Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
v. ) Case No. 07-20124-02-CM-JPO
)
GUY NEIGHBORS, )
)
Defendant. )

UNITED STATES’ THIRD

MOTION FOR MENTAL EXAMINATION PURSUANT TO
TITLE 18, UNITED STATES CODE, SECTION 4241
AND FOR A HEARING

Comes now, the United States of America, by and through the undersigned

Assistant United States Attorney and moves for a hearing on the government’s Motion for

a Hearing on its Motion for Mental Examination pursuant to 18 U.S.C. § 4241 and

thereafter, if the Court determines that there is reasonable cause to believe the defendant

currently suffers from a mental disease or defect that renders him unable to assist in his

defense, for an order directing a mental examination of the defendant, Guy Neighbors,

pursuant to Title 18, United States Code, Sections 4241 and 4247. In support thereof, the

United States would state as follows:

I. Procedural Background

On August 8, 2008, the defendant was charged by complaint with one count of

obstruction of justice in violation of Title 18, United States Code, § 1512(c), that charge

arising from the defendant’s refusal to produce evidence relating to the purchase by his co-

defendant of a stolen computer sold to her at their business, Yellow House, and from his

subsequent refusal to provide documentation of the sale and certain components of the
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 2 of 8

stolen computer to the University of Kansas Police Department when requested. The

circumstances of this incident are strikingly similar to the charges currently pending against

the defendant in case No. 07-20124-01/02-CM which also involve allegations of the receipt

and subsequent sale of stolen items through the Yellow House Stores in Lawrence and

Topeka, Kansas during calender years 2004 and 2005.

On September 13, 2007, the defendant was charged in that case, No. 07-20124, by

indictment with one count of conspiracy in violation of 18 U.S.C. § 371, 14 counts of wire

fraud in violation of 18 U.S.C. §§ 1343 and 2, and four counts of money laundering in

violation of 18 U.S.C. §§ 1956 and 2.1 He was released on bond with conditions that, inter

alia, directed him to refrain from committing any state or federal crimes and not to have any

contact with potential witnesses in this case.

On August 20, 2008, the defendant was charged jointly with Carrie Neighbors with

one count of obstruction of justice in violation of 18 U.S.C. § 1512.

On May 21, 2009, the defendant’s pretrial release bond was revoked and he

was ordered into custody because his failure to comply with the conditions of his pretrial

release established that he is a danger to the community.

The government obtained, via subpoena, the telephone calls made by the defendant

from CCA between May 21 and July 27, 2009. During several of those conversations, the

defendant made statements that indicate that his actions over the past several months

have been “calculated,” have been done for the purpose of drawing attention to his case,

and to force the prosecutors into “submission.” These statements do not support the

1
In a second superseding indictment filed on June 18, 2008, the charges were
amended by dropping one of the money laundering counts.

2
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 3 of 8

suggestion that his recent conduct demonstrates incompetence. Rather, the defendant’s

statements2 indicate that the defendant is acting in a rational, albeit unproductive, manner

to attain his goal of disrupting the prosecution of his cases. Furthermore, the defendant’s

statements in the phone calls are not significantly different than those presented by his

counsel at the Motion for Reinstatement of Bond, which the United States respectfully

submits were presented as a rational basis for the defendant’s failure to adhere to the

terms of his supervised release.

On August 7, 2009, the defendant filed a sealed motion. If the court determines that,

for the reasons stated in that motion, there presently exists reasonable cause to believe

that the defendant may presently be suffering from a mental disease of defect that renders

him incompetent, the United States moves for an order directing him to the custody of the

Attorney General for a psychiatric or psychological evaluation pursuant to the provisions

of 18 U.S.C. §§ 4241 and 4247.

II. Applicable Legal Principles

Title 18, United States Code, Section 4241 provides in pertinent part:

(a) Motion to determine competency of defendant – At any

time after the commencement of a prosecution for an offense
and prior to the sentencing of the defendant, the defendant or
the attorney for the Government may file a motion for a hearing
to determine the mental competency of the defendant. The
court shall grant the motion, or shall order such a hearing on its
own motion, if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he
is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.

2
The defendant’s most recent conduct is consistent with the defendant’s
“blogging” that occurred in 2007 and 2008.

3
Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 4 of 8

(b) Psychiatric or psychological examination and report --

Prior to the date of the hearing, the court may order that a
psychiatric or psychological examination of the defendant be
conducted, and that a psychiatric or psychological report be
filed with the court pursuant to the provisions of section
4247(b) and (c).
***
(d) If, after the hearing, the court finds by a preponderance of
the evidence that the defendant is presently suffering from a
mental disease or defect rendering him mentally incompetent
to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist
properly in his defense, the court shall commit the defendant
to the custody of the Attorney General. The Attorney General
shall hospitalize the defendant for treatment in a suitable
facility –

(A) for a reasonable period of time, not to exceed four

months, as is necessary to determine whether there is a
substantial probability that in the foreseeable future he will
attain the capacity to permit the proceedings to go forward;....

