(page 1 and 2 of the Illegal lis pendens placed on the property at 1904 Massachusetts without notification by the U.S. Department of Justice prosecutor Marietta Parker. But signed by Annette Gurney)
1. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights protect against
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense.
This syllabus is going to focus on the #3. Multiple punishments for the same offense. Thus violating The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Guy and Carrie Neighbors hearafter referred to as defendants.
1.Because there have been no guilty pleas, or convictions as required by the 10th circuit court for lis pendens or forfeitures, the actions of the Government have placed "punishment" upon the defendants in connection with the forfeiture and lis pendens actions.
2. Along with the fact the Government has arrested, starved and illegally searched the defendants twice as a form of punishment for the same exact charges and incidents.
(a) The only defense the Government offered during an evidence hearing for the cruel and unusual punishment is that quote U.S. assistant prosecuting attorney Terra Morehead stated "The Government treats all defendants in this same way"
As required by Kansas laws, the defendants have contested the lis pendens civil forfeiture action, and have brought forth attention to the courts before a Federal Judge during an evidence hearing, in regards to the cruel treatment bestowed upon the defendants during both arrests.
According to Kansas law, a forfeiture proceeding under K.S.A. 65-4171 is civil in nature, and the statutory scheme is not so punitive as to negate legislative intention to establish a civil remedial mechanism. However the Government in this case, against Kansas statutes, has used the forfeiture proceeding as a form of punishment. The Government has also used the arrests as an opportunity to place cruel and unusual punishment upon the defendants.
The lis pendins placed against the defendant’s property, absent of the required notification of the lis pendens within 60 days of the filing and in violation of the "10th circuit court statutes" has placed a heavy burden upon the defendants, has interfered with the sale of the property, and has created a tremendous financial burden upon the defendants.
The government’s response to the defendant’s motion to remove the lis pendens was to file a superseding indictment including another forfeiture allegation against the same property; just two days after the defendants filed the motion to release the lis pendens. Creating more prejudice and punishments upon the defendants.
The actions by the Government in this case have amounted to a penalty associated to a pending case without a plea or conviction in place.
There is a question of law, where the court's review is unlimited see where this court's review is unlimited. See Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The Neighbors have been subjected to "multiple punishments" for the same alleged offense in this case. See State v. Cady, 254 Kan. 393, 396, 867 P.2d 270 (1994) (citing Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 [1977]).
The United States Supreme Court consolidated two United States Court of Appeals cases from the Ninth and Sixth Circuits.
Both circuits held that the Double Jeopardy Clause prohibited the government from both punishing the defendant for a criminal offense and forfeiting defendant's property for the same offense in a separate civil action. (As is what has taken place here in this case)
IN CONCLUSION:
When a forfeiture proceeding against property is proceeded against before a person is held guilty and condemned, and therefore causes hardship, "punishment" and prejudice against that person, then it does constitute a civil action against that person as a 'punishment."
The Fifth Amendment clearly states that forfeiture cannot be used as punishment for the criminal offense.282 U.S. at 581.
When the Government places actions against the defendants of cruel and unusual punishment during an arrest, then clearly the defendant has been pre-punished for a pending crime, and therefore any punishments placed upon the defendants in the future for the same alleged crime would constitute "Double Jeapardy" and a violation of the Fifth Amendment rights of the defendant.
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