Case 2:07-cr-20124-CM-JPO Document 178 Filed 06/08/2009 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(Kansas City Docket)

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
v. ) Case No. 07-20124-02-CM
)
GUY MADISON NEIGHBORS, )
)
Defendant. )

UNITED STATES’ RESPONSE TO DEFENDANT

GUY MADISON NEIGHBORS’ MOTION
FOR REINSTATEMENT OF PRETRIAL RELEASE

Comes now the United States of America by and through the undersigned

Assistant United States Attorney, and in opposition to defendant’s Motion for

Reinstatement of Pretrial Release, offers the following suggestions.

I. Relevant Procedural Background

On May 1, 2008, the United States filed its first Motion to Revoke Bond.

(Document [Doc.] 65) On July 18 and July 21, 2008, the magistrate judge conducted a

hearing on that motion. At the hearing, the government presented evidence that the

defendant had engaged in post-indictment criminal conduct including violations of § 21-

4004, K.S.A., criminal defamation; of 18 U.S.C. § 1503, influencing an officer; and of 18

U.S.C. § 1512, witness tampering. The government’s evidence was uncontroverted.

On August 30, 2008, before a decision was rendered on those issues, the parties
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submitted an agreed-upon temporary restraining order “which specifically prohibits all

parties in this matter from making any statements, other than to members of the

defendants’ immediate family ... in writing, orally or by electronic dissemination, either

personally or indirectly through any party, including but not limited to any internet sites

or through any form of communication whatsoever which mentions the names of any

witnesses, attorneys, potential witnesses or of any persons associated with the

investigation or prosecution” of case No. 07-20124 and case No. 07-20073. The

temporary restraining order was approved by the court and filed in the record.

(Doc. 118, p. 1-2).

On Friday, August 8, 2008, in case No. 08-MJ-8077-01/02-JPO, the defendant

and his co-defendant/spouse, Carrie Neighbors, were charged in the District of Kansas

by complaint with one count of obstruction of justice in violation of 18 U.S.C. § 1512 and

arrested on that charge. On August 12, 2008, the government filed a second Motion to

Revoke Bond in this case based upon the arrest of the defendant on the criminal

complaint. That motion was denied on August 18, 2008.

On August 18, 2008, the provisions of the temporary restraining order were

made part of the conditions of the defendants’ bond in the cases styled United States v.

Guy and Carrie Neighbors, Case No. 07-20124 (Doc. 132) and Case No. 08-20105-

01/02-CM/JPO. (Doc. 27 in that case) Each of those orders provided in pertinent part:

“Conditions of release in the Obstruction Case will track those [which] have been

previously set in Case No. 07-20124 (the “EBayCase”) (Docs. 5 and 9). In addition to

those conditions, defendants shall comply with the agreed restraining order in the EBay

Case (Doc. 118).” (Docs. 132 and 27, respectively, p. 2).

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On August 20, 2008, a grand jury found probable cause to believe that the

defendant and his spouse had committed the felony offense of obstruction of justice in

violation of 18 U.S.C. §§ 1512(c) and 2, and returned a true bill charging them with that

offense in Case No, 08-20105-01/02-JWL. (Doc. 28 in Case No. 08-20105)

On April 27, 2009, the government filed another Motion to Revoke Bond or, In the

Alternative, for Mental Examination and for Show Cause Hearing. (Doc. 165) The

basis for the motion was yet another dissemination by Guy M. Neighbors of what he

knew to be false and defamatory information about several of the witnesses in this case

and the prosecutors. After a hearing on the government’s Motion, the magistrate judge

made numerous factual findings as required under the provisions of 18 U.S.C. §

3142(g) including a determination that the “threat of continued criminal defamation of

Government counsel and witnesses if defendant were released poses a serious risk of

danger to the community.” (Doc. 175 at p. 3) It is this finding that the defendant

contests, alleging in his motion that “[s]urely this is not the kind or ‘nature’ of danger

which pretrial detention is designed to prevent.” (Doc. 176 at p. 4) This contention is not

supported by statute or case law, however.

