Former Lakin Law Firm attorney Gary Peel wants child pornography and bankruptcy fraud charges leveled against him in a four-count federal indictment in March dismissed.
Peel's assistant public defender Stephen Williams filed the motion to dismiss on July 28, claiming the child pornography statute under which Peel was indicted, is unconstitutional.
Peel also faces obstruction of justice charges.
"Gary Peel is alleged to have taken nude photographs of his ex-wife's sister, D.R. in 1974," Williams wrote. "At the time, D.R. would have been 16 years old.
"The government contends that the image is lascivious. Gary contends that it is not. Either way, the image depicts a sexually mature young woman of indeterminate age."
Williams also noted that Peel's photos did not show minors engaging in sexual activity.
"Gary is not a pedophile and the government has not offered or alleged any facts to the contrary. Gary did not sell these images, trade these images, or at any time inject them into the stream of commerce for any reason at all," Williams wrote.
Williams wrote that the government has asserted that Gary was involved in an inappropriate sexual relationship with his sister-in-law, but did not charge him with a crime.
"Importantly, however, even if such a relationship occurred when D.R. was 16 years-old, it would have been perfectly legal under the current state laws," Williams wrote.
"Thus, even if the government's allegations were taken as true, the most that can be said for Gary's possession of the images is that he attempted to completely divest himself of the images in the course of settling a personal dispute with his wife arising in a bankruptcy," Williams also writes.
"At bottom, the images Gary possessed, whether or not pornography, were unique and not fungible as compared to any other nude pictures."
Williams also wrote, "Gary's possession of these images in no way fueled the interstate child pornography market nor could one thousand instances of possession similar to his. Gary does not collect or distribute child pornography."
Williams said the woman in the photo Peel had in his possession was a sexually mature young woman and she could easily have been 25 years old when the photo was taken.
Williams claims the statute Peel was charged under, 18 U.S.C. § 2252A(a)(5)(B), is unconstitutional in that it exceeds Congress' power under the Commerce and Necessary and Proper Clauses of the United States Constitution. U.S. Const., Art. I, § 8.
"The possession of this single image, by one person for over 30 years, could in no way contribute to inflaming the desires of a pedophile or child molester," Williams wrote. "Thus, the intrastate possession of this image by Gary falls outside the class of activities Congress sought to regulate."
Williams also contends the photos Peel had are only relevant because of who was in the picture.
"They are not sexually explicit and serve no sexual purpose. Just as these photos fail to exhibit any tendency on Gary's part to obtain other images of nude minors, they would also be of no interest to someone else seeking to obtain images of minors in order to feed their appetite for sexually explicit material."
Williams further claims Peel did not fuel or perpetuate the child pornography industry.
"Gary was not engaged in sharing these images or injecting them into commerce. He was not engaged in illegal sexual activity with minors. And he was not in possession of any other images involving nude minors."
Williams also filed a motion to dismiss Count I of the indictment -- bankruptcy fraud -- chaiming it is multiplicitous.
The statute Peel was indicted under makes anyone criminally liable who "knowingly and fraudulently gives, offers, receives, or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof for acting or forbearing to act in any case under Title 11".
Williams wrote, "Gary Peel cannot be criminally liable under the government's theory of the case for the bankruptcy fraud under Count I without being guilty of obstruction of justice under Count II."
Count II, the obstruction of justice count states that Peel did knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding; all in violation of Title 18, United States Code, Section 1512(c)(2).
Exposing a defendant to multiple punishments for the same offense is the hallmark of a multiplicitous indictment, which violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution," Williams wrote.
He continued, "The remedy for multiplicitous counts in an indictment is the dismissal of the count carrying the lesser maximum statutory penalty."
Peel is facing five years in prison for bankruptcy fraud and 20 years for the obstruction charge.