Last week indicted attorney Gary Peel filed a motion to suppress evidence 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.
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.
On Aug. 16, 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.
According to Peel's motion to supress, 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.
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."
Burke countered, "Because Gary Peel was not compelled to provide any information, because he was not granted formal statutory immunity, because a proffer agreement is a voluntary, informal immunity agreement governed by the principles of contract law, because tangible items are not covered by that agreement, and because that agreement specifically excluded derivative use immunity, his motion must fail."
Burke claims Peel was providing information under an agreement from which he could have withdrawn at any time.
"Instead, Peel chose to speak and in so doing he also chose to mislead investigators," Burke wrote.
"It was Peel's misfortune when he consented to a search of his office, where he supposedly had not kept pictures, that the janitor had not been to his office that day to empty his wastebasket."