II. Relevant Statutory Authority

A. Standard of Review: Title 18, United States Code, Section 3145 provides:

(b) Review of a detention order. – If a person is ordered by a

magistrate judge, or by a person other than a judge of a court having
original jurisdiction over the offense other than a Federal appellate court,
the person may file, with the court having original jurisdiction of the
offense, a motion for revocation or amendment of the order. The motion
shall be determined promptly

“When the district court, pursuant to 18 U.S.C. §3145(b) acts on a motion to revoke or

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amend a magistrate’s pretrial detention or release order, the court acts de novo and

makes an independent determination of the proper pretrial detention or conditions of

release.” United States v. Westbrook, 780 F.2d 1185, 1188 (5th Cir. 1986); see also

United States v. Timley, 236 Fed.Appx 441, 2007 WL 1620518 (C.A. 10 (Kan.))

(unpublished, attached as Exhibit 1) (“Upon its de novo review, the district court made

even more extensive findings concerning [the defendant’s] “continuous stream of

[criminal] activity.”)

Claims of erroneous detention present questions of mixed law and fact.

United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003) On appeal,
we review the mixed questions fo law and fact concerning the detention
decision de novo, “but we accept the district court’s findings of historical
fact which support that decision unless they are clearly erroneous.” Id.
The concept of safety of the community under § 3142(e) is not limited to
the danger of physical violence, but rather “refers to the danger that the
defendant might engage in criminal activity to the detriment of the
community.” United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989)
(internal quotation marks omitted).

United States v. Boy, 2009 WL 1010099 (C.A. 10 (N.M.)) (unpublished, attached as

Exhibit 2). As the following discussion will establish, the defendant’s conduct while on

pretrial release in this case clearly indicates that there is a substantial danger that the

defendant will continue to engage in criminal activity to the detriment of the community

and that such conduct supports an order of detention.

B. Sanctions for violations of a release condition: Title 18, United States

Code, Section § 3148 entitled “Sanctions for violation of a release condition provides in

pertinent part:

(a) Available sanctions.– A person who has been released under

section 3142 of this title, and who has violated a condition of his release,
is subject to a revocation of release, an order of detention, and a
prosectuion for contempt of court.

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(b) Revocation of Release.– ... To the extent practicable, a person

charged with violating the condition of release that such person not
commit a Federal, State or local crime during the period of release, shall
be brought before the judicial officer who ordered the release and whose
order is alleged to have been violated,. The judicial officer shall enter an
order of revocation and detention, if after a hearing, the judicial officer –
(1) finds that there is –
(A) probable cause to believe that the person has committed a
Federal, State or local crime while on release; or
(B) clear and convincing evidence that the person has violated
any other condition of release; and
(2) finds that –
(A) based on the factors set forth in section 3142(g) of this title,
there is no condition or combination of conditions of release that will
assure that the person will not flee or pose a danger to the safety of
any other person or the community; or
(B) the person is unlikely to abide by any condition or
combination of conditions of release.
If there is probable cause to believe that, while on release, the person
committed a Federal, State or local felony, a rebuttable presumption
arises that no condition or combination of conditions will assure that the
person will not pose a danger to the safety of any other person or the
community.”

Id.

“[A] district’s court’s finding that a defendant will not abide by any conditions of

release may be established by a preponderance of the evidence.” United States v.

Aron, 904 F.2d 221, 224 (5th Cir. 1990) (Section 3148(b) clearly provides that these

findings alone are sufficient to justify revocation and detention and court need not also

find the defendant will flee or pose danger to the community). The record in this case

establishes probable cause to believe that the defendant has committed a Federal

felony while on release. It also establishes by a preponderance of the evidence that this

defendant has committed numerous violations of the terms of his release by continue to

publish electronically false statements about the witnesses and the prosecutors and that

there is no condition or combination of conditions of release that will assure the safety of

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the community.

