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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (Kansas City Docket)

UNITED STATES OF AMERICA Plaintiff, v. CARRIE MARIE NEIGHBORS, Defendants.

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Case No. 07-20124-01-CM

UNITED STATES’ TRIAL BRIEF The United States offers the following points and authorities to assist the Court in what the Government believes will be legal issues during the trial of this case. I. Wire Fraud [18 U.S.C. 1343] Title 18, United States Code, Section 1343, provides in pertinent part, “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both.” “In order to sustain a conviction for aiding and abetting wire fraud, the government must prove [the defendant] willfully assisted the perpetrators of the wire fraud crimes, and that he did so with the requisite intent to defraud. United States v. Rivera, 295 F.3d 461,

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466 (5th Cir. 2002).” United States v. Dazey, 403 F.3d 1147, 1163-64 (10th Cir. 2005). 1. Essential Elements

The essential elements of wire fraud are: a. First, the defendant knowingly devised or intended to devise a scheme

to defraud or obtain money or property by means of false or fraudulent pretenses, representations or promises; b. Second, the defendant acted with specific intent to defraud or obtain

money or property by means of false pretenses, representations or promises; c. Third, the defendant used interstate or foreign wire communications

facilities or caused another person to use interstate or foreign wire communications facilities for the purpose of carrying out the scheme; and d. Fourth, the scheme employed false or fraudulent pretenses,

representations, or promises that were material. Tenth Circuit Pattern Jury Instructions 2.57; United States v. Lake, 472 F.3d 1247, 1255 (10th Cir. 2007); Bancoklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1102 (10th Cir. 1999); United States v. Smith, 133 F.3d 737, 742-43 (10th Cir. 1997); United States v. Galbraith, 20 F.3d 1054, 1056 (10th Cir. 1994); United States v. Drake, 932 F.2d 861, 863 (10th Cir. 1991). 2. Scheme to Defraud

“A ‘scheme to defraud or obtain money or property by means of false pretenses, representations or promises’ is conduct intended to or reasonably calculated to deceive persons of ordinary prudence or comprehension. A ‘scheme to defraud’ includes a scheme to deprive another of money, property or the intangible right of honest services.”

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Tenth Circuit Pattern Jury Instructions 2.57. Tenth Circuit law differentiates between a scheme to defraud that focuses on the end-result of the conduct (affirmative misrepresentations are not necessary), and a scheme to obtain money or property by false pretenses, representations or promises. United States v. Cochran, 109 F.3d 660, 664 (10th Cir. 1997). 3. Specific Intent to Defraud

“An ‘intent to defraud or obtain money by false pretenses, representations or promises’ means an intent to deceive or cheat someone.” Tenth Circuit Pattern Jury Instructions 2.57. Because it is difficult to prove intent to defraud from direct evidence, a jury may consider circumstantial evidence of fraudulent intent and draw reasonable inferences therefrom. Thus, “[i]ntent may be inferred from evidence that the defendant attempted to conceal activity. Intent to defraud may be inferred from the defendant’s

misrepresentations, knowledge of a false statement as well as whether the defendant profited or converted money to his own use.” Prows, 118 F.3d at 692 (quotation omitted). Further, “[e]vidence of the schemer’s indifference to the truth of statements can amount to evidence of fraudulent intent.” Trammell, 133 F.3d at 1352 (quotation omitted). 4. Interstate Wire Communications

“To ‘cause’ interstate wire communications facilities to be used is to do an act with knowledge that the use of the wire facilities will follow in the ordinary course of business or where such use can reasonably be foreseen.” Tenth Circuit Pattern Jury Instructions 2.57.

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5.

Material False Representations

“A representation is ‘false’ if it is known to be untrue or is made with reckless indifference as to its truth or falsity. A representation would also be ‘false’ when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud. A false statement is ‘material’ if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to which it is addressed.” Tenth Circuit Pattern Jury Instructions 2.57. Materiality must be decided by the jury in all mail fraud, wire fraud, and bank fraud cases. Neder, 527 U.S. at 25. To establish a violation of the statute, the government need not prove that the defendant made direct misrepresentations to the victim. See Kennedy, 64 F.3d at 1476. Furthermore, it is not necessary to prove that a victim suffered a pecuniary loss, Deters, 184 F.3d at 1258, or that the scheme to defraud was successful, Stewart, 872 F.2d at 960. In the case at bar, the United States reasonably believes that the evidence will establish that the defendants knew or were deliberately ignorant of the fact that many of the items they were selling via wire transmissions on the e-Bay web site during the period of the conspiracy were stolen. Rather then refuse to purchase the items or require receipts to prove that the new items, most still in their original boxes, had come into the possession of the sellers legally, the defendants chose to purchase them for far less than retail value and to sell them on e-Bay without revealing to the purchasers that the items were stolen property. Additionally, on several occasions, at least one of the defendants failed or refused to surrender items to law enforcement agents who came to them looking for stolen property by falsely representing to the officers that they had not had any contact with the 4

