Are the actions of the Prosecutors in USA v. Neighbors amounting to conduct which can defeat the administration of justice or bring the courts and/or the legal profession into disrepute?
BACKGROUND OF FACTS:
On October 24,2007, A letter was written to defendant Guy Neighbors by Dionne Scherff attorney for Guy Neighbors in United States V. Guy Neighbors case No. 07-20124.
Grand Jury Rule 6(e) functions to protect both the integrity of the investigative process and a defendant’s constitutional right to a fair trial. Because leaking by a prosecutor of a witnesses testimony before a grand Jury may constitute a felony under Title 18, punishable by up to five years in prison and a $250,000 fine.
In the letter dated October 24, 2007 Ms. Sherff explains she has a conflict of interest and will not be proceeding as counsel on the case. The letter explains to Mr. Neighbors that a witness by the name of Patrick Nieder had testified adversely against him in a Grand Jury hearing. (In reality Mr. Neighbors has never even personally met Mr. Nieder.)
The letter goes on to explain that Ms. Sherff had traveled to the U.S. Attorney's office in order to review the Grand Jury testimony of Patrick Nieder. Ms Sherff then explains she discussed the conflict with the Government US Assistant Attorney Terra Morehead. And Morehead stated the she did not expect Mr. Nieder to be a witness in Case no. 07-20073.
In direct contrast to Ms. Moreheads statement, and rendering her credibility in the case questionable, during an evidence hearing in USA v. Guy Neighbors case no. 07-20073 before the Honorable Chief Judge John Lungstrum on November 5, 2007, Postal Inspector David Nitz; under the direction of AUSA Attorney Terra Morehead read the adverse testimony by Patrick Nieder, falsely claiming he had sold $30,000.00 in drugs and guns to the Yellow House Store and that Mr. Neighbors had met with him to buy the guns.
The disclosure of this witnesses false testimony before the Grand Jury was used to gain a tactical advantage over the defense, in order to force the defense attorney to have to withdraw from the case, create a conflict, and even possibly set the stage for a future mis-trial.
Any time a prosecutor purposely manipulates the Grand Jury's veil of secrecy rule by leaking evidence to gain a tactical advantage, for self-enrichment, to cause embarrassment, or out of shear malice, then she has willfully misused grand jury information in a manner no court or jury should excuse.
Because grand jury information is government property, its intentionally unauthorized use by a prosecutor abusing her power is a violation of 18 U.S.C. § 641 which criminalizes the theft of any thing of value. United States grand jury transcripts constitute property covered by §641. More important, the intangible information presented to the grand jury reflected in those transcripts also constitute “any thing of value” under § 641.9.
As a direct result of the United States Assistant Attorney's disclosure of this Grand Jury Testimony, on the 29Th day of October 2007, Dionne Sherff was forced to file a motion to withdraw as Guy Neighbors defense attorney of record. According to the motion Assistant United States Attorney Marietta Parker had no objection to the motion.
Guy Neighbors was also forced to be a defendant in the evidence hearing in Judge Lungstrums court on November 5, 2007, while being represented by a defense attorney with a conflict of interest, who had already filed a motion to withdraw from the case.
In Furtherance of the misconduct, it appears all the discovery involving Patrick Nieder was removed from the Nieghbors file prior to the current defense attorneys being appointed to the case!
CONCLUSION:
Considering the fact that Federal Prosecutors wield an awesome power to investigate federal crimes with the aid of grand jury subpoenas, deals in exchange for testimony and many other tools of power at their fingertips, they must exercise their discretion in a sound, trustworthy and judicious manner.
When a prosecutor intentionally leaks protected Grand Jury testimony she engages in a form of prosecutorial misconduct that not only may compromise a defendant’s right to a fair trial, but may also penalize the interests of the United States in a successful prosecution.
