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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,


Plaintiff, Case No. 08-MJ-8077-01/02
vs.

GUY M. NEIGHBORS
And
CARRIE NEIGHBORS
Defendants.

DEFENDANTS’ JOINT MOTION TO DISMISS AND BRIEF IN SUPPORT

Come now Guy Neighbors and Carrie Neighbors, by and through their counsel,
and hereby move this Honorable Court to dismiss the Complaint filed in this case on the
ground that the evidence presented at the August 14, 2008 hearing fails to establish
probable cause, and, indeed, shows that evidence of an essential element of the offense is
completely lacking.
Mr. Neighbors and Mrs. Neighbors are charged with obstructing or impeding “an
official proceeding” in violation of 18 U.S.C. 1512( c). The statutory language
establishes that the statute can only be violated by inference with a federal proceeding,
and that the there must be a “nexus” or connection between the defendants’ actions and
the proceeding itself – which means that the defendant must believe his acts will be likely
to affect a pending or foreseeable federal proceeding. United States v. Matthews, 505
F.3d 698 (7th Cir. 2007); see also Arthur Andersen v. United States, 544 U.S. 696, 125 S.
Ct. 2129 (2005).
Undisputed testimony at the hearing established that the investigation being
conducted by the University of Kansas police was local in nature and was not connected
with the pending federal cases against Mr. Neighbors and Mrs. Neighbors. The
defendants and Mrs. Neighbors’ attorney, John Duma, were told there was no indication
the Neighbors were involved with the theft of the computer and that KU simply wanted
the computer returned. There was no indication of a federal investigation or connection
with any federally charged case. Thus, the government utterly fails to establish an
essential element of the offense. Section 1512 and the related statute containing

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definitions establish that an “official proceeding” must be federal in nature. See 18
U.S.C. 1512(g)(1) and 18 U.S.C. 1515(a)(1)(A).
STATEMENT OF FACTS
On August 8, 2008 the United States of America filed a criminal complaint in the
above matter alleging that on or about August 8, 2008 the defendants violated 18 U.S.C.
1512( c).
On August 15, 2008, the matter was set for preliminary hearing to determine
whether the government established probable cause.
During the hearing, several witnesses were called to testify with their testimony
being summarized briefly as follows:
On or about August 6, 2008 the University of Kansas Police Department was
conducting an investigation into a computer which had been stolen from the university in
Lawrence, Kansas. That investigation led to the discovery that the missing computer was
being sold on a web site which eventually was connected with Guy and Carrie
Neighbors. The University of Kansas Police Department contacted the Lawrence Police
Department regarding their investigation into the stolen computer. The Lawrence Police
Department in turn contacted Assistant United States Attorney Terra Morehead with the
information. Ms. Morehead contacted John Duma, the attorney for Carrie Neighbors, via
a telephone conference with Officer Rantz also on the line in the conversation, and
advised Mr. Duma of the situation. Mr. Duma was further advised that there was no
information at that time to implicate the Neighbors in the theft of the computer, and the
phone call was being made as an accommodation to the KU Police Department and the
Neighbors to aid in the prompt return of the property.
There was never any mention that the matter had any connection to the previous
federal indictments of the Neighbors. As a matter of fact, the testimony from the several
witnesses called by the government was consistent in stating the matter involved solely a
state investigation and did not involve a federal investigation. Officer Rantz testified that
Mr. Duma was told that KU simply wanted help getting the computer returned and that
there was no information to show that the Neighbors were involved with the theft.

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Officer Rantz agreed there was no indication the computer was involved with the federal
case.
Officer Riner’s testimony was consistent with the testimony from Officer Rantz;
the investigation was purely a local one, and centered on KU’s efforts to obtain return of
the computer and to investigate the circumstances of the theft. There was no evidence
presented whatsoever that Carrie or Guy Neighbors had any knowledge that the theft of
the computer was related to any federal investigation. To the contrary, pains were taken
to advise the Neighbors that the matter involved only a state investigation being
conducted by the University of Kansas Police Department.
Postal Inspector David Nitz, specifically testified that there was no federal
proceeding involving the Neighbors on the dates in question.

ARGUMENT AND AUTHORITIES

Section 1512(c) states


(c) Whoever corruptly-
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or
attempts to do so, with the intent to impair the object’s integrity or availability for
use in an official proceeding: or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to
do so, shall be fined under this title or imprisoned not more than 20 years, or both.

