07912297385
Case 2:07-cr-20073-CM
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Carrie Neighbors Defendant [1} / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT FOR THE DISTRICT OF KANSAS UNTIED STATES OF AMERICA
Plaintiff v. Case No: 07-20073-CM 07-20124-CM OS-20t05-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDNAT [IrS REPLY TO PLAINTIFF'S RESPONSE TO THE DEFENDANT [IJ'S MOTION TO DISMISS ANY AND ALL EVIDENCE COMES NOW on this 6th day of July 2010, the Defendant [1], acting as a pro se litigant,
is filing a Reply to the Plaintiff's Response to the Defendant [I]'s Motion to Dismiss any and all Evidence. The Reply is as follows: 1). The Defendant [1] requests that the court take judicial notice that the Plaintiff had failed to specifically raise any objections in reference to the allegations by Defendant [1] as to police mishandling of evidence, destruction of evidence, failure to follow police procedures as to record a true and accurate document ofthe events during the investigation, or perjury, the affidavits were too vague for a warrant to be issued, as shown in the Defendant [1]'s Motion to
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dismiss evidence, whereby the Defendant [1] has proven by the undisputed facts that any and all evidence should be dismissed by order of this court. 2). In [Doc 257, , 3] the Plaintiff admits that the Plaintiff does not have a chain of custody, and did not have enough evidence to pursue an affidavit for a warrant, but will show at trial enough proof. First this presents a post facto (after the fact) situation, and second it violates the constitution and due process rights of the accused prior to the warrant being served. a.) The Affidavit for the warrant was improper, it failed to show any direct connection of criminal activity to the defendant [1] or her property, or others who were allegedly committing crimes outside of the defendant's knowledge or control. b.) The affidavit provides voluminous details of the alleged criminal activities of other individuals but fails to show why the criminal activity of others would justify a warrant to be served upon Defendant [1], and some of the incidents cited by affiant in the affidavit were in actuality exculpatory in nature. c.) Whereby it was insufficient grounds to apply for a proper search warrant. Therefore the Affidavit fails to meet the criteria or elements needed to secure a proper search warrant. 3.) "The Government submits that at the time of the trial it will establish, through officers who executed the search warrants and inventoried the items, the foundation for the admissibility of each exhibit, including chain of custody for each .... " As prior testimony by the Officers has already established, the evidence seized from the defendant [were] mishandled, not properly documented or logged into evidence, or destroyed by the same officers the Government makes reference to. The evidence logs have been altered with handwritten notes and additions, the Federal evidence the Government wants to present in this case before this court was not properly
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documented with serial numbers or identification through the Bates system, items appearing in photo affidavits as [stolen] property returned to [rightful owner] cannot be found in evidence logs or photos. The Plaintiff states: ''Although the defendant seems to assert that in order to properly establish the chain of custody the items should be Bates stamped, she fails to cite to and the government cannot locate any legal authority for that claim. " In contrast to the Governments claim see referenced case in which the Judge required the Bates-numerical system be used. [US. v. Michael John O'Keefe, 537 F.Supp.2d 14 (2008)J "A piece of paper or electronically stored
information, without any indication of its creator, source, or custodian may not be authenticated
under Federal Rule of Evidence. " Federal evidence being held pending a Federal investigation by the Lawrence Police Dept., has been randomly given away to "alleged" victims, by the LKPD police officers who originally seized the items, (not Federal agents as mandated by law) absent any kind of hearing before a judge to establish rightful ownership, absent prior theft reports, without verification the item did indeed belong to the alleged victim, missing the mandatory photo affidavits or Identification documentation of the alleged victims, as required by LKPD policy and procedures for return of evidence. Whereby there is no way to verify the items seized from the business or home, are the same items referenced to in the evidence logs, are the same items in the evidence locker today, would be the same items brought before this court as evidence. The Plaintiff states, that although there is no proper chain of custody to protect the integrity of the evidence or this case, [Doc 257 ~ 3] "Through the testimony of the seizing officers, the government will establish the foundation necessary for the admission of these non-fungible exhibits. " 4). The requirement of authentication or identification is a condition precedent to admissibility. "If proffered evidence is unique, readily identifiable, and relatively resistant to
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change, the foundation need only consist of testimony confirming its relevance. It is when the evidence is susceptible to alteration that the trial court requires a more stringent foundation, entailing a chain of custody of the item and sufficient completeness to render it improbable that the original item has either been exchanged with another or has been subjected to tampering or contamination"] US v. Cardenas 864 F.2d 1528, 1531 (ldh Cir. 1989)]
5). Due to the (2) officers testimony the evidence was susceptible to alteration, in which the trial court requires a more stringent foundation, entailing a chain of custody, in which also during the Federal Case, in which law requires any and all evidence be documented by the bates system, in which was not done in this cause of action, " ... the burden is on the prosecution to demonstrate to the court that it is reasonably probably or reasonably certain that no tampering, alteration, or substitution has occurred "[See ref
us v. Ortiz, 966 F 2d 707(rt
Cir. 1992)].
Since the evidence was not properly documented, evidence logs have been altered, serial numbers were not documented and or changed, procedures were not followed, the Government will not be able to meet the burden of proof in this case before this court. Whereby the chain of custody has been broken, may not be authenticated under Federal Rule of Evidence, which requires the Defendant [1] now must pray the court order dismissal of any and all evidence for the above referenced reasons. [US. v. Michael John O'Keefe, 537 F.Supp.2d 14 (2008)] JOHN M FACCIOLA, United States Magistrate Judge: "In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in aform or format that is appropriate. This may be because the "big paper" case is the exception rather than the rule in criminal cases. Be that as it may, Rule 34 of the Federal Rules of Civil Procedure speakspecijica/ly to theform of production. The Federal Rules of Civil Procedure in their present form are the product of nearly 70 years of use and have been consistently amended by advisory committees consisting of judges, practitioners, and distinguished academics to meet
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perceived deficiencies. It isfoolish to disregard them merely because this is a criminal case, particularly where, as is the case here, it isfar better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same
problems."
THEREFORE the Defendant [1], acting as a pro se litigant, is filing a Reply to the Plaintiff's Response to the Defendant [1]'s Motion to Dismiss any and all Evidence, due to the vague affidavits, as well as, failure to comply with the unalterable Bates-numbering System and PRA YS the court Dismiss any and all evidence for the chain of custody being broken, and failing to document the evidence properly, as Federal Law Mandates.
Respectfully submitted,
Carrie Neighbors
Defendant [I] / Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
LL~
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Case 2:01-cr-200/3-CIVI
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CERTIFICATE OF SERVICE
[Pursuant to KSA 60-205] The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2J counsel of record 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this6th day of July 2010. Respectfully submitted,
Carrie ei hbors Defendant [1]/ Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Reply to Plaintiffs Response to Defendants
Motion to Dismiss any and all Evidence
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Monday, July 12, 2010
Wednesday, June 30, 2010
MOTION FOR AN INJUNCTION AND RESTRAINING ORDER AGAINST DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
Restraining Order
Case No: 07-20073-CM 07-20124-CM OS-20tOS-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT [lJ 'S MOTION FOR AN INJUNCTION AND RESTRAINING ORDER AGAINST DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
[Pursuant to FRCP Rule 65]
COMES NOW on this 28 th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09 by the Honorable Judge Mary H. Murguia specifically related to testimony by Dr. Robert G. Lucking, and also U.S Court of Appeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam
Ghane, Decision by MURPHY, HANSEN, and BYE, Circuit Judges Filed: January 29, 2010, to
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refrain from a pattern of practice to administer this type of medication, evaluation, testimony based on guess work, as well as, his appearance of prior perjury before a court of law. The Injunction and Restraining Order is as follows: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010 that there was ill-gotten privileged communications (both telephone and written) intercepted and included in a competency evaluation report by Dr. Robert G. Lucking on Carrie and Guy Neighbors, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information.
2). The Defendant [I] was evaluated in a report filed with this court by Dr. Robert G. Lucking, as well as, the interrogation of Defendant [2] about his wife's case was beyond the jurisdiction of a Doctor for the competency evaluation. It also violates The World Medical Association, and APA rules stating that a ''physician shall not use nor allow to be used, as far as
he or she can, medical knowledge or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or illegal, ofthose individuals. " As well as,
the Doctor had violated Principle E of the code of conduct, in which violated the right to privacy, and illegally intercepting the private letters and phone conversations, or communications between a married couple. Whereby Dr. Lucking's report violates Defendant [1]'s Constitutional right to be evaluated for this court by a qualified physician bound by the rules of ethics, including the procedural intake process and complete medicine evaluation, which establishes a qualified doctor- patient relationship prior to the competency evaluation and submission of report, which is ruled and protected by laws and ethics relating to the practice of psychiatry, which Dr. Lucking did not have with Defendant [1]. Since the government has opened this "Pandora's box", the Defendant [1] now has the right to challenge Doctor Lucking's credibility.
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3). Now the Defendant [1] through research has found out a pattern of practice of Dr. Robert G. Lucking to mislead and/or contradict as to perjure himself, as well as, inappropriately secure a Sell Order, without the Harper Hearing, before initiating a Sell Litigation, in which Dr. Robert G. Lucking has now violated C.F.R. § 549.43, as law mandates.
4). Dr. Robert G. Lucking has failed to prove that Defendant [2] is dangerous to himself or others, nor has he proven that he is gravely disabled, nor offered less intrusive alternatives as law mandates, whereby Dr. Robert G. Lucking has failed to meet the elements as mandated by the Supreme court for this type of court ordered action or medication.
5). The Defendant [1] request that the USDC order an immediate removal of Dr. Robert G. Lucking from this cause of action, due to his failure to comply with proper procedures, as well as, the prior practice to mislead or perjure and or contradict himself, violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information, conflict of interest, and an established pattern of practice by Dr. Robert G. Lucking, Staff Psychiatrist, Federal Medical Center, Butner NC" violating fundamental due process rights to a fair trial, to inappropriately secure a Sell Order, without an Harper Hearing, before initiating a Sell Litigation. [See refUSDC ofArizona case no: CR-05-0099-02-PHX
MHM order dated 09/28/09 by the Honorable Mary H Murguia]
6). Whereby the Defendant [11 has no other choice but to file an Injunction and Restraining Order against Dr. Robert G. Lucking to cease and desist any further participation within this matter before this court, as well as, due to the new information, in which has come to light, in which will show a pattern of practice, the Defendant [I] can only request that the court
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strike any and all reports Dr. Robert G. Lucking had submitted on both of the Defendants, in this action, due to unreliable testimony, as well as, evaluations of Dr. Robert G. Lucking. 7). The Defendant [1] would like the court to also request that the Plaintiff seal, destroy and disregard any reports, in which they may have in their possession from Dr. Robert G. Lucking, due to the new evidence, in which has come to light.