Tuesday, December 30, 2008
Sunday, December 28, 2008
Saturday, December 27, 2008
VINDICTIVE PROSECUTION, PROSECUTORIAL MISCONDUCT, FEDERAL MOTION TO DISMISS PRO-SE
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 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
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.
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 (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.
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 (since 2005), 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 Marietta Parker,
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
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 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
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.
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 (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.
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 (since 2005), 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 Marietta Parker,
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
lACK OF AGENCY JURISDICTION MOTION TO DISMISS INDICTMENT
MOTION TO DISMISS OR EVIDENTIARY HEARING
BASED UPON FOURTH AMENDMENT CIVIL RIGHTS
VIOLATIONS , LACK OF AGENCY JURISDICTION
Comes now Guy Neighbors defendant pro-se in a hybrid motion, a Constitutional right afforded by the Sixth Amendment to respectfully ask this Honorable court to dismiss Indictment USA v. Guy Neighbors and Carrie Neighbors case 07-20073-01/02-jwl/djw, or request an evidentiary based on Constitutional Civil Rights violations, and Lack of Agency Jurisdiction.
BACKGROUND:
On December 2rd, 2005 The United States Postal Inspectors office, Agents from the IRS, and Lawrence Kansas Police officers executed a Search Warrant on the Yellow House Quality Appliances Incorporated, a business at 1904 Massachusetts. Based on a complaint the businesses employees had bought or sold stolen property. At 10:00 am, in connection to the investigation; State Police Officers headed by Lawrence Kansas Police officer Micky Rantz, Drug taskforce detectives Terik Khatib and Sean Brown assisted by the United States Postal Service and IRS also executed a warrantless search upon the residence of the defendants located at 1104 Andover. (The warrantless illegal search allegation is securely supported by documentation which the defendants are prepared to provide through an evidentiary hearing)
Upon discovery at the residence of several small plants in a back room of the residence, in order to cover-up for the illegal search, officers went and got a so called “piggy back” warrant signed by Judge Stephen Six, at 1:30 pm that afternoon. Legally A “Piggy back” warrant would not have been necessary since the room was located within the house, had the officers already had a legal warrant to search the residence. No arrests were made at the time of the searches.
Also seized from the residence and poorly documented were the defendants legal valuable gun collection, which included a rare never fired 30 year old over and under Italian Berretta with an estimated value of $16,000.00. All guns were unloaded and securely locked in a safe; the officers did not have a separate warrant to seize the guns from this locked safe.
(One year later) On December 7th, 2006 Guy and Carrie Neighbors were arrested by the Postal Inspector David Nitz, and other Inspectors from the Postal Service, and the IRS, headed by IRS Agent Robert Jackson, along with his assistants from the IRS, for being unlawful users in possession of firearms United States v. Neighbors, Case No. 06-20171-CM, in violation of Title 18, USC sections 922(g)(2) .
The Government dismissed the Indictment in that case on May 4, 2007. On June 20, 2007, the government re-indicted Mr. and Mrs. Neighbors. The second indictment included the same charge as the first indictment (as Count 2) as well as additional charges,( based on the original search and absent of any additional activity in the case), of conspiring to manufacture marijuana and two counts of knowingly and intentionally manufacturing marijuana.
On June 25th, 2007, The Neighbors were again arrested in their residence at 1104 Andover, and every room of the entire residence including the basement was again illegally searched by IRS Agent Robert Jackson and attending police officers Sarna and Barkley absent of any search warrant. The Neighbors were arrested for Federal Gun and Drug charges by the Postal Inspectors David Nitz, Osbourn and the IRS Agent Robert Jackson, Under Title 21, USC Sec. 841 (a)(1) and (b)(1)(D), Title 21 USC, Sec. 846.
On the 21st day of December, 2007, The Honorable Judge Lungstrum dismissed count 2 of the Indictment with prejudice. Rendering the remainder of the marijuana charges a State level misdemeanor, derived by a State Police investigation absent of a legal search warrant; outside of the Jurisdiction by the arresting agencies, executed under non-qualifying Statutes by the Federal Government for Prosecution.
