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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, , plaintiff, Plaintiff, vs. Guy M. Neighbors, , Defendant, Defendant ,

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Case No.: 2:07-CR-20124-CM-JPO

DEFENDANT GUY NEIGHBORS MOTION FOR LEAVE TO FILE OUT-OF-TIME, HIS MOTION TO DISMISS THE SUPERCEDING INDICTMENT
COMES NOW The defendant, by and through the under signed counsel, and for his motion to File Out-Of-Time his motion to respectfully move this court to dismiss the second superceding indictment. 1. On June 18th 2008, the Government files the second superceding indictment (doc. # 93), charging the defendant with conspiracy to commit money laundering in violation of 18 U.S.C. 1956 (a)(1)(A)(i) and 2, wire fraud in violation of 18 U.S.C. 1343; mail fraud in violation of 18 U.S.C. 1341.

MOTION TO DISMISS THE SECOND SUPERCEDING INDICTMENT - 1

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2. The indictment in this case alleged the defendants were involved in a scheme whereby the defendants used the Proceeds from property the defendants knew was stolen to further the scheme, and to facilitate their business operations, and to conceal the nature ad source of the funds obtained from the execution of the wire fraud scheme alleged in the indictment. 3. The indictment alleges the defendants used some of the Proceeds from the sale of stolen property to purchase other items they knew were stolen, and to make payments on their home located at 1104 Andover. 4. On page 17 of the indictment (wire fraud forfeiture) states at (a). A sum of money equal to 525,000 in United states currency, representing the amount of proceeds obtained as a result of the offenses in count 1-15 for which the defendants are jointly and severally liable; 5. On June 2, 2008, the United States Supreme Court issued its opinion in United states v. Santos, 535 US. 128 S.Ct.2020, 170 L.Ed. 2d.912. In Santos the Court held that the term Proceeds as used in the money laundering statutes was ambiguous. The court held that the term Proceeds could be reasonably read to mean either Proceeds or Profits. Applying the rule of lenity, the supreme court held that the term Proceeds within the money laundering statutes means Profits

MOTION TO DISMISS THE SECOND SUPERCEDING INDICTMENT - 2

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6. The indictment in this case alleges a scheme whereby the defendants received funds derived from the alleged sale of stolen property and used the proceeds to further the schemes alleged in the indictment. The indictment is clearly based on a receipt theory of Proceeds as opposed to the Profits theory required by the Supreme Court in U.S. v. Santos, 533 U.S. 128 S.Ct. 2020,170 L.Ed.2d.912(2008). 7. Counts 1-15 and counts 16-18 of the superceding indictment must be dismissed because it fails to allege the essential elements of the crime of conspiracy to launder monetary instruments in light of the Supreme Courts interpretation of the elements of money laundering in U.S. v. Santos. See:, united States Constitution, Amendments VI; F.R.Cr.P.7(c)(1) 8. Counts 1-15 and counts 16-18 of the superceding indictment must be dismissed because it is clear that the Grand Jury that issued the indictment was not aware of the correct elements of the offense in light of the Supreme Courts interpretation of the elements of money laundering in Santos. Neither the Government nor the Court may broaden or amend the terms of an indictment issued by the Grand Jury, nor may a defendant be tried on charges that were not made in the indictment against him. To do so violates the

MOTION TO DISMISS THE SECOND SUPERCEDING INDICTMENT - 3

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defendants Fifth Amendment right to be tried only upon indictment by the Grand Jury. See, Stirone v. United States, 361 U.S. 212-217 80 S.Ct. 270-273, 4 L.Ed,2d 252(1960) 9.Counts 16-18 of the superceding indictment must be dismissed because it fails to establish that the specified unlawful activity- wire fraud and conspiracy to commit wire fraud, actually took occurred. 10. Mail Fraud and Wire Fraud charges listed in the superceeding indictment in violation of 18 USC, sec. 1343 and 2 must be dismissed because it fails to establish that the specified unlawful activity- wire fraud and conspiracy to commit wire fraud, actually occurred. The wire fraud statute is limited in scope to the protection of property rights. See: McNally v. United States, 483 U.S.350. 360 (1987). The superceeding indictment fails to identify that any persons property or money was obtained via fraud. There is no claim that the defendant accepted money from any customers and failed to provide them with the property they paid for. The Superceeding Indictment fails to demonstrate that any person lost money or property rights. Should the government attempt to argue that the United States is the victim of the alleged wire fraud the indictment must still be dismissed. See:Cleveland v. United States, 531 U.S. 12 (2000).

MOTION TO DISMISS THE SECOND SUPERCEDING INDICTMENT - 4

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11. The Defendant has filed contemporaneously herewith a Memorandum of law with legal authority supporting the relief requested. 12.This motion is dispositive and therefore the undersigned counsel did not seek the concurrence of the Government. Whereby the Defendant Respectfully request the following relief: A. Grant this Motion to Dismiss the Superceeding Indictment. B. Grant such alternative relief as may be requested in the accompanying memorandum of law, and, C. Grant such further relief as may be just. Respectfully submitted, HART LAW OFFICE, LLC By: /s/ Gary W. Hart GARY W. HART, KS #17245 12120 State Line Road Leawood, Kansas 66209 (913) 491-0989, Fax: (913) 491-0748 Counsel for Guy M. Neighbors

P CERTIFICATE OF SERVICE
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I hereby certify that a true and accurate copy of the foregoing was sent electronically on February , 2012, to all Counsel of Record

By his Attorney GARY W. HART

MOTION TO DISMISS THE SECOND SUPERCEDING INDICTMENT - 5