Case 2:07-cr-20124-CM-JPO Document 176 Filed 06/01/2009 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES, )
)
Plaintiff, )
)
v. ) Case No. 07-20124-02-CM
)
GUY MADISON NEIGHBORS, )
)
Defendant. )

DEFENDANT GUY MADISON NEIGHBORS'S MOTION

FOR REINSTATEMENT OF PRETRIAL RELEASE

Defendant Guy Madison Neighbors, by and through his counsel, hereby respectfully

moves the Court to reinstate the pretrial release order previously entered in this case, revoked by

Detention Order, Document # 175, on May 20, 2009. Mr. Neighbors seeks release as the

findings against him do not support detention under 18 U.S.C. ' 3142. In support of this motion

Mr. Neighbors states the following:

Mr. Neighbors was ordered detained after a hearing on the Government=s Renewed

Motion to Revoke Defendant=s Bond, Document # 165. Magistrate Judge O=Hara set out the

reasons for detaining Mr. Neighbors in the Detention Order, Document # 175. The Court stated

that the most important reason for detention was that no condition or combination of conditions

would reasonably assure the appearance of Mr. Neighbors. However, the Court immediately

stated that it did not believe that Mr. Neighbors Aposes a flight risk in terms of physically fleeing

the jurisdiction or failing to show up for scheduled court appearances.@ Previously the Court had

noted that Mr. Neighbors= Aaffect and behavior during court proceedings has been polite,

1
 Case 2:07-cr-20124-CM-JPO Document 176 Filed 06/01/2009 Page 2 of 5

attentive, oriented to his surroundings, and generally consistent with a man of at least average

intelligence.@

There is obviously no reason to detain Mr. Neighbors on the question of whether he will

appear in court as directed. The Court found that he would not flee the jurisdiction nor does the

Court believe he will fail to appear as ordered. Indeed, Mr. Neighbors has never failed to appear

as ordered.

The Court listed as an alternative reason for detaining Mr. Neighbors was that the Court

could find no condition or combination of conditions which would Areasonably assure the safety

of any other person or the community.@ The court added: ASpecifically, the court finds that

defendant poses a serious risk of ongoing criminal defamation of Government counsel and

witnesses.@

The Court followed the language of 18 U.S.C. ' 3142 (g) in its Findings of Fact. The

Court noted, under the nature and circumstances of the offense charged, that Mr. Neighbors is

charged with conspiracy to commit wire fraud, wire fraud, and money laundering. None of these

charges are violent or create a risk to the safety of any person or the community. The Court

noted its belief that the Government appears to have a fairly strong case against Mr. Neighbors.

Regardless of this opinion, Mr. Neighbors still enjoys a presumption of innocence.

The Court reviewed the history and characteristics of Mr. Neighbors. The Court

indicated a suspicion that Mr. Neighbors suffers from a mental condition which might affect his

ability to comply with court orders. The Court concluded, however, there was insufficient

evidence to support that suspicion. The Court referred to the pretrial services report and its

indication that Mr. Neighbors has a history of drug abuse. However, the pretrial services report

2
 Case 2:07-cr-20124-CM-JPO Document 176 Filed 06/01/2009 Page 3 of 5

indicates that Mr. Neighbors had only four positive drug tests. Those tests were positive for

marijuana and occurred on December 27, 2006, June 25, 2007, July 5, 2007, and July 18, 2007.

All drug tests since then have been negative. Thus, there has been no indication of drug use for

the past two years. This surely shows that Mr. Neighbors has been able and willing to comply

with court orders to refrain from the use of drugs. It is certainly evidence that he has no drug

addiction or abuse issues which have not been successfully dealt with. It is proof that the court

can impose conditions or a combination of conditions of pretrial release that would reasonably

assure the safety of any other person or the community.

