexamination
is to impeach the credibility of a witness, the basis for the
impeachment cannot be speculation and innuendo with no evidentiary
foundation. Id. The general rule in such situations is that the questioner
must be in possession of some facts which support a genuine belief that
the witness committed the offense or the degrading act to which the
questioning relates. United States v. Sampol, 636 F.2d 621, 658
(D.C.Cir.1980) (quotation omitted)
.
United States v. Ruiz-Castro 92 F.3d 1519, 1528 (10th Cir. 1996) (reversed on other
4
grounds United States v. Flowers, 441 F.3d 900, 903 (10th Cir.(Kan.)). “Specific
instances of misconduct of a witness, for the purpose of attacking or supporting the
witness’ credibility, other than conviction of crime as provided in rule 609, any not be
proved by extrinsic evidence.” United States v. Abeita, 974 F.2d 1346, *3 (1992 WL
201078 (C.A. 10 (N.M.)).
The defendants have repeatedly made spurious and unfounded allegations of
illegal and unethical conduct against the government’s witnesses and counsel,
apparently attempting to poison the jury pool and to force the government to dismiss
their cases by repeated instances of character assignation. At the government’s Motion
to Revoke Bond held on July 18 and July 21, 2008, when pressed by the government
counsel for defense counsel’s good faith basis for the argumentative and inflammatory
questions being asked by her of the government’s witness, counsel was either unable
or unwilling to identify the source or sources which formed her good faith basis for
asking questions of one of the Lawrence Police Officers about specific instances of
misconduct. (Document [Doc.] 150, Case No. 07-20124 at pp. 50-58, pp. 61-63, pp.
66-70.) Based upon the evidence presented at that hearing, the United States submits
that counsel’s failure to articulate a good faith basis for her questions at the detention
hearing in 2008 concerning specific acts of misconduct was occasioned by the total lack
of an evidentiary foundation for each question. As she told the court, counsel for Guy
Neighbors had not independently investigated the allegations (Doc. 150 at p. 52) and
her basis for the questions was information obtained from unnamed attorneys about
irregularities in other cases (Doc. 150 at p. 57). The United States submits that without
a more extensive foundation for these types of questions, inquiry into specific acts of
5
misconduct is not proper.
The United States respectfully requests that unless and until counsel for the
defendants have clearly identified a legally sufficient good-faith basis for each question
put to government witnesses concerning a specific instance of misconduct and have
also established the relevance of each question, they be directed not to question the
government’s witnesses in open court about such conduct.
Respectfully submitted,
LANNY D. WELCH
United States Attorney
s/ Marietta Parker, KS Dist. Ct. #77807
Assistant United States Attorney
500 State Avenue; Suite 360
Kansas City, Kansas 66101
Telephone: 913-551-6730
Facsimile: 913-551-6541
E-mail: marietta.parker@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff
Certificate of Service
I hereby certify that on the 5TH day of August, 2009, the foregoing was
electronically filed with the clerk of the court by using the CM/ECF system which will
send a notice of electronic filing to the following:
John Duma
303 E. Poplar
Olathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors
6
I further certify that on this date the foregoing document and the notice of
electronic filing were mailed by first-class mail to the following non-CM/ECF
participants:
None
s/Marietta Parker
Assistant United States Attorney
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