Assistant U.S. Attorney Kevin Burke said it would take four days to make the government's case against attorney Gary Peel if charges of obstruction of justice, bankruptcy fraud and child pornography are presented in one trial.
Peel said he would need one or two days for his defense in a matter that could send him to prison for 35 years.
On July 5, District Judge William Stiehl heard attorney Peel's argument for separate trials. Peel claims his right to a fair trial is prejudiced if he cannot separate the child pornography charges. Court papers filed last month indicated Peel would assert his right to remain silent on allegations he possessed nude photos of his ex-wife's younger, underage sister.
After hearing the arguments, Stiehl took the matter under advisement and set deadlines for both sides.
Any additional motions must be filed by Aug. 1. The government will have until Aug. 16 to respond, while Peel will have until Aug. 29 to reply. After that, Stiehl will set a trial date.
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 Williams wrote in his motion for separate trials.
"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."
Burke said just because Peel wants to talk about the obstruction and fraud charges and take the Fifth on child porn charges is not sufficient to sever the four count indictment.
"Severance is not mandatory every time a defendant wants to testify on one charge and remain silent on another," Burke said.
He also pointed out that the fraud and obstruction charges relate to the child porn charges so even if severed, child pornography would come up and be admissable at trial.
Burke also pointed out that if severed, jurors would only hear Peel placed the photos in the mailbox, not the reason why they were placed.
He said jurors would have to speculate if his ex-wife wanted the pictures, expected the pictures, or why she was not charged with child porn herself.
"They (the jury) would wonder why she looked at naked pictures of her sister," wrote Burke.
"Gary Peel's possession and use of child pornagaphy is inextricably intertwined with, and tremendously probative of his fradulent and obstructive conduct," he said.