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- A federal judge has sent a Kansas man to prison for criticizing federal prosecutors (Guy Neighbors)
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MOTION TO DISMISS FORFEITURE ALLEGATION and Federal Rules of Evidence
Here are motions which were filed in the case. If you read them they tell a story.
MOTION TO DISMISS FORFEITURE ALLEGATION II OF SECOND SUPERSEDING INDICTMENT
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
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
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
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