Case 2:08-cr-20105-CM -JPO Document 191 Filed 08/13/10 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(Kansas City Docket)

UNITED STATES OF AMERICA )

)
Plaintiff, )
) 07-20073-02-CM
v. ) Case No. 07-20124-01-CM
) 08-20105-02-CM
CARRIE MARIE NEIGHBORS, )
)
Defendant. )

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. 08-

201051.) 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

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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.

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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. Eagle-

Picher 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

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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