Case 2:08-cr-20105-CM-JPO Document 22 Filed 08/15/2008 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
vs. )
) No. 08-MJ-8077-01/02-JPO
GUY S. NEIGHBORS, )
and )
CARRIE NEIGHBORS, )
)
Defendants. )
________________________________)

GOVERNMENT’S BRIEF IN SUPPORT

COMES NOW the United States of America, by and through Eric F. Melgren, United

States Attorney for the District of Kansas, Terra D. Morehead, Assistant United States

Attorney, for said District, and hereby responds to arguments raised by the defendants

alleging that the Government failed to establish probable cause pertaining to the charge

contained in the Complaint. The defendants’ argument to the Court was premised on the

representation that under a prosecution for a violation of Title 18, United States Code §

1512(c), the Government would be required to prove that an “official proceeding” be

pending or underway at the time of the offense and that it would have been necessary for

the defendant’s to have been advised a Federal “official proceeding” was underway. In

making this representation, the defendant’s cited and relied upon Arthur Andersen LLP v.

United States (also referred to as Enron), 544 U.S. 696, 123 S. Ct. 2129 (2005). A review

of Enron and other cases that follow clearly do not support the defendants’ position.

The defendants herein are charged with on or about August 8, 2008, corruptly

concealing a record, document, or other object, or attempting to do so, with the intent to
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impair the object’s integrity and availability for use in an official proceeding; or, otherwise

obstructing, influencing, or impeding any official proceeding, or attempting to do so, in

violation of Title 18, United States Code § 1512(c). (Doc. 1.) There is no requirement that

an official proceeding be pending or about to be instituted at the time of the offense. See

Title 18, United States Code § 1512(f)(1). There is also no requirement that the

Government establish the “state of mind” of the defendants that the official proceedings be

Federal in nature. See Title 18, United States Code § 1512(g).

The Enron case actually involved a violation of the 2000 version of § 1512(b)(2)(A)

and (B), which involved someone knowingly using intimidation or physical force, threats,

or corruptly persuading another person. . .with intent to. . .cause that person to withhold

documents from or alter documents for use in an official proceeding. The facts established

that Enron’s auditor, Arthur Anderson, instructed its employees to destroy documents

pursuant to its document retention policy. The Supreme Court found the jury was not

properly instructed on the elements of “corrupt persuasion” because the instructions failed

to convey the requisite consciousness of wrongdoing, thereby reversing the conviction.

544 U.S. at 706, 125 S. Ct. 2128. The Court further held that § 1512(b)(1) encompasses

a “nexus” requirement. 544 U.S. at 707-08, 125 S. Ct. 2129. This “nexus” requirement

means that to convict a defendant of obstructing justice under that subsection, “the

[obstructive] act must have a relationship in time, causation, or logic with the judicial

proceedings.” United States v. Aguilar, 515 U.S. 593, 599, 115 S. Ct. 2357, 132 L.Ed.2d

520 (1995). The Government in Arthur Anderson had argued against finding a “nexus”

requirement under § 1512(b)(1), because to convict a defendant under any of 18 U.S.C.

§ 1512's subsections, “an official proceeding ‘need not be pending or about to be instituted

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at the time of the offense.’ ” Arthur Andersen, 544 U.S. at 707, 125 S. Ct. 2129 (quoting

18 U.S.C. § 1512(e)(1), now codified at § 1512(f)(1)). However, the Court noted: “It is ...

one thing to say that a proceeding ‘need not be pending or about to be instituted at the time

of the offense,’ and quite another to say a proceeding need not even be foreseen. A

‘knowingly ... corrupt persuader’ cannot be someone who persuades others to shred

documents under a document retention policy when he does not have in contemplation any

particular official proceeding in which those documents might be material.” Id. at 707-08,

