1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES, )
)
Plaintiff, )
)
v. ) Case No. 07-20124-CM
)
GUY MADISON NEIGHBORS, )
)
Defendant. )
DEFENDANT’S JOINT
MOTION TO DISMISS FORFEITURE ALLEGATION II
OF SECOND SUPERSEDING INDICTMENT
Defendants Guy Neighbors and Carrie Neighbors, by and through their respective
counsel, hereby move this Honorable Court to dismiss Forfeiture Allegation II of the Second
Superseding Indictment. The statute cited, 18 U.S.C. § 981(a)(1)( C), does not permit forfeiture
for any crime charged against defendants. Moreover there is not any rational relationship
between the requested forfeiture figure and the amount of money allegedly illegally obtained, as
recited in the indictment.
FACTS
The Second Superseding Indictment has two separate forfeiture allegations. These relate
to different charged crimes. Forfeiture Allegation I relates to Counts One through Sixteen and
Eighteen of the second superseding indictment. Count One of the second superseding indictment
charges conspiracy to commit wire fraud, mail fraud and money laundering. Counts Sixteen
through Eighteen of the second superseding indictment charge money laundering offenses.
2
Forfeiture Allegation II relates to Counts One through Fifteen of the second superseding
indictment. Count I of the second superseding indictment charges a conspiracy to commit wire
fraud, mail fraud and money laundering. Counts Two through Fifteen of the second superseding
indictment allege wire fraud offenses.
Forfeiture Allegation II states as follows:
“Upon conviction of one or more of the offenses alleged in Counts
One through Fifteen of this Superseding Indictment, defendant(s)
CARRIE MARIE NEIGHBORS and GUY MADISON
NEIGHBORS shall forfeit to the United States pursuant to 18
U.S.C. § 981(a)(1)( C) and 28 U.S.C. § 2461( c) any property
constituting or derived from proceeds obtained directly or
indirectly as a result of the said violation(s), including but not
limited to the following:
a. A sum of money equal to $525,000 in United States currency,
representing the amount of proceeds obtained as a result of the
offenses in Counts 1 through 15 for which the defendants are
jointly and severally liable;”
The indictment goes on to list as substitute assets a building located at 1904
Massachusetts Street, Lawrence Kansas, and a residence located at 1104 Andover, Lawrence,
Kansas.
18 U.S.C. § 981 provides as follows:
(a)(1) The following property is subject to forfeiture to the United States:
( C) Any property, real or personal, which constitutes or is derived from
proceeds traceable to a violation of section 215, 471, 472, 473, 474, 476,
477, 478, 479, 480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 656,
657, 842, 844, 1005, 1006, 1007, 1014, 1028, 1029, 1030, 1032, or 1344
of this title or any offense constituting “specified unlawful activity” (as
defined in section 1956(c)(7) of this title), or a conspiracy to commit such
offense.”
3
Defendants are not charged with violation any of the listed sections.
Section 1956(c)(7), which is also referenced in the statute, defines the term “specified
unlawful activity.” Defendants are not charged with any crimes contained within the definition.
As defendants are not charged with a violation of any of the sections listed under the
Forfeiture Allegation II, this allegation cannot be proven and must be dismissed.
Additionally, Forfeiture Allegation II seeks to claim money in the amount of
$525,000.00. The Government has provided no basis for this claim whatsoever. The second
superseding indictment states a claim that defendants were paid a total of $525,000.00 for all
sales made over the internet. Nowhere in the indictment is there a claim that $525,000.00 was
obtained through illegal means. There is also no explanation of how the figure was calculated or
what evidence could support it. Nothing indicates that every single sale made over the internet
was of stolen property.
The Government has listed round figures of money paid to people who allegedly sold
stolen property to defendants. These round figures from the indictment total $169,848.00.
Nowhere is there even an allegation that everything purchased from these individuals was stolen.
Thus, there are no facts alleged whatsoever to support the forfeiture of $525,000.00
The Government has also charged that specific amounts were paid for specific stolen
items that serve as the basis for substantive counts. The specific items listed in the indictment
total $3,212.00. The indictment, in Counts Sixteen, Seventeen and Eighteen, claims that a total
of $950.00 was obtained by the sale of stolen property. These amounts are the only specific
amounts alleged in the indictment to have been received by defendants as the result of
transactions involving allegedly stolen property. The Defendants are entitled under the Fifth and
4
Sixth Amendments to fair notice of the allegations against them. There is nothing in the
indictment – in either legal authority or factual allegations – that supports Forfeiture Allegation
II.
WHEREFORE, based on the above and foregoing arguments and authorities, Defendants
respectfully request that this Court grant their Motion to Dismiss Forfeiture Allegation II.
Respectfully Submitted,
/s/ .
Cheryl A. Pilate, KS No. 14601
Morgan Pilate, LLC
142 N. Cherry Street
Olathe, KS 66061
(913) 829-6336 Telephone
(913) 829-6446 Fax
Attorney for Guy Neighbors
AND
/s/ John Duma
John Duma, KS No. 10760
Attorney at Law
303 E. Poplar
Olathe, KS 66061
Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the above and forgoing response was
served on all parties of record pursuant to the ECF system on this 27th day of July, 2009.
5
_/s/ Cheryl A. Pilate
Monday, August 3, 2009
MOTION IN LIMINE AND MEMORANDUM IN SUPPORT Pursuant to the Fifth and Sixth Amendments
IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
V. CASE NUMBER: 07- 20124
CARRIE AND GUY NEIGHBORS
DEFENDANT’S JOINT MOTION IN LIMINE AND MEMORANDUM IN SUPPORT
Pursuant to the Fifth and Sixth Amendments to the United States Constitution and Rules 401,
402 and 403 of the Federal Rules of Evidence, defendants Carrie and Guy Neighbors respectfully
move the Court for an Order in limine to exclude the following evidence from being presented at
trial:
A. Any evidence outside of the direct evidence associated with the sales or transactions
identified by specific dates in pages 3 thru 16 in the second superseding
indictment.
B. Any evidence of a transaction in which the government cannot show that the
transaction involved stolen property by producing evidence from the owner of
the property from which the same was allegedly stolen.
C. Any evidence relating to transactions outside of the time period listed in the
conspiracy in the second superseding indictment.
D. Any evidence regarding any blogging or internet communication not directly related
to the transactions specifically enumerated in pages 3 thru 16 in the second
superseding indictment.
E. Any statements given by Carrie Neighbors during her proffer.
F. Any information regarding drugs or drug usage or drug manufacturing.
G. Any information regarding any allegations that the government intends to support
their allegations of obstruction as charged in Case 08-20105.
Carrie and Guy Neighbors would submit the following memorandum in support
their motion in limine.
INTRODUCTION
The defendants in this matter are charged with one count of conspiracy to commit wire and
mail fraud and money laundering, 14 counts of wire fraud and four counts of money laundering. The
indictment alleges that the defendants operated a business out of Lawrence Kansas known as
“Yellow House” that utilized the internet to sell stolen merchandise. The illegal transactions are
alleged to have commenced as early as January 2004 and continued until July of 2006 according to
the conspiracy charge as set out in the second superseding indictment. The indictment includes
allegations of multiple specific instances of the purchase and/or sale of stolen merchandise or
money related thereto, including specific dates on which the transfers of merchandise or money
occurred.
Carrie and Guy Neighbors seek an Order of the Court to exclude certain testimony and
evidence that has no relevance to the charges in the Second Superseding Indictment. See Fed. R.
Evid. 401 and 402. Even if the government could establish some nominal degree of relevance, any
probative value would be substantially outweighed by the danger of unfair prejudice to the
Neighbors. See Fed. R. Evid. 403. Therefore, an Order in limine excluding the evidence is
appropriate.
ARGUMENT
A. The court should exclude any evidence outside of the direct evidence associated with
the sales or transactions identified by specific dates in paragraphs 3 thru 16 in the
second superseding indictment.
The second superseding indictment lists with particularity the dates of transactions of the
purchase of stolen property allegedly purchased by the defendants, the dates of the times the
defendants placed the allegedly stolen property on the internet for resale and the dates on
which certain money gained from said transactions was transferred by wire to accounts
owned or controlled by the defendants. The presentation of this evidence will take the
government several weeks at a minimum. The Lawrence Police Department in conjunction
with several other Federal agencies has been investigating the defendants and their
association with “Yellow House” for several years. During this investigatory process the
collective law enforcement agencies have prepared in excess of six thousand pages of
documents resulting from their investigation. Much of the investigatory process involves
facts not directly related to the transactions specified in the indictment.
Even if relevant, “evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Fed. R. Evid. 403.
Presenting evidence outside of the scope of the transactions specified in the second
superseding indictment would be prejudicial to the defendants and confusing at best when
the jury begins to deliberate on this matter. Therefore, the evidence should be excluded at
trial.
B. Any evidence of a transaction in which the government cannot show that the
transaction involved stolen property by producing evidence from the owner of the
property from which the same was allegedly stolen.
In the second superseding indictment there are listed numerous transactions wherein it is alleged
that Carrie and Guy Neighbors purchased property from different individuals “knowing that the
property had been stolen”.
In reviewing the documentation provided by the government it appears that the government
has not identified the specific owners of some of the property that was alleged to have been stolen.
Without the testimony of the owners of the property to affirm the property had in fact been stolen
there would be no evidence that the defendants had in fact been involved in a “scheme to defraud”
as set out in the second superseding indictment and further it would be impossible for the
government to prove that the defendants purchased property “knowing that the property had been
stolen” also as set out in the second superseding indictment. Therefore, such evidence should be
excluded.
C. Any evidence relating to transactions outside of the time period listed in the
conspiracy in the second superseding indictment.
As mentioned above, the investigation into “Yellow House” and the Neighbors has been on
going for several years and appears to have continued even after the period of time specified in
the conspiracy count of the second superseding indictment. To produce any evidence relating to
activity occurring outside of the time period listed in the indictment would have no relevance and
further would only serve to confuse the jury. Therefore, such evidence should be excluded.
D. Any evidence regarding any blogging or internet communication not directly related to
the transactions specified in paragraphs 3 thru 16 in the second superseding
indictment.
As the court is probably aware, a great deal of time and energy has been spent in this case
on the blogging done by one or both of the defendants. For reference see Doc. 65 that was filed
by the government seeking a revocation of the defendant’s pre trial release. The motion came
on for hearing on July 18 and 21, 2008 in front of the Honorable James O’Hara. The motion
primarily dealt with blogging by the defendants that had taken place after the defendants had
been charged in this matter. The blogging for the most part dealt with witnesses and attorneys
involved in the prosecution of the case against the defendants. To counsel’s knowledge, none
of the blogs involve any facts concerning the substantive allegations as set out in the second
superseding indictment. The blogging evidence is not relevant to the issues to be considered by
the jury. Even if the evidence was remotely relevant the presentation of the same would unfairly
prejudice the defendants and would be a “waste of time” as contemplated by Fed. R. Evid. 403.
Therefore, such evidence should be excluded.