5. Title 18, United States Code, Section 4247 provides in pertinent part:

(b) Psychiatric or psychological examination.---

A psychiatric or psychological examination ordered pursuant to
this chapter shall be conducted by a licensed or certified
psychiatrist or psychologist, or if the court finds it appropriate, by
more than one such examiner.... For the purposes of an
examination pursuant to an order under section 4241, 4244, or
4245, the court may commit the person to be examined for a
reasonable period, but not to exceed thirty days, and under
section 4242, 4243, or 4246, for a reasonable period, but not to
exceed forty-five days, to the custody of the Attorney General for
placement in a suitable facility. Unless impracticable, the
psychiatric or psychological examination shall be conducted in
the suitable facility closest to the court.

(c) Psychiatric or psychological reports.---

A psychiatric or psychological report ordered pursuant to this
chapter shall be prepared by the examiner designated to conduct
the psychiatric or psychological examination, shall be filed with
the court with copies provided to the counsel for the person
examined and to the attorney for the Government, and shall

4
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 5 of 8

include--
(1) the person’s history and present symptoms;
(2) a description of the psychiatric, psychological,
and medical tests that were employed and their results;
(3) the examiner’s findings; and
(4) the examiner’s opinions as to diagnosis,
prognosis, and--
(A) if the examination is ordered under section
4241, whether the person is suffering from a
mental disease or defect rendering him mentally
incompetent to the extent that he is unable to
understand the nature and consequences of the
proceedings against him or to assist properly in his
defense;....

III. Argument

Under 18 U.S.C. § 4241, when any “reasonable cause” exists to suggest that the

defendant may presently be suffering from a mental disease or defect rendering him

incompetent, the government or the defense may file a motion for a hearing to determine

the mental competency of the defendant. Once a defendant’s competency has been called

into question, the“burden is placed on the prosecution to prove that the defendant is

mentally competent to stand trial.” United States v. Veatch, 842 F. Supp. 480, 482 (W.D.

Okla. 1993). To determine whether a criminal defendant is competent to stand trial, the

relevant inquiry is “whether [the defendant] has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding and whether he has a rational

as well as factual understanding of the proceedings against him.” Dusky v. United States,

362 U.S. 402 (1960).

The United States respectfully submits that should the court determine that there is

reasonable cause to believe that the defendant presently suffers from a mental disease or

defect that prevents him from assisting in his own defense, that he immediately be ordered

5
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 6 of 8

into the custody of the Attorney General for a psychological or psychiatric examination to

determine his competency. Under § 4241, the government is entitled to such an

examination and the government submits that ordering the Attorney General to conduct a

mental evaluation accomplish two important purposes. First, the examination can be

conducted in a timely manner if the examination is conducted while the defendant is

residing in a federal medical facility and will be conducted under continuous observation

there by persons trained to conduct mental examinations. Consequently, the results of that

examination will be timely and extremely reliable. Second, if, after an examination the

health care professionals at the federal medical facility determine that the defendant is

presently incompetent to assist in his own defense, he will be in a hospital, where the

health care professionals can satisfy the requirement of § 4241(d) to determine whether

there is a substantial probability that the defendant will attain the capacity to permit the

proceedings to go forward. While in the custody of the Attorney General, he can receive

appropriate psychological and psychiatric treatment as the Court and the health care

professionals determine necessary.

WHEREFORE, for the foregoing reasons, the government moves this Court for an

order granting the United States’ Third Motion for Mental Examination pursuant to 18

U.S.C. § 4241 and committing the defendant, Guy Neighbors, to the custody of the

Attorney General for a reasonable period, but not to exceed thirty days, for placement in

a suitable facility for a mental examination by a qualified psychologist or psychiatrist

pursuant to the provisions of Title 18, United States Code, Section 4247.

Respectfully submitted,

LANNY D. WELCH

6
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 7 of 8

United States Attorney

S/Marietta Parker
MARIETTA PARKER, # 77807
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
(913) 551-6730
KS D.Ct. No. 77807
marietta.parker@usdoj.gov

Certificate of Service

I hereby certify that on the 10th day of August, 2009, the foregoing was electronically

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

electronic filing to the following:

Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Guy Madison Neighbors

7
 Case 2:07-cr-20124-CM-JPO Document 204 Filed 08/10/2009 Page 8 of 8

I further certify that on August 10, 2008, the foregoing document and was hand

delivered to the following:

None

S/Marietta Parker
MARIETTA PARKER, # 77807
Assistant United States Attorney