Response To Motion To Revoke Case No. 07-20124-cm

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, Plaintiff, v. GUY MADISON NEIGHBORS ) and CARRIE MARIE NEIGHBORS, Defendants.

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Case No. 07-20124-CM

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DEFENDANT GUY NEIGHBOR’S RESPONSE TO UNITED STATES’ MOTION TO REVOKE BOND Defendant Guy Neighbors, by and through his counsel, hereby submits his Response in opposition to the United States’ Motion to Revoke Bond. This Court should deny the United States’ motion for the following reasons: 1. The vast majority of the material on Mr. Neighbor’s web site consists of protected First Amendment speech. 2. The government has not charged Mr. Neighbors with any crimes allegedly committed while on pretrial release and, further, has failed to establish probable cause to show that Mr. Neighbors committed any felony while on pretrial release. See 18 U.S.C. § 3148. 3. The government makes conclusory assertions that certain statements by Mr. Neighbors are false and defamatory, but provides no proof in support of these assertions. 1

4. Absent probable cause to believe Mr. Neighbors committed a felony while on pretrial release, the burden rests with the government to show that no condition or combination of conditions would suffice to prevent the defendant from fleeing or posing a danger to any member of the community. 5. The government seeks the extreme measure of revoking bond while ignoring the possibility of less restrictive alternatives, such as seeking a protective order under 18 U.S.C. 1514(b)(1). 6. During the pretrial period, the presumption of innocence applies, and pretrial detention can only be imposed if the defendant is found, after an adversary hearing to pose a threat which no condition of release can dispel. United States v. Salerno, 481 U.S. 739, 755 (1987). Because the government’s arguments fail to justify the extreme measure suggested, its motion should be promptly denied. I. Mr. Neighbor’s Web Site Consists of Core First Amendment Speech The robust and frank discussion of public issues stands at the heart of the First Amendment. As stated in New York Times v. Sullivan, 376 U.S. 254, 270 (1964), the debate on public issues should be “uninhibited, robust and wide-open, and . . .it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Expression on public issues – such as the administration of justice –

“has always rested on the highest rung of the hierarchy of First Amendment values.”

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Carey v. Brown, 447 U.S. 455, 467 (1980). Indeed, speech concerning public affairs is “more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). The government’s motion to revoke is replete with statements that fall clearly within the First Amendment. Mr. Neighbors’ blog states that the government should “do the right thing by dropping the charges” (govt. motion at 12), that the prosecutors are potential witnesses (motion at 12) and that the case is a “gross miscarriage of justice that has been allowed to continue for too long” (motion at 13). All of these statements constitute protected First Amendment speech on a matter of public concern. Further, there is nothing defamatory or “corrupt” about these statements; they simply express the writer’s belief in the injustice of the criminal charges. As such, the statements are protected opinion on issues of public importance. II. The Government Has Filed No Criminal Charges Concerning the Conduct Although the government repeatedly blasts Mr. Neighbors’ commentary as not only offensive but also as defamatory, corrupt and malicious, it has not charged Mr. Neighbors with any of the cited crimes. An inspection of the statements on Mr. Neighbors’ web site establishes why the government has brought no charges of “criminal defamation,” alleged “witness tampering” or “influencing an officer.” See K.S.A. 214004, 18 U.S.C. § 1512, and 18 U.S.C. § 1503 (cited on pages 3, 7 and 9 of the government’s motion). All of these statutes demand a high level of mens rea – either

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“corrupt” intent, under sections 1503 and 1512, or “actual malice,” under K.S.A. 214004. See United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996) (section 1512 requires corrupt motive). An examination of the web site shows that the statements, judged on their face, fail to satisfy the tests of malice or corruptness. The statements are all couched not as statements of known “fact,” but as reports of what Mr. Neighbors was told by acquaintances or customers of his business. Indeed, in one of the postings, he makes clear that he is investigating allegations regarding Officer McAtee, as “numerous people” (similar to a reporter’s anonymous “source”) have told him that McAtee steals drugs, has failed drug tests and that cases have been dismissed because McAtee failed to turn in all of the evidence. Mr. Neighbors states that he “would like to know if these allegations are in fact true” and that he believes “the public also would like to know if these allegations are in fact true.” (See Exhibit 1a, attached to government motion); (see also Exhibit 5a; containing similar allegations regarding Officer McAtee, prefaced with the phrase “People have informed us that. . . .”) The government states, in a conclusory fashion, that all of the statements cited from Mr. Neighbors blog are false and defamatory, but offers no proof to establish its assertions. Many of the statements concern issues that may be litigated in the present criminal case, and thus the government’s arguments constitute an attempt to quarrel with Mr. Neighbors’ defense before he even has had a chance to present it in court. For

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instance, the government complains that Mr. Neighbors falsely alleges that evidence has been planted (motion at 9), that the government has relied on false evidence (motion at 14) and has used perjurious testimony from a cooperating witness (motion at 14). All of these issues, which concern the credibility of informants and the thoroughness or integrity of the investigation, may be addressed at trial. The statements cannot, at present, be considered “true” or “false.” They simply constitute, in part, defenses that Mr. Neighbors hopes to raise at trial. III.

The Government Fails to Show that No Condition or Combination of Conditions Fail to Suffice Under the Bond Statute

Mr. Neighbors has attended all court appearances and counsel is unaware of any violations of his pretrial release other than those claimed by the government in the present motion. Because the government has failed to establish “probable cause” that Mr. Neighbors committed any felony while on pretrial release, the burden remains with the government to show that no condition or combination of conditions would suffice to assure that the defendant would not flee or pose a danger to the safety of the community. See 18 U.S.C. § 3148. The government’s pleading is strikingly devoid of any discussion of conditions that could address the concerns it raises. At the pretrial stage, the presumption of innocence is intact, and detention may be imposed only upon a finding that the defendant poses a threat that no condition of release can dispel. United States v. Salerno, 481 U.S.

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739 (1987). The government has failed to meet its burden. The government seeks the extreme measure of revoking bond while ignoring the possibility of less restrictive alternatives, such as seeking a protective order under 18 U.S.C. 1514(b)(1). Under 18 U.S.C. 1514(b)(1), the court may issue a protective order requiring a defendant to remove Internet postings so as to protect the government’s interests. See United States v. Carmichael, 326 F. Supp.2d 1267, 1277 (M.D. Ala. 2004). Mr. Neighbors submits that the content of his postings does not justify the issuance of a protective order, although he notes that such a remedy would certainly be far less restrictive than revoking bond. Indeed, revoking bond would not only quash Mr. Neighbors’ speech, it would also take away his liberty. Extreme measures are not justified when carefully tailored conditions would suffice under section 3148. For all of the reasons stated above, the government’s motion to revoke bond should be denied.

Respectfully Submitted, /s/ Cheryl A. Pilate Cheryl A. Pilate, KS No. 14601 MORGAN PILATE LLC 142 N. Cherry Olathe, KS 66061 Telephone: 913-829-6336 Facsimile: 913-829-6446 Attorney for Guy Neighbors

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CERTIFICATE OF SERVICE I, Cheryl A. Pilate, do certify that a true and accurate copy of the foregoing motion was served electronically pursuant to the ECF system on all counsel of record on this 22 nd day of May, 2008. /s/ Cheryl A. Pilate

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