07911748604 Guy and Carrie Neighbors Yellow house case

8/14/2019 07911748604 Guy and Carrie Neighbors Yellow house case

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IN THE UNITED STATES DISTRICT COURT;;? OCT 22 PM 12: IeFOR THE DISTRICT O:F KANSAS

UNITED STATES OF AMERICAPlaintiff,v.

Guy M. Neighbors&

Carrie M. NeighborsDefendants.

Case No. 08-20105-01l02/JWL/JPONotice of Motion and Motion to DismissOn Grounds of Vindictive prosecutionOr alternatively for Discovery and/orEvidentiary Hearing.

To the clerk of the above - Entitled court and to the United States Attorneyfor the District ofKansas. Please take Notice that on the date and timeindicated on this motion, the defendants Guy and Carrie Neighbors by andthrough Pro-Se action, will hereby does move to Dismiss the presentindictment in the so called E-bay case on the grounds of" VindictiveProsecution" or alternatively for Discovery and or a Evidentiary Hearing insupport of this claim. This motion is predicated on the files and records of thiscase and if filed Pro-Se by Guy and CarrieNeighbors on Oct. 220d 2008

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Case 2:08-cr-20105-CM-JPO Document 38 Filed 10/22/2008 Page 1 of 14


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Guy Neighbors and Carrie Neighbors, pro-se hereby moves the Honorable Courtto Dismiss the above captioned matter for prosecutorial misconduct, to-wit,Vindictive prosecution and as grounds therefore states for the record:Petitioners believes and therefore asserts that the above titled case has beenbrought before theHonorable Court by FRAUD in a mis-construction of statutes, by perjuredtestimony, by deprivations of constitutionally secured due process, conspiracy andby the commencement of avindictive prosecution by a prosecutor.

Contained herein is only the facts and the case law surrounding vindictiveprosecution.The defense cannot, in good faith proceed by waiving any constitutionally securedrights and the Honorable court cannot rule on issues that are not properly beforeit. The Prosecution has deliberately failed to rise to minimal standards ofprofessional performance and has knowingly and intentionally impeded andobstructed justice in order to gain an unfair advantage in the Prosecution ofdefendants Guy and Carrie Neighbors USA v. Neighbors 07-20124-01-02KHV/DJW. The petitioner has been repeatedly intentionally and selectively singledout for prosecution on matters that the STATE has shown no compelling interestin, and no probable cause fo r action.

A bad faith prosecution is generally defined as having been brought without areasonable expectation of obtaining a valid conviction; however, bad faith and



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harassing prosecutions also encompass those prosecutions that are intended toretaliate for or discourage the exercise of constitutional rights. PRE, Inc. v. U.S.Dept. of Justice, 743 F.Supp. 15.

It is exceedingly clear that the Government is presently engaged in an on-goingand continuing malicious, vindictive and retaliatory prosecution of the petitionerin order to unlawfully gain an advantage in a sealed civil action of a third partythat has resulted from the abuse of authority by officials and civil rights violationsof a witness connected to this investigation.

1. Vindictive prosecution" occurs when government penalizes a person merelybecause he has exercised aprotected statutory or constitutional right. U.S. v. Paguio, 114 F.3d 928, appealafter remand 168 F.3d 503.

2. In determining whether an indictment posed a reasonable likelihood ofvindictiveness, the question waswhether the situation presented a reasonable likelihood ofdanger that the statemight be retaliating against the accused for lawfully exercising a right, not whetherthere was a possibility that the defendant might be deterred from exercising a legalright. U.S. v. Esposito, 968 F.2d 300.3. To establish vindictive prosecution, defendant must show that prosecutor has

some persona "stake" indeterring defendant" exercise ofhis constitutional rights, and that prosecutor'sconduct was unreasonable. U.S. v. Wells, 211 F.3d 988, 2000 Fed.App. l61P.

4. Prosecutor's charging decision does not impose improper "penalty" ondefendant unless it results from



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defendant's exercise of protected legal right, as opposed to prosecutor's normalassessment of social interests to be vindicated by prosecution. U.S. v. Taylor, 749F.2d 1511.