8). The Defendant [1] would like the court to also request an independent evaluation for Defendant [2] from another Doctor, with a standard of ethics as to not prej udice Defendant [1]' s previously completed competency reports by two qualified physicians, due to the new evidence, in which has come to light.
A.) As in "This is also a pattern ofpractice of inconsistencies in Dr. Lucking's testimony
that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by
the Honorable Judge Mary H. Murguia.
B.) The apparent lack of rationale by Dr. Lucking's testimony see: See Ghane II, 490 F.3d
at 1040. "Nonetheless, in crediting an expert's opinion, it is not the opinion itselfthat is important, but the rationale underlying it". Circuit Judge Hanson asserts that Dr. Lucking's
Rationale of "incompetence" in his report that simply "because Ghane continued to distrust his
attorneys and was therefore unable to assist in his defense. " differed from the Supreme Court
definition which states "The Supreme Court has defined a defendant's ability to assist properly in
his defense as possessing a... "'sufjicient present ability to consult with his lawyer with a reasonable degree ofrational understanding.'" Cooper v. Oklahoma, 517 Us. 348,354 (1996) (quoting Dusky v. United States, 362 Us. 402, 402 (1960) (per curiaml)." "Disagreement with
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one's attorney does not make one mentally unable to consult with him". Cf United States v. Minnis, 489 F.3d 325, 329 (8th Cir. 2007)
9). Since the Defendant [1] can show recent case law doctrine or case law precedence, the burden now shifts to the government to disprove.
MEMORANDUM IN SUPPORT OF
1). The U.S. Attorney had filed her Motion filed Under Seal on 06/23/2010 to by court order have Defendant [1] 's phone conversations and letters due to Dr. Robert G. Lucking's Report in a "statement of facts", in which stated Defendant [1] has paranoid delusional belief, in which Dr. Robert G. Lucking has now violated confidentiality laws, ethic laws, as well as, USPS mail which was already sealed. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of private communications.
3). Now the Defendant [1] has recently discovered that (quote) "this is not the first time
that a court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [U.S Court ofAppeals for the 8th Cir.. Case no: 08
3700 U'S. v. Hessam Ghane], in which would show a pattern of practice of both extrinsic and
constructive fraud before the court. "This is also a pattern ofpractice ofinconsistencies in Dr.
Lucking's testimony that remains unexplained" As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia. See also: "Dr. Lucking, who had not seen
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Dr. Ghane since March 2006 when he hadfound Dr.Ghane competent, when he testified at the August 2006 competency hearing" as stated in [ US Court ofAppeals for the
sth Cir,. Case no:
08-3700 Us. v. Hessam GhanJ Decision by MURPHY, HANSEN, and BYE, Circuit Judges
Filed: January 29, 2010,
4). The Defendant had discovered other related facts in which will be addressed in her Affidavit in Support of the Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter. THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number
[CR-05-0099-02-PHX-MHM, order dated 09128109J by the Honorable Mary H. Murguia, and
also [US Court ofAppeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam Ghane], specifically related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication, as well as, his appearance of prior perjury and or lack of
credibility before a court of law.
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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2] counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101
On this
zs" day of June 2010.
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Carrie Neighbors Defendant [1] / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT
FOR THE DISTRICT OF KANSAS
UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20124-CM OS-20l0S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
STATE OF KANSAS
) ) SS COUNTY OF DOUGLAS )
AFFIDAVIT IN SUPPORT OF DEFENDANT ill'S MOTION FOR
AN INJUNCTION AND RESTRAINING ORDER AGAINST
DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
[Pursuant to FRCP Rule 65]
COMES NOW on this 28th day of June 2010, I, Carrie Neighbors, (Defendant 1) being of lawful age and sound mind, swear on oath, and hereby give an Affidavit in Support of Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to
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Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number [CR-05
0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia, and also
[US Court ofAppealsfor the 8th Cir.. Case no: 08-3700 u.s. v. Hessam Ghane], specifically
related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication evaluation, as well as, his prior appearance of perjury before a court of law. That the following is true and accurate: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010, that there was ill-gotten privileged communications (both telephone and written) intercepted, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of her private communications, involving unknown facts. 3). Now the Defendant [1] has recently discovered that "this is not the first time that a
court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F. Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [US Court ofAppealsfor the 8th Cir.. Case no:
08-3700 Us. v. Hessam Ghane, (Jan.29,201 0)) in which would give the appearance of a pattern
of practice of both extrinsic and constructive fraud before the court. "This is also a pattern of
practice ofinconsistencies in Dr. Lucking's testimony that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia.
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4). In [United States v. Hessam Ghane Case no: 08-3700 (8th Cir. 20l0)J
The Appellate court found, Dr. Lucking gives conflicting indecisive testimony "Dr. Lucking
believed that Ghane has never been competent to stand trial, contrary to his own earlier evaluations ofGhane"
5.) According to Dr. Lucking's theory of competency, a defendants desire to be found competent is a factor to find him incompetent to stand trial. [US Court ofAppeals for the 8th
Cir.. Case no: 08-3700 Us. v. Hessam Ghane,(Jan.29,20l0)J "We are also concerned about the magistrate judge's reliance on Dr. Ghane's goal ofbeing found competent, afactor also identified by Dr. Lucking, as evidence that he was in fact incompetent to stand trial. "
6.) Dr. Lucking's testimony has issues with credibility. See ref: [US V. Fabela, USDC of
Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09] "Defendant takes issue with Dr. Lucking's claim that extrapyramidal symptoms occur in less than approximately 30% of patients, and that Dr. Lucking had not seen an acute dystonic reaction in a number ofyears. Defendant notes that within five days ofstarting Defendant on Haldol, Dr. Lucking prescribed Defendant Cogentin, which is a known treatment for dystonic reactions to Haldol. "
7.) This FMC under the direction of Dr. Robert G. Lucking has made it a practice to fail to attempt to exhaust all other practical voluntary treatment options, including the fact that during 5 months of evaluations under Dr. Lucking in FMC Butner, Defendant [2] was never referred to a competency class. See also: See ref: [US V. Fabela, USDC ofArizona case number CR-05-0099
02-PHX-MHM, order dated 09/28/09] "Generally, before seeking an Order from this Court under Sell, the government shouldfirst attempt to exhaust all other practical voluntary treatment
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options. The Court is not convinced that such an exhaustive attempt has been made by the FMC in this case ".
8). Whereby, it is more likely or practical that with the supporting documents in this case, with the other case law Defendant [1] has incorporated in this document, that the 51 % burden of proof is in favor ofthe Defendant [1], in which likely probability that Dr. Robert G. Lucking report is bias, prejudicial, and tainted, or even directed by a third party, and continues, since Defendant [2]'s phone privileges at CCA were ordered blocked by a third party, as well as, interfered with.
WHEREBY, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number
[CR-05-0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia
specifically related to Dr. Robert G. Lucking, and also [U.S Court ofAppealsfor the 8th Cir,.
Case no: 08-3700 UiS. v. Hessam Ghane, also known as Sam Ghane Decision by MURPHY,
HANSEN, and BYE, Circuit Judges Filed: January 29,2010,] to refrain from a pattern of practice to administer this type of medication evaluation, testimony based on guess work, as well as, his prior appearance of perjury and inconsistency before a court of law, and PRA YS this USDC Court GRANT in favor of the Defendant [l]'s Injunction and Restraining Order and submit an Order to Remove Dr. Robert G. Lucking from this cause of action, as well as, any and all documentation he or his facility had submitted, due to what appears to be a pattern of
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practice to mislead, perjure, violate ethics, and violate the proper procedures, as defined in C.F.R. § 549.43.
Respectfully submitted,
Ca rre Neighbors Defendant [1J / Pro e Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
SUBSCRIBED AND SWORN to before me on this
Z
day of June 2010.
My commission Expires on:
5)31/1 . . 1
SEAL:
+.()~8(/('
11111
WILL McCULLOUGH
MyAPPt.EXp.3!'5'j' ....,
UrI\IIN~A~
Motion for an Injunction and Restraining Order
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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2J counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 28th day of June 2010.
Ca . ei bors Defendant [1J/ Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion for an Injunction and Restraining Order
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Case No: 07-20073-CM 07-20124-CM OS-20tOS-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT [lJ 'S MOTION FOR AN INJUNCTION AND RESTRAINING ORDER AGAINST DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
[Pursuant to FRCP Rule 65]
COMES NOW on this 28 th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09 by the Honorable Judge Mary H. Murguia specifically related to testimony by Dr. Robert G. Lucking, and also U.S Court of Appeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam
Ghane, Decision by MURPHY, HANSEN, and BYE, Circuit Judges Filed: January 29, 2010, to
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refrain from a pattern of practice to administer this type of medication, evaluation, testimony based on guess work, as well as, his appearance of prior perjury before a court of law. The Injunction and Restraining Order is as follows: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010 that there was ill-gotten privileged communications (both telephone and written) intercepted and included in a competency evaluation report by Dr. Robert G. Lucking on Carrie and Guy Neighbors, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information.
2). The Defendant [I] was evaluated in a report filed with this court by Dr. Robert G. Lucking, as well as, the interrogation of Defendant [2] about his wife's case was beyond the jurisdiction of a Doctor for the competency evaluation. It also violates The World Medical Association, and APA rules stating that a ''physician shall not use nor allow to be used, as far as
he or she can, medical knowledge or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or illegal, ofthose individuals. " As well as,
the Doctor had violated Principle E of the code of conduct, in which violated the right to privacy, and illegally intercepting the private letters and phone conversations, or communications between a married couple. Whereby Dr. Lucking's report violates Defendant [1]'s Constitutional right to be evaluated for this court by a qualified physician bound by the rules of ethics, including the procedural intake process and complete medicine evaluation, which establishes a qualified doctor- patient relationship prior to the competency evaluation and submission of report, which is ruled and protected by laws and ethics relating to the practice of psychiatry, which Dr. Lucking did not have with Defendant [1]. Since the government has opened this "Pandora's box", the Defendant [1] now has the right to challenge Doctor Lucking's credibility.
Motion for an Injunction and Restraining Order Page 2
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 3 of 13
3). Now the Defendant [1] through research has found out a pattern of practice of Dr. Robert G. Lucking to mislead and/or contradict as to perjure himself, as well as, inappropriately secure a Sell Order, without the Harper Hearing, before initiating a Sell Litigation, in which Dr. Robert G. Lucking has now violated C.F.R. § 549.43, as law mandates.