E. Any statements given by Carrie Neighbors during her proffer.
On August 24, August 29th and September 6, 2006 Carrie Neighbors met with officers
investigating the underlying allegations against the defendants and “Yellow House”. This
meeting was set up as the result of discussions between the AUSA representing the
government in this matter and the attorney for the defendants at that time. Pursuant to a
“proffer letter” Carrie Neighbors was to provide information to the investigating authorities
but the following language was included in the letter to wit:
“. . .if Ms. Neighbors provides a complete and truthful account of all information that
she has regarding all criminal wrongdoing perpetrated by herself or others, The United States
Attorney’s Office for the District of Kansas agrees that no statements made by Ms.
Neighbors during the proffer will be used against her in its case-in-chief, or in connection
with any sentencing proceeding, except as follows:
“. . . (3) In the event that Ms. Neighbors is a witness at any judicial proceeding, including a
criminal proceeding in which she is a defendant, and offers testimony that is different from
any statements provided during the proffer, the United States may use statements made by
Ms. Neighbors during the proffer, and all evidence derived directly or indirectly from such
statements, in cross examination of her. . .”
There were other exceptions to the proffer agreement than the one above set out but
they are not relevant to this motion. Therefore, such evidence should be excluded.
F. Any information regarding drugs or drug usage or drug manufacturing.
During the investigation of the current money laundering and mail and wire fraud allegations
the police discovered marijuana plants growing in the residence of the defendants. As a
result of that discovery the defendants have been charged separately in case 07-20073. There
is no relevance to the evidence of the marijuana that was found at the residence of the
defendants in the current case. Even if there were minimal suggestions of relevance of the
evidence it would be outweighed by the clear danger of unfair prejudice to the defendants.
Therefore, such evidence should be excluded.
G. Any information regarding any allegations that the government intends to
support their allegations of obstruction as charged in Case 08-20105.
As the result of actions taken by the defendants in August of 2008, two years after the
end of the conspiracy alleged in the instant case, the defendants were charged in case 08-
20105 with obstruction. Obviously these allegations have no bearing whatsoever on the case
before this court and said evidence should not be allowed to be presented by the government
in its case. Therefore, such evidence should be excluded.
CONCLUSION
Wherefore, the court should exclude the evidence as above requested and issue an order in
limine regarding the same.
/s/ John M. Duma
JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
JohnDuma@hotmail.com
ATTORNEY FOR CARRIE NEIGHBORS
/s/ Cheryl A. Pilate
CHERYL A. PILATE, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
ATTORNEY FOR GUY NEIGHBORS
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2009, I electronically filed the foregoing with the clerk of the
court by using the CM/ECF system, which will send a notice of electronic filing to Marietta Parker
and Terra Morehead, Assistant U.S. Attorney, 360 U.S. Courthouse, 500 State Avenue, Kansas City,
Kansas 66101 and all other counsel of record. I further certify that I mailed the foregoing document
and notice of electronic filing by first-class mail to the following non-CM/ECF participants: Carrie
Neighbors.
_/s/ John M. Duma_____
John M. Duma No.10760
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
V. CASE NUMBER: 07- 20124
CARRIE AND GUY NEIGHBORS
DEFENDANT’S JOINT MOTION IN LIMINE AND MEMORANDUM IN SUPPORT
Pursuant to the Fifth and Sixth Amendments to the United States Constitution and Rules 401,
402 and 403 of the Federal Rules of Evidence, defendants Carrie and Guy Neighbors respectfully
move the Court for an Order in limine to exclude the following evidence from being presented at
trial:
A. Any evidence outside of the direct evidence associated with the sales or transactions
identified by specific dates in pages 3 thru 16 in the second superseding
indictment.
B. Any evidence of a transaction in which the government cannot show that the
transaction involved stolen property by producing evidence from the owner of
the property from which the same was allegedly stolen.
C. Any evidence relating to transactions outside of the time period listed in the
conspiracy in the second superseding indictment.
D. Any evidence regarding any blogging or internet communication not directly related
to the transactions specifically enumerated in pages 3 thru 16 in the second
superseding indictment.
E. Any statements given by Carrie Neighbors during her proffer.
F. Any information regarding drugs or drug usage or drug manufacturing.
G. Any information regarding any allegations that the government intends to support
their allegations of obstruction as charged in Case 08-20105.
Carrie and Guy Neighbors would submit the following memorandum in support
their motion in limine.
INTRODUCTION
The defendants in this matter are charged with one count of conspiracy to commit wire and
mail fraud and money laundering, 14 counts of wire fraud and four counts of money laundering. The
indictment alleges that the defendants operated a business out of Lawrence Kansas known as
“Yellow House” that utilized the internet to sell stolen merchandise. The illegal transactions are
alleged to have commenced as early as January 2004 and continued until July of 2006 according to
the conspiracy charge as set out in the second superseding indictment. The indictment includes
allegations of multiple specific instances of the purchase and/or sale of stolen merchandise or
money related thereto, including specific dates on which the transfers of merchandise or money
occurred.
Carrie and Guy Neighbors seek an Order of the Court to exclude certain testimony and
evidence that has no relevance to the charges in the Second Superseding Indictment. See Fed. R.
Evid. 401 and 402. Even if the government could establish some nominal degree of relevance, any
probative value would be substantially outweighed by the danger of unfair prejudice to the
Neighbors. See Fed. R. Evid. 403. Therefore, an Order in limine excluding the evidence is
appropriate.
ARGUMENT
A. The court should exclude any evidence outside of the direct evidence associated with
the sales or transactions identified by specific dates in paragraphs 3 thru 16 in the
second superseding indictment.
The second superseding indictment lists with particularity the dates of transactions of the
purchase of stolen property allegedly purchased by the defendants, the dates of the times the
defendants placed the allegedly stolen property on the internet for resale and the dates on
which certain money gained from said transactions was transferred by wire to accounts
owned or controlled by the defendants. The presentation of this evidence will take the
government several weeks at a minimum. The Lawrence Police Department in conjunction
with several other Federal agencies has been investigating the defendants and their
association with “Yellow House” for several years. During this investigatory process the
collective law enforcement agencies have prepared in excess of six thousand pages of
documents resulting from their investigation. Much of the investigatory process involves
facts not directly related to the transactions specified in the indictment.
Even if relevant, “evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Fed. R. Evid. 403.
Presenting evidence outside of the scope of the transactions specified in the second
superseding indictment would be prejudicial to the defendants and confusing at best when
the jury begins to deliberate on this matter. Therefore, the evidence should be excluded at
trial.
B. Any evidence of a transaction in which the government cannot show that the
transaction involved stolen property by producing evidence from the owner of the
property from which the same was allegedly stolen.
In the second superseding indictment there are listed numerous transactions wherein it is alleged
that Carrie and Guy Neighbors purchased property from different individuals “knowing that the
property had been stolen”.
In reviewing the documentation provided by the government it appears that the government
has not identified the specific owners of some of the property that was alleged to have been stolen.
Without the testimony of the owners of the property to affirm the property had in fact been stolen
there would be no evidence that the defendants had in fact been involved in a “scheme to defraud”
as set out in the second superseding indictment and further it would be impossible for the
government to prove that the defendants purchased property “knowing that the property had been
stolen” also as set out in the second superseding indictment. Therefore, such evidence should be
excluded.
C. Any evidence relating to transactions outside of the time period listed in the
conspiracy in the second superseding indictment.
As mentioned above, the investigation into “Yellow House” and the Neighbors has been on
going for several years and appears to have continued even after the period of time specified in
the conspiracy count of the second superseding indictment. To produce any evidence relating to
activity occurring outside of the time period listed in the indictment would have no relevance and
further would only serve to confuse the jury. Therefore, such evidence should be excluded.
D. Any evidence regarding any blogging or internet communication not directly related to
the transactions specified in paragraphs 3 thru 16 in the second superseding
indictment.
As the court is probably aware, a great deal of time and energy has been spent in this case
on the blogging done by one or both of the defendants. For reference see Doc. 65 that was filed
by the government seeking a revocation of the defendant’s pre trial release. The motion came
on for hearing on July 18 and 21, 2008 in front of the Honorable James O’Hara. The motion
primarily dealt with blogging by the defendants that had taken place after the defendants had
been charged in this matter. The blogging for the most part dealt with witnesses and attorneys
involved in the prosecution of the case against the defendants. To counsel’s knowledge, none
of the blogs involve any facts concerning the substantive allegations as set out in the second
superseding indictment. The blogging evidence is not relevant to the issues to be considered by
the jury. Even if the evidence was remotely relevant the presentation of the same would unfairly
prejudice the defendants and would be a “waste of time” as contemplated by Fed. R. Evid. 403.
Therefore, such evidence should be excluded.
E. Any statements given by Carrie Neighbors during her proffer.
On August 24, August 29th and September 6, 2006 Carrie Neighbors met with officers
investigating the underlying allegations against the defendants and “Yellow House”. This
meeting was set up as the result of discussions between the AUSA representing the
government in this matter and the attorney for the defendants at that time. Pursuant to a
“proffer letter” Carrie Neighbors was to provide information to the investigating authorities
but the following language was included in the letter to wit:
“. . .if Ms. Neighbors provides a complete and truthful account of all information that
she has regarding all criminal wrongdoing perpetrated by herself or others, The United States
Attorney’s Office for the District of Kansas agrees that no statements made by Ms.
Neighbors during the proffer will be used against her in its case-in-chief, or in connection
with any sentencing proceeding, except as follows:
“. . . (3) In the event that Ms. Neighbors is a witness at any judicial proceeding, including a
criminal proceeding in which she is a defendant, and offers testimony that is different from
any statements provided during the proffer, the United States may use statements made by
Ms. Neighbors during the proffer, and all evidence derived directly or indirectly from such
statements, in cross examination of her. . .”
There were other exceptions to the proffer agreement than the one above set out but
they are not relevant to this motion. Therefore, such evidence should be excluded.
F. Any information regarding drugs or drug usage or drug manufacturing.
During the investigation of the current money laundering and mail and wire fraud allegations
the police discovered marijuana plants growing in the residence of the defendants. As a
result of that discovery the defendants have been charged separately in case 07-20073. There
is no relevance to the evidence of the marijuana that was found at the residence of the
defendants in the current case. Even if there were minimal suggestions of relevance of the
evidence it would be outweighed by the clear danger of unfair prejudice to the defendants.
Therefore, such evidence should be excluded.
G. Any information regarding any allegations that the government intends to
support their allegations of obstruction as charged in Case 08-20105.
As the result of actions taken by the defendants in August of 2008, two years after the
end of the conspiracy alleged in the instant case, the defendants were charged in case 08-
20105 with obstruction. Obviously these allegations have no bearing whatsoever on the case
before this court and said evidence should not be allowed to be presented by the government
in its case. Therefore, such evidence should be excluded.
CONCLUSION
Wherefore, the court should exclude the evidence as above requested and issue an order in
limine regarding the same.
