Attorney Gary Peel filed a supplemental brief in support of his motion to suppress evidence in an ongoing federal criminal case.
Peel asked District Judge William Stiehl to prevent federal prosecutors from introducing any and all oral statements and/or admissions he made in his proffer sessions of Jan. 31 and Feb. 14.
A former Lakin Law Firm class action litigator, Peel was indicted in March on federal bankruptcy fraud, obstruction of justice and child pornography charges. Among other things, he is accused of possessing nude photographs of his ex-wife's younger sister who was 16-years-old when the pictures were made.
Peel contends that the government should not be allowed to introduce any of the tangible items consistent with his continuing obligation to cooperate.
To proffer means to offer evidence in support of an argument, or elements of an affirmative defense or offense, often at trial. A party with the burden of proof must proffer sufficient evidence to carry that burden.
U.S. Attorney Kevin Burke asked Stiehl to deny Peel's motion to suppress purely on legal grounds because there is a well-developed record demonstrating Peel's lack of candor during the Jan. 31 proffer.
In his supplemental brief, Peel disagreed with the government that he was less than candid during his proffer, but claims the issue is irrelevant to the continuing duty of the government to honor its obligations pursuant to the proffer agreement.
Peel also notes the government has presented three separate factual theories as to how he was "less than candid."
"The theories advanced in its (government) filings are mutually exclusive and, in some ways, contradictory," Stephen Williams, Peel's federal public defender wrote. "In any event, Mr. Peel's candor is beside the point."
Williams also stated that Peel concedes that the proffer agreement is considered to be a contract and the information in the statement cannot be used against him in the government's case.
Williams claims there is only one limitation and it applies only to statements or positions that contradict the proffer during trial.
Williams also claims the proffer contains no obligation of candor or truthfulness.
"The assessment of Mr. Peel's truthfulness, according to the agreement, applies only to the government's decision of whether or not to make an offer of a plea agreement," Williams wrote.
Williams added, "There is nothing in the proffer agreement which suggests that it can be revoked by the government on the basis of 'lack of candor.'"
Burke responded by stating, "In the first brief on this issue, the defense preemptively emphasized the importance of candor when it asserted that Gary Peel was truthful in his proffer discussions."
Burke claims that under the proffer agreement the government was permitted to make derivative use of Peel's admission about a printer used in his office.
"Therefore, if Peel had then been compelled to produce the printer he still would not be entitled to suppression because the existence and location of the printer was then known," Burke wrote.
Burke said at that point, the question is not of testimony but of surrender and claims the surrender of the printer was not testimonial in nature.
"Nor could any torture of logic ever turn the search of an office by two agents (the search in which photographs were found) into the testimony of Gary Peel, especially considering that Peel then claimed that there were no photographs to be found in his office," Burke wrote.
Burke also claims Peel was told of the importance of making agents aware of any other copies of the photographs that had been made and was even asked directly whether any other copies had been made.
"Peel responded that no other copies had been made," Burke wrote. "This is a false statement which belies the defendant's catch-all claim that 'Mr. Peel disagrees with the government's assertion that he was less than candid.'
"This broad assertion utterly fails to account for the existence of the photographs found in Peel's office," Burke added.
Burke also adds, "Conversely, as the defense would have it, proffer agreements in the Southern District of Illinois do not require truthful statements because the proffer agreement does not explicitly state that the information needs to be truthful."
"But the government is not contracting to hear the sound of a person's voice or good storytelling," Burke added. "The government clearly contracts under a proffer agreement for truthful information. Providing false information during a proffer discussion is a breach of the contract."
Burke also claims Peel's supplemental filing "conspicuously" fails to address crucial factual and legal issues.
"The factual issues regarding Peel's threat to mail the photographs to his ex-wife's parents and his claim that he made no other copies of the photographs receives no treatment even though Agent Kelly's testimony on these subjects went uncontested," Burke wrote.
"The government has established that Gary Peel breached the proffer agreement by not providing candid responses to specific direct questions posed during the proffer," Burke wrote. "Further, the defense has failed to establish any legal basis for suppression of the printer and photographs."