United States District Judge William Stiehl denied attorney Gary Peel's motions to dismiss charges of obstruction of justice, bankruptcy fraud and child pornography.
Peel, a former Lakin Law Firm attorney, filed motions to dismiss the charges leveled against him in March in a four-count federal indictment.
His assistant public defender, Stephen Williams, filed the motion to dismiss on July 28 claiming the child pornography statute under which Peel was indicted, is unconstitutional.
Peel is alleged to have taken nude photographs of his ex-wife's sister, D.R. in 1974 who was 16-years-old at the time.
On Oct. 3, Stiehl denied Peel's motions stating that the same actions can constitute an offense under two distinct statutes and can be prosecuted separately.
"In this case, it is not correct to say that every bankruptcy fraud is also an obstruction of justice case, nor is it correct to say that every obstruction of justice case amounts to bankruptcy fraud," Stiehl wrote.
"…defendant has not established that these charges are violative of double jeopardy."
In denying the child porn dismissal Stiehl wrote, "Even if the defendant's possession of the photographs was non-commercial and intrastate, it is, nonetheless, an activity that Congress has determined is prohibited, regardless of the defendant's subjective intent."
"Accordingly, the court finds that the charges related to the defendant's alleged possession of child pornography are not subject to dismissal under any theory advanced by the defendant."
Stiehl set an evidentiary hearing Oct. 16 on 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.
"The government contends that the image is lascivious," Williams wrote. "Gary contends that it is not. Either way, the image depicts a sexually mature young woman of indeterminate age."
Williams also noted that Peel's photos did not show minors engaging in sexual activity.
"Gary is not a pedophile and the government has not offered or alleged any facts to the contrary. Gary did not sell these images, trade these images, or at any time inject them into the stream of commerce for any reason at all," Williams wrote.
"Gary's possession of these images in no way fueled the interstate child pornography market nor could one thousand instances of possession similar to his. Gary does not collect or distribute child pornography."
Williams also argued that the woman in the photo Peel had in his possession was a sexually mature young woman and she could easily have been 25-years-old when the photo was taken.
Williams claims the statute Peel was charged under, 18 U.S.C. § 2252A(a)(5)(B), is unconstitutional in that it exceeds Congress' power under the Commerce and Necessary and Proper Clauses of the United States Constitution. U.S. Const., Art. I, § 8.
He filed a motion to dismiss Count I of the indictment -- bankruptcy fraud -- chaiming 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".
Williams wrote, "Gary Peel cannot be criminally liable under the government's theory of the case for the bankruptcy fraud under Count I without being guilty of obstruction of justice under Count II."
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 remedy for multiplicitous counts in an indictment is the dismissal of the count carrying the lesser maximum statutory penalty," he wrote.
The government argues
Assistant U.S. Attorney Kevin Burke wrote in response that Peel's motion to dismiss all charges "must fail."
"A single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause," Burke wrote.
Peel has claimed 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.
In order to prove fraud, Burke argues 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.
"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," Burke 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."