The Court further cited the pretrial services report as indicating that Mr. Neighbors has a

significant criminal record. However, that pretrial services report shows only two prior criminal

cases, both from Arizona. The first was in 1978 and involved a charge of possession of

marijuana, no driver=s license, no registration, and failure to appear. The second was a

possession of marijuana. These cases are nonviolent and thirty years old. Mr. Neighbors has

kept a clean record for the past three decades. This factor does not weigh in favor of detention.

Lastly, the Court refers to his warnings from Court and counsel about the importance of

following the Court=s orders. This does not justify a detention order.

The Court failed to note that under 18 U.S.C. ' 3142 (g)(3)(B), another factor to be

considered is whether a defendant was on probation, parole or other release at the time of the

current offense. Mr. Neighbors was not under any of these forms of supervision at the times he

is alleged to have committed the offenses in this case. This factor weighs in favor of pretrial

release, not detention.

3
 Case 2:07-cr-20124-CM-JPO Document 176 Filed 06/01/2009 Page 4 of 5

The Court found that under 18 U.S.C. ' 3142 (g)(4) Mr. Neighbors poses a serious risk of

danger to the community by Acontinued criminal defamation.@ The statute involved reads as

follows A18 U.S.C. ' 3142 (g) (4) the nature and seriousness of the danger to any person or the

community that would be posed by the person=s release.@ The court is required by this factor to

assess how likely a particular danger is to the community. This is the Aseriousness@ of the risk.

If a risk of danger to the community is very remote or unlikely then it is not Aserious.@ In the

alleged violation of pretrial release conditions Mr. Neighbors is said to have sent one email to

twenty-seven persons or entities. This is one email sent since the condition was placed on him in

August 2008. This cannot be said to be a frequent or even quickly occurring event. The risk of

it happening again cannot be said to be high or, in the language of the statute, Aserious.@

More important is the language of the statute requiring the Court to consider the Anature@

of the danger to any person or to the community. The Court has declared that danger to be

Acriminal defamation of Government counsel and witnesses.@ Surely this is not the kind or

Anature@ of danger which pretrial detention is designed to prevent. Physical harm or death would

be appropriate dangers to justify pretrial detention. The sale of narcotics, with its potential for

death and likelihood of causing personal suffering, could be an appropriate danger to justify

pretrial detention. Damage to property, arson or even theft, might even be a danger sufficient to

justify pretrial detention. Criminal defamation is certainly not a Adanger@ sufficient to justify

pretrial detention. If Congress had intended to make any criminal violation or potentially civilly

actionable event, legislators could have easily written the statute in such a way. They chose not

to. Instead they decided that pretrial detention should only be considered appropriate where

there was a high, Aserious@ likelihood, Arisk@ of Adanger@ to a person or the community. The

nature of that danger is an important consideration.

4
 Case 2:07-cr-20124-CM-JPO Document 176 Filed 06/01/2009 Page 5 of 5

There are only two reasons under 18 U.S.C. ' 3142(c) that Mr. Neighbors should be

detained; either he is not reasonably likely to appear in court as required, or he will endanger the

safety of any other person or the community despite the issuance of conditions or a combination

of conditions. The Court itself found that Mr. Neighbors would appear as required. This is not a

reason to justify his detention. The Court has placed conditions on his pretrial release. These

conditions have and will continue to insure that the safety of individuals and the community.

Based on the above and foregoing arguments and authorities, Mr. Neighbors respectfully

requests that this Court grant his motion to reinstate the pretrial release order previously entered

in this case.

Respectfully Submitted,

/s/ Cheryl A. Pilate

Cheryl A. Pilate, KS No. 14601
Morgan Pilate, LLC
142 N. Cherry Street
Olathe, KS 66061
(913) 829-6336 Telephone
(913) 829-6446 Fax
Email: cpilate@morganpilate.com
Attorney for Guy Madison Neighbors

CERTIFICATE OF SERVICE

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

forgoing motion was served on all parties of record pursuant to the ECF system on this 1st day of

June, 2009.

/ s/ Cheryl A. Pilate