It is of course plain from the statute that the charged omission must obstruct "an
official proceeding." United States v. Ramos, 2008 WL 2875791, No. 06-51489 (5th
Cir.July 28, 2008)
Further, the code itself defines “official proceeding” as used in 1512(c) in
pertinent part in section 1515(a)(1)(A), which states.
(a) As used in sections 1512 and 1513 of this title and in this section-
(1) The term “official proceeding” means-

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(A) a proceeding before a judge or court of the United States, a
United States magistrate judge, a bankruptcy judge, a judge
of the United States Tax Court, a special trial judge of the
Tax Court, a judge of the United States Court of Federal
Claims, or a Federal grand jury;”

In the United States Supreme Court case, Arthur Andersen LLP v. United States,
125 S.Ct. 2129, 544 U.S. 696, 161 L.Ed.2d 1008 (2005), the defendants were indicted
under 18 U. S. C. §§1512(b)(2)(A) and (B), which make it a crime to "knowingly ...
corruptly persuad[e] another person ... with intent to ... cause" that person to "withhold"
documents from, or "alter" documents for use in, an "official proceeding." (Emphasis
added). The Court held that there must be a “nexus” between the defendant’s acts and
the official proceeding, even though the proceeding “need not be pending or about to be
instituted at the time of the offense.” 18 U.S.C. 1512(e)(1). A “particular” official
proceeding must be contemplated. “If the defendant lacks knowledge that his actions are
likely to affect the judicial proceeding. . .he lacks the requisite intent to obstruct.” Arthur
Andersen, 544 U.S. at 708 (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)).
Appellate court cases are in conformity with the analysis in Andersen and
Aguilar. See United States v. Ramos, 2008 WL 2875792 (5th Cir. July 28, 2008)
(“official proceeding” as used in section 1512 means a hearing rather than “simply any
investigatory step taken by an agency”); United States v. Matthews, 505 F.3d 698 (7th Cir.
2007) (the accused must believe his actions are likely to affect a “particular, existing or
foreseeable” official proceeding); United States v. Ortiz, 2007 WL 841616 (2d Cir. 2007)
(the evidence must show that the defendant’s conduct had a “relationship in time,
causation or logic with the judicial proceedings”).
The Neighbors had no knowledge that the two visits made to them by the KU
police, with whom they had cooperated in the past, was connected with any federal
“official proceeding.” In fact, they were told just the opposite. Under these
circumstances, the government wholly fails in its effort to establish probable cause and
the complaint must be dismissed.

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In the event the government argues that an official federal proceeding was indeed
contemplated at the time the Neighbors were contacted and, further asserts (incorrectly)
that the Neighbors knew of this circumstances, then the government runs headlong into a
violation of the rule of Massiah v. United States, 377 U.S. 201 (1964). See also United
States v. Henry, 447 U.S. 264 (1980); Maine v. Moulton, 474 U.S. 159 (1985). Those
cases establish that “[t]he Sixth Amendment guarantees the accused, at least after the
initiation of formal charges, the right to rely on counsel as a “medium” between him and
the State.” Moulton, 474 U.S. at 176. “[T]his guarantee includes the State’s affirmative
obligation not to act in a manner that circumvents the protections accorded the accused
by invoking this right.” Id.
It is undisputed that the government did not contact counsel for Mr. Neighbors
prior to the KU police going to Yellow House and speaking with defendants. Moreover,
Mr. Duma, counsel for Mrs. Neighbors, was informed that the matter involved only a
local investigation, not a potential federal case. Thus, if the government tries to claim
that the “official proceeding” was federal in nature, then the contact with the defendants
clearly circumvented the protections of the Sixth Amendment and constituted a Massiah
violation.

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

AND

/s/ John Duma


John Duma, KS No. 10760
Attorney at Law
303 E. Poplar

5
Olathe, KS 66061
Telephone: 913-782-7072
Facsimile: 913-782-1383
Attorney for Carrie Neighbors

CERTIFICATE OF SERVICE

I, Cheryl A. Pilate, do certify that a true and accurate copy of the above and

foregoing motion was served electronically on the Clerk of the Court and the government

pursuant to the ECF system on this 15th day of August, 2008.

/s/ Cheryl A. Pilate

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