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thief or had already sold the stolen property. This scheme to acquire property that lawfully belonged to numerous retailers in the western Missouri/eastern Kansas area without paying them the fair market value of the property and then selling the stolen items to unsuspecting purchasers constituted a scheme to defraud the retailers and the ultimate purchasers who risked losing the stolen items if the rightful owners located and demanded the return of their property. Additionally, because the defendants sold the stolen items on the e-Bay internet web site, they defrauded that organization by violating the policies and procedures of that business by knowingly selling stolen items. Prominently displayed on the e-Bay web site is a policy entitled “Stolen Property and Property with Removed Serial Numbers.” That policy provides in pertinent part: eBay strictly forbids the sale of stolen property, which violates state, federal and international law.... *** Some Examples “Stolen property and items with missing or altered serial numbers includes: * Items taken from private individuals. * Property taken without authorization from companies or governments.” *** Why does eBay have this policy? eBay urges its sellers and buyers to comply with all governmental laws and regulations. Since the sale of stolen property is prohibited by law, or may cause harm to eBay or its members, sellers are not permitted to list them on eBay. State and federal law prohibit the knowing sale of stolen property, and a majority of states in the U.S. prohibit the sale of consumer goods with missing or altered serial numbers, therefore sellers are not permitted to list such items on eBay. Clearly, the defendants’ conduct was designed to defraud eBay by failing to disclose to

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eBay or the purchasers of the stolen property the true nature of the items they advertised and sold on that web site. The government’s evidence will establish that the defendants engaged in a scheme and artifice to defraud retailers, persons who purchased the property from them and the eBay business organization by purchasing and selling stolen property without disclosing the true nature and source of that property, thereby establishing the crime of wire fraud. II. Admissibility of Defendant’s Recorded Statements On November 11, November 7, November 11, November 18, November 21and November 29, 2005, the defendant, Carrie Neighbors purchased items from an undercover Lawrence, Kansas, Police Officer, Mickey Rantz. Each of those meetings was recorded, by both audio and video tape. On February 2, 2006, the defendant, Guy Neighbors spoke to an undercover Lawrence, Kansas, Police Officer, Michael McAtee, on the telephone about his Yellow House business operations in Topeka, Kansas. On March 3, 2006, the same undercover officer met with Guy Neighbors in person ostensibly to discuss the purchase of that business. All of those conversations were recorded. On June 14, June 16 and June 23, 2006, the defendant, Carrie Neighbors, purchased items from Joey Cadenhead and those transactions were voluntarily recorded by Cadenhead. On June 20, 2006, a Lawrence, Kansas Police Officer contacted the defendant, ostensibly seeking information about a person matching Cadenhead’s description who had been stealing property from local retailers. The defendant denied any knowledge of the individual but was recorded on June 23rd, telling Cadenhead about the contact with the police department and making excuses for why she did not disclose her 6

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previous contacts with Cadenhead to the officer during the June 20th contact with the officer. After her contact with the police officer which caused her to believe that

Cadenhead was being sought by law enforcement authorities for the theft of property, the defendant purchased other items from him on June 23rd. This evidence will be offered to establish the defendant’s willingness to purchase stolen property and to hide the identity of her suppliers from members of the law enforcement community, thereby establishing her knowing and intentional participation in the wire fraud scheme. The United States intends to play each of these recorded statements for the jury during the trial of this case, each of which is admissible under Fed.R.Evid. 801(d)(2) as statements of a party opponent. The government also intends to inquire of the witnesses what the witness heard the defendant say during each conversation. A. Tape Recorded conversations

Tape recordings of conversations made by the Government, such as from body microphones placed on Government agents or from recording telephone conversations, are admissible when seven foundational requirements have been met. United States v. McMillin, 508 F.2d 101, 104 (8th Cir.), cert. denied, 421 U.S. 916 (1975). These are: (1) the recording device was capable of taping the conversations; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) no changes, additions or deletions have been made in the recording; (5) the recording is shown to have been preserved; (6) speakers are identified; and (7) the elicited conversation was made without inducement. United States v. Green, 175 F.3d 822, 830, n. 3 (10th Cir. 1999); see also, United States v. O'Connell, 841 F.2d at 1419-20.