The defendants believes, and therefore alleges, that AUSA Marietta Parker, hassuborned various witnesses through harassment, the bribery of deals andoffering payment LIp to $80, to commit perjury pursuant to 18 U.S.c. 1621 &1622 before a Federal Grand Jury. Person's known and unknown to thedefendants; including but not limited to wit: testimony by Patrick Nieder Whostated under oath the defendant had trafficked $30,000 in Guns drugs fo r him,but did not know the defendant's first name. And James P. Ludwig, who falselytestified that the defendants busy store Yellow House Appliances, while open tothe public, openly displayed packaged drugs in the form of "green hairy balls" infull view behind the counter. Statement of facts given through the testimony ofPostal Inspector David Nitz under oath during an evidentiary hearing 11-05-2007before the Honorable Judge Lungstrum.FATALLY FLAWED INDICTMENTAn indictment returned by a legally constituted grand jury may notbe challenged on the ground of inadequate or incompetent evidence,Costello v. United States, 350 U.S. 359,363 (1956), and may not bedismissed for errors in the grand jury proceedings* which do not prej-udice the defendant. Bank ofNova Scotia v. United States, 487 U.S.250,257 (1988). However, an indictment may be challenged on the



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grounds of constitutional error and prosecutorial misconduct. UnitedStates v. Mills, 995 F.2d 480, 486 (4th Cir. 1993).

Perjured testimony and suppressed evidence constitute due process violations.The rights of the accused were violated when the prosecution offered perjuredtestimony and withheld evidence favorable to the accused. DeLuzio v. People, 177Colo. 389, 494 P.2d 589 (1972)

5. Fifth Amendment prohibits Government from prosecuting defendantbecause of some specific animus orill will on prosecutor's part or to punish defendant for exercising legally protectedstatutory or constitutional right.U.S.C.A. Const.Amend. 5. U.S. v. Benson, 941F.2d 598, rehearing denied, mandate recalled and corrected 957 F.2d 301, appealafter remand 67 F.3d 641, opinion modified on denial of rehearing 74 F.3d. 152.Defendants Guy and Carrie Neighbors believes, and therefore alleges, that inorder to secure an Indictment in Federal Court on circumstantial evidence, absentof any compelling physical evidence beyond mere hearsay, AUSA ProsecutorMarietta Parker knowingly and intentionally conspired and colluded with PatrickNieder and James P Ludwig to commit perjury under oath before the FederalGrand Jury, which therefore constitutes State and Federal Crimes, in conspiracy.

CONSPIRACY - 18 U.S.C. 371: makes it a separate Federal crime or offense foranyone to conspire or agree with someone else to do something which, if actuallycarried out, would amount to another Federal crime or offense. So, under this law,a "conspiracy" is an agreement or a kind of "partnership" in criminal purposes inwhich each member becomes the agent or partner of every other member); andprima facie intentional and malevolent violation ofEthical Rule 8.4 (c).



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The Prosecutor AUSA Marietta Parker retaliated against the defendants with asuperseding indictment that was filed 02-27-2008. Piling up additional charges tothe fatally flawed Indictment, on top of the existing charges without any newincidents or additional evidence, in a vindictive move to Moot the defense'smotion to dismiss the Lis Pendens that had been placed against the defendantsproperty.

6. "Vindictive prosecution" occurs when a prosecutor brings additional chargessolely to punish thedefendant for exercising a constitutional or statutory right, such as a defendant'sright to a jury trial. V.S.C.A. Const.Amend. 6 V.S. v. VanDoren, 182 F.3d 1077.

7. Prosecution is fI"vindictive" and violates due process if it is undertaken topunish defendant because hehas done something the law plainly allows him to do; thus, showing of actualvindictiveness require objective evidence of some kind of genuine prosecutorialmalice. V.S.C.A. Const.Amend. 5.V.S. v. Porter, 23 F.3d 1274.

The defense alleges the prosecution has continually violated the right of dueprocess of the law in retaliation fo r the defendants exercising their Constitutionalrights of freedom of speech, requests fo r speedy trial, submission of formalcomplaints, and to " limit the liability" in the related Sealed Civil action by awitness.



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LEGAL STATEMENT

The first step is the establishment of the "basic, primary, or historical facts: facts'i n the sense of a recitalof external events and the credibility of their narrators. . . ,,, Townsend v. Sain 372U.S. 293, 309 n. 6, 83 S.Ct.745,755 n.6, 9 L.Ed.2d 770 (1963) (quoting Brown v.Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953)(opinion ofFrankfurter, J.)).

The second step is the selection of the applicable rule of law.

The third step - and the most troublesome for standard of review purposes - is theapplication of the lawto fact or, in other words, the determination "whether the rule of law as applied tothe established facts is or is not violated." Pullman-Standard v. Swint, 456 U.S.273,289 n. 19,102 S.Ct. 1781, 1790 n. 19,72 L.Ed.2d 66 (1982).

