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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
1. The vast majority of the material on Mr. Neighbor’s web site consists of
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.
Neighbors are false and defamatory, but provides no proof in support of these assertions.
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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
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.
Because the government’s arguments fail to justify the extreme measure suggested,
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
“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
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
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
II. The Government Has Filed No Criminal Charges Concerning the Conduct
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
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
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“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
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
(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
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
considered “true” or “false.” They simply constitute, in part, defenses that Mr.
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
assure that the defendant would not flee or pose a danger to the safety of the community.
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
U.S.C. 1514(b)(1). Under 18 U.S.C. 1514(b)(1), the court may issue a protective order
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,
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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