Because the Federal Gun and Drug charges against the Neighbors did not fall under the States minimum legal requirements of the Federal Statutes for prosecution, the Federal agencies with Jurisdiction over such charges to wit; KBI, DEA, FBI or US Marshalls Service were not involved in the investigation or arrests.
LEGAL STATEMENT
Guy and Carrie Neighbors request that the charges should be dismissed with prejudice, and that the arrest for the Gun and Drug charges by the Postal Inspector and IRS Agent was a violation of the Neighbors constitutional rights because the arresting agents were acting outside of their legal authorized Agencies Jurisdiction in violation of Kansas law. In other cases involving the application of Kansas Statute, it was held that assistance by authorities possessing jurisdiction can serve to validate a search, even if the officers acting outside their jurisdiction also participate. See See United States v. Price , 75 F.3d 1440, 1443 (10th Cir. 1996); United States v. Occhipinti , 998 F.2d 791, 798-99 (10th Cir. 1993). However that was not the case in Neighbors V USA because no officer or agent with jurisdiction over the statutes was present during the search or arrest.
The Fourth Amendment protects individuals against unreasonable searches and seizures by the government. The scope of this protection extends to any area in which an individual has a reasonable expectation of privacy. Further, the Fourth Amendment provides that all warrants shall be based upon probable cause and supported by oath or affirmation.
-----------------------------------------------------------------------------------
POWERS OF THE POSTAL INSPECTOR:
The USPIS and USPS-OIG derive their federal investigative authority from 18 U.S.C. fj 3061(2000) (granting investigative and other law enforcement powers to "Postal Inspectors and other agents of the United States Postal Service designated by the Board of Governors to investigate criminal matters related to the Postal Service and the mail"). That grant of authority is limited to "the enforcement of laws regarding property in the custody of the Postal Service, property of the Postal Service, the use of the mails, and other postal offenses" and the enforcement of certain other federal laws determined to "have a detrimental effect upon the operations of the Postal Service." Id.6 3061(b)(l)-(2).
Title 39, section 233.1 of the Code of Federal Regulations, entitled "Arrest and investigative
powers of Postal Inspectors," sets forth certain authority of inspectors of the USPIS and inspectors of the USPS-OIG, referring to both as "Postal Inspectors." Id. 5 233.1(a). While recognizing their common authority to enforce laws related to the mails, the section circumscribes the primary responsibility of the USPS-OIG and the USPIS:
(b) Limitations. The powers granted by paragraph
(a) of this section shall be exercised only--
(1) In the enforcement of laws regarding property in the custody of
the Postal Service, property of the Postal Service, the use of the mails,
and other postal offenses. With the exception of enforcing laws
related to the mails:
(i) The Office of Inspector General will investigate all
allegations of violations of postal laws or misconduct by postal
employees, including mail theft; and
(ii) The Inspection Service will investigate all allegations of
violations of postal laws or misconduct by all other persons.
---------------------------------------------------------------------------------------
POWERS OF THE IRS AGENT TO ARREST
9.1.2.4 (01-16-2008)
IRS Agent Authority to Arrest
The authority of special agents to make arrests is provided by 26 USC §7608.