[2] The district court's resolution of each of these inquires is, of course, subject toappellate review. Theappropriate standard of review for the first two of the district court'sdeterminations - its establishment of historical facts and its selection of therelevant legal principle - has long been settled. Questions of fact are reviewedunder the deferential, clearly erroneous standard. See Fed.R.Civ.P. 52(a).Questions of law are reviewed under the nondeferential, de novo standard. See,e.g., U.S. v. One Twin Engine Been Airplane, 533 F.2d 1106, 1108 (9th Cir.1976);Lundgren v. Freeman, 307 F2d 104, 115 (9th Cir.1962). These established rules

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reflect the policy concerns that properly underlie standard of review jurisprudencegenerally. Thus, because the application oflaw to fact will generally require theconsideration of legal principles, the concerns of judicial administration willusually favor the appellate court, and most mixed questions will be reviewedindependently. This is particularly true when the mixed question involvesconstitutional rights.Accordingly, I would be content to rest the debate that has for so long engaged thiscourt upon a statementmade by the Supreme Court, to which we look for leadership in such matters:"While this Court does not sit as in nisi prius to appraise contradictory factualquestions, it will, wherenecessary to the determination of constitutional rights, make an independentexamination of the facts, the findings, and the record so that it can determine foritselfwhether in the decision as to reasonableness the fundamental- i.e.,constitutional- criteria established by this Court have been respected. . ." Kerv. California, 374 U.S. at 34, 83 S.Ct. at 1630. [United States v. McConney, 728F.2d. 1195 (9th Cir.) (en bane), cert. denied, 469 U.S. 824 (1984).]A defendant alleging vindictive prosecution has the burden of showing anappearance ofvindictiveness. The appearance gives rise to a presumption ofvindictiveness. Whether there is an appearance ofvindictiveness is a question offact reviewed for clear error. See United States v. Clay, 925 F.2d 299,302 (9th Cir.1991). Once that fact is established, whether the presumption arises is a question oflaw reviewed de novo.

The Prosecutor in this case, U.S. Attorney Marietta Parker has continued to pile oncharges and Indictments followed by selectively abusive arrests, searches, civil



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rights violations, theft of defendants property, incarceration and violation of theConstitutional right of due process of law using statutes that the defendantscharges due not qualify for and which the evidence would not merit a trialconviction, brought forth in retaliation for the defendants exercising of theconstitutionally secured right to Petition the Government for Redress ofGrievance.

8. "Stalking Horse" Marietta Parker Prosecutor for the DISTRICT OFKANSAS US DEPARTMENT OF JUSTICE by and through abuse of powerhas

has been prevailed upon by conspiracy with law enforcement officers Jay Bialek,Micky Rantz, FBI Special Agent Walter Robert Schaefer "Bob Shaefer," PostalInspector David Nitz, IRS Agent Robert Jackson, KU Detective Michael Riner andPolice ChiefRonald Olin, to convert the lawful statutes into purposes ofcommencing and conducting an unlawful retaliatory prosecution known in legalfiction as UNITED STATES V. GUY NEIGHBORS AND CARRIENEIGHBORS CASE cr-20124-CM-JPO

9. Successful assertions of vindictive prosecution are most commonwheredefendant advances some

procedural or constitutional right and is then punished for doing so. U.S.C.A.Const.Amend. 5 U.s. v. Lanoue, 137 F3d 656.1O.Prosecution is "vindictive" and violates due process if it is undertaken topunish defendant because he has

done something the law plainly allows him to do; thus, showing of actualvindictiveness requires objective evidence of some kind of genuine prosecutorialmalice. U.S.C.A. Const.Amend 5 U.S. v. Porter, 23 F.3d 1274.

Ll.Prosecution is "vindictive" and violation of due process if undertaken topunish person because he has



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done what law plainly allows him to do; filing of indictment may in some instancesbe basis for such a claim. U.S.C.A. Const.Amend. 5. U.S. v. Polland, 994 F.2d1262.

MOTIVE

After executing the search of defendants Home and Business December 5, 2005,The search of the home located at 1104 Andover was executed without a validsearch warrant at 9 am. After finding the room with the plants the officers got a"piggy back" warrant to cover-up for the fact no valid warrant was used to enterthe property. This can be verified through an evidence hearing and a disclosure ofdocuments. Valuable property was seized in violation of the search warrant, theseized property was improperly recorded, handled, some items never made it tothe evidence custodian, and it was later disclosed to the defendants "three highend laptops that the police agreed to return to the defendants were missing from theevidence room."The seized property has been held indefinitely for nearly 4 years,in violation of due process of law, affording the defendants a right to a hearingbefore a Judge to determine what property should be held as evidence and whatproperty should have been returned to the defendants.

If the Lawrence Kansas Police officers under the direction ofPolice ChiefRonaldOlin involved with the execution of the search was found by a court of competentjurisdiction to have violated the Fourth Article inAmendment by an unlawfulsearch and seizure, they would be criminally and civilly liable for $50,000 per dayfor theft ofPetitioner's lawful private registered property a standard administrativeprotocol commonly used by modern quasi-judicial tribunals and administrative agencies ofthegovernment to establishfactsprior to adjudication.

