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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs. Case No. 07-20073-01/01-CM
GUY NEIGHBORS
and,
CARRIE NEIGHBORS,
Defendants.
GOVERNMENT’S MOTION TO RECONSIDER ORDER OF DISMISSAL
The United States of America, by and through undersigned counsel, requests the
Court to reconsider Judge Lungstrum’s order of dismissal with prejudice of Count 2 of the
Indictment (Doc. 1) in this case, as pronounced in its Memorandum and Order (Doc. 36)
filed on December 21, 2007.
BACKGROUND
On December 7, 2006, Guy and Carrie Neighbors were charged by Indictment in 06-
20171-01/02-CM, with a single count of being unlawful users in possession of firearms, in
violation of Title 18, United States Code, §§ 922(g)(3), 924(a)(2) and 2.
On December 12,
2006, the defendants appeared before the court, were arraigned on the charge and then
released on conditions of bond. Guy Neighbors had retained attorney James George and
Carrie Neighbors had court appointed counsel R. Bruce Kips.
On March 26, 2007, the
Honorable Carlos Murguia scheduled a jury trial which was to commence on May 14, 2007.
An investigation was continuing involving both defendants' in a complicated
1The defendants were charged in 07-20124-01/02-KHV
on September 13, 2007.
This case was recently reassigned to the Honorable Carlos Murguia.
2This is an identical charge as the original count filed in 06-20171.
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conspiracy to commit wire fraud and money laundering case,
1 in which cooperating
individuals/defendants were being interviewed. During the course of that ongoing
investigation, additional evidence in the firearm case was developed and as a result, the
Government believed additional charges would be proper. Because of the grand jury
schedule, the Government was unable to secure a Superseding Indictment prior to the
commencement of the jury trial.
The Government contacted counsel for the defendants
and inquired if they would agree to a continuance so that a Superseding Indictment could
be filed. Both attorneys, on behalf of their clients, declined to agree to a continuance.
On May 4, 2007, the Government filed a Motion for Dismissal (Doc. 23), without
prejudice, of the Indictment advising the Court that the Government had recently developed
additional evidence which would require further investigation and anticipated the filing of
additional charges.
On May 10, 2007, this Court granted the motion and dismissed the
Indictment without prejudice. (Doc. 24).
On June 20, 2007, an Indictment was filed in the instant case charging both
defendants' with Conspiracy to manufacture marijuana, in violation of Title 21, United
States Code, §§ 846, 841(a)(1) and (b)(1)(D) (Count 1); Being unlawful users in
possession of firearms, in violation of Title 18, United States Code, §§ 922(g)(3), 924(a)(2),
and 2(Count 2)2; and, two counts of Manufacture of marijuana, in violation of Title 21,
United States Code, §§ 846, 841(a)(1) and (b)(1)(D) and Title 18, United States Code, §2
(Counts 3 & 4). The Government also included a forfeiture allegation, seeking forfeiture
3
of eleven (11) firearms. (now missing from the LKPD evidence room.)
On June 25, 2007, the defendants appeared before the court, were arraigned on the
charges and then released on conditions of bond. Prior to their appearance, Government
counsel notified the court's bailiff, Lori Lopez, that this was a refiled case and that prior
counsel were James George and R. Bruce Kips. The court contacted both attorneys, who
indicated they were not desirous of being involved any further in the Neighbors case.
Consequently, the court appointed Alex McCauley for Guy Neighbors and Phillip Gibson
for Carrie Neighbors. Defense motions were scheduled to be filed on or before July 20,
2007, and any responses by the Government were to be filed on or before July 27, 2007.
The hearing on any motions was set for August 13, 2007.
On July 17, 2007, Guy
Neighbors filed a Motion for Extension of Time to File Pretrial Motions, which was set for
hearing on August 13, 2007.
On August 10, 2007, counsel for Guy Neighbors filed a
Motion for Withdrawal of Counsel due to a conflict.
At the hearing on August 13, 2007, the
court granted the motion to withdraw and took under advisement the motion for extension
of time to file pretrial motions.