III. Discussion

The record before this Court clearly established that the defendant has, while on

pretrial release, committed several criminal offenses including violations of

§ 21-4004, K.S.A., criminal defamation, a state misdemeanor; of 18 U.S.C. § 1503,

Influencing an Officer, a Federal felony offense; of 18 U.S.C. § 1512 (d), tampering with

a witness and of 18 U.S.C. 1512 (c) obstruction of justice, both Federal felony offenses.

A. Criminal Defamation: The record before the magistrate judge and

now before this Court clearly establishes that defendant has violated, K.S.A. § 21-4004,

Criminal Defamation. That statute provides in pertinent part:

(a) Criminal defamation is communicating to a person orally, in

writing, or by any other means, information, knowing the information to be
false and with actual malice1, tending to expose another living person to
public hatred, contempt or ridicule; intending to deprive such person of the
benefits of public confidence and social acceptance....

On Wednesday, April 22, 2009, the defendant, Guy M. Neighbors, sent by

electronic mail a message to various individuals and organizations under the heading

“Lawrence Police officer Mike McAtee corruptly operates as a Federal agent crossing

state lines to interrogate and harass people for Federal Prosecutor Terra Morehead.”

(Exhibit 3, attached). Attached to that e-mail were various documents, one of which

was entitled “Notice of Motion Requesting a Change of Venue and to Have Both

Prosecutors Recuses [sic] Themselves from Said Cases as To Avoid the Appearance of

1
“Actual malice” occurs when a defendant makes a false publication with a “high
degree of awareness of ...probable falsity,” (citation omitted) or must have “entertained
serious doubts as to the truth of his publication.” Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 667; 109 S. Ct. 2678, 2686 (1989).

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A Conflict of Interest.”

In his e-mail message, the defendant reiterated statements made in earlier e-

mails that he knew to be false, to wit:

1. Federal Prosecutor Terra Morehead sent Lawrence Police

officer Mike McAtee across state lines to the State of Florida, to
investigate with the Jurisdictions [sic] of a Federal agent.

2. Lawrence Kansas Police officers Jay Bailek and Mickey Rantz

pose as FBI agents while conducting Federal investigations for Marietta
Parker and Terra Morehead in the Yellow House case, to cover-up for
missing evidence, search warrant & chain of custody violations and the
lack of FBI involvement in the case.

3. Kansas City FBI Agent Walter Schaefer, poses as FBI agent

Bob Shaefer, to conduct fake FBI investigations outside of his agencies
[sic] juristictions [sic] to cover-up for Federal Prosecutor Marietta Parker,
who is conspiring to cover-up police misconduct.

The defendant knew that these statements were false when he made them

because at the hearing before the magistrate judge on July 18 and July 21, 2008, it was

established that: all physical evidence recovered during the investigation of this case is

either in the custody of the Lawrence, Kansas, Police Department or has been returned

to the rightful owners (Doc. 150, Transcript of Motions Hearing held on July 18 and 21,

2008, testimony of S.A. D. Nitz, at pp. 217-18); that neither Officer Bailek nor Officer

Rantz posed as FBI agents during the investigation of this case (Doc 150 at p 37-38,

testimony of P.O. M. Rantz); and that F.B.I. S.A. Walter Robert “Bob” Schaefer

conducted an investigation of those allegations and was unable to corroborate the

allegation. See (Doc. 150 at p 186-192, testimony of S.A. W. Schaefer). Rather than

cease his criminal defamation after being informed of the falsity of the above-referenced

allegations, the defendant republished those same false claims of illegal or unethical

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behavior on the part of government witnesses. Therefore, a determination that this

conduct constituted criminal defamation is supported by the record.

