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Case 2:07-cr-20124-CM -JPO Document 357 Filed 09/09/10 Page 1 of 26

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-CM
)
CARRIE MARIE NEIGHBORS, )
)
Defendants. )

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,
Case 2:07-cr-20124-CM -JPO Document 357 Filed 09/09/10 Page 2 of 26

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

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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

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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. 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

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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

1
“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).
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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

2
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.
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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

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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 after-

market 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

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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

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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 five-

part 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

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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 in-

court 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

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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

3
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.
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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.

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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.

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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,

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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

26