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.

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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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