IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (Kansas City Docket) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) GUY MADISON NEIGHBORS, ) ) Defendant. ) Case No. 07-20124-02-CM 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
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). 2
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 3
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 (5 th 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 (10 th 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 (10 th 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. 4
(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 (5 th 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 5
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 malice 1, 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). 6
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 7
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 abovereferenced 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. 8
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. 9
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 (10 th Cir. 1989) (citing United States v. Gotti, 794 F.2d 773, 777 (2 nd 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 10
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 11
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. 12
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 13
Certificate of Service I hereby certify that on the 8 th 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 14