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While numerous factors may guide our consideration, no single factor of set of factors in dispositive. Rather the paramount purpose of laying a foundation is to ensure the accuracy of the evidence in question. Indeed, “we will not upset the judge’s admission of a recording unless the foundation was clearly insufficient to insure the accuracy of the recording. United States v. Jones, 730 F.2d 593, 597 (10th Cir. 1984) United States v. Green, 175 F.3d at 830. Federal Rule of Evidence 901(b)(5)provides in pertinent part that, among other things, “[identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording,[may be authenticated] by opinion based up on hearing the voice at any other time under circumstances connecting it with the alleged speaker.”; see also United States v. Kandiel, 865 F.2d 967, 973-74 (8th Cir. 1989). The identity of all the speakers is not required; tentative and circumstantial identifications of some of the speakers is sufficient and can be based on a witness's personal familiarity with the voices of the identified speakers. United States v. O'Connell, 841 F.2d at 1421.

District courts are allowed “wide latitude in determining if a proponent of tape recordings had laid an adequate foundation from which the jury reasonably could have concluded that the recordings were authentic and, therefore, properly admitted.” United States v. Branch, 970 F.2d 1368, 1372 (4th Cir. 1992) (“The jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.”) Consent “is not necessarily involuntary just because that individual’s [the cooperator] motives were self-seeking, or because he harbored expectations of personal benefit.” United States v. Kelly, 708 F.2d 121, 125 (3d Cir. 1983). “It is well settled in this circuit that the admissibility of tape recordings that are partially inaudible lies within the sound discretion of the trial court. 8 United States v.

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Devous, 764 F.2d 1349, 1353 (10th Cir. 1985). The trial judge can find a proper chain of custody and admit evidence if “there is a reasonable probability that the evidence has not been altered in any material respect.” United States v Jackson, 649 F.2d 967, 973 (3d Cir. 1970). To show a lack of material alteration, the Government only needs to show it took reasonable steps to prevent tampering, it need not exclude all possibilities of tampering. United States v. Santiago, 534 F.2d 768 (7th Cir. 1976) United States v. DiMatteo, 2008 WL 186218, *5 (E.D.Pa.). At trial, the United States will have the original audio tapes available but intends to offer accurate reproductions of the conversations recorded on separate tapes, six for conversations between Carrie Neighbors and Officer Mickey Rantz, two for conversations between Guy Neighbors and and three for conversations between Carrie Neighbors and Joey Cadenhead. These exhibits are admissible under Fed. R. Evid. 1001(4) as duplicate originals when the United States establishes the foundation for the admissibility of the original recordings and the accuracy of the duplicate recordings. See United States v. Wagoner, 713 F.2d 1371, 1377 (8th Cir. 1983) (records shown to be accurate reproductions of originals are admissible to same extent as the originals); see also United States v. Devous, 764 F.2d at 1353. (“Once the proper foundation is laid, ... the tapes [are] admissible as ‘duplicates’ under Fed.R.Evid. 1001(4) and 1003 notwithstanding [the defendant’s] post hoc and factually unsupported allegation that the original cassette had been tampered with.”) B. Tape Recorded Conversations - Unavailable Witness

Should either of the undercover officers or Joey Cadenhead be unavailable at the time of trial, the tape recordings of the conversations between either of them and the

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defendant, Carrie Neighbors will still be admissible because the defendant’s statements constitute non-hearsay admissions against interest pursuant to Rule 801(d)(2), Fed.R.Evid., and the government will not offer the statements of Officer Rantz, Det. McAtee or Joey Cadenhead for the truth of the matters asserted but to “provide context for [the defendant’s] end of the conversation.” United States v. Williams, 608 F2d 1102, 1108 (8th Cir. 1979). The admissibility of a tape recording of a conversation between the defendant and a witness who was unavailable at the time of trial was affirmed in United States v. Murray, 618 F.2d 892, 900 (2d Cir. 1980). In the Murray case, a conversation had been tape recorded between a person cooperating with the Drug Enforcement Agency, James Parrot, and the defendant, Paul Leahey, but the cooperator was unavailable for trial. On appeal from his conviction, the defendant claimed that his Sixth Amendment right to confrontation had been abridged by the admission into evidence of the tape recording. Rejecting that contention, the reviewing court stated that the defendant’s statements were admitted for the limited purpose of placing appellant Leahey’s remarks in their proper contest; Judge Coffrin carefully instructed the jury that they were not to consider Parrot’s statements for their truth except to the extent that appellant adopted them. Thus, ... Parrot’s statements here were part of a “reciprocal and integrated” conversation with appellant, see United States v. Lemonakis, 485 F.2d [941] at 948 [D.C. Cir. 1974] (quoting United States v. Metcalf, 430 F.2d 1197, 1199 (8th Cir. 1970)). Moreover, ... Parrot’s statements were expressly offered not for their own truth, but to provide the context for appellant’s own admissions. The admission of the tape under these circumstances did not violate appellant’s Sixth Amendment right “to be confronted with the witnesses against him.” United States v. Murray, supra, 618 F. 2d at 900; see also United States v. Cheramie, 51

