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Case 2:07-cr-20073-CM Document 113 Filed 07/27/09 Page 1 of 14

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, )


)
Plaintiff, )
vs. )
) Case No. 07-CR- 20073-CM
GUY M. NEIGHBORS )
)
and )
)
CARRIE NEIGHBORS )
)
Defendants. )

DEFENDANTS’ JOINT MOTION FOR DISCOVERY OF


EXCULPATORY AND IMPEACHING INFORMATION UNDER
BRADY v. MARYLAND AND FOR DISCOVERY UNDER RULE 16

Defendants Guy Neighbors and Carrie Neighbors, by and through their respective

counsel Melanie S. Morgan and John Duma, move this Honorable Court to enter an Order

directing the timely production of all exculpatory and impeaching evidence as demanded

by the due process clause of the Fifth Amendment, and as described by the Supreme

Court in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S.

150 (1972). “The essence of the Brady rule is the proposition that nondisclosure of

material exculpatory evidence violates a defendant’s due process right to a fair trial.”

Smith v. Sec’y of New Mexico Dep’t of Corrections, 50 F.3d 801, 823 (10 th Cir. 1995).

Mr. Neighbors and Mrs. Neighbors further seek all discovery to which they are entitled

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under Federal Rule of Criminal Procedure 16. In further support of this motion, the

Defendants refer the Court to the following Memorandum.

MEMORANDUM IN SUPPORT

I. Factual Background

Mr. Neighbors and Mrs. Neighbors are charged in three federal cases, the most

complex of which charges 18 counts, including conspiracy, fraud, and money laundering,

in connection with the operation of a second-hand store in Lawrence called Yellow

House. The Neighbors are also charged in a marijuana case, Case No. 07-20073, and in a

third case charging obstruction of justice, Case No. 08-20105.

Among those three cases, there are dozens of witnesses and potentially hundreds

of exculpatory and impeaching facts. Some of these facts will concern just one of these

cases, while others may be relevant to two cases or to all three. In the interest of

efficiency and economy, Defendants seek the timely production of all Brady/Giglio

material and all Rule 16 material in this single, unified motion.

As part of the discovery process, the government has produced more than 70 CDs

containing evidence, including audio and video surveillance, as well as thousands of

pages of reports and documents obtained from the Yellow House business. They now

seek additional evidence, favorable to their defense, that they reasonably believe may be

in the possession or control of the government.

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The heart of the government’s massive prosecutorial effort is the Yellow House or

E Bay case, which involves allegations that Mr. Neighbors and Mrs. Neighbors purchased

various household, recreational and apparel items, including appliances and computers,

from various sellers, “knowing that the property had been stolen,” and then re-sold the

property on E-Bay. The marijuana case involves essentially a separate matter (a small

indoor garden allegedly used to cultivate marijuana plants), but the obstruction case is

linked, at least tangentially, to the E-Bay case in that it involves the receipt of allegedly

stolen property and alleged “obstruction” that occurred when authorities investigated the

sale of that property (computers) by Yellow House.

The prosecution of the E-Bay and obstruction cases essentially rests on: (1) the

perceived credibility of the cooperating witnesses or informants; (2) the Neighbors’

purported knowledge that the property was stolen; and (3) whether the characterization of

the property as stolen may be inferred from the surrounding circumstances. Absent

credible evidence that the property was stolen and that the Neighbors either knew or had

reason to believe it was stolen, the government’s case may fail.

Clearly, the ability to obtain and use exculpatory and impeaching evidence in this

case will be vital to Mr. Neighbors’ and Mrs. Neighbors’ efforts to mount a defense. The

right of a criminal defendant to due process is, “in essence, the right to a fair opportunity

to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294

(1973). This necessarily includes the “right to present a defense” so that the jury may

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hear “the defendant’s version of the facts as well as the prosecution’s” and then decide

“where the truth lies.” Webb v. Texas, 409 U.S. 95 (1972). In the present case, the

Neighbors must have access to exculpatory and impeaching evidence that is vital to their

ability to defend against the government’s accusations and to present their theory of

defense.

II. The Requirements of Due Process

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or punishment, irrespective of

the good faith or bad faith of the prosecution.” Id. at 87. In 1972, the Supreme Court

extended that rule to impeachment evidence, recognizing that because the credibility of a

witness may “well be determinative of guilt or innocence,” the prosecution is bound to

disclose such impeachment evidence. Giglio v. United States, 405 U.S. 150 (1972).

The prosecutor cannot limit his or her duty to produce exculpatory and impeaching

evidence by relying solely on what is in the prosecutor’s file. To the contrary, the

prosecutor “has a duty to learn of any favorable evidence known to others acting on the

government’s behalf in the case, including the police” and to disclose that evidence to the

defense. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). The prosecutor’s duty to

disclose favorable, material evidence “is inescapable.” Id.

