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Plaintiff, )
) Case No. 07-20124-CM
v. )
and )
Defendants. )



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. §


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.

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.”

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. 21-

4004, 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

“corrupt” intent, under sections 1503 and 1512, or “actual malice,” under K.S.A. 21-

4004. 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

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.

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
142 N. Cherry
Olathe, KS 66061
Telephone: 913-829-6336
Facsimile: 913-829-6446
Attorney for Guy Neighbors

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