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F.3d, 538, 540 (5th Cir. 1995) (Trial court’s reliance on holding in Murray.) The introduction of evidence, including business records and witness statements, for non-hearsay purposes does not raise Confrontation Clause concerns. See Crawford v. Washington, 541 U.S. 36, 60 n. 9, 124 S. Ct. 1354, 158 L.Ed.2d 77 (2004) (“The [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”); see also Tennessee v. Street, 417 U.S. 409, 414, 105 S. Ct. 2078, 85 L.Ed. 2d 425 (1985). “Testimonial statements are admissible without prior cross-examination if they are not offered for their truth.” United States v. Lore, 430 F.3d 190, 209 (3d. Cir. 2005). In this case, should one of the law enforcement agents or the cooperator be unavailable, the government will not offer any of their statements for the truth of the matters asserted. Rather, the statements will be offered to give meaning to and to put into proper context the admissions of the party opponent against whom the recorded statements are offered. Testimony from a law enforcement officer, without the testimony of the confidential informant establishing that the tape recording was made voluntarily, is sufficient to establish that prerequisite for purposes of admissibility. See United States v. Johnson 2005 WL 488371 (D.De,), United States v. Perez, 1996 WL 4080 (E.D. Pa.) A witness is “unavailable” for Confrontation Clause purposes if the “prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Ohio v. roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Barber v. Page 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)), overruled on other grounds by Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness. Id. (Quoting California v. Green, 399 U.S. 149, 189n. 22, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

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United States v. Tirado-Triado, 563 F.3d 117, 123 (5th Cir. 2009) (emphasis in the original). “Crawford did not change the definition of “unavailability” for Confrontation Clause purposes; pre- Crawford cases on this point remain good law.” Id. at 123, n. 3. C. Testimony concerning inaudible portions of defendant’s admissions

As stated above, admissions of a party opponent are exceptions to the rule against hearsay and are admissible under Fed.R.Evid. 801(d)(2). In addition to the playing of the tape recordings to prove the contents of the each recording, the government will elicit testimony from law enforcement officers who either participated in the conversations or who contemporaneously overheard the conversations concerning portions of the conversations that are not clearly audible. Because the testimony of those witnesses will be offered to prove the content of the conversations rather than the content of the tapes, the testimony should be allowed. In United States v. Howard, 953 F.2d 6120 (11th Cir. 1992), the defendant argued on appeal that one of the law enforcement agents should not have been permitted to testify about inaudible portions of recorded statements made by the defendant which the agent overheard. The trial court admitted the monitoring agent, over objection, to testify as to the contents of a partially audible taped conversation with the defendant. The Eleventh Circuit found that because the proffered testimony was offered not to prove the content of the tapes, but rather, the content of the conversations, the best evidence rule does not apply, and [the agent’s] testimonial recollection of the conversation was properly admitted. United States v. White, 223 F.2d 674, 675 (2d Cir. 1955) Id. at 612; see also United Sates v. Fagan, 821 F.2d 1002, 1008 n. 1 (5th Cir. 1987); United States v. Rose, 590 F.2d 232, 237 (7th Cir. 1978); United States v. Gonzales-Benitez, 537 12