This section provides, in part, that a special agent is authorized: to execute and serve search warrants and arrest warrants; to serve subpoenas and summonses issued under authority of the United States; to make arrests with or without warrant for any offense against the United States relating to the Internal Revenue laws that is committed in his/her presence, or for any felony cognizable under such laws if he/she has reasonable grounds to believe that the person to be arrested has committed or is committing any such felony
9.1.2.2 (01-16-2008)
General Authority to Enforce Internal Revenue Laws and Related Statutes
1. Title 26 United States Code (USC) §7608(b) provides the initial authority for investigating crimes arising under the Internal Revenue laws. >----------------------------------------------------------------------------------------
CONCLUSION
The Neighbors contend officers acted in violation of state statutory law to the Fourth Amendment, Ross v. Neff , 905 F.2d 1349 (10th Cir. 1990). In that case, it was held that "an arrest made outside of the arresting officer's jurisdiction violates the Fourth Amendment . . . ." Id. at 1353-54
The federal constitutional standards for evaluating the validity of search warrants are well established. The Fourth Amendment requires that the warrant contain "probable cause supported by an oath or affirmation and a particular description of the place, persons and things to be searched and seized." United States v. Wicks , 995 F.2d 964, 972 (10th Cir. 1993). The repeated searches of the Neighbors home by IRS Agent Robert Jackson and State Police officers, lacked any probable cause, had no affirmation of oath, was in violation of the Fourth Amendment and Kansas State law and outside of their Jurisdiction for law enforcement. Therefore fruits from any searches should be suppressed see United States v. Pennington , 635 F.2d 1387, 1389-91 (10th Cir. 1980).
Constitutional rights are not amenable to compromise.
Jurisdictions, authority and codes of investigating agencies is set forth to protect the civil rights of individuals. Official acts are either constitutional or they are not. Within their Jurisdiction or they are not. There are no degrees of constitutionality. No shades of grey. No matters of opinion.
Since the Neighbors have had their constitutional rights violated, while the State officers and Federal Agents were acting outside of their legal Jurisdictions, during the course of this investigation, any attempt to continue the prosecution of this case is an attempt to enforce an unconstitutional act and would be in violation of the Neighbors civil rights. This in itself would be a violation of criminal law, specifically 18 USC 242, and perhaps 18 USC 241.
Enforcement of unconstitutional acts is a crime, regardless of who the perpetrator is, and anyone who would enforce such a crime is not operating within the law. Failure to act upon the knowledge or presentation of proof of such crimes is a violation of one’s oath of office to the Constitution, and grounds for removal from office. Therefore Guy Neighbors respectfully requests the termination of the case, the suppression of all evidence, and the dismissal of all charges with prejudice.
Respectfully submitted as truth under oath to the courts for considerations by Pro-se Defendant
petitioner Carrie Neighbors.
Signed_______________________dated___________________
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
BASED UPON FOURTH AMENDMENT CIVIL RIGHTS
VIOLATIONS , LACK OF AGENCY JURISDICTION
Comes now Guy Neighbors defendant pro-se in a hybrid motion, a Constitutional right afforded by the Sixth Amendment to respectfully ask this Honorable court to dismiss Indictment USA v. Guy Neighbors and Carrie Neighbors case 07-20073-01/02-jwl/djw, or request an evidentiary based on Constitutional Civil Rights violations, and Lack of Agency Jurisdiction.
BACKGROUND:
On December 2rd, 2005 The United States Postal Inspectors office, Agents from the IRS, and Lawrence Kansas Police officers executed a Search Warrant on the Yellow House Quality Appliances Incorporated, a business at 1904 Massachusetts. Based on a complaint the businesses employees had bought or sold stolen property. At 10:00 am, in connection to the investigation; State Police Officers headed by Lawrence Kansas Police officer Micky Rantz, Drug taskforce detectives Terik Khatib and Sean Brown assisted by the United States Postal Service and IRS also executed a warrantless search upon the residence of the defendants located at 1104 Andover. (The warrantless illegal search allegation is securely supported by documentation which the defendants are prepared to provide through an evidentiary hearing)
Upon discovery at the residence of several small plants in a back room of the residence, in order to cover-up for the illegal search, officers went and got a so called “piggy back” warrant signed by Judge Stephen Six, at 1:30 pm that afternoon. Legally A “Piggy back” warrant would not have been necessary since the room was located within the house, had the officers already had a legal warrant to search the residence. No arrests were made at the time of the searches.
