07911748450 Guy and Carrie Neighbors Yellow house case

8/14/2019 07911748450 Guy and Carrie Neighbors Yellow house case

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IN TH E UNITED STATES DISTRICT COURT .. , } ~OCT 22 PM12: I I

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA

Plaintiff,

V.

Guy M. Neighbors

&

Carrie M. Neighbors

Defendants.

Case No. 07-20124-01-02-KHVIDJW

Notice of Motion an d Motion to Dismiss

On Grounds of Vindictive prosecution

O r alternatively fo r Discovery and/or

Evidentiary Hearing.

To the clerk of th e above - Entit led court an d to the United States Attorney

for th e District of Kansas. Please take Notice that on the date and time

indicated on this motion, the defendants Guy and Carrie Neighbors by an d

through Pro-Se action, will hereby does move to Dismiss the present

indictment in th e so called E-bay case on the grounds of" Vindictive

Prosecution" or alternatively for Discovery and or a Evidentiary Hearing in

support of this claim. This motion is predicated on the files an d records of this

case and if filed Pro-Se by Guy and Carrie Neighbors on Oct. 22nd

2008

Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 1 of 14


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Guy Neighbors an d Carrie Neighbors, pro-se hereby moves the Honorable Court

to 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 been

brought before the

Honorable Court by FRAUD in a mis-construction o f statutes, by perjured

testimony, by deprivations of constitutionally secured due process, conspiracy and

by the commencement of a

vindictive prosecution by a prosecutor.

Contained herein is only the facts and the case law surrounding vindictive

prosecution.

The defense cannot, in good faith proceed by waiving any constitutionally secured

rights and th e Honorable court cannot rule on issues that are no t properly before

it. The Prosecution has deliberately failed to rise to minimal standards of

professional performance and has knowingly and intentionally impeded and

obstructed justice in order to gain an unfair advantage in the Prosecution of

defendants Guy and Carrie Neighbors USA v. Neighbors 07-20124-01-02

KHV/DJW. The petitioner has been repeatedly intentionally and selectively singled

o ut f or prosecution on matters that the STATE has shown no compelling interest

in, and no probable cause for action.

A bad faith ptosecution is generally defined as having been brought without a

reasonable expectation o f obtaining a valid conviction; however, bad faith and



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harassing prosecutions also encompass those prosecutions that are intended to

retaliate 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-going

and continuing malicious, vindictive and retaliatory prosecution of the petitioner

in order to unlawfully gain an advantage in a sealed civil action of a third party

that has resulted from the abuse of authority by officials and civil rights violations

of a witness connected to this investigation.

1. Vindictive prosecution" occurs when government penalizes a person merelybecause he has exercised a

protected 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 was

whether 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 legal

right. 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 of his constitutional rights, and that prosecutor'sconduct was unreasonable. U.S. v. Wells, 211 F.3d 988,2000 Fed.App. 161P.

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, has

suborned various witnesses through harassment, the bribery of deals and

offering payment up to $80, to commit perjury pursuant to 18 U.S.c. 1621 &

1622 before a Federal Grand Jury. Person's known and unknown to the

defendants; including but not limited to wit: testimony by Patrick Nieder Wh o

stated under oath the defendant had trafficked $30,000 in Guns drugs fo r him,

bu t did not know th e defendant's first name. And James P. Ludwig, wh o falsely

testified t ha t t he defendants busy store Yellow House Appliances, while open to

the public, openly displayed packaged drugs in the form of "green hairy balls" in

full view behind the counter. Statement of facts given through th e testimony of

Postal Inspector David Nitz under oath during an evidentiary hearing 11-05-2007

before the Honorable Judge Lungstrum.

FATALLY FLAWED INDICTMENT

An indictment returned by a legally constituted grand jury may not

be challenged on the ground of inadequate or incompetent evidence,

Costello v. United States, 350 U.S. 359,363 (1956), and may not be

dismissed for errors in the grand jury proceedings* which do not prej-

udice the defendant. Bank of Nova 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. United

States 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 perjured

testimony and withheld evidence favorable to the accused. DeLuzio v. People, 177

Colo. 389,494 P.2d 589 (1972)

5. Fifth Amendment prohibits Government from prosecuting defendantbecause of some specific animus or

ill 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 Carri e Neighbors believes, and therefore alleges, that in

order to secure an Indictment in Federal Court on circumstantial evidence, absent

of any compelling physical evidence beyond mere hearsay, AUSA Prosecutor

Marietta Parker knowingly and intentionally conspired and colluded with PatrickNieder and James P Ludwig to commit perjury under oath before the Federal

Grand Jury, which therefore constitutes State and Federal Crimes, in conspiracy.