/s/ John M. Duma
JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
JohnDuma@hotmail.com
ATTORNEY FOR CARRIE NEIGHBORS
/s/ Cheryl A. Pilate
CHERYL A. PILATE, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
ATTORNEY FOR GUY NEIGHBORS
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2009, I electronically filed the foregoing with the clerk of the
court by using the CM/ECF system, which will send a notice of electronic filing to Marietta Parker
and Terra Morehead, Assistant U.S. Attorney, 360 U.S. Courthouse, 500 State Avenue, Kansas City,
Kansas 66101 and all other counsel of record. I further certify that I mailed the foregoing document
and notice of electronic filing by first-class mail to the following non-CM/ECF participants: Carrie
Neighbors.
_/s/ John M. Duma_____
John M. Duma No.10760
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
Case Nos. 07-CR-20124-CM
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
vs. ))
Case Nos. 07-CR-20124-CM,
GUY M. NEIGHBORS ) 08-CR-20105-CM
)
and ))
CARRIE NEIGHBORS )
)
Defendants. )
DEFENDANTS’ JOINT MOTION FOR DISCOVERY OF
EXCULPATORY AND IMPEACHING INFORMATION UNDER
BRADY v. MARYLAND AND FOR DISCOVERY UNDER RULE 16
Defendants Guy Neighbors and Carrie Neighbors, by and through their respective
counsel Cheryl Pilate and John Duma, move this Honorable Court to enter an Order
directing the timely production of all exculpatory and impeaching evidence as demanded
by the due process clause of the Fifth Amendment, and as described by the Supreme
Court in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S.
150 (1972). “The essence of the Brady rule is the proposition that nondisclosure of
material exculpatory evidence violates a defendant’s due process right to a fair trial.”
Smith v. Sec’y of New Mexico Dep’t of Corrections, 50 F.3d 801, 823 (10th Cir. 1995).
Mr. Neighbors and Mrs. Neighbors further seek all discovery to which they are entitled
2
under Federal Rule of Criminal Procedure 16. In further support of this motion, the
Defendants refer the Court to the following Memorandum.
MEMORANDUM IN SUPPORT
I. Factual Background
Mr. Neighbors and Mrs. Neighbors are charged in three federal cases, the most
complex of which charges 18 counts, including conspiracy, fraud, and money laundering,
in connection with the operation of a second-hand store in Lawrence called Yellow
House. The Neighbors are also charged in a marijuana case, Case No. 07-20073, and in a
third case charging obstruction of justice, Case No. 08-20105.
Among those three cases, there are dozens of witnesses and potentially hundreds
of exculpatory and impeaching facts. Some of these facts will concern just one of these
cases, while others may be relevant to two cases or to all three. In the interest of
efficiency and economy, Defendants seek the timely production of all Brady/Giglio
material and all Rule 16 material in this single, unified motion.
As part of the discovery process, the government has produced more than 70 CDs
containing evidence, including audio and video surveillance, as well as thousands of
pages of reports and documents obtained from the Yellow House business. They now
seek additional evidence, favorable to their defense, that they reasonably believe may be
in the possession or control of the government.
3
The heart of the government’s massive prosecutorial effort is the Yellow House or
E Bay case, which involves allegations that Mr. Neighbors and Mrs. Neighbors purchased
various household, recreational and apparel items, including appliances and computers,
from various sellers, “knowing that the property had been stolen,” and then re-sold the
property on E-Bay. The marijuana case involves essentially a separate matter (a small
indoor garden allegedly used to cultivate marijuana plants), but the obstruction case is
linked, at least tangentially, to the E-Bay case in that it involves the receipt of allegedly
stolen property and alleged “obstruction” that occurred when authorities investigated the
sale of that property (computers) by Yellow House.
The prosecution of the E-Bay and obstruction cases essentially rests on: (1) the
perceived credibility of the cooperating witnesses or informants; (2) the Neighbors’
purported knowledge that the property was stolen; and (3) whether the characterization of
the property as stolen may be inferred from the surrounding circumstances. Absent
credible evidence that the property was stolen and that the Neighbors either knew or had
reason to believe it was stolen, the government’s case may fail.
Clearly, the ability to obtain and use exculpatory and impeaching evidence in this
case will be vital to Mr. Neighbors’ and Mrs. Neighbors’ efforts to mount a defense. The
right of a criminal defendant to due process is, “in essence, the right to a fair opportunity
to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294
(1973). This necessarily includes the “right to present a defense” so that the jury may
4
hear “the defendant’s version of the facts as well as the prosecution’s” and then decide
“where the truth lies.” Webb v. Texas, 409 U.S. 95 (1972). In the present case, the
Neighbors must have access to exculpatory and impeaching evidence that is vital to their
ability to defend against the government’s accusations and to present their theory of
defense.
II. The Requirements of Due Process
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution.” Id. at 87. In 1972, the Supreme Court
extended that rule to impeachment evidence, recognizing that because the credibility of a
witness may “well be determinative of guilt or innocence,” the prosecution is bound to
disclose such impeachment evidence. Giglio v. United States, 405 U.S. 150 (1972).
The prosecutor cannot limit his or her duty to produce exculpatory and impeaching
evidence by relying solely on what is in the prosecutor’s file. To the contrary, the
prosecutor “has a duty to learn of any favorable evidence known to others acting on the
government’s behalf in the case, including the police” and to disclose that evidence to the
defense. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). The prosecutor’s duty to
disclose favorable, material evidence “is inescapable.” Id.
5
The prosecutor must make these disclosures “whether a general request is made or
whether no request is made.” Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995)
(emphasis added). Because the exculpatory nature of particular evidence “can seldom be
predicted accurately until the entire record is complete,” the prosecutor “must resolve
close cases and ‘doubtful questions in favor of disclosure.’” Banks, 54 F.3d at 1517
(quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). The prosecutor is not
required to disclose all evidence, only that which is exculpatory and material. In Kyles v.
Whitley, 514 U.S. 419 (1995), the Supreme Court stated that the requirement of
“materiality” means that, in the absence of producing such evidence, the trial could not be
regarded as fair and the verdict would not be “worthy of confidence.” Id. at 434; see also
Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (citing Kyles materiality
standard); see also Banks, 54 F.3d at 1518. A prosecutor who is “anxious about tacking
too close to the wind will disclose a favorable piece of evidence.” Kyles, 115 S. Ct. at
1568.
The primary consideration under Brady is fairness. Banks, 54 F.3d at 1516. As
the Tenth Circuit recognized in Smith, the essence of the Brady rule rests on the
proposition that nondisclosure of material exculpatory evidence violates a defendant’s
due process right to a fair trial. Smith, 50 F.3d at 823. Under the Brady framework, “no
distinction is recognized between evidence that exculpates a defendant and ‘evidence that
the defense might have used to impeach the [State’s] witnesses by showing bias and
6
interest.’” Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009) United States v.
Bagley, 473 U.S. 667, 676 (1985).
These principles are so critical to a fair trial that the Department of Justice issued
in 2006 a revised version of a portion of the United States Attorneys’ Manual to
emphasize the prosecutor’s Brady/Giglio obligations. Indeed, the DOJ stated that its
position required prosecutors “to go beyond the minimum obligations imposed by the
Constitution” and adhere to broad standards for the disclosure of exculpatory and
impeaching information. See Exhibit A. This view was recently reflected by United
States Attorney General Eric Holder when he dismissed the prosecution against former
Senator Ted Stevens because prosecutors had not complied with their obligations under
Brady and had, among other things, failed to turn over prosecutorial notes that were
favorable to the defense. See Exhibit B.
The present case is precisely the kind of case in which the production of
exculpatory and impeaching evidence is especially critical to fulfilling the constitutional
guarantees of due process and a fair trial. The discovery in this case is voluminous, and
the federal case agent and local police officers have worked on it for years. Numerous
issues in the case are hotly contested. Many of the government’s witnesses are
“cooperating” witnesses or informants who have received some dispensation,
consideration or leniency for their statements and testimony. Moreover, there are
substantial disputes about core issues probative of guilt or innocence, including whether
7
there is evidence to support the claims that the items are stolen and whether the
Neighbors satisfied their legal obligations to inquire into the items’ origins. There is a
enormous amount of potentially exculpatory and impeaching evidence that is exclusively
within the hands the government. That evidence must now be produced.
III. Evidence Requested by Defendants
A. Brady Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Any information showing items seized by the government or being relied on in
the government’s case are not stolen.
– Any information showing such items were obtained by the seller by means other
than stealing, including but not limited to, in a transaction involving the trading of goods.
– Any information showing Guy Neighbors or Carrie Neighbors turned down
certain items offered or brought in by sellers or informants.
– Any information showing that any items relied on in this case were not new or
appeared to be used.
– Any information showing that the sellers had receipts or other proof of
ownership or lawful possession.
– Any information showing that either Guy Neighbors or Carrie Neighbors,
individually, was not involved with a particular transaction.
8
– Any information supporting the seller’s representations to Guy Neighbors or
Carrie Neighbors about how the seller came to lawfully possess the item.
– Any information concerning queries made or questions asked by Guy Neighbors
or Carrie Neighbors to determine the origin of a particular item or whether the seller
lawfully owned or possessed the item.
– Any information concerning other transactions that cooperating witnesses or
informants had with the Defendants in which the items were not stolen.
– Any information concerning the Lawrence Police Department’s treatment,
inspection or regulation of pawn shops, including whether Lawrence pawn shops have
been investigated for selling stolen property.
– Any information concerning whether the cooperating witnesses or informants in
this case also sold to Lawrence pawn shops.
– Any information or statements from any witnesses who stated that Guy
Neighbors or Carrie Neighbors were fair or honest or did not buy or sell stolen property.
– Any information showing that Guy Neighbors and/or Carrie Neighbors have
cooperated in the past with any law enforcement agency investigating the origin of items
sold at their store or on E-Bay.
– Reports of any interviews or statements with any witness or informant
concerning the Neighbors or Yellow House that has not been turned over to government
prosecutors.
9
– Records of any surveillance or any video or audio tapes or photographs or
tangible evidence of any kind not turned over to government prosecutors.
B. Giglio (Impeachment) Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Complete information concerning the criminal history of each testifying or
cooperating witness or informant, including all arrests, charges, convictions and
sentences.
– Complete information about all pending warrants or pending charges against any
cooperating witness.
– Complete information about any pending investigations of any witness, including
any investigation in which the witness may avoid criminal charges by cooperating in the
prosecution of the Defendants.
– Complete information about any pending warrants or any outstanding parole or
probation violations by any witness or informant.
– Complete information about all consideration, benefits, and/or leniency, –
extended, promised or offered as a possibility – to any witness, including but not limited
to:
– evidence of plea bargains offered for cooperation, including all terms
stated in any plea agreements.
10
– copies of proffer letters, plea agreements and 5K motions concerning
witnesses and informants.
– records of any money or other valuable benefit paid to any witness or
informant in this case.
– any document reflecting any communication by a prosecutor with a state
or federal prosecutor or any official of any prison, jail or law
enforcement agency on behalf of any witness or informant in this
case which seeks any benefit, leniency, or special consideration of
any kind for the witness or informant.