4). Dr. Robert G. Lucking has failed to prove that Defendant [2] is dangerous to himself or others, nor has he proven that he is gravely disabled, nor offered less intrusive alternatives as law mandates, whereby Dr. Robert G. Lucking has failed to meet the elements as mandated by the Supreme court for this type of court ordered action or medication.
5). The Defendant [1] request that the USDC order an immediate removal of Dr. Robert G. Lucking from this cause of action, due to his failure to comply with proper procedures, as well as, the prior practice to mislead or perjure and or contradict himself, violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information, conflict of interest, and an established pattern of practice by Dr. Robert G. Lucking, Staff Psychiatrist, Federal Medical Center, Butner NC" violating fundamental due process rights to a fair trial, to inappropriately secure a Sell Order, without an Harper Hearing, before initiating a Sell Litigation. [See refUSDC ofArizona case no: CR-05-0099-02-PHX
MHM order dated 09/28/09 by the Honorable Mary H Murguia]
6). Whereby the Defendant [11 has no other choice but to file an Injunction and Restraining Order against Dr. Robert G. Lucking to cease and desist any further participation within this matter before this court, as well as, due to the new information, in which has come to light, in which will show a pattern of practice, the Defendant [I] can only request that the court
Motion for an Injunction and Restraining Order
Page 3
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 4 of 13
strike any and all reports Dr. Robert G. Lucking had submitted on both of the Defendants, in this action, due to unreliable testimony, as well as, evaluations of Dr. Robert G. Lucking. 7). The Defendant [1] would like the court to also request that the Plaintiff seal, destroy and disregard any reports, in which they may have in their possession from Dr. Robert G. Lucking, due to the new evidence, in which has come to light.
8). The Defendant [1] would like the court to also request an independent evaluation for Defendant [2] from another Doctor, with a standard of ethics as to not prej udice Defendant [1]' s previously completed competency reports by two qualified physicians, due to the new evidence, in which has come to light.
A.) As in "This is also a pattern ofpractice of inconsistencies in Dr. Lucking's testimony
that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by
the Honorable Judge Mary H. Murguia.
B.) The apparent lack of rationale by Dr. Lucking's testimony see: See Ghane II, 490 F.3d
at 1040. "Nonetheless, in crediting an expert's opinion, it is not the opinion itselfthat is important, but the rationale underlying it". Circuit Judge Hanson asserts that Dr. Lucking's
Rationale of "incompetence" in his report that simply "because Ghane continued to distrust his
attorneys and was therefore unable to assist in his defense. " differed from the Supreme Court
definition which states "The Supreme Court has defined a defendant's ability to assist properly in
his defense as possessing a... "'sufjicient present ability to consult with his lawyer with a reasonable degree ofrational understanding.'" Cooper v. Oklahoma, 517 Us. 348,354 (1996) (quoting Dusky v. United States, 362 Us. 402, 402 (1960) (per curiaml)." "Disagreement with
Motion for an Injunction and Restraining Order
Page 4
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 5 of 13
one's attorney does not make one mentally unable to consult with him". Cf United States v. Minnis, 489 F.3d 325, 329 (8th Cir. 2007)
9). Since the Defendant [1] can show recent case law doctrine or case law precedence, the burden now shifts to the government to disprove.
MEMORANDUM IN SUPPORT OF
1). The U.S. Attorney had filed her Motion filed Under Seal on 06/23/2010 to by court order have Defendant [1] 's phone conversations and letters due to Dr. Robert G. Lucking's Report in a "statement of facts", in which stated Defendant [1] has paranoid delusional belief, in which Dr. Robert G. Lucking has now violated confidentiality laws, ethic laws, as well as, USPS mail which was already sealed. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of private communications.
3). Now the Defendant [1] has recently discovered that (quote) "this is not the first time
that a court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [U.S Court ofAppeals for the 8th Cir.. Case no: 08
3700 U'S. v. Hessam Ghane], in which would show a pattern of practice of both extrinsic and
constructive fraud before the court. "This is also a pattern ofpractice ofinconsistencies in Dr.
Lucking's testimony that remains unexplained" As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia. See also: "Dr. Lucking, who had not seen
Motion for an Injunction and Restraining Order Page 5
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 6 of 13
Dr. Ghane since March 2006 when he hadfound Dr.Ghane competent, when he testified at the August 2006 competency hearing" as stated in [ US Court ofAppeals for the
sth Cir,. Case no:
08-3700 Us. v. Hessam GhanJ Decision by MURPHY, HANSEN, and BYE, Circuit Judges
Filed: January 29, 2010,
4). The Defendant had discovered other related facts in which will be addressed in her Affidavit in Support of the Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter. THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number
[CR-05-0099-02-PHX-MHM, order dated 09128109J by the Honorable Mary H. Murguia, and
also [US Court ofAppeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam Ghane], specifically related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication, as well as, his appearance of prior perjury and or lack of
credibility before a court of law.
Motion for an Injunction and Restraining Order
Page 6
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 7 of 13
CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2] counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101
On this
zs" day of June 2010.
Motion for an Injunction and Restraining Order
Page 7
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 8 of 13
Carrie Neighbors Defendant [1] / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT
FOR THE DISTRICT OF KANSAS
UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20124-CM OS-20l0S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
STATE OF KANSAS
) ) SS COUNTY OF DOUGLAS )
AFFIDAVIT IN SUPPORT OF DEFENDANT ill'S MOTION FOR
AN INJUNCTION AND RESTRAINING ORDER AGAINST
DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
[Pursuant to FRCP Rule 65]
COMES NOW on this 28th day of June 2010, I, Carrie Neighbors, (Defendant 1) being of lawful age and sound mind, swear on oath, and hereby give an Affidavit in Support of Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to
Motion for an Injunction and Restraining Order
Page 8
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 9 of 13
Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number [CR-05
0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia, and also
[US Court ofAppealsfor the 8th Cir.. Case no: 08-3700 u.s. v. Hessam Ghane], specifically
related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication evaluation, as well as, his prior appearance of perjury before a court of law. That the following is true and accurate: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010, that there was ill-gotten privileged communications (both telephone and written) intercepted, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of her private communications, involving unknown facts. 3). Now the Defendant [1] has recently discovered that "this is not the first time that a
court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F. Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [US Court ofAppealsfor the 8th Cir.. Case no:
08-3700 Us. v. Hessam Ghane, (Jan.29,201 0)) in which would give the appearance of a pattern
of practice of both extrinsic and constructive fraud before the court. "This is also a pattern of
practice ofinconsistencies in Dr. Lucking's testimony that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia.
Motion for an Injunction and Restraining Order
Page 9
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 10 of 13
4). In [United States v. Hessam Ghane Case no: 08-3700 (8th Cir. 20l0)J
The Appellate court found, Dr. Lucking gives conflicting indecisive testimony "Dr. Lucking
believed that Ghane has never been competent to stand trial, contrary to his own earlier evaluations ofGhane"
5.) According to Dr. Lucking's theory of competency, a defendants desire to be found competent is a factor to find him incompetent to stand trial. [US Court ofAppeals for the 8th
Cir.. Case no: 08-3700 Us. v. Hessam Ghane,(Jan.29,20l0)J "We are also concerned about the magistrate judge's reliance on Dr. Ghane's goal ofbeing found competent, afactor also identified by Dr. Lucking, as evidence that he was in fact incompetent to stand trial. "
6.) Dr. Lucking's testimony has issues with credibility. See ref: [US V. Fabela, USDC of
Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09] "Defendant takes issue with Dr. Lucking's claim that extrapyramidal symptoms occur in less than approximately 30% of patients, and that Dr. Lucking had not seen an acute dystonic reaction in a number ofyears. Defendant notes that within five days ofstarting Defendant on Haldol, Dr. Lucking prescribed Defendant Cogentin, which is a known treatment for dystonic reactions to Haldol. "
7.) This FMC under the direction of Dr. Robert G. Lucking has made it a practice to fail to attempt to exhaust all other practical voluntary treatment options, including the fact that during 5 months of evaluations under Dr. Lucking in FMC Butner, Defendant [2] was never referred to a competency class. See also: See ref: [US V. Fabela, USDC ofArizona case number CR-05-0099
02-PHX-MHM, order dated 09/28/09] "Generally, before seeking an Order from this Court under Sell, the government shouldfirst attempt to exhaust all other practical voluntary treatment
Motion for an Injunction and Restraining Order
Page 10
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 11 of 13
options. The Court is not convinced that such an exhaustive attempt has been made by the FMC in this case ".
8). Whereby, it is more likely or practical that with the supporting documents in this case, with the other case law Defendant [1] has incorporated in this document, that the 51 % burden of proof is in favor ofthe Defendant [1], in which likely probability that Dr. Robert G. Lucking report is bias, prejudicial, and tainted, or even directed by a third party, and continues, since Defendant [2]'s phone privileges at CCA were ordered blocked by a third party, as well as, interfered with.
WHEREBY, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number
[CR-05-0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia
specifically related to Dr. Robert G. Lucking, and also [U.S Court ofAppealsfor the 8th Cir,.
Case no: 08-3700 UiS. v. Hessam Ghane, also known as Sam Ghane Decision by MURPHY,
HANSEN, and BYE, Circuit Judges Filed: January 29,2010,] to refrain from a pattern of practice to administer this type of medication evaluation, testimony based on guess work, as well as, his prior appearance of perjury and inconsistency before a court of law, and PRA YS this USDC Court GRANT in favor of the Defendant [l]'s Injunction and Restraining Order and submit an Order to Remove Dr. Robert G. Lucking from this cause of action, as well as, any and all documentation he or his facility had submitted, due to what appears to be a pattern of
Motion for an Injunction and Restraining Order
Page 11
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 12 of 13
practice to mislead, perjure, violate ethics, and violate the proper procedures, as defined in C.F.R. § 549.43.
Respectfully submitted,
Ca rre Neighbors Defendant [1J / Pro e Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
SUBSCRIBED AND SWORN to before me on this
Z
day of June 2010.
My commission Expires on:
5)31/1 . . 1
SEAL:
+.()~8(/('
11111
WILL McCULLOUGH
MyAPPt.EXp.3!'5'j' ....,
UrI\IIN~A~
Motion for an Injunction and Restraining Order
Page 12
Case 2:08-cr-20105-CM-JPO Document 116
Filed 06/29/10 Page 13 of 13
CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2J counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 28th day of June 2010.