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F.2d 1051, 1053-54 (9th Cir. 1976). The law imposes no requirement that the government rely on a tape recording to prove what was said during a discussion, for a participant’s testimony on that subject can itself constitute admissible proof. (Citations omitted) Hence, when there is some variance between what a tape recording contains and what a participant recalls, the jury is the proper arbiter as to the significance of the variance and the credibility of the participant’s testimony. (Citation omitted) United States v. Ortiz 966 F.2d 707, 713 (1st Cir. 1992). Moreover, the fact that part of a tape recording is missing or inaudible does not render ti inadmissible. (Citations omitted). The question of whether so much of a tape recording is inaudible or the circumstances surrounding it are so suspicious and make it so untrustworthy that is should not be admitted into evidence in the first place is addressed to the discretion of the trial judge. United States v. Knohl, 379 F.2d 427, 440 (2d Cir. 1967) Because only short sections of the recorded conversations are inaudible, the cds containing the conversations and the transcripts are admissible once the government lays the proper foundations for each1. Thereafter, the government is entitled to present both the defendants’ recorded conversations and the testimony of the monitoring agent and of the agents and the witness who participated in the conversations to clarify any inaudible portions of the recorded conversations. D. Synchronized Tape Recordings

“The admission of transcripts to assist the trier of fact ... lies within the discretion of the trial court.” United States v. Devous, 764 F.2d 1349, 1354 (10th Cir. 1985). Further, a jury may examine transcripts of tape recordings if the trial court instructs the jury that the tapes and not the transcripts are the evidence and that the transcripts are provided only to assist their understanding of the tapes. See United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991). 13

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At trial, the government will offer recorded evidence consisting of recorded conversations between the defendants and cooperating witnesses and law enforcement officers that have been synchronized meaning that video recordings of meetings between Carrie Neighbors and the witnesses have been enhanced by the addition of the separately but simultaneously recorded audio tapes of the conversation to make one composite exhibit containing both audio and video evidence of the encounters. The parties to the conversations and the technician who “married” the audio and video tapes to make a single exhibit will testify that the synchronized evidence is a fair and accurate record of the conversations between them and the defendant on each occasion. Finally, a transcript of each conversation has been prepared and has been reviewed by the witness for accuracy and superimposed on the exhibit to aid the jury in understanding what was being discussed during the conversations. Composite recorded evidence accompanied by transcripts are admissible once the government establishes the accuracy of the exhibits. See United States v. Brown, 2008 W.L. 510126 *5 (M.D. Pa.(2008)) (Exhibits consisting of digitized synchronized video tapes and enhanced audio tapes accompanied by transcripts properly admitted at trial); United States v. Richman, 600 F.2d 286, 295 (1st Cir. 1979) (Admission of tapes left to sound discretion of the court as is decision to allow a transcript to accompany the playing of tapes so long as court makes it clear that the tapes, not the transcripts, constitute the evidence) III. Deliberate Ignorance/Willful Blindness Among the instructions submitted by the United States is Tenth Circuit Jury

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Instruction No. 1.37, Knowingly -Deliberate Ignorance.2 The United States respectfully submits that this instruction should be among those given to the jury at the close of the evidence for the following reasons: This circuit has adopted an instruction which provides that the element of knowledge may be shown by deliberate ignorance where “the Government presents evidence that the defendant purposely contrived to avoid learning all of the facts in order to have a defense to the event of prosecution.” United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000) (internal quotation marks omitted); see also, United States v. Jewell, 532 F.2d 697 (9th Cir.) (deliberate failure to investigate suspicious circumstances imputes guilty knowledge); 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 at 1268-69; see also United States v. Manriquez Arbizo, 833 F.2d 244, 248 (10th Cir. 1987). “A deliberate indifference instruction

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In its entirety, the government’s proposed instruction would read: When the word “knowingly” is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of the fact that they were buying stolen items for resale on eBay, unless the defendant did not actually believe that the items were stolen. 15

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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). The deliberate ignorance instruction “may be given when the evidence points to deliberate ignorance and conscious avoidance of actual knowledge” United States v. Glick, 710 F.2d 639, 642 (10th Cir. 1983). “While a deliberate ignorance instruction is not appropriate when the evidence points solely to direct knowledge, where, as here, the evidence supports both actual knowledge and deliberate ignorance, the instruction is properly given.” United States v. Ochoa-Fabian, 935 F.2d 1139, 1142 (10th Cir 1991) (emphasis added) (citing United States v. Manriquez Arbizo, 833 F.2d 244, 249 (10th Cir. 1987); see also United States v. Parker, 364 F.3d 934, 946 (8th Cir. 2004) (no error submitting deliberate ignorance instruction where there was evidence of both actual and constructive knowledge). “The evidence is sufficient to support the instruction, if a reasonable jury could find beyond a reasonable doubt that the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support it.” United States v. Florez, 368 F.3d 1042, 1044 (8th Cir. 2004). It is clear in this Circuit that the district court “need not insist upon direct evidence of conscious avoidance of a fact before tendering a deliberate avoidance instruction.” Delreal-Ordones, 213 F.3d at 1268. Rather, in establishing the Defendant’s deliberate ignorance, the prosecution “is entitled to rely on circumstantial evidence and the benefit of the favorable inferences to be drawn therefrom.” Id. (emphasis added); see also United States v. Lee, 54 F.3d 1534, 1539 (10th Cir. 1995) (observing that from “this testimony, the jury could reasonably have inferred he was 16

