Case 2:08-cr-20105-CM -JPO Document 191

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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, Defendant. ) ) ) ) ) ) ) ) )

07-20073-02-CM Case No. 07-20124-01-CM 08-20105-02-CM

United States’ Motion for Severance Filed Pursuant to F.R.Crim.P. 14 Comes now the United States of America, by and through the undersigned Assistant United States Attorney and pursuant to Rule 14 of the Federal Rules of Criminal Procedure, requests that this Court enter an order severing the cases of the above-referenced defendant from those of her co-defendant, Guy Neighbors. In support of this motion, the government states as follows: I. Procedural Background These defendants were jointly indicted in the above-referenced cases in 2007 and 2008. On June 23, 2010, it was determined by the Court that the co-defendant, Guy M. Neighbors, is presently incompetent to stand trial. (Document [Doc.] 146 in Case No. 07-20073; Doc. 247 in Case No. 07-20124 and Doc. 103 in Case No. 08201051.) On July 28, 2010, the co-defendant was ordered back to the custody of the Attorney General for further medical treatment. (Doc. 216, Doc. 315 and Doc. 169.) On

Hereafter, the government will refer to relevant documents by citing the document numbers of each in the ascending order of each case number without reference to each case number.

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August 3, 2010, the defendant, Carrie M. Neighbors, filed a pleading entitled “Objections to Any Further Delays”. (Doc. 221, Doc. 323 and Doc. 174.) In her Objections, the defendant specifically requested that “the Court move forward so that the Court can address the dispositive motions and merits of the case.” Id. at 2. In order to accommodate that request, the United States moves the Court for an order severing the defendants’ cases for trial so that Guy Neighbors can receive the medical treatment required to return him to competency while Carrie M. Neighbors’ request for a prompt disposition of her cases is accommodated. II. Authorities The Tenth Circuit recognizes “a presumption in a conspiracy trial that coconspirators charged together should be tried together.” United States v. Wardell, 591 F.3d 1279, 1299 (10th Cir. 2009). This is so because the Supreme Court “has long recognized that joint trials ‘conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.’ ” United States v. Lane, 474 U.S. 438, 449 (1986) (quoting 1299 Bruton v. United States, 391 U.S. 123, 134 (1968)). Pursuant to Rule 14(a)2, however, a court “may” sever the trial of more than one defendant if joinder “appears to prejudice a defendant or the government.” Fed.R.Crim.P. 14(a). Because “severance is a matter of discretion and

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Rule 14, Fed.R.Crim.P. provides in pertinent part: (a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trial of counts, sever the defendant’s trials, or provide any other relief that justice requires. 2

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not of right, the defendant must bear a heavy burden of showing real prejudice to his case.” United States v. Petersen, 611 F.2d 1313, 1331 (10th Cir.1979). “Prejudice occurs when there is a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Wardell, 591 F.3d at 1299 (quotation omitted). The defendant bears the burden both to show that he suffered actual prejudice and that the alleged prejudice he suffered outweighed the expense and inconvenience of separate trials. United States v. Martin, 18 F.3d 1515, 1518 (10th Cir. 1994). Although the are appeals pending of the Court’s order of July 28, 2010, directing the co-defendant to return to a federal medical facility for further treatment, that appeal does not divest this Court of jurisdiction to consider and rule on the government’s Motion to Sever. “[A]n appeal from an interlocutory order does not divest the trial court of jurisdiction to continue deciding other issues in the case.” Moltan Co., v. EaglePicher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (internal quotation marks omitted); see also, United States v. Gagan, 95 Fed. Appx. 941, 948, 2004 WL 848602 (C.A.10 (Colo.)) (Unpublished decision attached as Exhibit 1) III. Argument In this case, the government requests that this Court sever the trials of the defendants. The government acknowledges that, in the usual case, joinder of offenses promotes judicial economy, and joinder is preferred in cases where the charged offenses are similar or based on the same act. See Fed.R.Crim.P. 8(a). However, in this case joinder of the defendants’ cases for purposes of a single trial on each indictment is improvident, both because such joinder will neither promote judicial

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economy nor serve the public’s and the defendant’s interest in a speedy trial. See, e.g., United States v. Toombs, 574 F.3d 1262, 1273-74 (10th Cir. 2009) (noting government’s obligation to protect public’s interest in a speedy trial, as recognized in the Speedy Trial Act). Joinder of the defendants in this case will not promote judicial economy because the defendants are differently situated from a procedural point of view. Defendant Guy Neighbors has been found to be incompetent to proceed and has been ordered to the custody of the Attorney General for and additional period of time which will require this Court to continue the trial dates already set in these cases so that the defendant can be examined. Neither the government nor this Court can predict with any certainty when Guy Neighbors’ competence will be restored or how his current mental condition will affect his prosecution in this case. Meanwhile, Defendant Carrie M. Neighbors has requested a speedy trial in this matter and in light of the fact that Defendant Guy Neighbors is currently incompetent to proceed, joinder of the defendants’ trials will postpone her trial for what the government reasonably believes will be at least several months. Because Guy Neighbors’ incompetency leaves this case in a state of limbo, at least until the results of further treatment are disclosed to the Court, interests of judicial economy now counsel this Court to sever the defendants’ trials and proceed forthwith with Defendant Carrie Neighbors’ trial. Such interests will be served because it is unknown when or if Defendant Guy Neighbors will be able to stand trial in any of the cases now pending against him. Moreover, the government takes the matter of the public’s right to a speedy disposition of this matter seriously, and proceeding to trial with

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respect to the charges against Carrie M. Neighbors will vindicate this interest, which she has asserted on her own behalf. Finally, the government foresees no prejudice that will inure to Carrie Neighbors as a result of severed trials, such as denial of a specific trial right or danger that the jury will be unable to make a reliable judgment about her guilt or innocence. See Zafiro v. United States, 506 U.S. 534 (1993) (Severance should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence.”) There exists a serious risk that postponing Carrie Neighbors’ trials would compromise her right and the right of the public to a speedy trial and severance of the defendants’ trials would not prevent the jury from making a reliable judgement about either of the defendants’ guilt or innocence in the absence of the co-defendant at trial. Consequently, the United States respectfully submits that the appropriate course of action in this case is to proceed to trial on Carrie Neighbors’ cases after her cases have been severed from those of her co-defendant, Guy Neighbors.

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 5

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Certificate of Service I hereby certify that on the 13th day of August, 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 Yellow House Store 1904 Massachusetts Lawrence, Kansas 66046 Defendant, pro se

s/ Marietta Parker, KS Dist. Ct. #77807 MARIETTA PARKER First Assistant United States Attorney

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