In addition to the reassertion of the above-described allegations that the

defendant knew to be false, he made additional false and defamatory allegations of

misconduct by the prosecutors in this case without any basis in fact. In his e-mail of

April 22, he stated:

Where is the oversight of Government spending and constitutional law that

would allow Federal Prosecutors in an abuse of power spend millions of
tax dollars investigating and prosecuting meritless cases, using defense
attorneys and law enforcement as their own personal pawns, operating
outside of their agencies jurisdictions and the law, crossing state lines,
City officers acting as Federal Investigators, repeatedly violating citizens
[sic] Constitutional rights without consequence.
Now we are hearing rumor of a sex scandal involving high ranking
officials, the same officials who are the alleged violator [sic] of human
rights. Please we need a complete investigation into these two
prosecutors and the cases they have prosecuted.2

Ex. 1, attached.

The defendant is fully aware that all of the individuals mentioned in the above-

referenced paragraphs of his April 22 e-mail are witnesses in the case or are attorneys

representing the government. In light of the un-controverted evidence received at the

hearing on the government’s first motion to revoke bond and by his own admission that

the reference to sexual misconduct by the prosecutors in this case are mere rumors, it

is clear that the defendant intentionally and purposefully violated the conditions of his

2
Counsel for the United States categorically and unequivocally deny each and
every one of the allegations made against them in the defendant’s e-mail of April 22nd.

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bond by publishing those statements with actual malice,3 thereby committing the state

offense of criminal defamation in violation of § 21-4004, K.S.A.

The defendant argues that because the e-mail of April 22, 2009, “is one email

since the condition was placed on him in August 2008", the risk of criminal defamation

cannot be said to be high or “serious.” This claim is irrelevant to the magistrate judge’s

decision to revoke Guy Neighbors’ bond, however, because § 3148 requires only that

the Court find probable cause to believe that the person has committed a Federal,

State or local crime while on release.

Furthermore, the violation of the terms of the defendant’s conditions of release

on April 22 is not the only instance of his failure to abide by that condition. The

defendant has committed additional instances of criminal defamation since the hearing

in July, 2008, and has done so after being counseled by the magistrate judge to stop

blogging about this case. (Doc. 150 at p. 245) For example, on December 2, 2008

(Exhibit 4, attached), and again on March 13, 2009 (Exhibit 5, attached), he sent e-mails

to various individuals and organizations that contain false and defamatory allegations

against several witnesses and prosecutors. This recurring conduct leads to only one

reasonable conclusion: Guy Neighbors is unwilling and therefore unlikely to abide by

that condition of his release and will continue to defame witnesses and prosecutors in

defiance of the Court’s orders of release and of the temporary restraining order.

3
This statement, by the defendant’s own admission was based upon nothing but
rumor, and can be characterized only as one made with actual malice because it was
made without a reasonable basis in fact leading to only one reasonable inference: that
the defendant made the statement with a high degree of awareness of its probable
falsity.

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Consequently, a determination that revocation is the only remedy for the defendant’s

continued criminal conduct and his unwillingness to abide by the conditions of his

pretrial release is legally appropriate.

B. Obstruction of Justice – 18 U.S.C. § 1512 (c). On August 20, 2008, the

defendant was charged by Indictment with one count of obstruction of justice in violation

of 18 U.S.C. §1512. (Exhibit 6, attached) “[A]n indictment, ‘fair upon its face,’ and

returned by a ‘properly constituted grand jury’ conclusively determines the existence of

probable cause.” Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d,

471 (1997) (citing Gerstein v. Pugh, 410 U.S. 103, 118 n. 19, 95 S. Ct 854, 43 L.Ed.2d

54 (1975). “[P]robable cause under § 3148(b)(1)(A) requires only that the facts

available to the judicial officer ‘warrant a man of reasonable caution in the belief’ that

the defendant has committed a crime while on bail.” United States v. Cook, 880 F.2d

1158, 1160 (10th Cir. 1989) (citing United States v. Gotti, 794 F.2d 773, 777 (2nd Cir.

1986) This charge was the subject of the government’s Section Motion to Revoke Bond

and, standing alone, is a sufficient basis to support an order of release revocation in this

case. (Doc. 128) Consequently, the facts available to this Court warrant a finding that

this defendant has committed another Federal felony offense while on bail.