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deliberately avoiding knowledge”); United States v. Custodio, 39 F.3d 1121, 1125 (10th cir. 1994) ( “[W]e also find substantial evidence from which the jury could reasonably infer conscious avoidance.”). United States v. Espinoza, 244 F.3d 1234, (10th Cir. 2001) In United States v. Parker, 364 F.3d. 934, (8th Cir. 2004) the defendant argued on appeal that the district court erred when it submitted a deliberate ignorance instruction to the jury because the evidence showed actual, not constructive knowledge of the falsity of certain sales and income projections made to potential investors in the defendant’s aftermarket auto parts franchise business. At trial, there was direct evidence of the defendant’s actual knowledge that the income projections in question were false which included testimony that the defendant admitted to the special agent in an interview conducted during the investigation that the most recent projections showed a decline in investors’ income and his acknowledgment that the projections should have been updated with the new information. At the same time, however, there was also evidence that Parker remained willfully blind to the inaccuracy of the data by not conducting any surveys after the 1995 survey showed a decline in income for the second consecutive year. Therefore, because the evidence viewed in the light most favorable to the government showed that Parker intentionally remained ignorant of the true facts that had actual knowledge, we will not disturb the district court’s decision to submit the deliberate ignorance instruction to the jury. Id. at 947. Although the deliberate ignorance instruction in general was discouraged, it may be given “when the Government presents evidence that the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of prosecution. United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th 17

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Cir. 2000) (internal quotation marks omitted). If given, a similar deliberate ignorance instruction was approved as the preferred language in Delreal-Ordones. Id. at 1267; see also United States v. Glick, 710 F.2d 639, 643 (10th Cir. 1983). “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.” Delreal-Ordones, 213 F.3d at 1268-69 (quotation marks and brackets omitted). “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.” Id. at 1268 (citation omitted). In the instant case, it is anticipated that the defendants will claim ignorance of the fact that many of the items they purchased for resale were stolen. The United States intends to present direct and circumstantial evidence of the defendants’ actual knowledge of the fact that many of the items purchased by the Yellow House stores were stolen. For example, witnesses will testify that on more than one occasion, Carrie Neighbors was told that the items a seller presented for sale were stolen. Additionally, the government will offer circumstantial evidence of guilty knowledge which will include, inter alia, that stickers and tags which contained information about the retail establishments from where the items were stolen were removed from the boxes containing the stolen items and discarded in the defendants’ trash at their residence, raising the reasonable inference that the defendants knew that the items had been stolen and wanted to remove any evidence that would allow 18

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a purchaser or law enforcement authorities to trace the item back to the victim retailer. The United States will also offer direct and circumstantial evidence of the defendants’ deliberate attempts to remain ignorant of the nature of the stolen property. For example, the evidence will establish that when an undercover officer told the defendant, Carrie Neighbors, that the items he brought to the Yellow House for sale were stolen, she told him not to say that because if she knew that fact she would not be able to purchase the property. There will also be circumstantial evidence of deliberate ignorance in the form of business records and summaries that will establish that the nature of the items purchased from several of the Yellow House customers and the frequency of those purchases would have put a reasonable person on notice that additional inquiry should have been made to ascertain how the sellers came into possession of the items in the quantities reflected in the Yellow House sales records with the frequency reflected in those records. Other circumstantial evidence will also establish that on another occasion, shortly after police had been into the Yellow House store in Lawrence inquiring about a person that had allegedly been stealing items from a local retailer, Carrie Neighbors told the thief about the visit from the police and laughed off the information provided by the law enforcement officer before purchasing another new item from that individual. The United States respectfully submits that direct and circumstantial evidence at trial will establish both actual knowledge and deliberate ignorance or conscious avoidance by the defendants of the fact that many of the items purchased by Yellow House for resale on e-Bay had been stolen. Under those circumstance, the deliberate ignorance instruction will be an appropriate submission to the jury.