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The prosecutor must make these disclosures “whether a general request is made or

whether no request is made.” Banks v. Reynolds, 54 F.3d 1508, 1517 (10 th Cir. 1995)

(emphasis added). Because the exculpatory nature of particular evidence “can seldom be

predicted accurately until the entire record is complete,” the prosecutor “must resolve

close cases and ‘doubtful questions in favor of disclosure.’” Banks, 54 F.3d at 1517

(quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). The prosecutor is not

required to disclose all evidence, only that which is exculpatory and material. In Kyles v.

Whitley, 514 U.S. 419 (1995), the Supreme Court stated that the requirement of

“materiality” means that, in the absence of producing such evidence, the trial could not be

regarded as fair and the verdict would not be “worthy of confidence.” Id. at 434; see also

Trammell v. McKune, 485 F.3d 546, 551 (10 th Cir. 2007) (citing Kyles materiality

standard); see also Banks, 54 F.3d at 1518. A prosecutor who is “anxious about tacking

too close to the wind will disclose a favorable piece of evidence.” Kyles, 115 S. Ct. at

1568.

The primary consideration under Brady is fairness. Banks, 54 F.3d at 1516. As

the Tenth Circuit recognized in Smith, the essence of the Brady rule rests on the

proposition that nondisclosure of material exculpatory evidence violates a defendant’s

due process right to a fair trial. Smith, 50 F.3d at 823. Under the Brady framework, “no

distinction is recognized between evidence that exculpates a defendant and ‘evidence that

the defense might have used to impeach the [State’s] witnesses by showing bias and

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interest.’” Douglas v. Workman, 560 F.3d 1156, 1172-73 (10 th Cir. 2009) United States v.

Bagley, 473 U.S. 667, 676 (1985).

These principles are so critical to a fair trial that the Department of Justice issued

in 2006 a revised version of a portion of the United States Attorneys’ Manual to

emphasize the prosecutor’s Brady/Giglio obligations. Indeed, the DOJ stated that its

position required prosecutors “to go beyond the minimum obligations imposed by the

Constitution” and adhere to broad standards for the disclosure of exculpatory and

impeaching information. See Exhibit A. This view was recently reflected by United

States Attorney General Eric Holder when he dismissed the prosecution against former

Senator Ted Stevens because prosecutors had not complied with their obligations under

Brady and had, among other things, failed to turn over prosecutorial notes that were

favorable to the defense. See Exhibit B.

The present case is precisely the kind of case in which the production of

exculpatory and impeaching evidence is especially critical to fulfilling the constitutional

guarantees of due process and a fair trial. The discovery in this case is voluminous, and

the federal case agent and local police officers have worked on it for years. Numerous

issues in the case are hotly contested. Many of the government’s witnesses are

“cooperating” witnesses or informants who have received some dispensation,

consideration or leniency for their statements and testimony. Moreover, there are

substantial disputes about core issues probative of guilt or innocence, including whether

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there is evidence to support the claims that the items are stolen and whether the

Neighbors satisfied their legal obligations to inquire into the items’ origins. There is a

enormous amount of potentially exculpatory and impeaching evidence that is exclusively

within the hands the government. That evidence must now be produced.

III. Evidence Requested by Defendants

A. Brady Evidence

Mr. Neighbors and Mrs. Neighbors request that the government produce the

following:

– Any information showing items seized by the government or being relied on in

the government’s case are not stolen.

– Any information showing such items were obtained by the seller by means other

than stealing, including but not limited to, in a transaction involving the trading of goods.

– Any information showing Guy Neighbors or Carrie Neighbors turned down

certain items offered or brought in by sellers or informants.

– Any information showing that any items relied on in this case were not new or

appeared to be used.

– Any information showing that the sellers had receipts or other proof of

ownership or lawful possession.

– Any information showing that either Guy Neighbors or Carrie Neighbors,

individually, was not involved with a particular transaction.

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– Any information supporting the seller’s representations to Guy Neighbors or

Carrie Neighbors about how the seller came to lawfully possess the item.

– Any information concerning queries made or questions asked by Guy Neighbors

or Carrie Neighbors to determine the origin of a particular item or whether the seller

lawfully owned or possessed the item.

– Any information concerning other transactions that cooperating witnesses or

informants had with the Defendants in which the items were not stolen.

– Any information concerning the Lawrence Police Department’s treatment,

inspection or regulation of pawn shops, including whether Lawrence pawn shops have

been investigated for selling stolen property.

– Any information concerning whether the cooperating witnesses or informants in

this case also sold to Lawrence pawn shops.

– Any information or statements from any witnesses who stated that Guy

Neighbors or Carrie Neighbors were fair or honest or did not buy or sell stolen property.

– Any information showing that Guy Neighbors and/or Carrie Neighbors have

cooperated in the past with any law enforcement agency investigating the origin of items

sold at their store or on E-Bay.

– Reports of any interviews or statements with any witness or informant

concerning the Neighbors or Yellow House that has not been turned over to government

prosecutors.