Ca . ei bors Defendant [1J/ Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion for an Injunction and Restraining Order
Page 13
Friday, June 25, 2010
Thursday, June 24, 2010
DEFENDANT (1)'S MOTION TO QUASH THE PLAINTIFF'S MOTION FOR UNDER SEAL. AS TO DEFENDANT (1) [Pursuant to 18 USC § 3771]
6-23-2010_07912287374
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 1 of 3
Carrie Neighbors
Defendant [1J I Pro Se Litigant
1104 Andover Lawrence. Kansas 66049 (785) 842-2785
:. ~1. t
~.
n ::
.~'
IN THE UNITED STATES COURT FOR THE DISTRICT OF KANSAS UNTIED STATES OF AMERICA
Plaintiff,
v. Case No: 07·20073-CM 07-20124-CM OS-2010S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT (1)'S MOTION TO QUASH THE PLAINTIFF'S MOTION FOR UNDER SEAL. AS TO DEFENDANT (1)
[Pursuant to 18 USC § 3771]
COMES NOW on this 23 th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant is filing a Motion to Quash the Plaintiffs Motion for Under Seal as to Defendant [1], filed on 06/22/2010, pursuant to 18 USC§ 3771. The Motion is as follows: 1). This motion is a kitchen sink motion, in which fails to specifically identify why this Motion for under seal is needed, at this point and time. Whereby, it should be quashed. 2). The Defendant [1] has a right pursuant to18 USC § 3771 not to be excluded from any court proceeding, as well as, the right from unreasonable delay, in which is not so in this matter.
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 1
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 2 of 3
3). Pursuant to President Obama's Memorandum on Transparency, this case should not be allowed to be placed under seal, due to the public has a right to know after the government had spent all the taxpayers monies on attempting to prosecute a case way beyond the statute of time limitations. Now, that the Defendant [1] had raised the proper motions and the government has failed within due diligence, to prosecute in a timely manner. the government now wants to conceal from the public the errors they have committed within this case. 4). This case was not concealed against the Defendant when the government had publicized this case on 12117/2009, even after the court ordered it not to be publicized, whereby stating it in layman's terms when it only benefits the Plaintiff, or government in this matter. Whereby, this now violates the rights of the accused to either defend or challenge the evidence or witnesses against her in a criminal prosecution, now that she is her own attorney. This is holding her to a heightened standard, as well as, confirms that she is denied equal access to justice. This is absurd at this point and time.
THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion to Quash the Plaintiffs Motion for Under Seal as to Defendant [1], filed on 06/22/2010, pursuant to 18 USC§ 3771, and PRAYS the Court Quash the Plaintiffs Motion to place this matter under seal as to Defendant [1] for the above referenced merits. Respectfully submitted.
/J
Carrie Neigh 0 Defendant [1 I Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 2
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 3 of 3
CERTIFICATE OF SERVICE
[Pursuant to KSA 60-205] The undersigned also hereby certifies that a true and correct copy of the foregoing docwnent in the above captioned matter was deposited in the United States mail, fIrSt class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC
Defendant [2J counsel ofrecord
142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 23 rd day of June 2010. Respectfully submitted,
cQ[;;;J
Defendant [IJ I Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 3
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 1 of 3
Carrie Neighbors
Defendant [1J I Pro Se Litigant
1104 Andover Lawrence. Kansas 66049 (785) 842-2785
:. ~1. t
~.
n ::
.~'
IN THE UNITED STATES COURT FOR THE DISTRICT OF KANSAS UNTIED STATES OF AMERICA
Plaintiff,
v. Case No: 07·20073-CM 07-20124-CM OS-2010S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT (1)'S MOTION TO QUASH THE PLAINTIFF'S MOTION FOR UNDER SEAL. AS TO DEFENDANT (1)
[Pursuant to 18 USC § 3771]
COMES NOW on this 23 th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant is filing a Motion to Quash the Plaintiffs Motion for Under Seal as to Defendant [1], filed on 06/22/2010, pursuant to 18 USC§ 3771. The Motion is as follows: 1). This motion is a kitchen sink motion, in which fails to specifically identify why this Motion for under seal is needed, at this point and time. Whereby, it should be quashed. 2). The Defendant [1] has a right pursuant to18 USC § 3771 not to be excluded from any court proceeding, as well as, the right from unreasonable delay, in which is not so in this matter.
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 1
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 2 of 3
3). Pursuant to President Obama's Memorandum on Transparency, this case should not be allowed to be placed under seal, due to the public has a right to know after the government had spent all the taxpayers monies on attempting to prosecute a case way beyond the statute of time limitations. Now, that the Defendant [1] had raised the proper motions and the government has failed within due diligence, to prosecute in a timely manner. the government now wants to conceal from the public the errors they have committed within this case. 4). This case was not concealed against the Defendant when the government had publicized this case on 12117/2009, even after the court ordered it not to be publicized, whereby stating it in layman's terms when it only benefits the Plaintiff, or government in this matter. Whereby, this now violates the rights of the accused to either defend or challenge the evidence or witnesses against her in a criminal prosecution, now that she is her own attorney. This is holding her to a heightened standard, as well as, confirms that she is denied equal access to justice. This is absurd at this point and time.
THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion to Quash the Plaintiffs Motion for Under Seal as to Defendant [1], filed on 06/22/2010, pursuant to 18 USC§ 3771, and PRAYS the Court Quash the Plaintiffs Motion to place this matter under seal as to Defendant [1] for the above referenced merits. Respectfully submitted.
/J
Carrie Neigh 0 Defendant [1 I Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 2
Case 2:08-cr-20105-CM-JPO Document 107
Filed 06/23/10 Page 3 of 3
CERTIFICATE OF SERVICE
[Pursuant to KSA 60-205] The undersigned also hereby certifies that a true and correct copy of the foregoing docwnent in the above captioned matter was deposited in the United States mail, fIrSt class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC
Defendant [2J counsel ofrecord
142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 23 rd day of June 2010. Respectfully submitted,
cQ[;;;J
Defendant [IJ I Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
Motion to Quash the Motion for Under Seal as to Carrie Neighbors
Page 3
MOTION TO DENY PLAINTIFF ADDITIONAL TIME TO RESPOND
6-23-2010_07912287356
Case 2:08-cr-20105-CM-JPO Document 106
Filed 06/23/10 Page 1 of 4
\
...
.
~;
Carrie Neighbors Defendant [IJ / Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT
FOR THE DISTRICT OF KANSAS
UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20124-CM 08-2010S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
MOTION TO DENY PLAINTIFF ADDITIONAL TIME TO RESPOND
COMES NOW on this 23th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant, is filing a Motion to Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions. The Motion to Deny Additional Time is as follows: 1). The Defendant [1] is under the belief that the government is out of order to either request a continuance, or request additional time, when the court had extended the time to June 28th 2010, and it now gives the appearance of undue delay and prejudices the case. 2). If the government was concerned it would not have had the prosecuting attorney take a vacation, in which she recently was on, in which was another 30 day delay, and during that time no attempt was made to obtain the transcripts, nor did the government appoint another
Motion to Deny Plaintiffs Additional Time Request
Page 1
Case 2:08-cr-20105-CM-JPO Document 106
Filed 06/23/10 Page 2 of 4
attorney to handle the case. Whereby, the government once again has exhausted their request for any other continuances or additional time at this point, in which the court should not allow any further continuances or delays in this matter, when the court already extended the courtesy and allowed the Plaintiff until the 28th ofJune 20 I O. Title I of the Speedy Tria I Act of 1974, 88 Stat. 2080,
as amended August 2,1979,93 Stat. 328, is set forth in 18 U.S.c. §§ 3161-3174.
2). The Defendant [1] has estimated there was 4 days left on the speedy trial clock when the first case was dismissed. Since then, (not inclusive of the first case) in which was a continuance of the first indictment. [see ref Doc 2 ~ 3] Then on 06/20/07 ofthe second indictment was filed, in which an estimate of 785 days have been excluded from the speedy trial clock, on a case that the speedy trial clock already had tolled within 4 days of the subsequent indictment, in which the record would show that the time had already expired. Title I of the Speedy
Trial Act of 1974,88 Stat. 2080, as amended August 2, 1979,93 Stat. 328, is set forth in 18 U.S.C. §§ 3161-3174.
3). The time limitations had already had expired prior to the case being designated as a complex case. Whereby we would request the court take judicial notice of [Doc 2 ~ 3] in the record and rule accordingly, as the Defendant [1] had already pointed out in [Doc 141]. 4). The Defendant [1] is uncertain why the Plaintiff needs the transcripts to respond to the motions in question when the order will suffice, unless the Plaintiff is contradicting the courts order, then the Defendant [1] objects, due to the Plaintiff should have filed an appeal, not challenge the courts decision this late in these proceedings. The Defendant can show due to the Plaintiffs tactics delay on the Defendant [I] was minimal, but only by cause of the prosecution, whereby this delay for additional time should not be allowed. 5). The number of high volume of cases pending in the court is insufficient to justify the delay. [See refMcClellan v. Young, 421 F. 2d at 691] [See ref Doc 143 ~ 2]
Motion to Deny Plaintiffs Additional Time Request PageZ
Case 2:08-cr-20105-CM-JPO Document 106
Filed 06/23/10 Page 3 of 4
6). General congestion of a courts calendar is impennissible factor on which to base ends ofjustice continuance under Speedy Trial Act. 18 USC § 3161(h)(8)(C). cert denied, 456 U.S. 918, 102 S.Ct. 1776, L.Ed.2d 179 (1982). [See ref Doc 143 ~P] 7). The Plaintiff has failed to comply with Rule 6.1 (a) [See ref USDC ofKansas case No.
09-3075 JAR, Geoffrey L. Rashaw-Bey v. Ricardo Carrizales, et al., Memorandum and Order dated 0412612010]
THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant, is filing a Motion to Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions, and PRAYS the court Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions for the above referenced or aforementioned reasons.
Respectfully submitted,
Carrie Neighbo Deftndant [lJ 1 Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
La
Motion to Deny Plaintiffs Additional Time Request
Page 3
Case 2:08-cr-20105-CM-JPO Document 106
Filed 06/23/10 Page 4 of 4
CERTIFICATE OF SERVICE
[Pursuant to KSA 60-205] The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defondant [2] counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 23rd day of June 2010. Respectfully submitted,
c(!£.l
Defendant [1] / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842·2785
Motion to Deny Plaintiffs Additional Time Request
Page 4
Case 2:08-cr-20105-CM-JPO Document 106
Filed 06/23/10 Page 1 of 4
\
...
.