– any special favors or benefits to detained inmates, including but limited
to, grants of housing preferences, protective custody, special
privileges, provision of commissary items or special foods or snacks,
provision of clothing items including sneakers, gym shoes, athletic
shoes or any other item of special apparel not otherwise available.
– any other special favors or benefits to detained inmates, such as special
telephone privileges, access to media or computers or any other
benefit that is not generally available to other detainees at the
facility.
11
– Correspondence, notes or email from any cooperating witness or informant in
this case to any law enforcement agent or officer or Prosecutor in this case, written at any
time from the beginning of the witness’s cooperation in this case up to the present.
– Handwritten notes of any federal law enforcement agent or Lawrence police
officer or other law enforcement agent concerning this case.
– Handwritten or typewritten notes of any prosecutor reflecting any meeting with
or conversation, on the phone or in person, with any witness int his case.
– All information concerning any relationship between or among any witnesses in
this case, including information that any witnesses participated in drug trafficking
together, or are related to each other, or live together.
– All information concerning any relationship that any witness in this case has with
the Defendants or a member of their immediate family.
– All statements made by any witness or informant in the case, including all prior
inconsistent statements.
– All information about Annette Miller, including her contacts with the police
department; her filing of any Internal Affairs complaints; her cooperation in other
prosecutions, state or federal; her status or role as an informant for the police, if any; and
her relationships, as an informant or otherwise, with any member of the Lawrence Police
Department.
12
– All information concerning the substance abuse history and current drug use of
any witness or informant in the case.
– All information about any other case in which any witness or informant in this
case has cooperated, including copies of any courtroom transcripts and investigative
reports.
– All information concerning any history of serious mental illness of any witness
or informant in this case.
– Police Department personnel records of all testifying law enforcement officers,
including Officer Bialek, Officer Rantz and Officer McAtee. (This is especially critical if
the prosecution attempts to bring in evidence of the Neighbors’ “blogging” or “blast
emails” concerning alleged corruption in the police department).
A review of the authorities cited above shows that Defendants are conclusively
entitled to the above-listed information and evidence, as the production of this evidence is
essential to their right to fairly defend themselves, consistent with the Fifth and Sixth
Amendments of the United States Constitution.
IV. Rule 16
Guy Neighbors and Carrie Neighbors further request that the government produce
any remaining evidence under Federal Rule of Criminal Procedure 16. They note that
they are not only entitled to their own statements, but also to the production of all
documents and tangible things in the government’s possession which the government
13
intends to use in its case-in-chief or which were obtained from the Defendants. Rule 16
further requires that the government produce a written summary of any testimony to be
offered by an expert witness, in the event such a witness exists.
CONCLUSION
WHEREFORE for all of the above-stated reasons, Guy Neighbors and Carrie
Neighbors respectfully request that this Court enter an order directing the United States to
provide all information and evidence requested above, as required by the Fifth
Amendments due process clause, the Sixth Amendment right to a fair trial and by Rule
16, and, further, that this Court allow the parties to address this matter fully at a hearing
so that Defendants can take all appropriate steps to ensure proper compliance with the
demands of the Constitution and Rule 16.
Respectfully Submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors
AND
/s/ John Duma
John Duma, KS No. 10760
Attorney at Law
303 E. Poplar
Olathe, KS 66061
14
Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors
CERTIFICATE OF SERVICE
I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and
foregoing motion was served electronically on the Clerk of the Court and the government
pursuant to the ECF system on this 27th day 2009.
/s/ Cheryl A. Pilate
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
vs. ))
Case Nos. 07-CR-20124-CM,
GUY M. NEIGHBORS ) 08-CR-20105-CM
)
and ))
CARRIE NEIGHBORS )
)
Defendants. )
DEFENDANTS’ JOINT MOTION FOR DISCOVERY OF
EXCULPATORY AND IMPEACHING INFORMATION UNDER
BRADY v. MARYLAND AND FOR DISCOVERY UNDER RULE 16
Defendants Guy Neighbors and Carrie Neighbors, by and through their respective
counsel Cheryl Pilate and John Duma, move this Honorable Court to enter an Order
directing the timely production of all exculpatory and impeaching evidence as demanded
by the due process clause of the Fifth Amendment, and as described by the Supreme
Court in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S.
150 (1972). “The essence of the Brady rule is the proposition that nondisclosure of
material exculpatory evidence violates a defendant’s due process right to a fair trial.”
Smith v. Sec’y of New Mexico Dep’t of Corrections, 50 F.3d 801, 823 (10th Cir. 1995).
Mr. Neighbors and Mrs. Neighbors further seek all discovery to which they are entitled
2
under Federal Rule of Criminal Procedure 16. In further support of this motion, the
Defendants refer the Court to the following Memorandum.
MEMORANDUM IN SUPPORT
I. Factual Background
Mr. Neighbors and Mrs. Neighbors are charged in three federal cases, the most
complex of which charges 18 counts, including conspiracy, fraud, and money laundering,
in connection with the operation of a second-hand store in Lawrence called Yellow
House. The Neighbors are also charged in a marijuana case, Case No. 07-20073, and in a
third case charging obstruction of justice, Case No. 08-20105.
Among those three cases, there are dozens of witnesses and potentially hundreds
of exculpatory and impeaching facts. Some of these facts will concern just one of these
cases, while others may be relevant to two cases or to all three. In the interest of
efficiency and economy, Defendants seek the timely production of all Brady/Giglio
material and all Rule 16 material in this single, unified motion.
As part of the discovery process, the government has produced more than 70 CDs
containing evidence, including audio and video surveillance, as well as thousands of
pages of reports and documents obtained from the Yellow House business. They now
seek additional evidence, favorable to their defense, that they reasonably believe may be
in the possession or control of the government.
3
The heart of the government’s massive prosecutorial effort is the Yellow House or
E Bay case, which involves allegations that Mr. Neighbors and Mrs. Neighbors purchased
various household, recreational and apparel items, including appliances and computers,
from various sellers, “knowing that the property had been stolen,” and then re-sold the
property on E-Bay. The marijuana case involves essentially a separate matter (a small
indoor garden allegedly used to cultivate marijuana plants), but the obstruction case is
linked, at least tangentially, to the E-Bay case in that it involves the receipt of allegedly
stolen property and alleged “obstruction” that occurred when authorities investigated the
sale of that property (computers) by Yellow House.
The prosecution of the E-Bay and obstruction cases essentially rests on: (1) the
perceived credibility of the cooperating witnesses or informants; (2) the Neighbors’
purported knowledge that the property was stolen; and (3) whether the characterization of
the property as stolen may be inferred from the surrounding circumstances. Absent
credible evidence that the property was stolen and that the Neighbors either knew or had
reason to believe it was stolen, the government’s case may fail.
Clearly, the ability to obtain and use exculpatory and impeaching evidence in this
case will be vital to Mr. Neighbors’ and Mrs. Neighbors’ efforts to mount a defense. The
right of a criminal defendant to due process is, “in essence, the right to a fair opportunity
to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294
(1973). This necessarily includes the “right to present a defense” so that the jury may
4
hear “the defendant’s version of the facts as well as the prosecution’s” and then decide
“where the truth lies.” Webb v. Texas, 409 U.S. 95 (1972). In the present case, the
Neighbors must have access to exculpatory and impeaching evidence that is vital to their
ability to defend against the government’s accusations and to present their theory of
defense.
II. The Requirements of Due Process
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution.” Id. at 87. In 1972, the Supreme Court
extended that rule to impeachment evidence, recognizing that because the credibility of a
witness may “well be determinative of guilt or innocence,” the prosecution is bound to
disclose such impeachment evidence. Giglio v. United States, 405 U.S. 150 (1972).
The prosecutor cannot limit his or her duty to produce exculpatory and impeaching
evidence by relying solely on what is in the prosecutor’s file. To the contrary, the
prosecutor “has a duty to learn of any favorable evidence known to others acting on the
government’s behalf in the case, including the police” and to disclose that evidence to the
defense. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). The prosecutor’s duty to
disclose favorable, material evidence “is inescapable.” Id.
5
The prosecutor must make these disclosures “whether a general request is made or
whether no request is made.” Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995)
(emphasis added). Because the exculpatory nature of particular evidence “can seldom be
predicted accurately until the entire record is complete,” the prosecutor “must resolve
close cases and ‘doubtful questions in favor of disclosure.’” Banks, 54 F.3d at 1517
(quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). The prosecutor is not
required to disclose all evidence, only that which is exculpatory and material. In Kyles v.
Whitley, 514 U.S. 419 (1995), the Supreme Court stated that the requirement of
“materiality” means that, in the absence of producing such evidence, the trial could not be
regarded as fair and the verdict would not be “worthy of confidence.” Id. at 434; see also
Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (citing Kyles materiality
standard); see also Banks, 54 F.3d at 1518. A prosecutor who is “anxious about tacking
too close to the wind will disclose a favorable piece of evidence.” Kyles, 115 S. Ct. at
1568.
The primary consideration under Brady is fairness. Banks, 54 F.3d at 1516. As
the Tenth Circuit recognized in Smith, the essence of the Brady rule rests on the
proposition that nondisclosure of material exculpatory evidence violates a defendant’s
due process right to a fair trial. Smith, 50 F.3d at 823. Under the Brady framework, “no
distinction is recognized between evidence that exculpates a defendant and ‘evidence that
the defense might have used to impeach the [State’s] witnesses by showing bias and
6
interest.’” Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009) United States v.
Bagley, 473 U.S. 667, 676 (1985).
These principles are so critical to a fair trial that the Department of Justice issued
in 2006 a revised version of a portion of the United States Attorneys’ Manual to
emphasize the prosecutor’s Brady/Giglio obligations. Indeed, the DOJ stated that its
position required prosecutors “to go beyond the minimum obligations imposed by the
Constitution” and adhere to broad standards for the disclosure of exculpatory and
impeaching information. See Exhibit A. This view was recently reflected by United
States Attorney General Eric Holder when he dismissed the prosecution against former
Senator Ted Stevens because prosecutors had not complied with their obligations under
Brady and had, among other things, failed to turn over prosecutorial notes that were
favorable to the defense. See Exhibit B.
The present case is precisely the kind of case in which the production of
exculpatory and impeaching evidence is especially critical to fulfilling the constitutional
guarantees of due process and a fair trial. The discovery in this case is voluminous, and
the federal case agent and local police officers have worked on it for years. Numerous
issues in the case are hotly contested. Many of the government’s witnesses are
“cooperating” witnesses or informants who have received some dispensation,
consideration or leniency for their statements and testimony. Moreover, there are
substantial disputes about core issues probative of guilt or innocence, including whether
7
there is evidence to support the claims that the items are stolen and whether the
Neighbors satisfied their legal obligations to inquire into the items’ origins. There is a
enormous amount of potentially exculpatory and impeaching evidence that is exclusively
within the hands the government. That evidence must now be produced.
III. Evidence Requested by Defendants
A. Brady Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Any information showing items seized by the government or being relied on in
the government’s case are not stolen.