The Court thereafter appointed new counsel, Dionne
Scherff, and a status conference was scheduled for August 23, 2007, at which time the
Court continued the matter at the request of the defendants to September 10, 2007.
At the
hearing on September 10, 2007, the Court granted the motion for extension of time to file
pretrial motions directing the defendants to file motions on or before October 15, 2007, with
Government responses due by October 29, 2007.
On September 11, 2007, Carrie
Neighbors filed a Motion to Dismiss Indictment (Doc. 24)
and on September 12, 2007,
Guy
3On October 15, 2007, counsel for Guy Neighbors filed a Motion to Join in Co-
Defendant's Motion to Dismiss Indictment (Doc. 28).
4
Neighbors, pro-se, filed the exact same motion (Doc. 25)3 claiming that the defendants'
rights to a speedy trial had been violated.
On November 5, 2007, the Honorable John W. Lungstrum heard arguments on
defendants’ motions on November 5, 2007.
On November 16, 2007, the court issued a
Memorandum and Order finding a violation of the Speedy Trial Act as to Count 2 only and
reserved the determination of whether to grant the motion with or without prejudice until
after an evidentiary hearing. (Doc. 33).
On November 27, 2007, the court held an
evidentiary hearing and on December 21, 2007, issued a Memorandum and Order
dismissing with prejudice Count 2 and reassigning the case to this Court. (Docs. 36 & 37).
In its Memorandum and Order (Doc. 33), the Court specifically found that the delay
was not the result of intentional dilatory conduct or a pattern of neglect or malicious intent
by the Government. Nevertheless, the Court found that the reprosecution of the Neighbors
would negatively affect the administration of justice. With this finding, the Court concluded
that a third reprosecution for the same offense on a charge that the court characterized as
not “very serious” would not unduly impair the enforcement of federal criminal laws. Id. at
21-22.
ARGUMENT AND AUTHORITIES
Because there is no provision for a motion to reconsider in the Federal Rules of
Criminal Procedure, federal courts recognize motions to reconsider pursuant to the
common law doctrine articulated in United States v. Healy, 376 U.S. 75 (1964).
Additionally, federal courts find the standards for evaluating a motion to reconsider in the
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civil context as relevant for evaluating a motion to reconsider in a criminal case. “A motion
to reconsider shall be based on (1) an intervening change in controlling law, (2) availability
of new evidence, or (3) the need to correct clear error or prevent manifest injustice.” D.
Kan. Rule 7.3(b). “A motion to reconsider is not a second chance for the losing party to
make its strongest case or to dress up arguments that previously failed.” Voelkel v.
General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff’d, 43 F.3d 1484, 1994 WL
708220 (10th Cir. Dec. 21, 1994).
A court’s rulings “are not intended as first drafts, subject to revision and
reconsideration at a litigant’s pleasure.” Quaker Alloy Casting v. Gulfco
Industries, Inc., 123 F. R. D. 282, 288 (N.D. Ill. 1988). A motion to reconsider
is appropriate if the court has obviously misapprehended a party’s position,
the facts, or applicable law, or if the party produces new evidence that could
not have been obtained through the exercise of due diligence. Comeau v.
Rupp, 810 F. Supp. 1172, 1175 (D. Kan. 1992); see Refrigeration Sales Co.
Inc. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983), aff’d, 770
F.2d 98 (7th Cir. 1985). A motion to reconsider is not appropriate if the
movant only wants the court to revisit issues already addressed or to hear
new arguments or supporting facts that could have been presented originally.
Comeau v. Rupp, 810 F. Supp. at 1175.
Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1207, 1209 (D. Kan. 1998). The decision
whether to grant or deny a motion to reconsider is committed to the court’s sound
discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
The United States asks this Court to reconsider the ruling of the Memorandum and
Order to correct clear error or prevent manifest injustice. The court looked at the factors
referenced in 18 U.S.C. § 3162(a)(2), however, the Government respectfully challenges the
court’s assessment.
