Judge LungStrums Order to Dismiss case against yellow house store owners Guy and Carrie NEighbors

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IN THE UNITED STATES DISTRICT COURTDISTRICT OF KANSASUNITED STATES OF AMERICA,Plaintiff, v. Case No. 07-20073-01/02-JWL GUY NEIGHBORS andCARRIE NEIGHBORS,Defendants.__________________________________ MEMORANDUM & ORDER

The indictment in this case charges defendants Guy and Carrie Neighbors with conspiringto manufacture marijuana, being users of a controlled substance in possession of firearms, andtwo counts of manufacturing marijuana. In a Memorandum and Order dated November 16, 2007(doc. #33) this court granted the defendants’ motion to dismiss Count 2, which is the countcharging them with being users of a controlled substance in possession of firearms, based on aviolation of the Speedy Trial Act, 18 U.S.C. § 3161

et seq.

At that time, the court reserved thedetermination of whether to dismiss with or without prejudice until after an evidentiary hearing.That evidentiary hearing was held on November 27, 2007. At the hearing, defendants and thegovernment presented evidence relating to the factors found at 18 U.S.C. § 3162(a)(2). Aftercareful consideration of the evidence in light of those factors, “among others,” the court findsthat the more appropriate remedy is to dismiss Count 2 of the second indictment

with

prejudice

Case 2:07-cr-20073-CM Document 36 Filed 12/21/07 Page 1 of 22

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rather than without prejudice. Consequently, the government may not file a new indictment forthat charge as to either of the defendants.

PROCEDURAL BACKGROUND

Guy and Carrie Neighbors were first indicted with being users of a controlled substancein possession of firearms on December 7, 2006, in a prior case in this court,

United States v. Neighbors

, Case No. 06-20171-CM. After substantial time on the speedy trial clock had run,the government filed a motion to dismiss the indictment in that case on May 4, 2007, based onadditional evidence that the government argued it had discovered during an ongoinginvestigation. The Honorable Carlos Murguia, United States District Judge, granted thegovernment’s motion and dismissed the first indictment without prejudice.On June 20, 2007, the government re-indicted Mr. and Mrs. Neighbors. The secondindictment included the same charge as the first indictment (as Count 2) as well as additionalcharges of conspiring to manufacture marijuana and two counts of knowingly and intentionallymanufacturing marijuana. On September 11, 2007, counsel for Ms. Neighbors filed a motionto dismiss Count 2 (doc. #24) in which Mr. Neighbors subsequently joined (doc. #28) based ona violation of the Speedy Trial Act. This court granted the motion but reserved the determinationof whether to dismiss Count 2 with or without prejudice until after an evidentiary hearing. Thathearing was held on November 27, 2007. The court begins its analysis with its findings of factfrom that evidentiary hearing.

Case 2:07-cr-20073-CM Document 36 Filed 12/21/07 Page 2 of 22

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FINDINGS OF FACT

An investigation of Mr. and Mrs. Neighbors began around August of 2005. In fact, therehave been two different investigations of these defendants. The original investigation relates toan alleged fencing and eBay fraud scheme, while the second investigation relates to the chargesat issue here. Two search warrants of their residence were executed on December 2, 2005 andJuly 7, 2006. On December 7, 2006, they were indicted on one count of being unlawful usersof a controlled substance while knowingly and unlawfully possessing firearms. In March of 2007, the case was set for trial to begin May 7, 2007, before Judge Murguia. The governmentpresented evidence of email communications and witness subpoenas referencing that the trialwas not going to begin until May 14, 2007, but defendants responded that they did not haveknowledge of this.Defendants wanted to go to trial and their attorneys were ready to do so. Ms. Neighborstestified that from the time of indictment to the time right before the trial began, she met withher attorney, Bruce Kips, for about an hour per week. Mr. Neighbors testified that he did thesame with his attorney for approximately a month to six weeks before the trial was set to begin.On May 4, 2007, defendants rejected a plea agreement and also said they would not agree to acontinuance of the trial. They were told if they did not agree to the continuance, they would berearrested when the charge was refiled. The government did not file a motion to continue withthe court, but instead filed a motion to dismiss the case citing additional evidence as the basisfor the motion. Judge Murguia granted the motion without prejudice. On May 7, 2007,defendants were informed that the charge against them had been dropped.

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS UNITED STATES OF AMERICA, Plaintiff, v. Case No. 07-20073-01/02-JWL GUY NEIGHBORS and CARRIE NEIGHBORS, Defendants. __________________________________ MEMORANDUM & ORDER The indictment in this case charges defendants Guy and Carrie Neighbors with conspiring to manufacture marijuana, being users of a controlled substance in possession of firear

reply11 / 03 / 2009

On June 25, 2007, defendants were rearrested at their home and a search incident to arrest was performed. They were not given the option to self surrender, and the government pointed out they were not treated any differently than any other defendants. Mr. Nieghbors was taken under arrest on the first floor of the house while two female officers went upstairs and, after watching Ms. Neighbors dres