– Any information showing such items were obtained by the seller by means other
than stealing, including but not limited to, in a transaction involving the trading of goods.
– Any information showing Guy Neighbors or Carrie Neighbors turned down
certain items offered or brought in by sellers or informants.
– Any information showing that any items relied on in this case were not new or
appeared to be used.
– Any information showing that the sellers had receipts or other proof of
ownership or lawful possession.
– Any information showing that either Guy Neighbors or Carrie Neighbors,
individually, was not involved with a particular transaction.
8
– Any information supporting the seller’s representations to Guy Neighbors or
Carrie Neighbors about how the seller came to lawfully possess the item.
– Any information concerning queries made or questions asked by Guy Neighbors
or Carrie Neighbors to determine the origin of a particular item or whether the seller
lawfully owned or possessed the item.
– Any information concerning other transactions that cooperating witnesses or
informants had with the Defendants in which the items were not stolen.
– Any information concerning the Lawrence Police Department’s treatment,
inspection or regulation of pawn shops, including whether Lawrence pawn shops have
been investigated for selling stolen property.
– Any information concerning whether the cooperating witnesses or informants in
this case also sold to Lawrence pawn shops.
– Any information or statements from any witnesses who stated that Guy
Neighbors or Carrie Neighbors were fair or honest or did not buy or sell stolen property.
– Any information showing that Guy Neighbors and/or Carrie Neighbors have
cooperated in the past with any law enforcement agency investigating the origin of items
sold at their store or on E-Bay.
– Reports of any interviews or statements with any witness or informant
concerning the Neighbors or Yellow House that has not been turned over to government
prosecutors.
9
– Records of any surveillance or any video or audio tapes or photographs or
tangible evidence of any kind not turned over to government prosecutors.
B. Giglio (Impeachment) Evidence
Mr. Neighbors and Mrs. Neighbors request that the government produce the
following:
– Complete information concerning the criminal history of each testifying or
cooperating witness or informant, including all arrests, charges, convictions and
sentences.
– Complete information about all pending warrants or pending charges against any
cooperating witness.
– Complete information about any pending investigations of any witness, including
any investigation in which the witness may avoid criminal charges by cooperating in the
prosecution of the Defendants.
– Complete information about any pending warrants or any outstanding parole or
probation violations by any witness or informant.
– Complete information about all consideration, benefits, and/or leniency, –
extended, promised or offered as a possibility – to any witness, including but not limited
to:
– evidence of plea bargains offered for cooperation, including all terms
stated in any plea agreements.
10
– copies of proffer letters, plea agreements and 5K motions concerning
witnesses and informants.
– records of any money or other valuable benefit paid to any witness or
informant in this case.
– any document reflecting any communication by a prosecutor with a state
or federal prosecutor or any official of any prison, jail or law
enforcement agency on behalf of any witness or informant in this
case which seeks any benefit, leniency, or special consideration of
any kind for the witness or informant.
– any special favors or benefits to detained inmates, including but limited
to, grants of housing preferences, protective custody, special
privileges, provision of commissary items or special foods or snacks,
provision of clothing items including sneakers, gym shoes, athletic
shoes or any other item of special apparel not otherwise available.
– any other special favors or benefits to detained inmates, such as special
telephone privileges, access to media or computers or any other
benefit that is not generally available to other detainees at the
facility.
11
– Correspondence, notes or email from any cooperating witness or informant in
this case to any law enforcement agent or officer or Prosecutor in this case, written at any
time from the beginning of the witness’s cooperation in this case up to the present.
– Handwritten notes of any federal law enforcement agent or Lawrence police
officer or other law enforcement agent concerning this case.
– Handwritten or typewritten notes of any prosecutor reflecting any meeting with
or conversation, on the phone or in person, with any witness int his case.
– All information concerning any relationship between or among any witnesses in
this case, including information that any witnesses participated in drug trafficking
together, or are related to each other, or live together.
– All information concerning any relationship that any witness in this case has with
the Defendants or a member of their immediate family.
– All statements made by any witness or informant in the case, including all prior
inconsistent statements.
– All information about Annette Miller, including her contacts with the police
department; her filing of any Internal Affairs complaints; her cooperation in other
prosecutions, state or federal; her status or role as an informant for the police, if any; and
her relationships, as an informant or otherwise, with any member of the Lawrence Police
Department.
12
– All information concerning the substance abuse history and current drug use of
any witness or informant in the case.
– All information about any other case in which any witness or informant in this
case has cooperated, including copies of any courtroom transcripts and investigative
reports.
– All information concerning any history of serious mental illness of any witness
or informant in this case.
– Police Department personnel records of all testifying law enforcement officers,
including Officer Bialek, Officer Rantz and Officer McAtee. (This is especially critical if
the prosecution attempts to bring in evidence of the Neighbors’ “blogging” or “blast
emails” concerning alleged corruption in the police department).
A review of the authorities cited above shows that Defendants are conclusively
entitled to the above-listed information and evidence, as the production of this evidence is
essential to their right to fairly defend themselves, consistent with the Fifth and Sixth
Amendments of the United States Constitution.
IV. Rule 16
Guy Neighbors and Carrie Neighbors further request that the government produce
any remaining evidence under Federal Rule of Criminal Procedure 16. They note that
they are not only entitled to their own statements, but also to the production of all
documents and tangible things in the government’s possession which the government
13
intends to use in its case-in-chief or which were obtained from the Defendants. Rule 16
further requires that the government produce a written summary of any testimony to be
offered by an expert witness, in the event such a witness exists.
CONCLUSION
WHEREFORE for all of the above-stated reasons, Guy Neighbors and Carrie
Neighbors respectfully request that this Court enter an order directing the United States to
provide all information and evidence requested above, as required by the Fifth
Amendments due process clause, the Sixth Amendment right to a fair trial and by Rule
16, and, further, that this Court allow the parties to address this matter fully at a hearing
so that Defendants can take all appropriate steps to ensure proper compliance with the
demands of the Constitution and Rule 16.
Respectfully Submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors
AND
/s/ John Duma
John Duma, KS No. 10760
Attorney at Law
303 E. Poplar
Olathe, KS 66061
14
Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors
CERTIFICATE OF SERVICE
I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and
foregoing motion was served electronically on the Clerk of the Court and the government
pursuant to the ECF system on this 27th day 2009.
/s/ Cheryl A. Pilate
Text version of the motion
1
IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
Plaintiff,
V. CASE NUMBER: 07-20124
CARRIE and GUY NEIGHBORS
Defendant.
DEFENDANT’S JOINT MOTION TO SUPPRESS EVIDENCE
COMES NOW, Carrie and Guy Neighbors, by and through counsel, John M.
Duma and Cheryl Pilate and moves this court pursuant to Rule 12(b)(3) of the
Federal Rules for Criminal Procedure for an order suppressing certain evidence
seized to be used in the trial in chief against the defendants. In support of said
motion the defendants would state as follows:
FACTUAL STATEMENT
WARRANTS EXECUTED DECEMBER 2, 2005
On November 30, 2005 an officer of the Lawrence Police Department applied
for and received a search warrant for among other things
“The residence located at 1104 Andover Street, Lawrence Douglas County, Kansas
66049 . . .”.
The affidavit that was submitted in support of the search warrant contained 43
pages of information, single-spaced, outlining why the officer requesting the
2
search warrant believed the warrant should issue.
The affidavit contained only minimal references to the residence located at
1104 Andover Street, Lawrence Kansas (hereinafter referred to as Andover). The
remainder of the affidavit outlined information that supported the request for a
search warrant on the commercial establishment known as “Yellow House” located
at 1904 Massachusetts Street, Lawrence Kansas.
The affidavit contained information regarding the Andover location based on
items collected from bags of trash in front of the Andover address. The first trash
pull occurred on November 16, 2005. The officer that recovered the trash did not
observe who placed the bags of trash at that location, further there was no mention
in the affidavit as to whether there were other bags of trash in the same vicinity as
the bags recovered by the officer. After recovering the two trash bags the officer
took the same to a secure location to “thoroughly search” the same.
The search of the trash bags revealed the following information that was set
out in the affidavit on page 20 to wit:
“* eBay document denoting “Hello yellowhair-bargains” and “send
payment” to a sellers address “Polart, 5700 Sarah Ave., FL 34233
* 2 each printed PayPal shipping labels (USPS) to Imad Matar, 12021
Downey AVE., Downey CA 90242 and the return address as yellow
house store, 1904 Massachusetts St., Lawrence, KS 66044 dated
3
11/08/2005
* 1 each printed PayPal shipping labels (UPS) to Crystal Morris 800 E
Diamond Blvd. Ste 3-131, PO Box 115 Anchorage, AK 99515 and the
return address as yellow house store, 1904 Massachusetts St., Lawrence,
KS 66044 dated 11/08/2005
* Pay Pal document denoting “Create your own shipping label” showing
shipper’s address as yellow house store, 1904 Massachusetts St.,
Lawrence, KS 66044 and a print date of 01/21/2002 to Eduard Scott.
* eBay document showing a Compaq Presario Desktop PC 2.93 GHZ that
had been paid for and payment was sent to
YELLOWHOUSE@SUNFLOWER.COM on Sept. 23 2005. Seller
information shows yellowhair-bargains and the winning buyer as
jnicole42375.
These documents appear consistent with the selling and shipping of
posted eBay merchandise on the yellowhair-bargains web store
indicating transactions are being conducted at the Neighbor’ residence.”
Affidavit dated November 30, 2005 page 20.
The second trash pull occurred on November 30, 2005 wherein the
investigating officers collected a single bag of trash from the curb in front of the
Andover residence. Again the trash was transported to a secure location to be
4
“thoroughly searched”. The affidavit indicates that the following items were
recovered to wit:
• “An envelope addressed to Guy and Carrie Neighbors showing an
address of 1104 Andover, Lawrence, Kansas.
• An envelope addressed to Carrie Neighbors Yellow House 1904
Massachusetts, Lawrence, Kansas. The document was from Ann
Sutherland of Lake Oswego, Oregon. The document further
demonstrates that business documents addressed to the Yellow House
business are being taken to the owner’s residence located at 1104
Andover.”
(Affidavit dated November 30, 2005 page31).
The discovery provided to counsel for the defendants in this case indicate that
another trash pull was conducted by the Lawrence Police Department on October
26, 2005. The report on that trash pull concluded: “The paper sack that was
collected had nothing of evidentiary value inside it.” This information was not
provided in the affidavit to the issuing magistrate of the search warrant. Further,
there was one trash pull listed in the affidavit, which recovered trash from the
“Yellow House” business. There were no documents or other information to
connect the Andover property with the “Yellow House” property recovered from
the trash pull at “Yellow House”.
5
The affidavit sets out the great lengths the Lawrence Police Department went
to investigate the transactions occurring at the “Yellow House” store. In the onemonth
period of time leading up to the issuance of the search warrant it appears
that the investigators were conducting an almost continuous investigation of
“Yellow House”. There is no information provided in the affidavit that indicates
that there was ever observed any property being transported from the “Yellow
House” store to the Andover address. The affidavit does not even present a
conclusory opinion by the affiant that ordinarily persons involved in the purchasing
of stolen property keep records of the suspect transactions at their home residence.
