Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 1 of 7

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 EXCLUDE WITNESSES

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

United States Attorney, and in opposition to defendant, Carrie Marie Neighbors’, Motion to

Exclude Witnesses, (Document [Doc.] 227) states the following.

1. Defendant moves to exclude the testimony of the government’s witnesses

who have been promised a benefit in exchange for their testimony such as agreements for

sentence reductions or deferring prosecution on the grounds that any such agreements to

provide substantial assistance violate Fed.R.Evid. 408 because, she argues, testimony

procured under these conditions is coerced and “constitutes bias, or prejudicing [sic] this

cause of action.” Doc. 227 at ¶ 2. She also argues that unspecified testimonial evidence

should be excluded because it is

irrelevant and inadmissible, due to not one witness can testify that the
Defendant [1] had knowledge that the items were stolen, nor can they testify
that the person who sold the items, had notified the Defendant [1] that the
property was stolen.

Id. at ¶ 3. Finally she asserts that the witnesses’ testimony would be “insufficient to

1
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 2 of 7

establish a habitual pattern, in which [sic] was never shown in this case, in which [sic]

would only prejudice and show bias in this cause of action.” Id. at § 4. As the following

discussion will establish, the defendant’s motion is without merit and should be denied in

its entirety.

2. Federal Rule of Evidence 408 provides in pertinent part:

(a) Prohibited uses. – Evidence of the following is not admissible on behalf

of any party, when offered to prove liability for, invalidity of, or amount of a
claim that was disputed as to validity or amount, or to impeach through a
prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish – or accepting or
offering or promising to accept – a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding
the claim, except when offered in a criminal case and the negotiations related
to a claim by a public office or agency in the exercise of regulatory,
investigative or enforcement authority.

Id. (emphasis added).

Clearly, Rule 408 does not bar evidence of offers of leniency in exchange for truthful

testimony or substantial assistance within the meaning of § 5K1.1 of the United States

Sentencing Guidelines because the evidence will be offered in criminal cases and the

negotiations in question were between the United States Attorney’s Office in the exercise

of its enforcement authority. “Rule 408 should not be applied to criminal cases.” United

States v. Baker, 926 F.2d 179 (2d Cir. 1991). Consequently, the defendant’s reliance on

that rule is misplaced.

3. With respect to the admissibility of testimony of witnesses who have made

agreements with the government to provide assistance in criminal cases, it is well-settled

in this Circuit that [n]o practice is more ingrained in our criminal justice system than the

practice of the government calling a witness who is an accessory to the crime for which the

2
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 3 of 7

defendant is charged and having that witness testify under a plea bargain that promises

him a reduced sentence. United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir. 1999),

quoting United States v. Cervanates-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).

Furthermore, “[t]he weighing of evidence, the reconciliation of inconsistent testimony, and

the assessment of a witness’ credibility is solely within the province of the jury.” United

States v. Deguzman, 133 Fed.Appx. 501, 2005 WL 1253960 (10th Cir. (Colo.) 2005),

quoting United States v. McKissick, 204 F.3d 1282, 1289-90 (10th Cir. 2000); United States

v. Smith, 131 F.3d 1392, 1399 (10th Cir. 1997).

Nothing in the defendant’s motion references a single rule of law, statutory or

otherwise, that provides for the exclusion of witness testimony on the grounds relied upon

by the defendant. The issue of the credibility to be accorded to any of the witnesses in

these cases is clearly within the sole province of the jury and the defendant’s request for

pretrial exclusion of evidence on the ground that the agreements made between the

government and the witnesses have rendered their testimony unreliable is without

foundation in fact or in law.

4. The defendant’s next ground for exclusion of the witnesses’ testimony, that

no one can testify that the defendant knew that the items were stolen is factually incorrect.1

1
Case No. 07-20073 alleges violations of gun and drug statutes, so the government
acknowledges that the issue of the defendant’s knowledge of stolen goods does not appear
to be relevant to those charges. Case No. 08-20105 charges obstruction of justice and the
witnesses in that case are law enforcement officers and agents are the only witnesses the
government intends to call in its case in chief. Consequently, it appears that the witnesses
whose testimony she seeks to exclude are limited to the cooperating lay witnesses in the
e-Bay case, Case No. 07-20124 and for purposes of this Response, the government will
limit its factual discussion of the expected testimony to the evidence it expects to present
in that case.