~;
Carrie Neighbors Defendant [IJ / Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT
FOR THE DISTRICT OF KANSAS
UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20124-CM 08-2010S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
MOTION TO DENY PLAINTIFF ADDITIONAL TIME TO RESPOND
COMES NOW on this 23th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant, is filing a Motion to Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions. The Motion to Deny Additional Time is as follows: 1). The Defendant [1] is under the belief that the government is out of order to either request a continuance, or request additional time, when the court had extended the time to June 28th 2010, and it now gives the appearance of undue delay and prejudices the case. 2). If the government was concerned it would not have had the prosecuting attorney take a vacation, in which she recently was on, in which was another 30 day delay, and during that time no attempt was made to obtain the transcripts, nor did the government appoint another
Motion to Deny Plaintiffs Additional Time Request
Page 1
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attorney to handle the case. Whereby, the government once again has exhausted their request for any other continuances or additional time at this point, in which the court should not allow any further continuances or delays in this matter, when the court already extended the courtesy and allowed the Plaintiff until the 28th ofJune 20 I O. Title I of the Speedy Tria I Act of 1974, 88 Stat. 2080,
as amended August 2,1979,93 Stat. 328, is set forth in 18 U.S.c. §§ 3161-3174.
2). The Defendant [1] has estimated there was 4 days left on the speedy trial clock when the first case was dismissed. Since then, (not inclusive of the first case) in which was a continuance of the first indictment. [see ref Doc 2 ~ 3] Then on 06/20/07 ofthe second indictment was filed, in which an estimate of 785 days have been excluded from the speedy trial clock, on a case that the speedy trial clock already had tolled within 4 days of the subsequent indictment, in which the record would show that the time had already expired. Title I of the Speedy
Trial Act of 1974,88 Stat. 2080, as amended August 2, 1979,93 Stat. 328, is set forth in 18 U.S.C. §§ 3161-3174.
3). The time limitations had already had expired prior to the case being designated as a complex case. Whereby we would request the court take judicial notice of [Doc 2 ~ 3] in the record and rule accordingly, as the Defendant [1] had already pointed out in [Doc 141]. 4). The Defendant [1] is uncertain why the Plaintiff needs the transcripts to respond to the motions in question when the order will suffice, unless the Plaintiff is contradicting the courts order, then the Defendant [1] objects, due to the Plaintiff should have filed an appeal, not challenge the courts decision this late in these proceedings. The Defendant can show due to the Plaintiffs tactics delay on the Defendant [I] was minimal, but only by cause of the prosecution, whereby this delay for additional time should not be allowed. 5). The number of high volume of cases pending in the court is insufficient to justify the delay. [See refMcClellan v. Young, 421 F. 2d at 691] [See ref Doc 143 ~ 2]
Motion to Deny Plaintiffs Additional Time Request PageZ
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6). General congestion of a courts calendar is impennissible factor on which to base ends ofjustice continuance under Speedy Trial Act. 18 USC § 3161(h)(8)(C). cert denied, 456 U.S. 918, 102 S.Ct. 1776, L.Ed.2d 179 (1982). [See ref Doc 143 ~P] 7). The Plaintiff has failed to comply with Rule 6.1 (a) [See ref USDC ofKansas case No.
09-3075 JAR, Geoffrey L. Rashaw-Bey v. Ricardo Carrizales, et al., Memorandum and Order dated 0412612010]
THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant, is filing a Motion to Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions, and PRAYS the court Deny the Plaintiff additional time to Respond to the Defendant [1] 's Motions for the above referenced or aforementioned reasons.
Respectfully submitted,
Carrie Neighbo Deftndant [lJ 1 Pro Se Litigant
1104 Andover Lawrence, Kansas 66049 (785) 842-2785
La
Motion to Deny Plaintiffs Additional Time Request
Page 3
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CERTIFICATE OF SERVICE
[Pursuant to KSA 60-205] The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defondant [2] counsel ofrecord 142 Cherry Olathe, Kansas 66061
Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 23rd day of June 2010. Respectfully submitted,
c(!£.l
Defendant [1] / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842·2785
Motion to Deny Plaintiffs Additional Time Request
Page 4
Monday, June 21, 2010
DEFENDANT'S AMENDED MOTION TO DISMISS CASE NO: 07-20073-CM, 07-20l24-CM, AND 08-20toS-CM WITH PREJUDICE [Pursuant to 18 USC § 3161(c)(1)]
Carrie Neighbors Owner of the Yellow house store in lawrence Kansas. Has filled a new motion in the case. The Fed Gov't Marietta Parker, Terra Morehead, Lanny Welch VS. Guy and Carrie Neighbors.
Case 2:08-cr-20105-CM-JPO Document 98
Filed 06/14/10 Page 1 of 13
.
Carrie Neighbors Defendant [IJ / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT FOR THE DISTRICT OF KANSAS UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20l24-CM 08-20l0S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT'S AMENDED MOTION TO DISMISS CASE NO: 07-20073-CM, 07-20l24-CM, AND 08-20toS-CM WITH PREJUDICE [Pursuant to 18 USC § 3161(c)(1)] COMES NOW on this 14th day of June 2010, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing an Amended Motion to dismiss the indictment No: 07-20073-CM, 07 20124-CM, and 08-20105-CM with prejudice, pursuant to18 USC § 3161(c)(I). as a result of unjustifiable delay in violation of the fifth amendment's due process clause and sixth amendment right to a speedy trial; The Defendant [1] realizes she had filed "motion to dismiss case no: 07 20073-CM with Prejudice" on April 26 th, 2010 at 12:02PM in the U.S. District Court for the District of Kansas, and due to the fact no party has responded to that motion, defendant is within
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her 180 days to Amend Petition to dismiss, whereby she is exerting her right to file an Amendment at this time. The Amended Motion is as follows: 1). On 05/04/07 the government moved to voluntary dismiss indictment case #06-20171
01/02 CM/JPO. The indictment was dismissed on 05/10/07 by order of this court.
2). On June
zo" 2007, the Defendant [1] was indicted in the present case number 07
20073-CM followed by two subsequent Indictments case numbers 07-20124-CM and 08-20105 CM. The indictment on June 20th is exactly the same as the dismissed indictment, based on the same alleged offense with a new case number and two new counts added. The following two subsequent indictments are also based upon the same conduct / investigation into the same offense as the very first indictment, with no new substantiated evidence filed. 3). Defendant [1] has more than enough reason to believe that more than 180 days elapsed without the Defendant [1] being taken to trial. Defendant has reason to believe that after excluding certain days during which time permitted to bring the Defendant [1] to trial under 18
usc § 3161 has already tolled.
[See ref Zedner v. United States, 126 S.Ct. 1976, 1984 (2006)]
4). The Speedy Trial Act provides in relevant part that:
"In any case in which a plea ofnot guilty is entered, the trial ofa Defendant charged in an information or indictment with the commission ofa offense shall commence within 70 days from ... the date the Defendant has appeared before ajudicial officer ofthe court, in which such a charge is pending. 18 USC § 3161(c)(1)."
5). The Speedy Trial Act further provides that if the government dismissed an indictment against a Defendant and then re-files charges against that individual with "the same offense, or
an offense based on the same conduct, or arising trom the same criminal episode, the provisions of(b) and (c) ofthis section shall be applicable with respect to such subsequence .... Indictment."
18 USC § 3161(d)(1). Whereby case 07-20073-CM and 07-20124-CM both originated from the same alleged criminal episode. Case 08-201 05-CM originated from a State investigation into a Carrie Neighbors Amended Motion to Dismiss all cases Page 2
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theft by a KU employee, investigated by KU Police, was not Federal, and resulted in state charges for the KU employee, the defendants were only brought before this Federal court in violation of due process, Federal charges were brought against the Defendants in this court, only because of the prior two Federal cases already pending against the Defendants in this court. Whereby Defendant asserts that the speedy trial limitations apply to this case as a continuance of the other two indictments. The delays between filing the separate indictments all based upon the original alleged offense, based on the same conduct, or arising from the same criminal episode, has prejudiced the defense with repeated arrests, search incidents, pre-trial incarcerations, loss of liberty, Federal Indictment with only state jurisdiction, and multiple violations of due process, whereby repeatedly rewarding the Government with additional time on the speedy trial clock to prosecute for their failure to apply due diligence to this cause of action. 6). The Defendant [1] has not been brought to trial on the allegations in the original indictment within 70 includable days of the Defendants first appearance before a judicial officer in this case. This case shall be dismissed with prejudice, pursuant to what law mandates, as well, the court order should show. 7). The government has made it a pattern of practice to continuously delay this action, due to problems with the credibility of witnesses, the chain of custody of evidence, as well as manufactured evidence. 8). The original warrant itself, on its face was improper and lacked probable cause and support for the search as well as subsequent warrants, or lack thereof in violation of FRCP 41(b). 9). The Defendant [1] has not caused any unnecessary delay or continuance, whereby by the governments dismissing and bringing subsequent indictments gave the government a tactical
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advantage over the Defendant [1], in the governments prosecutorial efforts to be a detriment to the Defendant[l]. 10). This was no inadvertent error or mistake made by the government, due to this is a pattern of practice to extend the case past the time limitations, as per the first dismissal, in which results in bad faith prosecutions, in which constitutes gross negligence. [See ref United States v.
Kottmyer, 961 F.2d 569, 572-73 (61h Cir. 1992)(same) (see refArcher, 984 F. Supp. At 323]
11). I S . .:;'; i I :d I ()lj) states, "Dismissal ofan indictment is strong medicine, even
where re-indictment is possible. But we have indicated rather stringent limits to judicial discretion in countenancing delay." [see ref United States v. Fay, 505 F.2d 1037 (lSI Cir. 1974)]
MEMORANDUM AND LAW IN SUPPORT OF DEFENDANT [11'S MOTION TO DISMISS CASE NO:07-20124-CM. 07-20073-CM.08-20195-CM WITH PREJUDICE
1). Pursuant to U.S. Seltzer Case No: 08-1469 (C.A. 10, Feb. 17th 2010)(10th Cir.)
The Supreme Court has called the Sixth Amendment guarantee to a speedy trial both an "amorphous" right and a "fundamental" one. 2.) The length ofthe delay to bring these indictments to trial has crossed the thresholdfrom "ordinary" to "presumptively prejudicial" ([See Ref United States v. Batie, 433 F.3d 1287, 1290 (lOth Cir. 2006))) because it has been more than 4 years since the first indictment against
Defendant [1] before this court on December 7, 2006 case #06-20171-01/02 CM!JPO. 3.) The subsequent indictments case 07-20073-cm & 07-20124-cm, are based upon the same information available to the Government at the time ofthe first indictment December 7, 2006, case #06-20171-0l/02-cm, the new and additional indictments arose from the same facts known to the Government in the initial indictment. As referenced by the court, case 07-20124 which is now considered a "Complex case" the court states: see ref.[ doc. 36 page 20, USA v.