The affidavit concludes by stating.
“Furthermore, to complete a more thorough investigation into the fencing of
stolen property and attempted possession of stolen property AFFIANT requests
that search warrants be issued for the before mentioned locations.”
When the officers executed the search warrant they recovered various items
that were placed in evidence that the government intends to use in the presentation
of evidence in its case in chief. Further, while executing the first search warrant
of December 2, 2005 the officers observed what appeared to be marijuana plants
and assorted property which led to the issuance of a second search warrant and
resulting charges being filed in case 07-20073. Also, the executing officers of the
December 2, 2005 search warrants confiscated many items of property that
6
exceeded the scope of their authority under the issuing warrants.
WARRANTS EXECUTED JULY 7, 2006
The investigation into the “Yellow House” business continued after the
execution of the search warrants in December of 2005. On July 6, 2006, a postal
inspector applied for and received a search warrant for the Andover residence. The
affidavit contained a great deal of information discovered as the result of the
previous search warrants having been issued in December of 2005. Without the
information from the December 2005 search, the affidavit for the July 2006
warrant would not have contained enough information for the issuing magistrate to
have found probable cause to issue a search warrant for the Andover property.
Additionally, when the officers executed the July 7, 2006 warrant they allegedly
observed evidence that caused them to apply for and receive yet another search
warrant. During the execution of the second July warrant the officers discovered
what was purportedly a marijuana growing operation at the Andover property.
ARGUMENT AND AUTHORITY
a. Lack of probable cause to issue warrant
Probable cause requires a nexus between suspected criminal activity and the
place to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th
Cir. 1998). The Fourth Amendment protects individuals from unreasonable
7
searches and seizures U.S. Const. amend. IV. In determining whether a search
warrant is supported by probable cause, the appellate court review is "the
sufficiency of the affidavit upon which a warrant [was] issued by looking at the
totality of the circumstances [to ensure] 'that the [issuing judge] had a substantial
basis for concluding that probable cause existed.'" United States v. Tisdale, 248
F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
(1983)). The appellate courts afford the issuing judge's finding of probable cause
great deference unless the affidavit fails to provide that substantial basis. See
United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).
“Probable cause undoubtedly requires a nexus between suspected criminal activity
and the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th
Cir. 1990).
In the case before this court the defendants concede that the affidavit for the
first search executed on December2, 2005 would satisfy the probable cause
requirements and nexus for the search of the “Yellow House” store. However, the
defendants would argue that the probable cause requirement and nexus was not
produced in the affidavit provided to the issuing magistrate on the warrant issued
and executed the same date on the Andover property.
The only information listed in the affidavit relating to the Andover property is
the information pulled from two trash pulls conducted by investigating officers
8
with the Lawrence Police Department. During the two trash pulls the officers
found several pieces of mail along with shipping receipts that contained the
address of the “Yellow House” business or otherwise connected with the “Yellow
House” business. At no time was any information provided to the issuing
magistrate that any documents or other information located at the Andover location
were in any way connected to a specific suspected transaction of stolen property.
There was insufficient information provided to the judge issuing the first search
warrant on the Andover property to provide the necessary probable cause for the
issuance of said warrant.
The defense anticipates the government will argue that even if the affidavit
supporting the warrant was insufficient, the Leon exception will still prevent the
suppression of the evidence in question.
United States v. Leon, 468 U.S. 897 (1984). “In Leon, the Supreme Court
held that evidence seized under a search warrant later determined to be invalid may
be admissible if the officers executing the warrant acted in good faith and with
objectively reasonable reliance on the search warrant. See United States v.
Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990).
There are four situations, however, in which the good faith exception is not
applicable:
(1) if the issuing magistrate was “‘misled by information in an affidavit
9
that the affiant knew was false or would have known was false except for
his reckless disregard for the truth;’” (2) if “‘the issuing magistrate
wholly abandoned his judicial role;’” (3) if the affidavit was “‘so lacking
in indicia of probable cause as to render official belief in its existence
entirely unreasonable,’” or in other words, where “‘the warrant application
was supported by [nothing] more than a “bare bones” affidavit;’” and (4)
if the warrant was facially deficient. United States v. Van Shutters, II, 163
F.3d 331, 337 (6th Cir.1998) (quoting Leon, 468 U.S. at 914-15, 104 S.Ct.
at 3416-17).
The defendants would argue that the lack of any recitation of probable cause
that the Andover residence would contain fruits, instrumentalities or other evidence
of criminal activity rendered the affidavit so lacking in indicia of probable cause
that the judicial officer either wholly abandoned his judicial role or any person
acting in their official capacity could not reasonably believe the search warrant was
supported by probable cause.
For this reason alone the evidence found during the search on the first warrant
issued on the Andover property and executed December 2, 2005 should be
suppressed.
b. Overbroad execution of warrant
"The Fourth Amendment requires that a search warrant describe the things to
10
be seized with sufficient particularity to prevent a general exploratory rummaging
in a person's belongings." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.
1999). We look at the description of the items to be seized practically and the
warrant's language in a common sense fashion. See Davis v. Gracey, 111 F.3d
1472, 1478 (10th Cir. 1997). A warrant is sufficiently particular "when it enables
the searcher to reasonably ascertain and identify the things authorized to be
seized." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982)
Under the law of this circuit, "even evidence which is properly seized
pursuant to a warrant must be suppressed if the officers executing the warrant
exhibit `flagrant disregard" for its terms." United States v. Medlin, 842 F.2d 1194,
at 1199 (10th Cir. 1988) (emphasis added). The basis for blanket suppression when
a search warrant is executed with flagrant disregard for its terms "is found in our
traditional repugnance to `general searches' which were conducted in the colonies
pursuant to writs of assistance." Id. To protect against invasive and arbitrary
general searches, the Fourth Amendment mandates that search warrants
"particularly describ[e] the place to be searched and the persons or things to be
seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United
States, 275 U.S. 192, 196 (1927), [t]he requirement that warrants shall particularly
describe the things to be seized makes general searches under them impossible and
prevents the seizure of one thing under a warrant describing another. As to what is
11
to be taken, nothing is left to the discretion of the officer executing the warrant. Id.
Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly
exceed the scope of a search warrant in seizing property, the particularity
requirement is undermined and a valid warrant is transformed into a general
warrant thereby requiring suppression of all evidence seized under that warrant."
842 F.2d at 1199 (emphasis added). United States v. Foster, 100 F.3D 846 (10th
Cir. 11/15/1996).
In the case before the court the defendants would argue that both the evidence
seized as a result of the second warrant issued on the Andover property and
executed on December 2, 2005 and the search warrant issued on the “Yellow
House” property also executed on December 2, 2005 should be suppressed as the
result of the officers having grossly exceeded the scope of the property which was
seized.
c. Fruit of the Poisonous Tree
The ordinary remedy in a criminal case for violation of the Fourth
Amendment is suppression of any evidence obtained during the illegal police
conduct. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant
may also suppress any other evidence deemed to be "fruit of the poisonous tree,"
(i.e., evidence discovered as a direct result of the unlawful activity), by showing
12
the requisite factual nexus between the illegality and the challenged evidence.
Wong Sun v. United States, 371 U.S. 471, 485 (1963); United States v.
NavaRamirez, 210 F.3d 1128, 1131 (10th Cir. 2000).
In the instant case the second search warrant executed on December 2, 2005
for the Andover property was issued based on evidence discovered during the
execution of the first search warrant on the same date. Accordingly, the evidence
gained from the second search warrant on the Andover property executed
December 2, 2005 should be suppressed.
Likewise, the first search warrant executed on July 7, 2006 on the Andover
property was issued based on information discovered during the execution of the
first and second search warrants issued on December 2, 2005.
Finally, the second search warrant issued on July 7, 2006 was issued based
only on information gained during the execution of the first search warrant of July
7, 2006. Accordingly, all evidence seized on the first and second search warrants
executed on July 7, 2006 on the Andover property should be suppressed.
Therefore, all evidence seized as the result of search warrants executed on
December 2, 2005 and July 7, 2006 should be suppressed.
13
Respectfully submitted.
/s/ John M. Duma
JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
JohnDuma@hotmail.com
ATTORNEY FOR CARRIE NEIGHBORS
/s/ Cheryl A. Pilate
CHERYL A. PILATE, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
ATTORNEY FOR GUY NEIGHBORS
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2009, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system, which will send a notice of
electronic filing to Marietta Parker, Assistant U.S. Attorney, 360 U.S. Courthouse,
500 State Avenue, Kansas City, Kansas 66101 and all other counsel of record. I
further certify that I mailed the foregoing document and notice of electronic filing by
first-class mail to the following non-CM/ECF participants: Carrie Neighbors.
_/s/ John M. Duma_____
John M. Duma No.10760
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
Plaintiff,
V. CASE NUMBER: 07-20124
CARRIE and GUY NEIGHBORS
Defendant.
DEFENDANT’S JOINT MOTION TO SUPPRESS EVIDENCE
COMES NOW, Carrie and Guy Neighbors, by and through counsel, John M.
Duma and Cheryl Pilate and moves this court pursuant to Rule 12(b)(3) of the
Federal Rules for Criminal Procedure for an order suppressing certain evidence
seized to be used in the trial in chief against the defendants. In support of said
motion the defendants would state as follows:
FACTUAL STATEMENT
WARRANTS EXECUTED DECEMBER 2, 2005
On November 30, 2005 an officer of the Lawrence Police Department applied
for and received a search warrant for among other things
“The residence located at 1104 Andover Street, Lawrence Douglas County, Kansas
66049 . . .”.
The affidavit that was submitted in support of the search warrant contained 43
pages of information, single-spaced, outlining why the officer requesting the
2
search warrant believed the warrant should issue.
The affidavit contained only minimal references to the residence located at
1104 Andover Street, Lawrence Kansas (hereinafter referred to as Andover). The
remainder of the affidavit outlined information that supported the request for a
search warrant on the commercial establishment known as “Yellow House” located
at 1904 Massachusetts Street, Lawrence Kansas.
The affidavit contained information regarding the Andover location based on
items collected from bags of trash in front of the Andover address. The first trash
pull occurred on November 16, 2005. The officer that recovered the trash did not
observe who placed the bags of trash at that location, further there was no mention
in the affidavit as to whether there were other bags of trash in the same vicinity as
the bags recovered by the officer. After recovering the two trash bags the officer
took the same to a secure location to “thoroughly search” the same.
