Gary Peel
Awaiting a June 12 trial on bankruptcy fraud, obstruction of justice and child pornography charges, attorney Gary Peel is asking for separate trials so that his right to a fair trial is not unduly prejudiced.
Peel's public defender, who said his client would be taking the Fifth Amendment on child pornography charges, argued that a jury would not be able to "properly weigh" evidence without also considering "highly prejudicial allegations of fraud."
Peel, a former Lakin Law Firm class action attorney, is charged in a four-count indictment. Counts I and II allege bankruptcy fraud and obstruction of justice in connection with his bankruptcy proceeding while counts III and IV allege possession of child pornography.
"Exposing the jury to the allegations of fraud and obstruction in Counts I and II will infect the jury's ability to fairly weigh the evidence in Counts III and IV," Peel's federal public defender Stephen Williams writes.
"Mr. Peel will be further prejudiced by the fact that at this time, he elects not to testify concerning the child pornography charges."
"Peel would, if tried separately, testify in his own defense concerning the allegations of fraud and obstruction of justice."
"Mr. Peel requests this court exercise its discretion in granting the requested severance due to the prejudice he will suffer from the government's allegations in counts I and II when attempting to fully and completely defend himself on counts III and IV."
Williams claims that counts III and IV allege Peel had in his possession a single picture, but two copies, of the photo which the government contends constitutes a lascivious display of a minor's pubic area.
In order for an image to constitute child pornography, it must contain what the statute defines as "sexually explicit conduct."
"There can be no debate that the image in question does not fall within any of the first four categories of depictions that can constitute sexually explicit conduct," Williams wrote.
"The image does not depict sexual intercourse, masturbation, bestiality or sadomasochistic behavior. In fact, the image does not contain any depiction of actual sexual activity."
"The image does, however, depict the pubic area of the individual pictured."
"Thus, the government's case in Counts III and IV will hinge, to a large degree, on whether it can prove that the image in question does, in fact, depict a minor, and further, whether it contains the "lascivious exhibition" of the pubic area. The defendant asserts that it does not."
"The prejudice to Mr. Peel in trying all four counts together is plain," Williams writes.
"The jury, while being asked to consider the objective question of the nature of a single image will, at the same time, be infected by the government's allegations of fraud and obstruction."
"In other words, it will be unable to properly weigh the factors relevant to counts III and IV without also having to consider the highly prejudicial allegations of fraud."
Williams also claims that the prejudice is heightened by the fact that the government's allegations of fraud are wholly irrelevant to the nature of the image forming the charge in Counts III and IV.
"If these counts had been brought in separate indictments, the evidence concerning the allegations in Counts I and II would be inadmissible and evidence of other acts under Rule 404(b) of the Federal Rules of Criminal Procedure," Williams wrote.
"Here, a joint trial on all counts would allow the jury to consider this otherwise inadmissible evidence."
Williams also claims that Assistant U.S. Attorney Kevin Burke will be able to cross examine Peel on the entire case when Peel would be able to invoke the Fifth Amendment as to the child porn charges.
"Certainly the fact that he may wish to offer testimony as to some counts but not others would not, standing alone, warrant reversal on appeal," Williams writes.
"Mr. Peel recognizes that it is difficult for the Court to weigh this prejudice at this time not having heard the testimony, he submits that, in the interest of justice, the prudential course of action at this time would be to order severance before the full impact of this prejudice comes to fruition."
Bankruptcy fraud carries a maximum statutory penalty of up to five years imprisonment, a fine of up to $250,000, and up to one year supervised release.
Obstruction of justice carries a maximum statutory penalty of up to 20 years' imprisonment, a fine of up to $250,000, and up to three years' supervised release.
Possession of child pornography carries a maximum statutory penalty of up to 10 years' imprisonment, a fine of up to $250,000, and up to three years' supervised release.