Carrie Neighbors Amended Motion to Dismiss all cases Page 4
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Neighbors (loth cir. 2007)] "There was evidence that only after negative publicity and passage of time did government informants begin talking This is further evidence ofprejudice defendants will continue to suffer for a prolonged period due to the delay". The original Indictment was
dismissed by the Government, at the time it has been established by the court that the Government already had the evidence and witnesses for the subsequent cases yet failed to act diligently in its filing. See Ref [doc. 36 page 13 USA v. Neighbors (1d h cir. 2007)] "The court
cannot always control when an informant or witness begins to give relevant information. At the hearing, however, the government provided little evidence ofany other iriformation completely unknown to it, such as when a newly discovered witness shows up at a time too late to utilize him or her at a scheduled trial. The additional information based on the evidence presented at the hearing seems to stem from sources whose credibility is questionable andfrom iriformation and people known to the government at a date much earlier than the day the first trial was scheduled to begin. " whereby the time limitations within which trial is to begin on the subsequent
indictments currently before this court has tolled to the same statutory limitations period that applied to the original indictment.
4.) The Supreme Court in Barker established afour-part balancing test to establish if the defendant'S right to a speedy trial has been violated Thesefactors are: (1) the length ofthe delay,' (2) the reason for the delay; (3) the defendant's assertion ofhis desire for a speedy trial; and (4) the determination ofwhether the delay prejudiced the defendant. As the Barker Court stated, "[a] balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. " Id at 530. No single factor is determinative or necessary, rather all four are considered to determine whether a violation has occurred Id at 533. A.) Length of delay: The first factor looks to the length ofthe delay in pursuing the case against the defendant. This is a double inquiry. First, "[sjimply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination ofthe claim. "Id at 652.
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[United States v. Batie, 433 F.3d 1287,1290 (lOth Cir. 2006)] ("Thefirstfactor, length ofdelay, functions as a gatekeeper. "); In the case before this court Defendant [1]'s
length ofthe delay crossed the threshold from "ordinary" to "presumptively prejudicial" because it is more than 4 years. See Ref: [United States v. Batie, 433 F.3d 1287, 1290
(lOth Cir. 2006)] Delays approaching one year generally satisfy the requirement of presumptive prejudice. ''). See also: [Jackson v. Ray, 390 F.3d 1254, 1261 (lOth Cir. 2004)]. "The general rule is that the speedy trial right attaches when the defendant is arrested or indicted, whichever comes first. " The Defendants were first indicted
December 7, 2006; It was dismissed May 4, 2007 with just 7 days left on the speedy trial clock. A continuance of the same Indictment given a new case number 07-20073 eM based on the same offense with two counts added with no new substantive evidence was filed and a second arrest and search incident occurred June 20, 2007 A delay of four years. Two years is twice the time presumed to be ordinary. See
[f)0i:',\::dr
505 ! ..-,
ill
65.:] (the greater the delay, the more likely it is to weigh in the
defendant'sfavor). But to be sure, given other factors, a lengthy delay may not be unreasonable-and, conversely, even a minor delay may be deemed untimely. For example, a court should take into consideration the nature ofthe charges. FJurAlT /il
( \" ill
53 I.
B.) Complexity of case: Defendant [1] asserts the allegations before this court are simple
not complex, at the time of the first search on Dec. 5th 2005, the record will show there were no theft reports and no victims connected to Defendant [1]. All the evidence thereafter was manufactured, and or derived from the "fruit of the poisonous tree". Voluminous pages of non-probative documents with no connection to the case were Carrie Neighbors Amended Motion to Dismiss all cases Page 6
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piled onto the defense to give the illusion of a complex case, as well as, the Government has mislead the court into believing that there is a voluminous amount of evidence when just recently the Government has admitted that 80% of the evidence seized should be returned to the Defendants because it has no probative value in this cause of action. Whereby violates Defendant [l],s right to a speedy trial which Defendant [1] is now asserting, as well as, has now at this point and time prejudiced this case against Defendant [1], giving the case an appearance of a complex case when it is not, whereby violates defendants Constitutional right to a speedy trial. And further supports Defendant [1]' s arguments that this is not a complex case. As well as, the continuous pattern of practice of constructive fraud before this court. And also the Defendant [1] requests the court take Judicial notice, the Prosecution requesting the court to sanction defendant [1] for filing any future motions in this court on OS/24/2010, violates Defendant [1]'s due process right under the fourteenth Amendment to the
u.s.
Constitution to redress grievances' before this court of law, in which violates Kansas S.C.R. 3.8 & 8.4 (d).
(Citing Guidelines for the Administration of the Criminal Justice Act & Related Statutes, Vol. 7, Guide to Judiciary Policies and Procedures, Sec. A. Ch. 2, Part C § 2.22B(3)). Some courts have looked to other factors including voluminous evidence and complex defenses that require a greater than average amount of time or skill in preparing the defense. See Id. (citing United
States v. Muhktaar, No. 06, Cr. 31, 2008 WL 2151798, *4 (S.D.N.Y. May 21,2008))
The case before this court is not a complex case. Neither the indictment, the docket entries, nor has any witness statements or actual evidence with probative value to the actual charges been
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presented to this court that would substantiate any unusual or complex legal or factual issues. As well as, including part of the evidence and charges have been by ill-gotten means, due to the fact that the Postal Inspector was brought into this cause of action without Jurisdiction to do so, as well as, the fraud committed in the Postal Inspectors (criminal complaint, warrant for arrest and Affidavit in support of,[document 1 case 2:08-mj-08077-JPO USA v. Neighbors (loth cir. 2008)}
C.) Reason for delay: Besides considering whether the delay was lengthy and unreasonable, the court must also factor in the reasons offered by the government for not exercising due diligence. This factor is especially important: "the flag all litigants
seek to capture is the secondfactor, the reason for delay. " United States v. Loud Hawk, 47-1 US. 302. 315 (/986). The burden belongs to the government to provide an acceptable rationale for the delay. Jackson, 390 F. 3d at 1261 ("The Supreme Court places the burden on the state to provide an inculpable explanation for delays in speedy trial claims. ''). "[Different weights should be assigned to different reasons. " Barker, 407 US. at 531. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. D.) In the case before this court it was the Government that has caused the delays, a pattern
of filing subsequent indictments in different courts, based on the same offense absent of new substantive evidence, does not cause the speedy trial clock to start anew, previously established by this court's Order and Memorandum [See Ref US v.
Neighbors, Document 36 Pg.11 (l dh cir. 2007}) "In this case, it was the government's culpability that caused the delay. It is well established that "the Government bears the burden ofensuring the Defendant's speedy trial rights are not violated. [ United States v. Saltzman, 984 F2d 1087, 1093 (l993). When the second indictment was filed here the government did not move to expedite the case. It did not notify this court, which did not handle the case under the first indictment, that there was a potential speedy trial issue with the filing ofthe second indictment. Additionally, the government did not exercise due diligence concerning the timing ofthe speedy trial clock. It originally
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argued to this court that the speedy trial clock began anew on Count 2 when the second indictment was filed. But, as noted in the court's prior Memorandum and Order, that interpretation is directly contrary to a Tenth Circuit case decidedjust last year. ") ..See Ref [US. v Taylor, 487, US. 326,340-41(1988)] "The longer the delay, the greater the presumptive or actual prejudice to the defendant ....} Importantly, as the Court stated
in Barker, "the ultimate responsibility" for justifying the delay belongs to the
govemment itn ( .\. ul 53 I. Unlike in [United States v. Toombs, 574 F.3d 1262, 1274
(10th Cir. 2009)j, where the defendant requested seven of the nine continuances
granted by the district court, the delay here can be attributed to the Governments continued delays, dismissal, and subsequent indictments based upon the same alleged offense, arising from the same alleged criminal episode. The government bears the burden of bringing this case to trial in a timely fashion, absent sufficient justification. No such justification is present here. [United States v. Saltzman, 984 F.2d 1087, 1093
(10th Cir. 1993) (quotations omitted)). "Where the delay is the result ofintentional dilatory conduct or a pattern ofneglect on the part ofthe Government, dismissal with prejudice is the appropriate remedy." Id. at 1093-94.
E.) Defendants assertion for Speedy Trial: Since Defendant [1] has made the assertion of
her speedy trial right, then she is entitled to strong evidentiary weight in determining whether that right has been deprived.. [See Batie, 433 F. 3d at 1291j ("Perhaps most
important is whether the defendant has actively asserted his right to a speedy trial. "}; see also Barker, 407 Us. at 531-32 (t'The defendant's assertion ofhis speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived ofthe right. ").
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F.) Prejudice to Defendants:
Defendant [1] has been prejudiced by repeated arrests,
search incidents, pre-trial incarcerations, "pretrial incarceration is a well-established type ofprejudice that a defendant may rely upon in making a Sixth Amendment speedy trial claim" prejudicial press releases, loss of liberty by court orders, deprivation of property, repeated competency evaluations, prejudicial delays and loss of counsel. (Ref Doc. 36 pg 15 footnote 4. USA v. Neighbors 1rJh cir. 2007)] 'This court distinguishes this case because the weight accorded to the seriousness ofthe offense was lessened by the evaluation ofthe applicable advisory sentencing guidelines, there has been prejudice shown in this case, and there would likely have been a serious delay defendants would have sat on their rights instead ofso promptly bringing their motion. " Guidelines have been established to which a defendant should be brought to trial, See ref Pursuant to [STATE v. GARZA 2009-NM-063 O. 151] "guidelinesfor determining the length of delay necessary to trigger the speedy trial inquiry ( twelve months for simple cases, fifteen months for cases ofintermediate complexity. and eighteen months for complex cases. ) " "The individual claiming the Sixth Amendment violation has the burden ofshowing prejudice. " Toombs, 574 F.3d at 1275. Prejudice should be assessed in light of the interests that the speedy trial right was designed to protect. The courts have identified three main interests: (i) the prevention of oppressive pretrial incarceration; (ii) the minimization of anxiety and co cern of the accused; and (iii) Minimization of the possibility that the defense will be impaired. (iv) [d. (citing Barker, 407 u.s. at 532). "Ofthese interests, the most serious is the "hindrance ofthe defense" because the inability ofa defendant to adequately prepare his case skews the fairness ofthe entire system. Id.3 "Because the seriousness ofa post accusation delay worsens when the wait is accompanied by pretrial incarceration, oppressive pretrial incarceration is the second most important factor. " Jackson, 390 F.3d at 1264".
if
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Conclusion As the Defendant [1] has shown, in the above referenced document, Defendant [1] has defined the controlling precedence as well as "law of the case doctrine" in these specific issues on the right to Speedy Trial. Whereby the court has no other alternative but to find in Defendant [1]'s favor because of the Government's inability to bring this cause of action to trial within reasonable due diligence; has now prejudiced this cause of action, as the pattern of practice, the first case was already dismissed by the Honorable Judge Carlos Murguia which clearly identified that the statute of time limitations, which has expired on this cause of action. In which was followed by the Honorable Judge John Lungstrums Memorandum & Order for dismissal with Prejudice, in which was then followed by case 2:08-mj-08077-JPO (USA v. Neighbors) filed
08/08/2008 and Terminated 08/20/2008. Whereas the court cannot continue this facade, due to
the fact two Honorable Kansas Federal District court Judges have already acknowledged that the case should be dismissed. In which now constitutes constructive fraud before this court.