The search of the trash bags revealed the following information that was set
out in the affidavit on page 20 to wit:
“* eBay document denoting “Hello yellowhair-bargains” and “send
payment” to a sellers address “Polart, 5700 Sarah Ave., FL 34233
* 2 each printed PayPal shipping labels (USPS) to Imad Matar, 12021
Downey AVE., Downey CA 90242 and the return address as yellow
house store, 1904 Massachusetts St., Lawrence, KS 66044 dated
3
11/08/2005
* 1 each printed PayPal shipping labels (UPS) to Crystal Morris 800 E
Diamond Blvd. Ste 3-131, PO Box 115 Anchorage, AK 99515 and the
return address as yellow house store, 1904 Massachusetts St., Lawrence,
KS 66044 dated 11/08/2005
* Pay Pal document denoting “Create your own shipping label” showing
shipper’s address as yellow house store, 1904 Massachusetts St.,
Lawrence, KS 66044 and a print date of 01/21/2002 to Eduard Scott.
* eBay document showing a Compaq Presario Desktop PC 2.93 GHZ that
had been paid for and payment was sent to
YELLOWHOUSE@SUNFLOWER.COM on Sept. 23 2005. Seller
information shows yellowhair-bargains and the winning buyer as
jnicole42375.
These documents appear consistent with the selling and shipping of
posted eBay merchandise on the yellowhair-bargains web store
indicating transactions are being conducted at the Neighbor’ residence.”
Affidavit dated November 30, 2005 page 20.
The second trash pull occurred on November 30, 2005 wherein the
investigating officers collected a single bag of trash from the curb in front of the
Andover residence. Again the trash was transported to a secure location to be
4
“thoroughly searched”. The affidavit indicates that the following items were
recovered to wit:
• “An envelope addressed to Guy and Carrie Neighbors showing an
address of 1104 Andover, Lawrence, Kansas.
• An envelope addressed to Carrie Neighbors Yellow House 1904
Massachusetts, Lawrence, Kansas. The document was from Ann
Sutherland of Lake Oswego, Oregon. The document further
demonstrates that business documents addressed to the Yellow House
business are being taken to the owner’s residence located at 1104
Andover.”
(Affidavit dated November 30, 2005 page31).
The discovery provided to counsel for the defendants in this case indicate that
another trash pull was conducted by the Lawrence Police Department on October
26, 2005. The report on that trash pull concluded: “The paper sack that was
collected had nothing of evidentiary value inside it.” This information was not
provided in the affidavit to the issuing magistrate of the search warrant. Further,
there was one trash pull listed in the affidavit, which recovered trash from the
“Yellow House” business. There were no documents or other information to
connect the Andover property with the “Yellow House” property recovered from
the trash pull at “Yellow House”.
5
The affidavit sets out the great lengths the Lawrence Police Department went
to investigate the transactions occurring at the “Yellow House” store. In the onemonth
period of time leading up to the issuance of the search warrant it appears
that the investigators were conducting an almost continuous investigation of
“Yellow House”. There is no information provided in the affidavit that indicates
that there was ever observed any property being transported from the “Yellow
House” store to the Andover address. The affidavit does not even present a
conclusory opinion by the affiant that ordinarily persons involved in the purchasing
of stolen property keep records of the suspect transactions at their home residence.
The affidavit concludes by stating.
“Furthermore, to complete a more thorough investigation into the fencing of
stolen property and attempted possession of stolen property AFFIANT requests
that search warrants be issued for the before mentioned locations.”
When the officers executed the search warrant they recovered various items
that were placed in evidence that the government intends to use in the presentation
of evidence in its case in chief. Further, while executing the first search warrant
of December 2, 2005 the officers observed what appeared to be marijuana plants
and assorted property which led to the issuance of a second search warrant and
resulting charges being filed in case 07-20073. Also, the executing officers of the
December 2, 2005 search warrants confiscated many items of property that
6
exceeded the scope of their authority under the issuing warrants.
WARRANTS EXECUTED JULY 7, 2006
The investigation into the “Yellow House” business continued after the
execution of the search warrants in December of 2005. On July 6, 2006, a postal
inspector applied for and received a search warrant for the Andover residence. The
affidavit contained a great deal of information discovered as the result of the
previous search warrants having been issued in December of 2005. Without the
information from the December 2005 search, the affidavit for the July 2006
warrant would not have contained enough information for the issuing magistrate to
have found probable cause to issue a search warrant for the Andover property.
Additionally, when the officers executed the July 7, 2006 warrant they allegedly
observed evidence that caused them to apply for and receive yet another search
warrant. During the execution of the second July warrant the officers discovered
what was purportedly a marijuana growing operation at the Andover property.
ARGUMENT AND AUTHORITY
a. Lack of probable cause to issue warrant
Probable cause requires a nexus between suspected criminal activity and the
place to be searched. United States v. Rowland, 145 F.3d 1194, 1203-1204 (10th
Cir. 1998). The Fourth Amendment protects individuals from unreasonable
7
searches and seizures U.S. Const. amend. IV. In determining whether a search
warrant is supported by probable cause, the appellate court review is "the
sufficiency of the affidavit upon which a warrant [was] issued by looking at the
totality of the circumstances [to ensure] 'that the [issuing judge] had a substantial
basis for concluding that probable cause existed.'" United States v. Tisdale, 248
F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
(1983)). The appellate courts afford the issuing judge's finding of probable cause
great deference unless the affidavit fails to provide that substantial basis. See
United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998).
“Probable cause undoubtedly requires a nexus between suspected criminal activity
and the place to be searched." United States v. Snow, 919 F.2d 1458, 1459 (10th
Cir. 1990).
In the case before this court the defendants concede that the affidavit for the
first search executed on December2, 2005 would satisfy the probable cause
requirements and nexus for the search of the “Yellow House” store. However, the
defendants would argue that the probable cause requirement and nexus was not
produced in the affidavit provided to the issuing magistrate on the warrant issued
and executed the same date on the Andover property.
The only information listed in the affidavit relating to the Andover property is
the information pulled from two trash pulls conducted by investigating officers
8
with the Lawrence Police Department. During the two trash pulls the officers
found several pieces of mail along with shipping receipts that contained the
address of the “Yellow House” business or otherwise connected with the “Yellow
House” business. At no time was any information provided to the issuing
magistrate that any documents or other information located at the Andover location
were in any way connected to a specific suspected transaction of stolen property.
There was insufficient information provided to the judge issuing the first search
warrant on the Andover property to provide the necessary probable cause for the
issuance of said warrant.
The defense anticipates the government will argue that even if the affidavit
supporting the warrant was insufficient, the Leon exception will still prevent the
suppression of the evidence in question.
United States v. Leon, 468 U.S. 897 (1984). “In Leon, the Supreme Court
held that evidence seized under a search warrant later determined to be invalid may
be admissible if the officers executing the warrant acted in good faith and with
objectively reasonable reliance on the search warrant. See United States v.
Corral-Corral, 899 F.2d 927, 932-933 (10th Cir. 1990).
There are four situations, however, in which the good faith exception is not
applicable:
(1) if the issuing magistrate was “‘misled by information in an affidavit
9
that the affiant knew was false or would have known was false except for
his reckless disregard for the truth;’” (2) if “‘the issuing magistrate
wholly abandoned his judicial role;’” (3) if the affidavit was “‘so lacking
in indicia of probable cause as to render official belief in its existence
entirely unreasonable,’” or in other words, where “‘the warrant application
was supported by [nothing] more than a “bare bones” affidavit;’” and (4)
if the warrant was facially deficient. United States v. Van Shutters, II, 163
F.3d 331, 337 (6th Cir.1998) (quoting Leon, 468 U.S. at 914-15, 104 S.Ct.
at 3416-17).
The defendants would argue that the lack of any recitation of probable cause
that the Andover residence would contain fruits, instrumentalities or other evidence
of criminal activity rendered the affidavit so lacking in indicia of probable cause
that the judicial officer either wholly abandoned his judicial role or any person
acting in their official capacity could not reasonably believe the search warrant was
supported by probable cause.
For this reason alone the evidence found during the search on the first warrant
issued on the Andover property and executed December 2, 2005 should be
suppressed.
b. Overbroad execution of warrant
"The Fourth Amendment requires that a search warrant describe the things to
10
be seized with sufficient particularity to prevent a general exploratory rummaging
in a person's belongings." United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.
1999). We look at the description of the items to be seized practically and the
warrant's language in a common sense fashion. See Davis v. Gracey, 111 F.3d
1472, 1478 (10th Cir. 1997). A warrant is sufficiently particular "when it enables
the searcher to reasonably ascertain and identify the things authorized to be
seized." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir. 1982)
Under the law of this circuit, "even evidence which is properly seized
pursuant to a warrant must be suppressed if the officers executing the warrant
exhibit `flagrant disregard" for its terms." United States v. Medlin, 842 F.2d 1194,
at 1199 (10th Cir. 1988) (emphasis added). The basis for blanket suppression when
a search warrant is executed with flagrant disregard for its terms "is found in our
traditional repugnance to `general searches' which were conducted in the colonies
pursuant to writs of assistance." Id. To protect against invasive and arbitrary
general searches, the Fourth Amendment mandates that search warrants
"particularly describ[e] the place to be searched and the persons or things to be
seized." U.S. Const. amend. IV. As the Supreme Court stated in Marron v. United
States, 275 U.S. 192, 196 (1927), [t]he requirement that warrants shall particularly
describe the things to be seized makes general searches under them impossible and
prevents the seizure of one thing under a warrant describing another. As to what is
11
to be taken, nothing is left to the discretion of the officer executing the warrant. Id.
Therefore, Medlin II establishes that "[w]hen law enforcement officers grossly
exceed the scope of a search warrant in seizing property, the particularity
requirement is undermined and a valid warrant is transformed into a general
warrant thereby requiring suppression of all evidence seized under that warrant."
842 F.2d at 1199 (emphasis added). United States v. Foster, 100 F.3D 846 (10th
Cir. 11/15/1996).
In the case before the court the defendants would argue that both the evidence
seized as a result of the second warrant issued on the Andover property and
executed on December 2, 2005 and the search warrant issued on the “Yellow
House” property also executed on December 2, 2005 should be suppressed as the
result of the officers having grossly exceeded the scope of the property which was
seized.
c. Fruit of the Poisonous Tree
The ordinary remedy in a criminal case for violation of the Fourth
Amendment is suppression of any evidence obtained during the illegal police
conduct. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). In addition, a defendant
may also suppress any other evidence deemed to be "fruit of the poisonous tree,"
(i.e., evidence discovered as a direct result of the unlawful activity), by showing
12
the requisite factual nexus between the illegality and the challenged evidence.
Wong Sun v. United States, 371 U.S. 471, 485 (1963); United States v.
NavaRamirez, 210 F.3d 1128, 1131 (10th Cir. 2000).
In the instant case the second search warrant executed on December 2, 2005
for the Andover property was issued based on evidence discovered during the
execution of the first search warrant on the same date. Accordingly, the evidence
gained from the second search warrant on the Andover property executed
December 2, 2005 should be suppressed.
Likewise, the first search warrant executed on July 7, 2006 on the Andover
property was issued based on information discovered during the execution of the
first and second search warrants issued on December 2, 2005.