CONSPIRACY - 18 U.S.C. 371: makes it a separate Federal crime or offense for

anyone to conspire or agree with someone else to do something which, i f actually

carried 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 in

which each member becomes the agent or partner of every other member); and

prima facie intentional and malevolent violation of Ethical Rule 8.4 (c).



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The Prosecutor AUSA Marietta Parker retaliated against the defendants with a

superseding indictment that was filed 02-27-2008. Piling up additional charges to

the fatally flawed Indictment, on top o f the existing charges without any new

incidents or additional evidence, in a vindictive move to Moot the defense's

motion to dismiss the Lis Pendens that had been placed against the defendants

property.

6. "Vindictive prosecution" occurs when a prosecut?r brings additional chargessolely to punish the

defendant for exercising a constitutional or statutory right, such as a defendant'sright to a jury trial. U.S.C.A. Const.Amend. 6 U.S. v. VanDoren, 182 F.3d 1077.

7. Prosecution is ItlJvindictive" and violates due process i f it is undertaken topunish defendant because he

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

The defense alleges th e prosecution has continually violated th e right of due

process of th e la w in retaliation fo r th e defendants exercising their Constitutional

rights of freedom of speech, requests fo r speedy trial, submission of formal

complaints, and to "l imit th e liability" in th e related Sealed Civil action by a

witness.



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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 recital

of 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 of

Frankfurter, 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 the

application of the law

to fact or, in other words, the determination "whether the rule of law as applied to

the 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 to

appellate review. The

appropriate standard of review for the first two of the district court's

determinations - its establishment of historical facts and its selection of the

relevant 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 (9 th 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 jurisprudence

generally. Thus, because the application of law to fact will generally require the

consideration of legal principles, the concerns of judicial administration will

usually favor the appellate court, and most mixed questions will be reviewed

independently. This is particularly true when the mixed question involves

constitutional rights.

Accordingly, I would be content to rest the debate that has for so long engaged this

court upon a statement

made 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, where

necessary to the determination of constitutional rights, make an independent

examination of the facts, the findings, and the record so that it can determine for

itselfwhether in the decision as to reasonableness the fundamental- i.e.,

constitutional- criteria established by this Court have been respected . . ." Ker

v. California, 374 U.S. at 34, 83 S.Ct. at 1630. [United States v. McConney, 728

F.2d. 1195 (9th Cir.) (en bane), cert. denied, 469 U.S. 824 (1984).]

A defendant alleging vindictive prosecution has the burden of showing an

appearance of vindictiveness. The appearance gives rise to a presumption of

vindictiveness. Whether there is an appearance of vindictiveness is a question of

fact 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 of

law reviewed de novo.

The Prosecutor in this case, U.S. Attorney Marietta Parker has continued to pile on

charges and Indictments followed by selectivelyabusive arrests, searches, civil



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rights violations, theft o f defendants property, incarceration and violation o f the

Constitutional right o f due process o f law using statutes that the defendants

charges due not qualify for and which the evidence would not merit a trial

conviction, brought forth in retaliation for the defendants exercising o f the

constitutionally secured right to Petition the Government for Redress o f Grievance.

8. "Stalking Horse" Marietta Parker Prosecutor for the DISTRICT OF

KANSAS US DEPARTMENT OF JUSTICE by and through abuse of power

has

has been prevailed upon by conspiracy with law enforcement officers Jay Bialek,

Micky Rantz, FBI Special Agent Walter Robert Schaefer "Bob Shaefer," Postal

Inspector David Nitz, IRS Agent Robert Jackson, KU Detective Michael Riner and

Police Chief Ronald Olin, to convert the lawful statutes into purposes of

commencing and conducting an unlawful retaliatory prosecution known in legal

fiction as UNITED STATES V. GUY NEIGHBORS AN D CARRIE

NEIGHBORS CASE cr-20124-CM-JPO

9. Successful assertions of vindictive prosecution are most common wheredefendant 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.

10.Prosecution is "vindictive" and violates due process i f it is undertaken topunish defendant because he has

done something the law plainly allows him to do; thus, showingo f

actualvindictiveness requires objective evidence o f some kind o f genuine prosecutorialmalice. U.S.C.A. Const.Amend 5 U.S. v. Porter, 23 F.3d 1274.

