March 09, 2010
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
Guy M. Neighbors
Carrie M. Neighbors
Case No. 07-20124-01-02-KHV/DJW
To the clerk of the above – Entitled court and to the United States Attorney for the District of Kansas. Please take Notice that on the date and time indicated on this motion, the defendants Guy and Carrie Neighbors by and through Pro-Se action, will hereby does move to Dismiss the present indictment in the 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 and records of this case and if filed Pro-Se by Guy and Carrie Neighbors on Oct. 22nd 2008
Guy Neighbors and 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 of 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 the Honorable court cannot rule on issues that are not 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 out for prosecution on matters that the STATE has shown no compelling interest in, and no probable cause for action.
A bad faith prosecution is generally defined as having been brought without a reasonable expectation of obtaining a valid conviction; however, bad faith and harassing prosecutions also encompass those prosecutions that are intended to retaliate for or discourage the exercise of constitutional rights. PHE, 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 merely because he has exercised a protected statutory or constitutional right. U.S. v. Paguio, 114 F.3d 928, appeal after remand 168 F.3d 503.
2. In determining whether an indictment posed a reasonable likelihood of vindictiveness, the question was whether the situation presented a reasonable likelihood of danger that the state might be retaliating against the accused for lawfully exercising a right, not whether there 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” in deterring defendant” exercise of his constitutional rights, and that prosecutor’s conduct was unreasonable. U.S. v. Wells, 211 F.3d 988, 2000 Fed.App. 161P.
4. Prosecutor’s charging decision does not impose improper “penalty” on defendant unless it results from defendant’s exercise of protected legal right, as opposed to prosecutor’s normal assessment of social interests to be vindicated by prosecution. U.S. v. Taylor, 749 F.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 Who stated under oath the defendant had trafficked $30,000 in Guns drugs for him, but did not know the defendant’s first name. And James P. Ludwig, who falsely testified that the 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 the 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 prejudice the defendant. Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988). However, an indictment may be challenged on the 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 defendant because of some specific animus or ill will on prosecutor’s part or to punish defendant for exercising legally protected statutory or constitutional right.U.S.C.A. Const.Amend. 5. U.S. v. Benson, 941 F.2d 598, rehearing denied, mandate recalled and corrected 957 F.2d 301, appeal after 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 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 Patrick Nieder 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, if 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).
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 of 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 prosecutor brings additional charges solely to punish the defendant for exercising a constitutional or statutory right, such as a defendant’s right to a jury trial. U.S.C.A. Const.Amend. 6 U.S. v. VanDoren, 182 F.3d 1077.
7. Prosecution is “”vindictive” and violates due process if it is undertaken to punish defendant because he has done something the law plainly allows him to do; thus, showing of actual vindictiveness require objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const.Amend. 5. U.S. v. Porter, 23 F.3d 1274.
The defense alleges the prosecution has continually violated the right of due process of the law in retaliation for the defendants exercising their Constitutional rights of freedom of speech, requests for speedy trial, submission of formal complaints, and to “limit the liability” in the related Sealed Civil action by a witness.
The first step is the establishment of the “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators. . . ‘” Townsend v. Sain 372 U.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).
 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 reviewed under 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 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 factual questions, 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 itself whether 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 banc), 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 selectively abusive arrests, searches, civil rights violations, theft of defendants property, incarceration and violation of the Constitutional right of due process of 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 of the constitutionally secured right to Petition the Government for Redress of 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 AND CARRIE NEIGHBORS CASE cr-20124-CM-JPO
9. Successful assertions of vindictive prosecution are most common where defendant 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 if it is undertaken to punish defendant because he has done something the law plainly allows him to do; thus, showing of actual vindictiveness requires objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const.Amend 5 U.S. v. Porter, 23 F.3d 1274.
11. Prosecution is “vindictive” and violation of due process if undertaken to punish person because he has done what law plainly allows him to do; filing of indictment may in some instances be basis for such a claim. U.S.C.A. Const.Amend. 5. U.S. v. Polland, 994 F.2d 1262.
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 of documents. 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.
If the Lawrence Kansas Police officers under the direction of 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 and administrative agencies of the government to establish facts prior to adjudication.
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 of protected statutory and constitutional rights, and prosecutor may not select individual for prosecution solely because of exercise of rights under the First Amendment. U.S.C.A. Const.Amend. 1. Hunt v. Tucker, 875 F.Supp. 1487, affirmed 93 F.3d 735.
A prosecution based entirely upon an intentional and deliberate mis-construction and erroneous application of the statutes creating a legal impossibility and having no remote chance of 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 of 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 of criminal involvement of 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 against the defendants establishes a prima facie conflict of interest and a credible motive for a vindictive prosecution.
13. In determining whether an indictment posed a reasonable likelihood of vindictiveness, the question was whether the situation presented a reasonable likelihood of danger that the state might be retaliating against the accused for lawfully exercising a right, not whether there was a possibility that the defendant might be deterred from exercising a legal right. 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” of 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 of 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 Internal Affairs 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 of dismissal with prejudice,
Defendants respectfully ask this Honorable court for the dismissal of the Indictment 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 has been any arbitrary action or governmental misconduct resulting in prejudice to the 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, the defense formally requests an evidentiary hearing and further request that all the transcripts and discovery presented to the Grand Jury by the Prosecutor be made available to the defense.
Respectfully submitted as truth under oath to the courts for considerations by Pro-se Defendant petitioners Guy Neighbors and Carrie Neighbors.
Whenever any person is required to take an oath before he enters upon the discharge of any office, position, or business or on any other lawful occasion, it is lawful for any person employed to administer the oath to administer it in the following form: The person swearing, with his hand uplifted, shall swear by the ever living GOD