First, the court made reference that the defendants may possibly not be looking at
a lengthy term of imprisonment if in fact the firearms were part of a “collection”; the
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Government believes the more appropriate consideration is that regardless of the
Sentencing Guidelines assessment, this charge is a felony firearms offense and should be
considered a serious offense.
Second, Judge Lungstrum found that the Government did not file a new indictment
for the purpose of intentional dilatory conduct or a pattern of neglect or malicious intent,
and because there was no finding of bad faith, dismissal with prejudice is the more
appropriate remedy. See United States v. Killion, 902 F.Supp. 1427,1429 (10th Cir. 1995);
United States v. Abdush-Shakur, 465 F.3d 458, 463 (10th Cir. 2006). In United States v.
Lopez, 1998 WL 892297, *3 (10th Cir. 1998), the court noted “[A] defendant who waits
passively while the time runs has less claim to dismissal with prejudice than does a
defendant who demands, but does not receive, prompt attention. Id. at 1094. Nor do we
find the length of the delay sufficiently prejudicial to warrant a dismissal with prejudice in
the absence of government misconduct. See United States v. Johnson, 29 F.3d 940, 945-
46 (5th Cir.1994) (188-day delay in bringing defendant to trial did not necessitate dismissal
with prejudice where delay was unintentional and government did not act in bad faith);
United States v. Koory, 20 F.3d 844, 848-49 (8th Cir.1994) (59-day delay beyond 70-day
Speedy Trial Act limitation did not mandate dismissal with prejudice).”
In the instant case,
Judge Lungstrum found that the Speedy Trial Act had been exceeded by only nine days.
(Doc. 33, at 7). Additionally, counsel for Mr. Neighbors filed a motion to extend the
deadlines in the instant case, which further demonstrates that he did not demand a speedy
trial.
Finally, the court addressed the adverse impact of reprosecution on administration
of justice and speedy trial act, including prejudice to defendants. Under the Sixth
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Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy . . . trial.” U.S. CONST. Amend. VI. The purpose of this
“fundamental” right is to prevent undue and oppressive incarceration before trial, to
minimize “anxiety and concern accompanying public accusation,” and to limit the possibility
that a long delay will affect a defendant’s ability to defend himself. Klopfer v. North
Carolina, 386 U.S. 213, 222 - 224 (1967).
It should be noted that aside from the initial
arrest, the defendant’s were at liberty on conditions of release pending disposition of their
case.
The court noted that if the Government were permitted to refile the charges, the
defendants would have to be arrested for a third time at their home or business.
This is not
correct, as the court could assure that a warrant not be issued, but instead be
accomplished by the issuance of a summons to appear at a designated time. The
Government would further agree to such an order or finding.
The court noted that the
Government would get a “new seventy-day clock”, however, there is nothing to
demonstrate any prejudice that the defendants’ would endure given the fact that they are
facing much more serious charges that remain pending in 07-20124-01/02-CM and would
be at liberty pending resolution in a third prosecution.
The Government would offer as newly discovered evidence and further support on
the adverse impact to the reprosecution of this charge and the lack of prejudice to the
defendants, obstructive behavior that the defendants have engaged in since the filing of the
court’s order. In this unique circumstance, the court’s finding disallowing reprosecution has
and would negatively affect the administration of justice.
THEREFORE, the United States respectfully requests that the Court reconsider its
order of dismissal as to Count 2 to prevent a clear error or manifest injustice to avoid the
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consequences of their illegal actions.
Respectfully submitted,
Eric F. Melgren
United States Attorney
s/ Terra D. Morehead
TERRA D. MOREHEAD, # 12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: Terra.Morehead@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of January, 2008, the foregoing was
electronically filed with the clerk of the court by using the CM/ECF system which will send
a notice of electronic filing to the following:
Dionne M. Scherff
Attorney for Guy Neighbors
Phillip R. Gibson
Attorney for Carrie Neighbors
s/ Terra D. Morehead
TERRA D. MOREHEAD, # 12759
Assistant United States Attorney
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