Ll.Prosecutien-is.rvindictive" and violation of due process i f 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. V.S.C.A. Const.Amend. 5. V.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 valid

search 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 enter

the property. This can be verified through an evidence hearing and a disclosure ofdocuments. Valuable property was seized in violation of the search warrant, the

seized property was improperly recorded, handled, some items never made it to

the evidence custodian, and it was later disclosed to the defendants "three high

end laptops that the police agreed to return to the defendants were missing from the

evidence 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 hearing

before a Judge to determine what property should be held as evidence and what

property should have been returned to the defendants.

lfthe Lawrence Kansas Police officers under the direction o f Police Chief Ronald

Olin involved with the execution of the search was found by a court of competent

jurisdiction to have violated the Fourth Article in Amendment by an unlawful

search and seizure, they would be criminally and civilly liable for $50,000 per day

for theft of Petitioner's lawful private registered property a standard administrative

protocol commonly used by modern quasi-judicial tribunals an d administrative agencies o f the

government to establish facts

prior to adjudication.

I'D I



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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 upon

unjustifiable standards such as race, religion, or other arbitrary classification,including the exercise o f protected statutory and constitutional rights, andprosecutor may not select individual for prosecution solely because of exercise o frights 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-construction

and erroneous

application o f the statutes creating a legal impossibility and having no remote

chance o f prosecutorial success before a jury is ipso facto "unreasonable" and

constitutes a prima facie" vindictive prosecution." Such a wild, erratic departure

from acceptable prosecutorial practice cannot possibly be normal or usual business.

The vast resources and finances expended in this vindictive prosecution must also

raise "red flags" in the mind o f any reasonable person. What would a Prosecutor

hope to gain, what great social evil would she strive to prevent? Before this case

the defendants Guy and Carrie Neighbors were foster parents for 9 years to over 24

children, had been matched with a child through the Big Brother program for 10

years, had deep community involvement including working with the homeless, and

ran their successful business in the community for 23 years. Had no prior history

o f criminal involvement o f any kind. The simple answer is that this is a retaliatory

prosecution.

The undeniable fact that the UNITED STATES US ATTORNEY MARIETTA

PARKER is

prosecuting case #CR-20124-CM against the Petitioner and in doing so continues

defending 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 credible

motive for a vindictive prosecution.

13.1n determining whether an indictment posed a reasonable likelihood ofvindictiveness, the question was

whether 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 DISMISSAL

There is no doubt that numerous GOVERNMENT AGENCIES have a "vested

interest in the outcome" o f this case. There is no doubt that the ACTING US

ATTORNEY FOR THE KANSAS DEPARTMENT OF JUSTICE FOR THE

DISTRICT OF KANSAS,

has a conflict of interest in continuing the prosecution o f this case, based on the

mere fact that the defense has been severely prejudiced by the fact all the formal

complaints by the Neighbors and the witnesses that were turned into the InternalAffairs for color of law violations and civil rights violations involving all cases and

actions in this investigation have been forwarded to Marietta Parkers office at the

Department of Justice. Complaints that should have been investigated by a

third disinterested party were instead being used by the Prosecutor against

the defendants for retaliation and cover-up purposes.

The obvious conflict of interest cannot be ignored.

The open and unconcealed pernicious and egregious prosecutorial vindictiveness in

this instant matter justifies the severe sanction o f dismissal with prejudice,

r 2-.



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Defendants respectfully ask this Honorable court fo r the dismissal of the

Indictment USA v. Neighbors 07-20124-01-02-khv, cr-20073-CM. "EBay case"

including th e superseding indictment.

A trial court may grant a motion t o dismiss pursuant to CrR 8.3 (b) if there has

been any arbitrary action or governmental misconduct resulting in prejudice t o

th e rights of the accused which materially affect the accuser's right to a fair trial.

Or upon denial of the dismissal of the fatally flawed Indictment, th e defense

formally requests an evidentiary hearing and further request tha t all th e

transcripts and discovery presented to th e Grand Jury by th e Prosecutor be

made available to th e defense.

Respectfully submitted as truth under oath to the courts fo r considerations by

Pro-se Defendant petitioners Guy Neighbors and Carrie Neighbors.

Whenever an y person is required to take an oath beforehe enters upon the discharge of any office, position, or

business 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

- - 12



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PROOF OF SERVICE FORM

A copy ofthis form shall be appropriately filled out and attached when Proof o f Service or statement o f delivery ormailing is required.

Personal Delivery:

I declare that on l ( ) - ~ 2-cJ8' I personally delivered the attached ---ff!Ioft" on 10 bi:.sMi"s:.f to:(Date) (Description of Document)

( l i ~ j tk o f 'fk (1ud:(Name o f Recipient)

_ 5 1 J o ~ + ~ ~ ~ ~ t / L_ _(Location)

N u z S A ~1]% ~ r A . S 4 SPart 3 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was

Executed on !O-2Z" ClKat !

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07911748450 Guy and Carrie Neighbors Yellow house case