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IV. SUMMARY EVIDENCE The government will make use of summary evidence during the trial in this case. The evidence should be received for the jury's consideration. The government obtained and executed search warrants to search the data and information contained in each of the defendant’s cellular telephones. The government has prepared summary charts reflecting the downloaded data which will aid the jury in understanding the telephone activity which took place prior to the arrest of the defendants. The summary evidence in this case is admissible under Federal Rule of Evidence 1006, which states: The contents of voluminous writings, recordings, or photographs, which cannot conveniently be examined in court, may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. The admissibility of summary evidence pursuant to Rule 1006 is subject to a fivepart analysis. 1) The underlying evidence must be admissible, although it need not necessarily be received as evidence; 2) the underlying evidence is too voluminous and cannot be conveniently examined in court; 3) the summary evidence must accurately reflect the underlying evidence; 4) the summary evidence and the underlying evidence should be made available for inspection prior to trial; and 5), the preparer of the summary evidence should be available for examination by the party opponent at trial, if necessary. United States v. Bertoli, 854 F. Supp. 975, 1051 (D.N.J. 1994). When summary evidence is properly prepared and presented, the summary evidence alone is received into evidence; the underlying evidence need not be offered as evidence or reviewed by the jury. The only requirement is that the underlying evidence be 20

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admissible under some evidentiary theory. United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991) (summaries of documents, independently admissible as business records under FRE 803(6) and medical records under FRE 803(4), are admissible without admission of the underlying documents); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir. 1992) (summaries of personnel records, independently admissible under FRE 803(6), are admissible without admission of underlying personnel records); United States v. Strissell, 920 F.2d 1162-63 (4th Cir. 1990) (plain language of FRE 1006 makes it clear that there is no requirement that underlying documents be admitted as a precondition to the admission of summaries). The trial court may determine at its discretion whether underlying evidence, a summary of which is being offered by a party, would be too voluminous for convenient incourt review by a jury. United States v. Williams, 952 F.2d 1504, 1519 (6th Cir. 1991). The summarized documents may be as limited as those contained in insurance files from three automobile accidents (Osum, 943 F.2d at 1405), the telephone records relating to just a few drug transactions (United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988)), or a summary of limited but technical materials not readily understandable by the lay reader (United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir. 1988)). The important analysis is whether the summary evidence would assist the jury with better understanding the evidence without an undue waste of time and judicial resources. United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983); United States v. Shirley, 884 F.2d 1130 (9th Cir. 1989); United States v. Evans, 572 F.2d 455 (5th Cir. 1978). It goes without saying that the summary evidence must accurately reflect the underlying evidence (United States v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984) (court 21

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excluded summary evidence containing argumentative references until edited to omit the inclusion of the infused argument)), although some assumptions are permissible in the summaries if they are based on the evidence. (United States v. Norton, 867 F.2d 1354, 1362-63 (11th Cir. 1989)). The more important factor is that the opposing party have an opportunity to examine the summary and underlying evidence in advance of trial, and then have an opportunity to examine the preparer of the summary at trial, if necessary. United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988); United States v. Foley, 598 F.2d 1323, 1337-38 (4th Cir. 1979); Bertoli, 854 F. Supp. at 1051. In this way, the method of preparing the summary can be tested on cross-examination so the jury can evaluate the summary evidence as it would any other evidence. The government’s summary evidence has been made available to the defendant’s counsel for his inspection prior to the start of the trial in this case. Summary evidence received by the court is to be treated by the jury as any other evidence admitted during trial. If the summary evidence has been received under FRE 1006 in lieu of the underlying evidence, no special instruction need be given to the jury relative to the summary evidence. Martin, 963 F.2d at 115-116; Osum, 943 F.2d at 1405 n.9; Possick, 849 F.2d at 339. On the other hand, it is within the court's sound discretion to provide the jury with a special instruction relating to the summary evidence.3 United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir. 1986). Nevertheless, the summary

One proposed instruction for such circumstances: "The government has presented exhibits in the form of charts and summaries. I decided to admit these charts and summaries in place of the underlying documents that they represent in order to save time and avoid unnecessary inconvenience. You should consider these charts and summaries as you would any other evidence.” Sand, Siffert, Loughlin and Reiss, Modern Federal Jury Instructions. 22

