IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(Kansas City Docket) UNITED STATES OF AMERICA )
Plaintiff, )
v.
CARRIE MARIE NEIGHBORS, )
Defendant.
Case No. 07-20124-01-CM
UNITED STATES’ RESPONSE TO DEFENDANT’S
MOTION TO RELEASE LIS PENDENS
Comes now the United States of America, by and through the undersigned
Assistant United States Attorney, and in response to the defendant’s Motion to Release
Lis Pendens, states the following.
1. In the Indictment, the United States included a forfeiture allegation which
gave notice to the defendants that the United States intended to seek forfeiture of any
property involved in money laundering and any property constituting proceeds of wire
fraud as alleged in the Indictment.
(Doc. 1). The United States identified 1904
Massachusetts, Lawrence, Kansas, as a piece of real property for which the United
States sought forfeiture.
2. The United States also included language which gave notice to the
defendants that it would seek forfeiture of substitute assets and listed the property
located at 1104 Andover, Lawrence, Kansas (Andover property). Thereafter, the United
Case 2:07-cr-20124-CM Document 43 Filed 03/04/2008 Page 1 of 5
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States filed a lis pendens with the Douglas County Register of Deeds against both the
1904 Massachusetts property and the Andover property.
3. On February 25, 2007, the defendant Carrie Neighbors filed her Motion To
Release Lis Pendens in which defendant claims that the filing of lis pendens is
prohibited by the Tenth Circuit Court’s ruling in United States v. Jarvis, 499 F.3d 1196
(10th Cir. 2007). (To avoid confusion, the United States would point out that the August
27, 2007, date listed in defendant’s motion as the date upon which the subject lis
pendens was filed is incorrect and that the indictment was not filed in this matter until
September 13, 2007.)
4. On February 27, 2007, the Grand Jury returned a Superseding Indictment
in this case. (Doc. 38). The Superseding Indictment also contains a revised forfeiture
allegation in which seeks the Grand Jury seeks forfeiture of the Andover property as
directly forfeitable property that was involved in the money laundering offenses (Counts
One and Sixteen through Twenty), and as directly forfeitable property that constitutes
proceeds from the wire fraud offenses (Counts One through Fifteen). The Andover
property is still listed as a substitute asset.
5. Directly forfeitable property refers to property that is connected to the
defendant’s criminal conduct and for which the applicable forfeiture statute provides for
mandatory forfeiture. For example, 18 U.S.C. § 982 (a)(1) provides, “The court, in
imposing sentence on a person convicted of an offense in violation of section 1956 . . .
shall order that the person forfeit to the United States any property, real or personal,
involved in such offense, or any property traceable to such offense.” In this case, the
Andover property is alleged to be traceable to the offense of money laundering. (See,
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e.g., Counts One and Twenty) Additionally, 18 U.S.C. § 982(a)(8) provides in pertinent
part that:
[the court, in sentencing a defendant convicted of an offense under
section ... 1343 ... shall order that the defendant forfeit to the United Sates
any real or personal property –
(A) used or intended to be used to commit to facilitate or to
promote the commission of such offense; and
(B) constituting, derived from or traceable to the gross proceeds
that the defendant obtained directly or indirectly as a result of the
offense.
Here, the Andover property is alleged to have been derived from the proceeds of the
wire fraud. (See Counts One through Fifteen) Substitute assets refers to property that
is not directly forfeitable but may be forfeited in lieu of directly forfeitable property when
the conditions set out in 21 U.S.C. § 853(p) are met.
6. As a result of the Superseding Indictment, defendant’s Motion To Release
Lis Pendens is moot. Defendant had sought release of the lis pendens against the
Andover property because the Andover property was only named as a substitute asset
in the Indictment. However, now that forfeiture of the Andover property is sought as a
result of the property’s direct connection to the crimes charged and the proceeds from
those crimes, defendant’s argument is no longer factually applicable.
7. Should the Court find that defendant’s motion is not moot, the United
States asserts that Jarvis, the case cited by defendant, is not applicable to the present
proceeding. In Jarvis, the Tenth Circuit held that the filing of lis pendens was improper
under New Mexico state law. 499 F.3d at 1205. The New Mexico lis pendens statute
and the Kansas lis pendens statute are markedly different and accordingly Jarvis is not
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applicable in this instance.
WHEREFORE, for the reasons stated above, the United States respectfully asks
the Court to deny defendant’s motion as moot or in the alternative, find that Jarvis does
not apply.
Respectfully submitted,
Eric F. Melgren
United States Attorney s/ Marietta Parker, #77807
MARIETTA PARKER
Assistant United States Attorney
500 State Avenue; Suite 360
Kansas City, Kansas 66101
Telephone: 913-551-6730
Facsimile: 913-551-6541
E-mail: marietta.parker@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff
Certificate of Service
I hereby certify that on the 4th day of March, 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:
Phillip R. Gibson
Thomason & Gibson LLC
2400 S. Lee's Summit Rd., Suite #200
Independence, MO 64055
Counsel for Carrie Neighbors
Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Counsel for Guy Neighbors
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I further certify that on this date the foregoing document and the notice of
electronic filing were mailed by first-class mail to the following non-CM/ECF participants:
None
s/ Marietta Parker, #77807
MARIETTA PARKER
Assistant United States Attorney
Case 2:07-cr-20124-CM Document 43 Filed 03/04/2008 Page 5 of 5
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