Case 2:07-cr-20124-CM-JPO Document 198 Filed 08/05/2009 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(Kansas City Docket)

UNITED STATES OF AMERICA )

)
Plaintiff, )
)
v. ) Case No. 07-20124-01/02-CM
)
CARRIE MARIE NEIGHBORS, )
and )
GUY MADISON NEIGHBORS, )
)
Defendants. )

UNITED STATES MOTION IN LIMINE

Comes now the United States of America, plaintiff herein, by and through the

undersigned Assistant United States Attorney, and moves for rulings in limine and

provides notice of the following issues for the Court to consider prior to the presentation

of evidence in the present case. The defendants, through various postings on several

internet web sites and during cross examination at several pretrial hearings, have made

repeated inaccurate, untrue and spurious allegations of misconduct against witnesses,

law enforcement agents and attorneys involved in the investigation and prosecution of

this case. Based upon these allegations, the government reasonably believes that the

defendants will attempt to inject these issues into the trial of the case and requests that

before any inquiry into any of these unfounded and untrue allegations be made during

the trial of this case, the defendant be required to establish relevancy and their good

faith basis for the allegation.

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While the “right to confrontation may be violated if the trial court precludes
an entire relevant area of cross-examination[,]” Parker v. Scott, 394 F.3d
1302, 1316 (10th Cir. 2005), the presentation of evidence nevertheless
“must comply with established rules of evidence and procedure,” United
States v. Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005). The Sixth
Amendment does not guarantee “cross-examination that is effective in
whatever way and to whatever extent, the defendant might wish.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 106 S.Ct. 1431, 80 L.Ed.2d
674 (1986). In sum, “a criminal defendant states a violation of the
Confrontation clause by showing that he was prohibited from engaging in
”otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby “to expose to the jury
the facts from which jurors could appropriately draw inferences relating to
the reliability of the witness.” Id. at 680.

United States v. Turner, 553 F.3d 1337, 1349 (10th Cir. 2009)

Rule 608, Fed.R.Crim.P.

Impeachment with specific acts of misconduct is governed by the provisions of

Rule 608, Fed.R.Evid., which provides in pertinent part:

(B) Specific instances of conduct. Specific instances of

conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness, other than
conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’ character for truthfulness
or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.

Id.

In this case, the defendants have filed motions for disclosure of the government

witnesses’ substance abuse history and current drug use, their criminal histories

including arrests and charges filed, and any pending warrants. Clearly, the defendants

seek information relating to prior bad acts and the government requests that the

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defendants be directed not to refer to any of those matters or to any of the following

matters during cross examination or during their cases-in-chief without first establishing,

out of the presence of the jury, the good faith basis for each allegation of misconduct or

other bad act and the relevance of each allegation to the issues in this case:

1. Evidence missing from the evidence room of the Lawrence, KS, Police
Department;

2. Guns seized by Lawrence Police Department being sold in area pawn shops;

3. Drug or alcohol use or investigations of drug/alcohol use by law enforcement

officers;

4. Disciplinary actions imposed upon law enforcement officers;

5. Planting or falsifying evidence;

6. Theft of money or property belonging to arrested persons;

7. Impersonation of FBI agents;

8. Use of racial epithets by prosecutor or witnesses;

9. Racially motivated investigation and prosecution;

10. Any other specific instance of misconduct offered to impeach the credibility
of a witness called by the government

[C]ourts require a “good faith” basis before permitting a party to cross

examine regarding prior bad acts. See, for example, U.S. v. Ovalle-
Marquez, 36 F.3d 212, 219 (1st Cir.1994) cert. denied, 514 U.S. 1007,
115 S.Ct. 1322, 131 L.Ed.2d 202 (1995). While the purpose of cross-
examination is to impeach the credibility of a witness, the basis for the
impeachment cannot be speculation and innuendo with no evidentiary
foundation. Id. The general rule in such situations is that the questioner
must be in possession of some facts which support a genuine belief that
the witness committed the offense or the degrading act to which the
questioning relates. United States v. Sampol, 636 F.2d 621, 658
(D.C.Cir.1980) (quotation omitted)
.
United States v. Ruiz-Castro 92 F.3d 1519, 1528 (10th Cir. 1996) (reversed on other

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grounds United States v. Flowers, 441 F.3d 900, 903 (10th Cir.(Kan.)). “Specific

instances of misconduct of a witness, for the purpose of attacking or supporting the

witness’ credibility, other than conviction of crime as provided in rule 609, any not be

proved by extrinsic evidence.” United States v. Abeita, 974 F.2d 1346, *3 (1992 WL

201078 (C.A. 10 (N.M.)).

The defendants have repeatedly made spurious and unfounded allegations of

illegal and unethical conduct against the government’s witnesses and counsel,

apparently attempting to poison the jury pool and to force the government to dismiss

their cases by repeated instances of character assignation. At the government’s Motion

to Revoke Bond held on July 18 and July 21, 2008, when pressed by the government

counsel for defense counsel’s good faith basis for the argumentative and inflammatory

questions being asked by her of the government’s witness, counsel was either unable

or unwilling to identify the source or sources which formed her good faith basis for

asking questions of one of the Lawrence Police Officers about specific instances of

misconduct. (Document [Doc.] 150, Case No. 07-20124 at pp. 50-58, pp. 61-63, pp.

66-70.) Based upon the evidence presented at that hearing, the United States submits

that counsel’s failure to articulate a good faith basis for her questions at the detention

hearing in 2008 concerning specific acts of misconduct was occasioned by the total lack

of an evidentiary foundation for each question. As she told the court, counsel for Guy

Neighbors had not independently investigated the allegations (Doc. 150 at p. 52) and

her basis for the questions was information obtained from unnamed attorneys about

irregularities in other cases (Doc. 150 at p. 57). The United States submits that without

a more extensive foundation for these types of questions, inquiry into specific acts of
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misconduct is not proper.

The United States respectfully requests that unless and until counsel for the

defendants have clearly identified a legally sufficient good-faith basis for each question

put to government witnesses concerning a specific instance of misconduct and have

also established the relevance of each question, they be directed not to question the

government’s witnesses in open court about such conduct.

Respectfully submitted,

LANNY D. WELCH
United States Attorney

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

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 5TH day of August, 2009, 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

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

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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