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evidence, as any evidence, may be taken by the jury to the jury room for examination during deliberations. United States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988). Based upon the foregoing, it is clear that the government's summary evidence should be admitted into evidence in addition to the underlying evidence because it will aid the jury in its determination of the issues in this case. V. Transcribed Sound Recordings in Computer Format The government will present transcribed video and audio recordings of various undercover sales transactions between the defendant and a Lawrence Kansas Police Officer and sound recordings of transactions between the defendant and a confidential informant. Additionally, the government will present sound recordings of conversations between the defendant and various law enforcement officers. These recordings have been formatted on the computer to display the speakers and display English text simultaneous to the oral statements made by the speaker. The computer format will aid the jury, the Court and counsel by providing an efficient presentation of evidence. Counsel for defense has been provided with copies of the recordings and to review the transcribed recordings in the computer format. “The admission of transcripts to assist the trier of fact lies within the discretion of the trial court.” United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995). In United

States v. Gonzalez-Balderas, the jury was advised that when they listened to the tapes, that if the speakers voices changed and the transcript did not so reflect, the jury should disregard the transcript. 11 F.3d 1218, 1224 (5th Cir. 1994). With the proper foundation and instructions on the use the jury may make of the recordings and the transcripts, the United States submits that the dvd versions of the defendant’s statements are admissible. 23

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EVIDENCE OF PRIOR MISDEMEANOR CONVICTION The government has learned that April 2, 1998, in Pulaski County, Arkansas, Municipal Court, one of its witnesses was convicted of the misdemeanor of failure to appear in case No. 19982470 and was sentenced to a sentence of ten (10) days in jail. On April 14, 2009, the government disclosed the existence of that conviction to counsel for the defendants and informed them that it was the government’s contention that this conviction was not admissible impeachment evidence should the witness testify because the crime of conviction was not punishable by a term of imprisonment of more than one year (see Federal Rule of Evidence [Fed.R.Evid.] 609(a)(1)), did not involve an act of dishonesty or false statement by the witness (see Fed.R.Evid 609(a)(2)) and because a period of more than ten (10) years has elapsed since the date of conviction and the date the defendant was released from confinement. (Fed.R.Evid. 609(b)). VI. PAST RECOLLECTION RECORDED During the investigation of this case, many of the witnesses were interviewed and those interviews were recorded. Should any of the witnesses become unavailable because he or she does not now recall the details disclosed in the recorded interview, the United States will seek to play for the jury the dvd recording of the witness’ interview under the provisions of Rule 803(5) as a recorded recollection. That rule provides in pertinent part: (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Id. 24

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Rule 803(5) of the F.R.E. creates an exception to the hearsay rule and is based on the belief that as an event is distanced in the mind, accuracy of the memory may decrease or be lost entirely. The supreme Court conveyed in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), that to be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness at the time the statements were made and not by reference to other evidence at trial. Id. at 822.The guarantee of trustworthiness can be found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. See, Hall v. State, 223 Md. 158, 162 A.2d 751 (1960). To utilize, a party must: (1) provide a memorandum or record; (2) concerning a matter about which a witness once had knowledge; (3) but now has insufficient recollection to enable the witness to testify fully and accurately; (4) shown to have been made or adopted by the witness; (5) when the matter was fresh in the witness’s memory; (6) and to reflect that knowledge correctly. Rule 803(5) F.R.E. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Id. Government of the Virgin Islands v. George, 2004 WL 3546285 (Terr.V.I) In this case, it is anticipated that one of the government’s witnesses may testify that she has no present recollection of stealing items from various businesses in the Lawrence area and selling them to Carrie Neighbors during the period of the conspiracy. She gave a recorded statement to a law enforcement officer in January, 2005, during the time the conspiracy and wire fraud scheme was occurring about the events she now claims she does not recall. If she persists in her claim of lack of recall, the United States will seek to play the dvd recording of her prior statement, both to impeach her credibility and as a past recollection recorded. “[T]he recorded recollection exception to the hearsay rule is

applicable in a situation ... where the witness on the stand made a record concerning a matter about which the witness once had knowledge, but at the time of testifying is unable to recall. Id. at *4. Under these circumstances, the government respectfully submits that if the witness testifies in a manner inconsistent with the statements she made in January, 25

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2005, the dvd recording of that statement is admissible under Rule 803(5) and as impeachment evidence and should be played for the jury. Respectfully submitted, Barry R. Grissom United States Attorney s/ Marietta Parker, KS Dist. Ct. #77807 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 Certificate of Service I hereby certify that on the 9th day of September, 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 Attorney for Defendant Carrie Marie 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: None s/Marietta Parker Assistant United States Attorney

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