Case 2:07-cr-20073-CM Document 156 Filed 06/28/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(Kansas City Docket)

UNITED STATES OF AMERICA )

)
Plaintiff, )
) 07-20073-02-CM
v. ) Case No. 07-20124-01-CM
) 08-20105-02-CM
CARRIE MARIE NEIGHBORS, )
)
Defendant. )

UNITED STATES’ RESPONSE TO DEFENDANT’S

MOTION TO QUASH OR STRIKE DEFENDANT’S PROFFER

Comes now the United States of America, by and through the undersigned Assistant

United States Attorney, and in opposition to the defendant’s Motion to Quash or Strike

Defendant’s Proffer state the following:

1. On August 22, 2006, the defendant, after consultation with her counsel,

signed a proffer agreement with the United States which provided, inter alia, the following

provision:

(3) In the event that Mrs. Neighbors is a witness at any judicial

proceeding, including a criminal proceeding in which she is a
defendant, and offers testimony that is different from any
statements provided during the proffer, the United States may
use statements made by Mrs. Neighbors during the proffer,
and all evidence derived directly or indirectly from such
statements, in cross-examination of her. Moreover, statements
made during the proffer and any information derived directly or
indirectly from the statement may be used to rebut any
evidence offered by, or on behalf of, Mrs. Neighbors in any
proceeding.

(Proffer Letter, attached as Exhibit 1, at p. 2.) After the proffer agreement was reached,

the defendant was interviewed under its terms on several occasions during which she
 Case 2:07-cr-20073-CM Document 156 Filed 06/28/10 Page 2 of 5

made numerous incriminating statements.

The defendant now seeks to rescind the waiver of her right to prevent the

government from making any use of statements she made during the proffer pursuant to

the provisions of Federal Rule of Evidence 4101 on the ground that the proffer was not

recorded and because she claims that the government violated the terms of the agreement

by fraud, including “manufacture [of] witnesses and evidence”, failing to properly document

evidence by using “the Bates numerical system, and mishandling evidence.” (Document

[Doc.] 228 at 2.)

2. The defendant cites no federal statute or case law that support her claim that

failure of the government to record a proffer interview renders the substance of her

admissions inadmissible. The United States submits that her failure to do so is not an

oversight, but rather reflects the fact that no such authority exists.

The substance of her statements was recorded in the written reports by the agents

who participated in the proffer interviews and those reports have been provided to the

defendant in discovery. The government has fulfilled all of its pretrial obligations with

1
Rule 410 provides in pertinent part:

Except as otherwise provided in this rule, evidence of the following is not,

in any civil or criminal proceeding, admissible against the defendant who
made the plea or was a participant in the plea discussions:
***
(3) any statement made in the course of any proceedings under Rule
11 of the Federal Rules of Criminal Procedure or comparable state procedure
regarding either of the foregoing pleas [of guilty which was later withdrawn
or a plea of nolo contendere];....

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respect to the preservation and disclosure of the defendant’s statements.2

The defendant does not indicate how she was defrauded by the government at the

time of her proffer and the government submits that this claim is without merit. Prior to the

signing of the proffer agreement, the defendant was allowed to review audio/video

recordings of several sale/purchase transactions between her and an undercover police

officer posing as a customer with new items to sell. After reviewing that evidence, the

defendant indicated that she wished to cooperate with the government’s investigation and

after consultation with counsel, entered into the proffer agreement and submitted to several

interviews.

3. It is well settled that “statements made during plea negotiations are

inadmissible for impeachment purposes....” United States v. Acosta-Ballardo, 8 F.3d

1532, 1536 (10th Cir. 1993). However, “absent some affirmative indication that the

agreement was entered into unknowingly or involuntarily3, an agreement to waive the

2
To the extent that the defendant disputes the accuracy of the record of her
statements, such a claim is relevant only to the weight that the jury should accord an
agent’s testimony about her admissions, but does not affect their admissibility.
3
The defendant’s proffer letter contained the following acknowledgment:

I, Carrie N. Neighbors, hereby acknowledge that I have read the terms and
conditions of this "Proffer Letter" and that my attorney has explained those terms
and conditions to me. I have discussed the terms and conditions of the letter with
my attorney and I understand my rights and obligations pursuant to this agreement.
I understand that I have the right to remain silent and not discuss any matters which
may incriminate me. I nevertheless desire to pursue negotiations with the
government and I hereby voluntarily and intentionally waive such rights and willingly
agree to make statements and answer questions according to the terms and
conditions set forth in this "Proffer Letter."

(Attachment 1. at p. 3.) Consequently, there is no indication that she did not knowingly
and voluntarily enter into the proffer agreement.

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exclusionary provision of the plea-statement Rules is valid and enforceable.” United States

v. Mezzanatto, 513 U.S. 196, 210, 115 S. Ct. 797 (1995).

The United States acknowledges that the statements made by the defendant at her

proffer interviews are not admissible against her in the government’s case-in-chief.

However, under the terms of the proffer agreement, those statements may be used to

cross-examine the defendant and in rebuttal, should the defendant testify in a manner that

is inconsistent with or contrary to the statements made during the proffer interviews.

The defendant points to nothing in the pre-proffer negotiations, which occurred in

a non-custodial setting in the United States Attorney’s Office in the presence of the

defendant’s attorney, that could reasonably be construed to constitute improper coercion.

Consequently, the defendant has failed to state a claim upon which the relief she requests

may be granted.

For the reasons stated herein, the United States respectfully requests that the

Motion to Quash or Strike Defendant’s Proffer be denied in its entirety.

Respectfully submitted,

LANNY D. WELCH
United States Attorney

s/ Marietta Parker, KS Dist. Ct. #77807

MARIETTA PARKER
First 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

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Certificate of Service

I hereby certify that on the 28th day June, 2010, 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:

John Duma
303 E. Poplar
Olathe, KS 66061
Stand-by Attorney for Defendant Carrie Marie Neighbors

Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors

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:

Carrie Marie Neighbors

1104 Andover
Lawrence, Kansas
Defendant, pro se

s/Marietta Parker
MARIETTA PARKER
First Assistant United States Attorney