The commission of a serious crime by a released person is plainly

indicative of his inability to conform to one of the most basic conditions of
his release, i.e. that he abide by the law, and of the danger he poses to
other persons and the community, factors which section 3148 recognizes
are appropriate bases for the revocation of release.

***

[T]he establishment of probable cause to believe that the defendant has

committed a serious crime while on release constitutes compelling
evidence that the defendant poses a danger to the community, and, once

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such probable cause is established, it is appropriate that the burden rest

on the defendant to come forward with evidence indicating that this
conclusion is not warranted in his case.

Id. at 1161 (quoting The Comprehensive Crime Control Act of 1984 U.S. Code Cong. &

Ad. News, pp. 3182, et seq., Senate Committee on the Judiciary).

The clear and convincing evidence standard is also utilized in 18 U.S.C. §

3142(f)(2)(B), with respect to a defendant’s danger to the community at
the pretrial stage. This standard has been construed by the Second
Circuit as “something more than ‘preponderance of the evidence,’ and
something less that ‘beyond a reasonable doubt. United States v.
Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) “[T]his standard of proof
requires that the evidence support such a conclusion with a high degree of
certainty. Id.

United States v. Ross, 730 F.Supp. 255, 356-57 (D.Kan. 1990). “[O]nce the burden of

production is met, the presumption does not disappear, but remains as a factor for

consideration in the ultimate release or detention determination.” United States v.

Cook, 880 F.2d at 1162. The United States respectfully submits that the defendant

cannot meet his burden.

C. Tampering with a witness (18 U.S.C. § 1512(c) and

Influencing an Officer (18 U.S.C. § 1503)

The United States incorporates by this reference all of the evidence, arguments,

and points and authorities advanced in it’s first Motion to Revoke Bond (Doc. 65), the

exhibits attached thereto (Docs. 66 & 67), the testimony of the witnesses at the hearing

on July 18 & 21, 2008, on the government’s motion (Doc. 150) and the exhibits received

in evidence at that hearing and further requests that this Court take judicial notice of the

complete record before it. The evidence received by the court at the hearing on July 18

and July 21, 2008, established that the defendant has committed numerous violations of

both of these Federal felony offenses. Additionally, his unfounded and defamatory

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claims of sexual misconduct by the prosecutors made in his e-mail of April 22, 2009,

coupled with the reiteration of his demand that they be recused from this case

establishes that the defendant continues to engage in conduct that constitutes a

violation of 18 U.S.C. § 1503, influencing an officer. 4 Likewise, his repetition of what

he knows to be false and defamatory allegations of illegal conduct by several of the

witnesses in that same e-mail further establishes probable cause to believe that he

continues to commit violations of 18 U.S.C. § 1512, witness tampering.

Unquestionably, the e-mail sent by the defendant on April 22, 2009, constitutes yet

another violation of the conditions of the defendant’s bond, establishes that he

continues to commit violations of these two criminal statutes and establishes that he is

unwilling to conform his behavior to the order of the court.

4
The false allegations of professional and sexual misconduct by the prosecutors
taken together with the demand in the attachment to the e-mail, entitled “Notice of
Motion Requesting a Change of Venue and to Have Both Prosecutors Recuses [sic]
Themselves from Said Cases as To Avoid the Appearance of A Conflict of Interest”
indicates that the defendant continues in his attempts to prevent the attorneys for the
government from prosecuting the cases now pending against him, a clear attempt to
corruptly influence these officers of the Court in the lawful performance of their duties.

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Conclusion

Wherefore, for the foregoing reasons, the United States respectfully requests that

the defendant’s Motion for Reinstatement of Pretrial Release be denied.

Respectfully submitted,

Lanny D. Welch
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

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Certificate of Service

I hereby certify that on the 8th day of June, 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

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
First Assistant United States Attorney

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