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– Records of any surveillance or any video or audio tapes or photographs or

tangible evidence of any kind not turned over to government prosecutors.

B. Giglio (Impeachment) Evidence

Mr. Neighbors and Mrs. Neighbors request that the government produce the

following:

– Complete information concerning the criminal history of each testifying or

cooperating witness or informant, including all arrests, charges, convictions and

sentences.

– Complete information about all pending warrants or pending charges against any

cooperating witness.

– Complete information about any pending investigations of any witness, including

any investigation in which the witness may avoid criminal charges by cooperating in the

prosecution of the Defendants.

– Complete information about any pending warrants or any outstanding parole or

probation violations by any witness or informant.

– Complete information about all consideration, benefits, and/or leniency, –

extended, promised or offered as a possibility – to any witness, including but not limited

to:

– evidence of plea bargains offered for cooperation, including all terms

stated in any plea agreements.

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– copies of proffer letters, plea agreements and 5K motions concerning

witnesses and informants.

– records of any money or other valuable benefit paid to any witness or

informant in this case.

– any document reflecting any communication by a prosecutor with a state

or federal prosecutor or any official of any prison, jail or law

enforcement agency on behalf of any witness or informant in this

case which seeks any benefit, leniency, or special consideration of

any kind for the witness or informant.

– any special favors or benefits to detained inmates, including but limited

to, grants of housing preferences, protective custody, special

privileges, provision of commissary items or special foods or snacks,

provision of clothing items including sneakers, gym shoes, athletic

shoes or any other item of special apparel not otherwise available.

– any other special favors or benefits to detained inmates, such as special

telephone privileges, access to media or computers or any other

benefit that is not generally available to other detainees at the

facility.

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– Correspondence, notes or email from any cooperating witness or informant in

this case to any law enforcement agent or officer or Prosecutor in this case, written at any

time from the beginning of the witness’s cooperation in this case up to the present.

– Handwritten notes of any federal law enforcement agent or Lawrence police

officer or other law enforcement agent concerning this case.

– Handwritten or typewritten notes of any prosecutor reflecting any meeting with

or conversation, on the phone or in person, with any witness int his case.

– All information concerning any relationship between or among any witnesses in

this case, including information that any witnesses participated in drug trafficking

together, or are related to each other, or live together.

– All information concerning any relationship that any witness in this case has with

the Defendants or a member of their immediate family.

– All statements made by any witness or informant in the case, including all prior

inconsistent statements.

– All information about Annette Miller, including her contacts with the police

department; her filing of any Internal Affairs complaints; her cooperation in other

prosecutions, state or federal; her status or role as an informant for the police, if any; and

her relationships, as an informant or otherwise, with any member of the Lawrence Police

Department.

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– All information concerning the substance abuse history and current drug use of

any witness or informant in the case.

– All information about any other case in which any witness or informant in this

case has cooperated, including copies of any courtroom transcripts and investigative

reports.

– All information concerning any history of serious mental illness of any witness

or informant in this case.

– Police Department personnel records of all testifying law enforcement officers,

including Officer Bialek, Officer Rantz and Officer McAtee. (This is especially critical if

the prosecution attempts to bring in evidence of the Neighbors’ “blogging” or “blast

emails” concerning alleged corruption in the police department).

A review of the authorities cited above shows that Defendants are conclusively

entitled to the above-listed information and evidence, as the production of this evidence is

essential to their right to fairly defend themselves, consistent with the Fifth and Sixth

Amendments of the United States Constitution.

IV. Rule 16

Guy Neighbors and Carrie Neighbors further request that the government produce

any remaining evidence under Federal Rule of Criminal Procedure 16. They note that

they are not only entitled to their own statements, but also to the production of all

documents and tangible things in the government’s possession which the government

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intends to use in its case-in-chief or which were obtained from the Defendants. Rule 16

further requires that the government produce a written summary of any testimony to be

offered by an expert witness, in the event such a witness exists.

CONCLUSION

WHEREFORE for all of the above-stated reasons, Guy Neighbors and Carrie

Neighbors respectfully request that this Court enter an order directing the United States to

provide all information and evidence requested above, as required by the Fifth

Amendments due process clause, the Sixth Amendment right to a fair trial and by Rule

16, and, further, that this Court allow the parties to address this matter fully at a hearing

so that Defendants can take all appropriate steps to ensure proper compliance with the

demands of the Constitution and Rule 16.

Respectfully Submitted,

/s/ Melanie S. Morgan


Melanie S. Morgan, KS No. 16088
MORGAN PILATE LLC
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors

AND

/s/ John Duma


John Duma, KS No. 10760
Attorney at Law
303 E. Poplar
Olathe, KS 66061

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Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors

CERTIFICATE OF SERVICE

I, Melanie S. Morgan, do certify that a true and accurate copy of the above and

foregoing motion was served electronically on the Clerk of the Court and the government

pursuant to the ECF system on this 27 th day 2009.

/s/ Melanie S. Morgan

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