3
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 4 of 7

Several of the cooperating witnesses and an undercover police officer are expected to

testify that they informed the defendant that the items that they were offering to sell the

defendant were stolen. This evidence is highly relevant to establish the elements of the

crimes charged. For instance, the elements that must be established to support a

conspiracy conviction are: “(1) that two or more persons agreed to violate the law, (2) that

the Defendant knew at least the essential objectives of the conspiracy, (3) that the

Defendant knowingly and voluntarily became a part of it, and (4) that the alleged

coconspirators were interdependent.” United States v. Ramirez, 348 F.3d 1175, 1181 (10th

Cir. 2003) (internal quotation marks omitted). The evidence of direct conversations

between the defendant and her co-conspirators which establishes that she had actual

knowledge that many of the items she was purchasing from them were stolen goods is

relevant to each of the four elements the government must prove at trial with respect to the

conspiracy count. Likewise, this evidence is relevant to prove each of the other charges

in the Indictment because each requires the government to prove the element of

knowledge. Consequently, this claim does not present sufficient grounds to exclude the

testimony of the government’s witnesses pre-trial.

5. The Defendant next claims that the government witnesses’ testimony must

be excluded because it is insufficient to establish a “habitual pattern” [sic] is also without

merit for several reasons: first, because the defendant asks the Court to make a pretrial

ruling on the sufficiency of the evidence before any evidence has been presented to the

jury. As stated previously, “[t]he weighing of evidence ... is solely within the province of the

jury.” United States v. Deguzman, 133 Fed.Appx. 501, 2005 WL 1253960 (10th Cir. (Colo.)

2005), quoting United States v. McKissick, 204 F.3d at 1289-90. Consequently, pretrial

4
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 5 of 7

exclusion of evidence on these grounds would invade the province of the jury.

Second, the United States submits that the government will be able to establish the

defendant’s “habitual pattern” of purchasing new, in-the-box items from regular customers

at prices far below retail, allowing the reasonable inference to be drawn by the fact-finders

that the defendant knew or should have known that the items she was buying were stolen

had she not deliberately closed her eyes to what would otherwise have been obvious to

her.

A defendant’s deliberate failure to investigate suspicious circumstances imputes

guilty knowledge. United States v. Jewell, 532 F.2d 697 (9th Cir. 1976)

The district court need not insist upon direct evidence of conscious avoidance
of a fact before tendering a deliberate ignorance instruction. To establish a
defendant’s “deliberate ignorance,” the Government is entitled to rely on
circumstantial evidence and the benefit of the favorable inferences to be
drawn therefrom.... The purpose of the instruction is to alert the jury that the
act of avoidance could be motivated by sufficient guilty knowledge to satisfy
the knowing element of the crime.

United States v. Delreal-Odones, 213 F.3d 1263, 1268-69 (10th Cir. 2000); see also United

States v. Manriquez Arbizo, 833 F.2d 244, 248 (10th Cir. 1987). “A deliberate indifference

instruction is used to inform the jury that a defendant’s actions, or failures to act, combined

with other circumstances may suffice to prove that a defendant had actual knowledge of

a fact.” United States v. Falcon, 477 F.3d 573, 578-79 (8th Cir. 2007) (citation omitted). In

this case, evidence of numerous instances of purchases by the defendant of the same

types of items from the same sellers that occurred close in time will be relevant to the issue

of the defendant’s knowledge that she was purchasing stolen items and is, therefore,

admissible at trial.

6. The defendant’s final ground for excluding the testimony of the government’s

5
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 6 of 7

witnesses seems to amount to a claim that because the government has entered into

agreements with the witnesses for various charging or sentencing benefits for their

substantial assistance in the case which includes truthful testimony, such agreements

amount to “prosecutorial misconduct to manufacture a case.” Doc. 227 at ¶ 6. As

discussed in ¶ 3 of this Response, nothing in these types of agreements runs afoul of

statutory or case law.2 Furthermore, the government is well aware of its disclosure

obligations with respect to Brady and/or Giglio information and no later than 10 days prior

to the start of the trials in each case, will provide all information relating to any agreements

made between the government and the cooperators.

Wherefore, for all of these reasons, the United States respectfully submits that the

defendant has failed to state a claim for the relief she seeks and requests that the Court

deny the defendant’s Motion to Exclude Witnesses 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

2
The defendant’s claim that the government has “offered money to [its witnesses
to ] manufacture a case” (Doc. 227 at ¶ 5) is incorrect. No agreements have been made
that provided for or anticipates the future payment of money to any witness for his or her
testimony or cooperation in this case.

6
 Case 2:07-cr-20073-CM Document 157 Filed 06/28/10 Page 7 of 7

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, KS Dist. Ct. #77807

MARIETTA PARKER
First Assistant United States Attorney