125 S. Ct. 2129.

The facts as presented before the Court of the Neighbors’ conduct is quite

distinguishable from the conduct of Enron’s auditior. It was clearly foreseeable in the case

at hand that an official proceeding would or might occur. Before a defendant may be

convicted of obstruction under § 1512(c)(1), he must believe that his acts will be likely to

affect a pending or foreseeable proceeding . See Arthur Andersen, 544 U.S. at 707, 125

S. Ct. 2129; United States v. Kaplan, 490 F.3d 110, 125 (2d Cir.2007) (“[A] ‘knowingly ...

corrupt persuader’ must believe that his actions are likely to affect a particular, existing or

foreseeable official proceeding.”). See also United States v. Matthews, 505 F.3d 698, 707-

708 (7th Cir. 2007).

When Carrie Neighbors received the call from her attorney, John Duma, after being

contacted by individuals connected to her pending Federal prosecution, she was put on

notice that authorities were looking into the defendants’ newest eBay scam. They had

surreptitiously established a new eBay site under an assumed name (standupguycharles),

obtaining a UPS mailbox in order to receive payments, maintaining a phone in the name

of “Charlie,” and even getting a bank account in the name of an unwitting participant

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(Charlie Rayton). Many of their purchases of items were done in cash and many of them

there is no internal record to memorialize the transaction. There was nothing on the face

of this newest venture that would associate the eBay business with Guy or Carrie

Neighbors or Yellow House. This was obviously done to prevent potential buyers from

knowing who they were truly dealing with and to thwart detection of their conduct by law

enforcement.

The purchase of ten to fourteen computers from Robert Samples, sometimes

multiple brand news one at the same time, in the least, represents willful blindness that they

were engaging, once again, in the business of receiving stolen property. Whatever benefit

of the doubt the defendants might have been entitled to came to a halt on August 7, 2008,

when they were informed that one of the three computers they had received from Samples

was stolen from Kansas University. A reasonable person would have known, at that point,

by failing to cooperate and return all of the stolen materials and turn over supporting

documentation, an official proceeding would be imminent. To further solidify the

Government’s assertion that the defendants’ engaged in obstructive behavior on August

8, 2008, was the fact that an obviously fraudulent document1 was presented to this Court

during the preliminary hearing (Defendant’s Exhibit B) in an attempt to represent it as the

document observed by Detective Riner on August 7, 2008; this is a clear reinforcement of

the charge herein, that the defendants did not provide the document to Detective Riner on

1
Samples told Detectives Bialek and Riner that he received a total of $1,000.00 for
the computer–$400.00 in a check and $600.00 in cash. It is interesting to note that while
this document has the serial number and model number from the stolen K.U. computer
from the initial report, it has no such information on the other two computers, although there
is a notation of 3 Dell Laptop P.C.s.

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August 8, 2008, in order to prevent that document’s availability for production and use in

an official proceeding.

The defendants’ arguments to the Court relying on Enron were misapplied to the

case at hand. There is certainly no requirement that official proceedings be pending or

about to be initiated. Because of the original eBay case against the Neighbors, they were

on notice that official proceedings under these circumstances were foreseeable. Likewise,

the defendants’ state of mind need not be proven with respect to the circumstances that

the official proceedings are Federal. The charge contained in the Complaint is a proper

charge under the facts herein. The Government has presented probable cause that the

defendants engaged in obstructive behavior and it will be for a jury to determine the

ultimate issue.

Respectfully submitted,

Eric F. Melgren
United States Attorney

s/ Terra D. Morehead
TERRA D. MOREHEAD, # 12759
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730 (telephone)
(913) 551-6541 (facsimile)
E-mail: Terra.Morehead@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of August, 2008, the foregoing was electronically

filed with the clerk of the court by using the CM/ECF system which will send a notice of

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electronic filing to the following:

Cheryl Pilate
Attorney for Guy Neighbors

John Duma
Attorney for Carrie Neighbors

s/ Terra D. Morehead
TERRA D. MOREHEAD, # 12759
Assistant United States Attorney