"[The Bill ofRights" does not speak ofthe rights and interests ofthe government. " Richard Uviller, Barker v. Wingo: Speedy Trial Gets a Fast ShufJle, 72 Colum. L. Rev. 1376, 1378 (1972); see 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(b) (3d ed 2007) ("It is rather misleading to say . . . that this 'societal interest' is somehow part ofthe right.")' The heart ofthe right to a speedy trial is preventing prejudice to the accused!
THEREFORE for all the reasons as stated above, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing an Amended Motion to dismiss indictment No: 07-20073-CM, 07-20I24-CM, and 08-20I05-CM with prejudice, pursuant toI8 USC § 3I6I(c)(l). as a result of unjustifiable delay in violation of the fifth amendment's due process clause and sixth amendment right to a speedy trial, pursuant toI8 USC § 3I6I(c)(I) and PRAYS the court dismiss case numbers 07-20073-CM, 07-201 24-CM,and 08-201 05-CM with prejudice, pursuant toI8 USC §
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3161(c)(1), due to the government's failure to bring the Defendant [1] to trial with reasonable due diligence, prior to prejudicing this cause of action.
Carrie Neighbors Defendant [1] Pro se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to:
CHERYL A. PILATE, KS (No. 14601) MORGAN PILATE LLC 142 N. Cherry Olathe, KS 66061
MARlETTA PARKER KS Dist. Ct. # 77807 TERRA D. MOREHEAD KS S.Ct # #12759 Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101
Date mailed out on this
.vr:
of June 2010.
Carrie Neighbors Amended Motion to Dismiss all cases
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07912279060
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Filed 06/14/10 Page 1 of 13
.
Carrie Neighbors Defendant [IJ / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
IN THE UNITED STATES COURT FOR THE DISTRICT OF KANSAS UNTIED STATES OF AMERICA
Plaintiff,
v.
Case No: 07-20073-CM 07-20l24-CM 08-20l0S-CM
CARRIE NEIGHBORS,
Defendant 1,
GUY M. NEIGHBORS
Defendant 2,
DEFENDANT'S AMENDED MOTION TO DISMISS CASE NO: 07-20073-CM, 07-20l24-CM, AND 08-20toS-CM WITH PREJUDICE [Pursuant to 18 USC § 3161(c)(1)] COMES NOW on this 14th day of June 2010, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing an Amended Motion to dismiss the indictment No: 07-20073-CM, 07 20124-CM, and 08-20105-CM with prejudice, pursuant to18 USC § 3161(c)(I). as a result of unjustifiable delay in violation of the fifth amendment's due process clause and sixth amendment right to a speedy trial; The Defendant [1] realizes she had filed "motion to dismiss case no: 07 20073-CM with Prejudice" on April 26 th, 2010 at 12:02PM in the U.S. District Court for the District of Kansas, and due to the fact no party has responded to that motion, defendant is within
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her 180 days to Amend Petition to dismiss, whereby she is exerting her right to file an Amendment at this time. The Amended Motion is as follows: 1). On 05/04/07 the government moved to voluntary dismiss indictment case #06-20171
01/02 CM/JPO. The indictment was dismissed on 05/10/07 by order of this court.
2). On June
zo" 2007, the Defendant [1] was indicted in the present case number 07
20073-CM followed by two subsequent Indictments case numbers 07-20124-CM and 08-20105 CM. The indictment on June 20th is exactly the same as the dismissed indictment, based on the same alleged offense with a new case number and two new counts added. The following two subsequent indictments are also based upon the same conduct / investigation into the same offense as the very first indictment, with no new substantiated evidence filed. 3). Defendant [1] has more than enough reason to believe that more than 180 days elapsed without the Defendant [1] being taken to trial. Defendant has reason to believe that after excluding certain days during which time permitted to bring the Defendant [1] to trial under 18
usc § 3161 has already tolled.
[See ref Zedner v. United States, 126 S.Ct. 1976, 1984 (2006)]
4). The Speedy Trial Act provides in relevant part that:
"In any case in which a plea ofnot guilty is entered, the trial ofa Defendant charged in an information or indictment with the commission ofa offense shall commence within 70 days from ... the date the Defendant has appeared before ajudicial officer ofthe court, in which such a charge is pending. 18 USC § 3161(c)(1)."
5). The Speedy Trial Act further provides that if the government dismissed an indictment against a Defendant and then re-files charges against that individual with "the same offense, or
an offense based on the same conduct, or arising trom the same criminal episode, the provisions of(b) and (c) ofthis section shall be applicable with respect to such subsequence .... Indictment."
18 USC § 3161(d)(1). Whereby case 07-20073-CM and 07-20124-CM both originated from the same alleged criminal episode. Case 08-201 05-CM originated from a State investigation into a Carrie Neighbors Amended Motion to Dismiss all cases Page 2
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theft by a KU employee, investigated by KU Police, was not Federal, and resulted in state charges for the KU employee, the defendants were only brought before this Federal court in violation of due process, Federal charges were brought against the Defendants in this court, only because of the prior two Federal cases already pending against the Defendants in this court. Whereby Defendant asserts that the speedy trial limitations apply to this case as a continuance of the other two indictments. The delays between filing the separate indictments all based upon the original alleged offense, based on the same conduct, or arising from the same criminal episode, has prejudiced the defense with repeated arrests, search incidents, pre-trial incarcerations, loss of liberty, Federal Indictment with only state jurisdiction, and multiple violations of due process, whereby repeatedly rewarding the Government with additional time on the speedy trial clock to prosecute for their failure to apply due diligence to this cause of action. 6). The Defendant [1] has not been brought to trial on the allegations in the original indictment within 70 includable days of the Defendants first appearance before a judicial officer in this case. This case shall be dismissed with prejudice, pursuant to what law mandates, as well, the court order should show. 7). The government has made it a pattern of practice to continuously delay this action, due to problems with the credibility of witnesses, the chain of custody of evidence, as well as manufactured evidence. 8). The original warrant itself, on its face was improper and lacked probable cause and support for the search as well as subsequent warrants, or lack thereof in violation of FRCP 41(b). 9). The Defendant [1] has not caused any unnecessary delay or continuance, whereby by the governments dismissing and bringing subsequent indictments gave the government a tactical
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advantage over the Defendant [1], in the governments prosecutorial efforts to be a detriment to the Defendant[l]. 10). This was no inadvertent error or mistake made by the government, due to this is a pattern of practice to extend the case past the time limitations, as per the first dismissal, in which results in bad faith prosecutions, in which constitutes gross negligence. [See ref United States v.
Kottmyer, 961 F.2d 569, 572-73 (61h Cir. 1992)(same) (see refArcher, 984 F. Supp. At 323]
11). I S . .:;'; i I :d I ()lj) states, "Dismissal ofan indictment is strong medicine, even
where re-indictment is possible. But we have indicated rather stringent limits to judicial discretion in countenancing delay." [see ref United States v. Fay, 505 F.2d 1037 (lSI Cir. 1974)]
MEMORANDUM AND LAW IN SUPPORT OF DEFENDANT [11'S MOTION TO DISMISS CASE NO:07-20124-CM. 07-20073-CM.08-20195-CM WITH PREJUDICE
1). Pursuant to U.S. Seltzer Case No: 08-1469 (C.A. 10, Feb. 17th 2010)(10th Cir.)
The Supreme Court has called the Sixth Amendment guarantee to a speedy trial both an "amorphous" right and a "fundamental" one. 2.) The length ofthe delay to bring these indictments to trial has crossed the thresholdfrom "ordinary" to "presumptively prejudicial" ([See Ref United States v. Batie, 433 F.3d 1287, 1290 (lOth Cir. 2006))) because it has been more than 4 years since the first indictment against
Defendant [1] before this court on December 7, 2006 case #06-20171-01/02 CM!JPO. 3.) The subsequent indictments case 07-20073-cm & 07-20124-cm, are based upon the same information available to the Government at the time ofthe first indictment December 7, 2006, case #06-20171-0l/02-cm, the new and additional indictments arose from the same facts known to the Government in the initial indictment. As referenced by the court, case 07-20124 which is now considered a "Complex case" the court states: see ref.[ doc. 36 page 20, USA v.
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Neighbors (loth cir. 2007)] "There was evidence that only after negative publicity and passage of time did government informants begin talking This is further evidence ofprejudice defendants will continue to suffer for a prolonged period due to the delay". The original Indictment was
dismissed by the Government, at the time it has been established by the court that the Government already had the evidence and witnesses for the subsequent cases yet failed to act diligently in its filing. See Ref [doc. 36 page 13 USA v. Neighbors (1d h cir. 2007)] "The court
cannot always control when an informant or witness begins to give relevant information. At the hearing, however, the government provided little evidence ofany other iriformation completely unknown to it, such as when a newly discovered witness shows up at a time too late to utilize him or her at a scheduled trial. The additional information based on the evidence presented at the hearing seems to stem from sources whose credibility is questionable andfrom iriformation and people known to the government at a date much earlier than the day the first trial was scheduled to begin. " whereby the time limitations within which trial is to begin on the subsequent
indictments currently before this court has tolled to the same statutory limitations period that applied to the original indictment.
4.) The Supreme Court in Barker established afour-part balancing test to establish if the defendant'S right to a speedy trial has been violated Thesefactors are: (1) the length ofthe delay,' (2) the reason for the delay; (3) the defendant's assertion ofhis desire for a speedy trial; and (4) the determination ofwhether the delay prejudiced the defendant. As the Barker Court stated, "[a] balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. " Id at 530. No single factor is determinative or necessary, rather all four are considered to determine whether a violation has occurred Id at 533. A.) Length of delay: The first factor looks to the length ofthe delay in pursuing the case against the defendant. This is a double inquiry. First, "[sjimply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination ofthe claim. "Id at 652.
