Judge Stiehl gives Peel unwanted Christmas present

Steve Gonzalez Dec. 31, 2006, 12:00pm

Gary Peel

United States District Judge William Stiehl denied former Lakin lawyer Gary Peel's motion to suppress evidence on Dec. 22.

Peel had sought to have the evidence suppressed after he unsuccessfully tried to convince Stiehl to dismiss the charges altogether.

Peel was indicted in March on bankruptcy fraud, obstruction of justice and two counts of child pornography.

Count I of Peel's indictment for bankruptcy fraud states, "Between on or about January 20, 2006, and on or about January 31, 2006, within St. Clair County, within the Southern District of Illinois, Gary Peel, did knowingly and fraudulently give, offer, receive, and attempt to obtain money and property, remuneration, compensation, reward, advantage, and promise thereof for acting and forbearing to act in a case under Title 11; all in violation of Title 18, United States Code, Section 152(6)."

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).

Counts III and IV claim Peel knowingly possessed child pornography and placed it in his ex-wife's mailbox and also had copies of the photographs in his possession.

He filed a motion in limine asking Stiehl to prevent federal prosecutors from introducing any and all oral statements and/or admissions made by Peel in his proffer sessions of Jan. 31, and Feb. 14.

In denying Peel's motion Stiehl wrote, "The Seventh Circuit has held that, 'A proffer agreement, . . . is considered to be a contract. Therefore, it must be enforced according to its terms.'"

Peel contended 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.

According to court records, Peel was approached by an assistant U.S. attorney and two FBI agents at a restaurant in Glen Carbon in January.

Peel was asked whether or not he was willing to cooperate in the investigation. He agreed but asked for a lawyer to be present.

Once Peel's attorney arrived (former appellate court judge Clyde Kuehn), the parties executed the standard proffer letter employed in the Southern District of Illinois on Jan. 31.

According to Peel, he answered all of the questions truthfully and to the best of his knowledge and allowed agents to search his office at the Lakin Law Firm and at his home in Glen Carbon.

Court documents show federal authorities seized one torn up picture, one HP printer cartridge, a printer strip, one crumbled piece of paper with Peel's name on top, and one piece of paper from his printer at the Lakin Law Firm.

Federal authorities seized a HP printer, copier, fax, photo smart all in one printer from his home.

Peel's public defender Phillip Kavanaugh wrote, "The Fifth Amendment to the United States Constitution guarantees that, '[n]o person . . .shall be compelled in any criminal case to be a witness against himself.' However, citizens can be compelled to waive the privilege or as part of a cooperation agreement waive it voluntarily."

"Given the fact that a Constitutional privilege is at stake, any surrender of that privilege requires that the protection of the privilege is co-extensive with the scope of immunity granted by the Court or the prosecutor," Kavanaugh continued.

"Peel provided evidence in the form of admissions, statements and tangible things which were required by his cooperation agreement," Kavanaugh wrote.

"Peel argues that this evidence is privileged."

Assistant U.S. Attorney Kevin Burke filed his response to Peel's motion.

"On the morning of January 31, 2006, agents and prosecutors obtained a search warrant for the office of Gary Peel at the Lakin Law Firm in Wood River, Illinois, and two anticipatory search warrants for the person and vehicle of Gary Peel," Burke wrote.

"Later that morning, the conditions of the anticipatory warrants were met when Gary Peel met his ex-wife at a fast food restaurant in Glen Carbon, Illinois, to show her the original pictures that he was using in his attempts to blackmail her into altering her course in Bankruptcy Court," he wrote.

According to Burke, after Peel's meeting, federal agents approached Peel and asked if he would speak to a prosecutor. Burke told Peel that he was free to go and asked whether he was willing to cooperate.

Burke claims Peel called an attorney and arranged to meet him at the U.S. Attorney's office in Fairview Heights.

Burke also claims he asked Peel if he would surrender the pictures he was carrying.

According to Burke, Peel responded that if he "hypothetically" had a picture of a "hypothetical" girl, that he would like to consult with an attorney. When asked again whether he was going to hand over the pictures, Peel responded that his response was "deferred."

"Agents executed the warrant for Peel's person and an envelope containing pornographic, original pictures of D.R. were seized. A warrant was also served for Peel's vehicle and documents were seized," Burke wrote.

Once Peel's attorney arrived (former appellate court judge Clyde Kuehn), the parties executed the standard proffer letter employed in the Southern District of Illinois on Jan. 31.

"During proffer discussions, Peel indicated that he had copied the pictures on a printer/scanner at home, but that he had never had the pictures at his office," Burke wrote.

"When asked if he would consent to a search of his office, Peel agreed. Therefore, agents did not execute the warrant for Peel's office," Burke wrote.

Burke also claims Peel agreed to turn over the printer/scanner from his home.

According to Burke, later in the evening agents met Peel near his office and he gave them written permission to search his office.

When agents asked where they should look, Peel started pointing to family photos on the wall saying "there's a picture, and there's a picture."

"The search was almost concluded when an agent noticed something in the trash can. The agent noticed that Peel immediately lost his confident demeanor," Burke wrote.

"The agent found torn pieces of photographs which she partially assembled enough to determine that the pictures were pornographic. The pictures were later assembled and determined to be the same four pictures of D.R. that were on the piece of paper that Peel had placed in his ex-wife's mailbox," he wrote.

"Faced with the fact that Peel had not been truthful with agents and prosecutors in his proffer discussions regarding never keeping photographs of D.R. at his office, warrants were sought and obtained for Peel's office and home for visual depictions of D.R. on either computer or film," Burke wrote.

Stiehl also wrote in his order denying Peel's motion, "When reviewing a contract, the Seventh Circuit has held that courts should interpret the contract as a whole and construe the language therein according to its plain and ordinary meaning."

"Clearly, the purpose of the proffer agreement, and indeed of the entire process of proffering, is to give the defendant the opportunity to cooperate with the government in exchange for a plea agreement," Stiehl wrote. "By its very nature, the proffer process is clearly based upon the premise, and its language ensures, that the defendant, in entering into the proffer, understands that cooperation and candor are critical to the acceptance of his offer to talk in exchange for the government's consideration of a plea."

Stiehl said that the government retains the exclusive ability to determine, indeed to judge, the level of candor which occurs during the proffer process.

Stiehl also said the evidentiary hearing revealed Peel was certainly less than candid during his proffer.

"He clearly did not tell the truth with respect to the existence of other copies of the photographs in question," Stiehl wrote. "Under any plain understanding of the term candor, the defendant simply did not satisfy his obligation under the proffer agreement."

He continued, "It is irrelevant what the defendant's motivation was for not being fully truthful. Whether he had expected the photographs to be removed from the trash before the search by the agents simply does not change the fact that copies of the photographs existed, and he denied that fact."

"Put simply, when a defendant enters into a proffer agreement he has an obligation to be truthful, and the government is in the position to determine the level of truth and candor that occurred during the proffer," Stiehl wrote. "The Court should not, and will not, interfere with that determination."

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