Finally, the second search warrant issued on July 7, 2006 was issued based
only on information gained during the execution of the first search warrant of July
7, 2006. Accordingly, all evidence seized on the first and second search warrants
executed on July 7, 2006 on the Andover property should be suppressed.
Therefore, all evidence seized as the result of search warrants executed on
December 2, 2005 and July 7, 2006 should be suppressed.
13
Respectfully submitted.
/s/ John M. Duma
JOHN M. DUMA KS No. 10760
303 E. Poplar
Olathe, Kansas 66061
(913) 782-7072
Fax 782-1383
JohnDuma@hotmail.com
ATTORNEY FOR CARRIE NEIGHBORS
/s/ Cheryl A. Pilate
CHERYL A. PILATE, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
ATTORNEY FOR GUY NEIGHBORS
CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2009, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system, which will send a notice of
electronic filing to Marietta Parker, Assistant U.S. Attorney, 360 U.S. Courthouse,
500 State Avenue, Kansas City, Kansas 66101 and all other counsel of record. I
further certify that I mailed the foregoing document and notice of electronic filing by
first-class mail to the following non-CM/ECF participants: Carrie Neighbors.
_/s/ John M. Duma_____
John M. Duma No.10760
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
New motions filed in the case.
Here are the latest motions filed in the case against Guy and Carrie Neighbors. These motions were joint motions filed by both defense attorneys in this case.
07911992870
07911992867 Case in Kansas Guy Neighbors Motions filed on his behalf
Kansas Court case 07911992855 Lawrence Police dept and Guy Neighbors
Kansas federal case 07 911992915
Kansas Woman wanted in connection with the yellow house store federal case
07911992870
07911992867 Case in Kansas Guy Neighbors Motions filed on his behalf
Kansas Court case 07911992855 Lawrence Police dept and Guy Neighbors
Kansas federal case 07 911992915
Kansas Woman wanted in connection with the yellow house store federal case
Monday, July 27, 2009
how to imprison innocent people. 101 by Marietta Parker
IF anyone wants to know how to imprison innocent people this is the instructional guide on how to do it. -By Marietta Parker Federal prosecutor.
First claim they are Crazy with request for a mental evaluation. As shown below.
Marietta Parker case no 07-20124-02-JPO Guy and carrie Neighbors Motion to revoke bond Mental evaluation ...
If that don't work file another motion and claim that the defendant is a danger to the community by using the following motion.
Motion Revoke guy neighbors bond attempt #8 by Lanny D welch and marietta parker
If that Doesn't work you will need to force the defendants attorney to quit putting undue restrictions on them .
Cheryl Motion to Withdraw from the Yellow house case
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No. 07-CR-20124-CM
GUY NEIGHBORS,
Defendant.
MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANT
Cheryl Pilate, counsel for Guy Neighbors in the above-captioned case as well as Case No.
08-20105, hereby moves this Honorable Court for an order allowing her to withdraw as counsel
for Mr. Neighbors. In support of this motion, counsel states as follows:
1. Cheryl Pilate was appointed as counsel for Mr. Neighbors in November 2007. Since
that time, she has done everything possible to effectively represent Mr. Neighbors in this case
and in Case No. 08-20105. Counsel has met and consulted numerous times with Defendant and
made discovery available for inspection at counsel’s law office. Counsel has conducted
investigation, reviewed discovery, prepared outlines for motions and worked closely with Mr.
Duma and the investigators appointed to work on behalf of Mr. Neighbors and Ms. Neighbors.
2. Despite counsel’s best efforts, issues continue to arise in the case which severely
impair counsel’s effectiveness.
3. In July 2008, the government filed a motion to revoke the pretrial release of both
defendants. The hearing involved the presentation of extensive testimony as well as exhibits, and
consumed several days of the magistrate judge’s time. At the end of the hearing, Defendant was
ordered to cease and desist from writing on the Internet about the case or making any derogatory
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 1 of 4
2
comments regarding any witnesses, parties or attorneys involved in the action. See Doc. #118.
4. At the time of the hearing and after, counsel repeatedly advised her client to cease
making any kind of postings about the case on the Internet and to cease from making derogatory
comments about anyone connected with the case. The defendant was further advised to refrain
from taking unilateral action on the case without the advice and assistance of counsel.
5. Despite counsel’s best efforts, Internet postings have apparently continued. At this
point, counsel questions whether she can effectively represent the client.
6. The defendant has been examined and been found to be competent to assist counsel in
this matter. However, the defendant’s actions have impaired, not assisted, counsel’s work.
7. Just recently, counsel received another email from prosecutor Marietta Parker
regarding Internet postings by Mr. Neighbors.
8. In addition to the problems caused by the Internet issue, counsel’s work has been
needlessly burdened by special restrictions placed on the production of discovery. There are
literally thousands of pages of discovery and dozens of tapes, photographs and other evidence in
this case. Despite the extremely large volume of the materials to be reviewed, the prosecutors
have taken the position that a substantial portion of the written discovery cannot be provided to
defense counsel in the form of photocopies. At this point, counsel are restricted to examining the
11 looseleaf volumes of material in the prosecutor’s office. Counsel believes this restriction
unnecessarily burdens and impairs her work. Further, the restriction is completely unnecessary
because copies have been provided of hundreds of pages other reports with no problem, and there
is no possibility that the client will obtain copies of any discovery from counsel for possible use
on the Internet. Counsel has adhered to the requirement that all discovery shall be examined in
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 2 of 4
3
her office, and in her presence or the presence of her staff. This rule prevents any material from
leaving counsel’s office for potential posting on the Internet.
9. Given the persistent difficulties in this case and the burdens imposed by the
prosecutors with regard to the 11 volumes of discovery, counsel questions whether she can be
effective in this case, which involves meeting the constitutional and ethical obligations imposed
upon her.
10. For all of the reasons stated above, counsel seeks a hearing in which her request to
withdraw may be addressed.
WHEREFORE, for all of the above-stated reasons, Cheryl Pilate requests that this Court
hold a hearing for the purpose of considering her motion to withdraw in the above-captioned
case. She further requests that she be permitted to withdraw from the representation of
Defendant.
Respectfully Submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 3 of 4
4
CERTIFICATE OF SERVICE
I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and foregoing
motion was served electronically on the Clerk of the Court and the government pursuant to the
ECF system on this 27th day of April, 2009, and, further, that a copy of this Motion was mailed,
via first-class mail to the following non-CM/ECF participant: Guy Neighbors
/s/ Cheryl A. Pilate
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 4 of 4
First claim they are Crazy with request for a mental evaluation. As shown below.
Marietta Parker case no 07-20124-02-JPO Guy and carrie Neighbors Motion to revoke bond Mental evaluation ...
If that don't work file another motion and claim that the defendant is a danger to the community by using the following motion.
Motion Revoke guy neighbors bond attempt #8 by Lanny D welch and marietta parker
If that Doesn't work you will need to force the defendants attorney to quit putting undue restrictions on them .
Cheryl Motion to Withdraw from the Yellow house case
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No. 07-CR-20124-CM
GUY NEIGHBORS,
Defendant.
MOTION TO WITHDRAW AS COUNSEL FOR DEFENDANT
Cheryl Pilate, counsel for Guy Neighbors in the above-captioned case as well as Case No.
08-20105, hereby moves this Honorable Court for an order allowing her to withdraw as counsel
for Mr. Neighbors. In support of this motion, counsel states as follows:
1. Cheryl Pilate was appointed as counsel for Mr. Neighbors in November 2007. Since
that time, she has done everything possible to effectively represent Mr. Neighbors in this case
and in Case No. 08-20105. Counsel has met and consulted numerous times with Defendant and
made discovery available for inspection at counsel’s law office. Counsel has conducted
investigation, reviewed discovery, prepared outlines for motions and worked closely with Mr.
Duma and the investigators appointed to work on behalf of Mr. Neighbors and Ms. Neighbors.
2. Despite counsel’s best efforts, issues continue to arise in the case which severely
impair counsel’s effectiveness.
3. In July 2008, the government filed a motion to revoke the pretrial release of both
defendants. The hearing involved the presentation of extensive testimony as well as exhibits, and
consumed several days of the magistrate judge’s time. At the end of the hearing, Defendant was
ordered to cease and desist from writing on the Internet about the case or making any derogatory
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 1 of 4
2
comments regarding any witnesses, parties or attorneys involved in the action. See Doc. #118.
4. At the time of the hearing and after, counsel repeatedly advised her client to cease
making any kind of postings about the case on the Internet and to cease from making derogatory
comments about anyone connected with the case. The defendant was further advised to refrain
from taking unilateral action on the case without the advice and assistance of counsel.
5. Despite counsel’s best efforts, Internet postings have apparently continued. At this
point, counsel questions whether she can effectively represent the client.
6. The defendant has been examined and been found to be competent to assist counsel in
this matter. However, the defendant’s actions have impaired, not assisted, counsel’s work.
7. Just recently, counsel received another email from prosecutor Marietta Parker
regarding Internet postings by Mr. Neighbors.
8. In addition to the problems caused by the Internet issue, counsel’s work has been
needlessly burdened by special restrictions placed on the production of discovery. There are
literally thousands of pages of discovery and dozens of tapes, photographs and other evidence in
this case. Despite the extremely large volume of the materials to be reviewed, the prosecutors
have taken the position that a substantial portion of the written discovery cannot be provided to
defense counsel in the form of photocopies. At this point, counsel are restricted to examining the
11 looseleaf volumes of material in the prosecutor’s office. Counsel believes this restriction
unnecessarily burdens and impairs her work. Further, the restriction is completely unnecessary
because copies have been provided of hundreds of pages other reports with no problem, and there
is no possibility that the client will obtain copies of any discovery from counsel for possible use
on the Internet. Counsel has adhered to the requirement that all discovery shall be examined in
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 2 of 4
3
her office, and in her presence or the presence of her staff. This rule prevents any material from
leaving counsel’s office for potential posting on the Internet.
9. Given the persistent difficulties in this case and the burdens imposed by the
prosecutors with regard to the 11 volumes of discovery, counsel questions whether she can be
effective in this case, which involves meeting the constitutional and ethical obligations imposed
upon her.
10. For all of the reasons stated above, counsel seeks a hearing in which her request to
withdraw may be addressed.
WHEREFORE, for all of the above-stated reasons, Cheryl Pilate requests that this Court
hold a hearing for the purpose of considering her motion to withdraw in the above-captioned
case. She further requests that she be permitted to withdraw from the representation of
Defendant.
Respectfully Submitted,
/s/ Cheryl A. Pilate
Cheryl A. Pilate, KS No. 14601
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 3 of 4
4
CERTIFICATE OF SERVICE
I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and foregoing
motion was served electronically on the Clerk of the Court and the government pursuant to the
ECF system on this 27th day of April, 2009, and, further, that a copy of this Motion was mailed,
via first-class mail to the following non-CM/ECF participant: Guy Neighbors
/s/ Cheryl A. Pilate
Case 2:07-cr-20124-CM-JPO Document 164 Filed 04/27/2009 Page 4 of 4
Subscribe to:
Posts (Atom)