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[United States v. Batie, 433 F.3d 1287,1290 (lOth Cir. 2006)] ("Thefirstfactor, length ofdelay, functions as a gatekeeper. "); In the case before this court Defendant [1]'s
length ofthe delay crossed the threshold from "ordinary" to "presumptively prejudicial" because it is more than 4 years. See Ref: [United States v. Batie, 433 F.3d 1287, 1290
(lOth Cir. 2006)] Delays approaching one year generally satisfy the requirement of presumptive prejudice. ''). See also: [Jackson v. Ray, 390 F.3d 1254, 1261 (lOth Cir. 2004)]. "The general rule is that the speedy trial right attaches when the defendant is arrested or indicted, whichever comes first. " The Defendants were first indicted
December 7, 2006; It was dismissed May 4, 2007 with just 7 days left on the speedy trial clock. A continuance of the same Indictment given a new case number 07-20073 eM based on the same offense with two counts added with no new substantive evidence was filed and a second arrest and search incident occurred June 20, 2007 A delay of four years. Two years is twice the time presumed to be ordinary. See
[f)0i:',\::dr
505 ! ..-,
ill
65.:] (the greater the delay, the more likely it is to weigh in the
defendant'sfavor). But to be sure, given other factors, a lengthy delay may not be unreasonable-and, conversely, even a minor delay may be deemed untimely. For example, a court should take into consideration the nature ofthe charges. FJurAlT /il
( \" ill
53 I.
B.) Complexity of case: Defendant [1] asserts the allegations before this court are simple
not complex, at the time of the first search on Dec. 5th 2005, the record will show there were no theft reports and no victims connected to Defendant [1]. All the evidence thereafter was manufactured, and or derived from the "fruit of the poisonous tree". Voluminous pages of non-probative documents with no connection to the case were Carrie Neighbors Amended Motion to Dismiss all cases Page 6
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piled onto the defense to give the illusion of a complex case, as well as, the Government has mislead the court into believing that there is a voluminous amount of evidence when just recently the Government has admitted that 80% of the evidence seized should be returned to the Defendants because it has no probative value in this cause of action. Whereby violates Defendant [l],s right to a speedy trial which Defendant [1] is now asserting, as well as, has now at this point and time prejudiced this case against Defendant [1], giving the case an appearance of a complex case when it is not, whereby violates defendants Constitutional right to a speedy trial. And further supports Defendant [1]' s arguments that this is not a complex case. As well as, the continuous pattern of practice of constructive fraud before this court. And also the Defendant [1] requests the court take Judicial notice, the Prosecution requesting the court to sanction defendant [1] for filing any future motions in this court on OS/24/2010, violates Defendant [1]'s due process right under the fourteenth Amendment to the
u.s.
Constitution to redress grievances' before this court of law, in which violates Kansas S.C.R. 3.8 & 8.4 (d).
(Citing Guidelines for the Administration of the Criminal Justice Act & Related Statutes, Vol. 7, Guide to Judiciary Policies and Procedures, Sec. A. Ch. 2, Part C § 2.22B(3)). Some courts have looked to other factors including voluminous evidence and complex defenses that require a greater than average amount of time or skill in preparing the defense. See Id. (citing United
States v. Muhktaar, No. 06, Cr. 31, 2008 WL 2151798, *4 (S.D.N.Y. May 21,2008))
The case before this court is not a complex case. Neither the indictment, the docket entries, nor has any witness statements or actual evidence with probative value to the actual charges been
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presented to this court that would substantiate any unusual or complex legal or factual issues. As well as, including part of the evidence and charges have been by ill-gotten means, due to the fact that the Postal Inspector was brought into this cause of action without Jurisdiction to do so, as well as, the fraud committed in the Postal Inspectors (criminal complaint, warrant for arrest and Affidavit in support of,[document 1 case 2:08-mj-08077-JPO USA v. Neighbors (loth cir. 2008)}
C.) Reason for delay: Besides considering whether the delay was lengthy and unreasonable, the court must also factor in the reasons offered by the government for not exercising due diligence. This factor is especially important: "the flag all litigants
seek to capture is the secondfactor, the reason for delay. " United States v. Loud Hawk, 47-1 US. 302. 315 (/986). The burden belongs to the government to provide an acceptable rationale for the delay. Jackson, 390 F. 3d at 1261 ("The Supreme Court places the burden on the state to provide an inculpable explanation for delays in speedy trial claims. ''). "[Different weights should be assigned to different reasons. " Barker, 407 US. at 531. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. D.) In the case before this court it was the Government that has caused the delays, a pattern
of filing subsequent indictments in different courts, based on the same offense absent of new substantive evidence, does not cause the speedy trial clock to start anew, previously established by this court's Order and Memorandum [See Ref US v.
Neighbors, Document 36 Pg.11 (l dh cir. 2007}) "In this case, it was the government's culpability that caused the delay. It is well established that "the Government bears the burden ofensuring the Defendant's speedy trial rights are not violated. [ United States v. Saltzman, 984 F2d 1087, 1093 (l993). When the second indictment was filed here the government did not move to expedite the case. It did not notify this court, which did not handle the case under the first indictment, that there was a potential speedy trial issue with the filing ofthe second indictment. Additionally, the government did not exercise due diligence concerning the timing ofthe speedy trial clock. It originally
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argued to this court that the speedy trial clock began anew on Count 2 when the second indictment was filed. But, as noted in the court's prior Memorandum and Order, that interpretation is directly contrary to a Tenth Circuit case decidedjust last year. ") ..See Ref [US. v Taylor, 487, US. 326,340-41(1988)] "The longer the delay, the greater the presumptive or actual prejudice to the defendant ....} Importantly, as the Court stated
in Barker, "the ultimate responsibility" for justifying the delay belongs to the
govemment itn ( .\. ul 53 I. Unlike in [United States v. Toombs, 574 F.3d 1262, 1274
(10th Cir. 2009)j, where the defendant requested seven of the nine continuances
granted by the district court, the delay here can be attributed to the Governments continued delays, dismissal, and subsequent indictments based upon the same alleged offense, arising from the same alleged criminal episode. The government bears the burden of bringing this case to trial in a timely fashion, absent sufficient justification. No such justification is present here. [United States v. Saltzman, 984 F.2d 1087, 1093
(10th Cir. 1993) (quotations omitted)). "Where the delay is the result ofintentional dilatory conduct or a pattern ofneglect on the part ofthe Government, dismissal with prejudice is the appropriate remedy." Id. at 1093-94.
E.) Defendants assertion for Speedy Trial: Since Defendant [1] has made the assertion of
her speedy trial right, then she is entitled to strong evidentiary weight in determining whether that right has been deprived.. [See Batie, 433 F. 3d at 1291j ("Perhaps most
important is whether the defendant has actively asserted his right to a speedy trial. "}; see also Barker, 407 Us. at 531-32 (t'The defendant's assertion ofhis speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived ofthe right. ").
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F.) Prejudice to Defendants:
Defendant [1] has been prejudiced by repeated arrests,
search incidents, pre-trial incarcerations, "pretrial incarceration is a well-established type ofprejudice that a defendant may rely upon in making a Sixth Amendment speedy trial claim" prejudicial press releases, loss of liberty by court orders, deprivation of property, repeated competency evaluations, prejudicial delays and loss of counsel. (Ref Doc. 36 pg 15 footnote 4. USA v. Neighbors 1rJh cir. 2007)] 'This court distinguishes this case because the weight accorded to the seriousness ofthe offense was lessened by the evaluation ofthe applicable advisory sentencing guidelines, there has been prejudice shown in this case, and there would likely have been a serious delay defendants would have sat on their rights instead ofso promptly bringing their motion. " Guidelines have been established to which a defendant should be brought to trial, See ref Pursuant to [STATE v. GARZA 2009-NM-063 O. 151] "guidelinesfor determining the length of delay necessary to trigger the speedy trial inquiry ( twelve months for simple cases, fifteen months for cases ofintermediate complexity. and eighteen months for complex cases. ) " "The individual claiming the Sixth Amendment violation has the burden ofshowing prejudice. " Toombs, 574 F.3d at 1275. Prejudice should be assessed in light of the interests that the speedy trial right was designed to protect. The courts have identified three main interests: (i) the prevention of oppressive pretrial incarceration; (ii) the minimization of anxiety and co cern of the accused; and (iii) Minimization of the possibility that the defense will be impaired. (iv) [d. (citing Barker, 407 u.s. at 532). "Ofthese interests, the most serious is the "hindrance ofthe defense" because the inability ofa defendant to adequately prepare his case skews the fairness ofthe entire system. Id.3 "Because the seriousness ofa post accusation delay worsens when the wait is accompanied by pretrial incarceration, oppressive pretrial incarceration is the second most important factor. " Jackson, 390 F.3d at 1264".
if
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Conclusion As the Defendant [1] has shown, in the above referenced document, Defendant [1] has defined the controlling precedence as well as "law of the case doctrine" in these specific issues on the right to Speedy Trial. Whereby the court has no other alternative but to find in Defendant [1]'s favor because of the Government's inability to bring this cause of action to trial within reasonable due diligence; has now prejudiced this cause of action, as the pattern of practice, the first case was already dismissed by the Honorable Judge Carlos Murguia which clearly identified that the statute of time limitations, which has expired on this cause of action. In which was followed by the Honorable Judge John Lungstrums Memorandum & Order for dismissal with Prejudice, in which was then followed by case 2:08-mj-08077-JPO (USA v. Neighbors) filed
08/08/2008 and Terminated 08/20/2008. Whereas the court cannot continue this facade, due to
the fact two Honorable Kansas Federal District court Judges have already acknowledged that the case should be dismissed. In which now constitutes constructive fraud before this court.
"[The Bill ofRights" does not speak ofthe rights and interests ofthe government. " Richard Uviller, Barker v. Wingo: Speedy Trial Gets a Fast ShufJle, 72 Colum. L. Rev. 1376, 1378 (1972); see 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(b) (3d ed 2007) ("It is rather misleading to say . . . that this 'societal interest' is somehow part ofthe right.")' The heart ofthe right to a speedy trial is preventing prejudice to the accused!
THEREFORE for all the reasons as stated above, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing an Amended Motion to dismiss indictment No: 07-20073-CM, 07-20I24-CM, and 08-20I05-CM with prejudice, pursuant toI8 USC § 3I6I(c)(l). as a result of unjustifiable delay in violation of the fifth amendment's due process clause and sixth amendment right to a speedy trial, pursuant toI8 USC § 3I6I(c)(I) and PRAYS the court dismiss case numbers 07-20073-CM, 07-201 24-CM,and 08-201 05-CM with prejudice, pursuant toI8 USC §
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3161(c)(1), due to the government's failure to bring the Defendant [1] to trial with reasonable due diligence, prior to prejudicing this cause of action.
Carrie Neighbors Defendant [1] Pro se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785
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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]
The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to:
CHERYL A. PILATE, KS (No. 14601) MORGAN PILATE LLC 142 N. Cherry Olathe, KS 66061
MARlETTA PARKER KS Dist. Ct. # 77807 TERRA D. MOREHEAD KS S.Ct # #12759 Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101
Date mailed out on this
.vr:
of June 2010.
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07912279060
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