Also seized from the residence and poorly documented were the defendants legal valuable gun collection, which included a rare never fired 30 year old over and under Italian Berretta with an estimated value of $16,000.00. All guns were unloaded and securely locked in a safe; the officers did not have a separate warrant to seize the guns from this locked safe.
(One year later) On December 7th, 2006 Guy and Carrie Neighbors were arrested by the Postal Inspector David Nitz, and other Inspectors from the Postal Service, and the IRS, headed by IRS Agent Robert Jackson, along with his assistants from the IRS, for being unlawful users in possession of firearms United States v. Neighbors, Case No. 06-20171-CM, in violation of Title 18, USC sections 922(g)(2) .
The Government dismissed the Indictment in that case on May 4, 2007. On June 20, 2007, the government re-indicted Mr. and Mrs. Neighbors. The second indictment included the same charge as the first indictment (as Count 2) as well as additional charges,( based on the original search and absent of any additional activity in the case), of conspiring to manufacture marijuana and two counts of knowingly and intentionally manufacturing marijuana.
On June 25th, 2007, The Neighbors were again arrested in their residence at 1104 Andover, and every room of the entire residence including the basement was again illegally searched by IRS Agent Robert Jackson and attending police officers Sarna and Barkley absent of any search warrant. The Neighbors were arrested for Federal Gun and Drug charges by the Postal Inspectors David Nitz, Osbourn and the IRS Agent Robert Jackson, Under Title 21, USC Sec. 841 (a)(1) and (b)(1)(D), Title 21 USC, Sec. 846.
On the 21st day of December, 2007, The Honorable Judge Lungstrum dismissed count 2 of the Indictment with prejudice. Rendering the remainder of the marijuana charges a State level misdemeanor, derived by a State Police investigation absent of a legal search warrant; outside of the Jurisdiction by the arresting agencies, executed under non-qualifying Statutes by the Federal Government for Prosecution.
Because the Federal Gun and Drug charges against the Neighbors did not fall under the States minimum legal requirements of the Federal Statutes for prosecution, the Federal agencies with Jurisdiction over such charges to wit; KBI, DEA, FBI or US Marshalls Service were not involved in the investigation or arrests.
LEGAL STATEMENT
Guy and Carrie Neighbors request that the charges should be dismissed with prejudice, and that the arrest for the Gun and Drug charges by the Postal Inspector and IRS Agent was a violation of the Neighbors constitutional rights because the arresting agents were acting outside of their legal authorized Agencies Jurisdiction in violation of Kansas law. In other cases involving the application of Kansas Statute, it was held that assistance by authorities possessing jurisdiction can serve to validate a search, even if the officers acting outside their jurisdiction also participate. See See United States v. Price , 75 F.3d 1440, 1443 (10th Cir. 1996); United States v. Occhipinti , 998 F.2d 791, 798-99 (10th Cir. 1993). However that was not the case in Neighbors V USA because no officer or agent with jurisdiction over the statutes was present during the search or arrest.
The Fourth Amendment protects individuals against unreasonable searches and seizures by the government. The scope of this protection extends to any area in which an individual has a reasonable expectation of privacy. Further, the Fourth Amendment provides that all warrants shall be based upon probable cause and supported by oath or affirmation.
-----------------------------------------------------------------------------------
POWERS OF THE POSTAL INSPECTOR:
The USPIS and USPS-OIG derive their federal investigative authority from 18 U.S.C. fj 3061(2000) (granting investigative and other law enforcement powers to "Postal Inspectors and other agents of the United States Postal Service designated by the Board of Governors to investigate criminal matters related to the Postal Service and the mail"). That grant of authority is limited to "the enforcement of laws regarding property in the custody of the Postal Service, property of the Postal Service, the use of the mails, and other postal offenses" and the enforcement of certain other federal laws determined to "have a detrimental effect upon the operations of the Postal Service." Id.6 3061(b)(l)-(2).
