"The defense motion must fail," assistant U.S. Attorney Kevin Burke wrote in response to attorney Gary Peel's July 28 motion to dismiss charges of child pornography, obstruction of justice and bankruptcy fraud.

Peel's assistant public defender Stephen Williams filed a motion to dismiss charges filed against him claiming the child pornography statute under which Peel was indicted, is unconstitutional.

Williams also filed a motion to dismiss Count I of the indictment -- bankruptcy fraud -- claiming 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".

"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.

"The same actions can constitute an offense under two distinct statutes and can be prosecuted separately under each statute as long as the statutes do not define a single offense," Burke countered citing Blockburger v. United States, 284 U.S. 299, 304.

"A single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause," Burke wrote.

Peel claims the remedy for multiplicitous counts in an indictment is the dismissal of the count carrying the lesser maximum statutory penalty.

"Despite the overlap in evidence, the charges of Bankruptcy Fraud and Obstruction of Justice as charged in the Indictment each require proof of an element that the other does not, and no legislative intent suggests a contrary congressional will," Burke wrote.

Burke claims for the bankruptcy fraud the government must prove Peel bribed his wife when he offered property for her to act or fail to act in the bankruptcy proceeding.

Under the obstruction of justice charge, Burke claims the government is not proving a bribe, but rather something different, namely, that Peel attempted to obstruct, influence or impede the proceeding.

"The fact that the elements of these offenses with which the defendant is charged are so obviously different on their faces is sufficient to pass the Blockburger test.

"Each offense obviously includes an element that the other does not," Burke wrote. "Proving a bribe and proving the obstruction of a proceeding are different.

"Peel could be acquitted of one charge and convicted on the other. Peel could argue, and perhaps some jurors could agree, that his attempts to merely 'divest himself of the images in the course of settling a personal dispute with his wife arising in a bankruptcy proceeding' as he has innocuously styled his actions, were not corrupt and obstructive actions within the meaning of the Obstruction of Justice statute, and yet still met the elements of a bribe."

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