United States District Judge William Stiehl has set an evidentiary hearing Oct. 16 on former Lakin Law Firm attorney Gary Peel's motion in limine to suppress evidence to prevent federal prosecutors from introducing statements made by Peel in his proffer sessions of Jan. 31 and Feb. 14.
"In light of the fact that this motion, and the government's response raise factual and legal issues more in the nature of a motion to suppress, the court has determined that an evidentiary hearing on this motion is required," Stiehl wrote.
Peel contends that the government should not be allowed to introduce any of the tangible items consistent with his continuing obligation to cooperate.
According to court records, Peel was approached by an assistant U.S. attorney and two FBI agents at a restaurant in Glen Carbon.
Peel was asked whether or not he was willing to cooperate in the investigation. He agreed but asked for a lawyer to be present.
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 claims the evidence is privileged.
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.
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.
"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 wrote.
"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."
In March Peel was indicted by a federal grand jury on charges of bankruptcy fraud, obstruction of justice and two counts of possession of child pornography.
Peel, 62, of Glen Carbon, and his ex-wife, Deborah J. Peel, of Maryville, had been embroiled in stalled divorce settlement proceedings since their 36-year marriage ended in 2003.
He filed bankruptcy on July 22, 2005, two weeks after a judge ordered Peel's second wife to appear for a deposition by his ex-wife.
The bankruptcy court has stayed the divorce proceedings.
On Feb. 6, Deborah J. Peel sought an order of protection against her ex-husband at a Madison County hearing before Associate Judge Nelson Metz. Ms. Peel testifed that Gary Peel stuck sexually explicit photos in her mailbox to prove he carried on with her 16-year-old sister 32 years ago.
According to Ms. Peel, Gary Peel offered to surrender the original photos if she would drop her demand for a deposition of his current wife, Deborah Pontious-Peel.
Deborah J. Peel told Metz her attorney called the U.S. Attorney and put her in touch with the Federal Bureau of Investigation.