Title 39, section 233.1 of the Code of Federal Regulations, entitled "Arrest and investigative
powers of Postal Inspectors," sets forth certain authority of inspectors of the USPIS and inspectors of the USPS-OIG, referring to both as "Postal Inspectors." Id. 5 233.1(a). While recognizing their common authority to enforce laws related to the mails, the section circumscribes the primary responsibility of the USPS-OIG and the USPIS:
(b) Limitations. The powers granted by paragraph
(a) of this section shall be exercised only--
(1) In the enforcement of laws regarding property in the custody of
the Postal Service, property of the Postal Service, the use of the mails,
and other postal offenses. With the exception of enforcing laws
related to the mails:
(i) The Office of Inspector General will investigate all
allegations of violations of postal laws or misconduct by postal
employees, including mail theft; and
(ii) The Inspection Service will investigate all allegations of
violations of postal laws or misconduct by all other persons.
---------------------------------------------------------------------------------------
POWERS OF THE IRS AGENT TO ARREST
9.1.2.4 (01-16-2008)
IRS Agent Authority to Arrest
The authority of special agents to make arrests is provided by 26 USC §7608.
This section provides, in part, that a special agent is authorized: to execute and serve search warrants and arrest warrants; to serve subpoenas and summonses issued under authority of the United States; to make arrests with or without warrant for any offense against the United States relating to the Internal Revenue laws that is committed in his/her presence, or for any felony cognizable under such laws if he/she has reasonable grounds to believe that the person to be arrested has committed or is committing any such felony
9.1.2.2 (01-16-2008)
General Authority to Enforce Internal Revenue Laws and Related Statutes
1. Title 26 United States Code (USC) §7608(b) provides the initial authority for investigating crimes arising under the Internal Revenue laws. >----------------------------------------------------------------------------------------
CONCLUSION
The Neighbors contend officers acted in violation of state statutory law to the Fourth Amendment, Ross v. Neff , 905 F.2d 1349 (10th Cir. 1990). In that case, it was held that "an arrest made outside of the arresting officer's jurisdiction violates the Fourth Amendment . . . ." Id. at 1353-54
The federal constitutional standards for evaluating the validity of search warrants are well established. The Fourth Amendment requires that the warrant contain "probable cause supported by an oath or affirmation and a particular description of the place, persons and things to be searched and seized." United States v. Wicks , 995 F.2d 964, 972 (10th Cir. 1993). The repeated searches of the Neighbors home by IRS Agent Robert Jackson and State Police officers, lacked any probable cause, had no affirmation of oath, was in violation of the Fourth Amendment and Kansas State law and outside of their Jurisdiction for law enforcement. Therefore fruits from any searches should be suppressed see United States v. Pennington , 635 F.2d 1387, 1389-91 (10th Cir. 1980).
Constitutional rights are not amenable to compromise.
Jurisdictions, authority and codes of investigating agencies is set forth to protect the civil rights of individuals. Official acts are either constitutional or they are not. Within their Jurisdiction or they are not. There are no degrees of constitutionality. No shades of grey. No matters of opinion.
Since the Neighbors have had their constitutional rights violated, while the State officers and Federal Agents were acting outside of their legal Jurisdictions, during the course of this investigation, any attempt to continue the prosecution of this case is an attempt to enforce an unconstitutional act and would be in violation of the Neighbors civil rights. This in itself would be a violation of criminal law, specifically 18 USC 242, and perhaps 18 USC 241.
Enforcement of unconstitutional acts is a crime, regardless of who the perpetrator is, and anyone who would enforce such a crime is not operating within the law. Failure to act upon the knowledge or presentation of proof of such crimes is a violation of one’s oath of office to the Constitution, and grounds for removal from office. Therefore Guy Neighbors respectfully requests the termination of the case, the suppression of all evidence, and the dismissal of all charges with prejudice.
Respectfully submitted as truth under oath to the courts for considerations by Pro-se Defendant
petitioner Carrie Neighbors.
Signed_______________________dated___________________
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
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