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12.Although prosecutor's discretion as to whom to charge is particularly ill-suited to judicial review, discretion

is not unfettered and decision to prosecute may not be deliberately based uponunjustifiable standards such as race, religion, or other arbitrary classification,including the exercise of protected statutory and constitutional rights, andprosecutor may not select individual for prosecution solely because of exercise ofrights under the First Amendment. U.S.C.A. Const.Amend. 1. Hunt v. Tucker, 875F.Supp. 1487, affirmed 93 F.3d 735.A prosecution based entirely upon an intentional and deliberate mis-constructionand erroneousapplication of the statutes creating a legal impossibility and having no remotechance of prosecutorial success before a jury is ipso facto "unreasonable" andconstitutes a prima facie" vindictive prosecution." Such a wild, erratic departurefrom acceptable prosecutorial practice cannot possibly be normal or usual business.The vast resources and finances expended in this vindictive prosecution must alsoraise "red flags" in the mind of any reasonable person. What would a Prosecutorhope to gain, what great social evil would she strive to prevent? Before this casethe defendants Guy and Carrie Neighbors were foster parents for 9 years to over 24children, had been matched with a child through the Big Brother program for 10years, had deep community involvement including working with the homeless, andran their successful business in the community for 23 years. Had no prior historyof criminal involvement of any kind. The simple answer is that this is a retaliatoryprosecution.The undeniable fact that the UNITED STATES US ATTORNEY MARlETTAPARKER isprosecuting case #CR-20124-CM against the Petitioner and in doing so continuesdefending and conspiring with STATE actors in Federal Civil Rights violations

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against the defendants establishes a prima facie conflict of interest and a crediblemotive for a vindictive prosecution.

13.In determining whether an indictment posed a reasonable likelihood ofvindictiveness, the question waswhether the situation presented a reasonable likelihood of danger that the statemight be retaliating against the accused for lawfully exercising a right, not whetherthere was a possibility that the defendant might be deterred from exercising a legalright. U.S. v. Esposito, 968 F.2d 300.

REQUEST FOR DISMISSALThere is no doubt that numerous GOVERNMENT AGENCIES have a "vestedinterest in the outcome" of this case. There is no doubt that the ACTING USATTORNEY FOR THE KANSAS DEPARTMENT OF JUSTICE FOR THEDISTRICT OF KANSAS,has a conflict of interest in continuing the prosecution of this case, based on themere fact that the defense has been severely prejudiced by the fact all the formalcomplaints by the Neighbors and the witnesses that were turned into the InternalAffairs for color of law violations and civil rights violations involving all cases andactions in this investigation have been forwarded to Marietta Parkers office at theDepartment of Justice. Complaints that should have been investigated by athird disinterested party were instead being used by the Prosecutor againstthe defendants for retaliation and cover-up purposes.The obvious conflict of interest cannot be ignored.The open and unconcealed pernicious and egregious prosecutorial vindictiveness inthis instant matter justifies the severe sanction of dismissal with prejudice,



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Defendants respectfully ask this Honorable court fo r the dismissal of theIndictment USA v. Neighbors 07-20124-01-02-khv, cr-20073-CM. "EBay case"including the superseding indictment.A trial court may grant a motion to dismiss pursuant to CrR 8.3 (b) if there hasbeen any arbitrary action or governmental misconduct resulting in prejudice tothe rights of the accusedwhich materially affect the accuser's right to a fair trial.Or upon denial of the dismissal of the fatally flawed Indictment, the defenseformally requests an evidentiary hearing and further request that all thetranscripts and discovery presented to the Grand Jury by the Prosecutor bemade available to the defense.Respectfully submitted as truth under oath to the courts fo r considerations byPro-seDefendant petitioners Guy Neighbors and Carrie Neighbors.Whenever any person is required to take an oath beforehe enters upon the discharge of any office, position, orbusiness or on any other lawful occasion, it is lawful forany person employed to administer the oath to administerit in the following form: The person swearing, with his handuplifted, shall swear by the ever living GOD

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PROOF OF SERVICE FORM

A copy of this form shall be appropriately filled out and attached when Proofof Service or statement ofdelivery ormailing is required.

Personal Delivery:I declare that on It) 22.'021. I personally delivered the attached MLi:diQIf. fo /))'SM ;is to:(Date) (Description ofDocument)

eJe..eK c"'J +' + h &,ar-f-(Name ofRecipient)

500 .s fp,-.f..- A v ~ n _ v _ e _(Location)____/ ~ { _ A__N _ ~ ~ . 4 _ S U ~ I 4 A J . 5 I t S

Part 3 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was


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