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

IN THE UNITED STATES DISTRICT COURT .. ,}~ OCT 22 PM 12: II

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA

Plaintiff,
V.
Guy M. Neighbors Case No. 07-20124-01-02-KHVIDJW
&
Carrie M. Neighbors Notice of Motion and Motion to Dismiss
Defendants. On Grounds of Vindictive prosecution
Or alternatively for Discovery and/or
Evidentiary Hearing.

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
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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 ptosecution is generally defined as having been brought without a

reasonable expectation of obtaining a valid conviction; however, bad faith and
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 3 of 14

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 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
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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 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 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).
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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 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 prosecut?r 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 ItlJvindictive" 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.
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LEGAL STATEMENT

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).

[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 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 (9 th Cir.1976);
Lundgren v. Freeman, 307 F2d 104, 115 (9th Cir.1962). These established rules
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 8 of 14

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 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
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 9 of 14

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.

Ll.Prosecutien-is.rvindictive" and violation of due process if undertaken to

punish person because he has
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 10 of 14

done what law plainly allows him to do; filing of indictment may in some instances
be basis for such a claim. V.S.C.A. Const.Amend. 5. V.S. v. Polland, 994 F.2d
1262.

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 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.

lfthe 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 ofthe
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 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
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 12 of 14

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 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,

r 2-.
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 13 of 14

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

-- 12
Case 2:07-cr-20124-CM-JPO Document 145 Filed 10/22/2008 Page 14 of 14

PROOF OF SERVICE FORM

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

Personal Delivery:

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

(li~jt k of 'fk (1ud:

(Name of Recipient)

_51Jo ~+~~~~t/L__ (Location)

NuzSA~ 1]% ~rA.S4S

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

Executed on !O-2Z" ClKat !<AIMS fl..:~lS/l~ .Kansas.

(Date) (City) C ~

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