United States Attorney Kevin Burke filed a supplemental brief in response to attorney Gary Peel's motion to suppress tangible items in federal court Oct. 30.
Peel asked District Judge Bill Stiehl 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.
A former Lakin Law Firm class action litigator, Peel was indicted in March on federal bankruptcy fraud, obstruction of justice and child pornography charges.
He 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.
In his supplemental brief, Burke asks Stiehl to deny Peel's motion to suppress purely on legal grounds because there is a well-developed record demonstrating Peel's lack of candor during the Jan. 31 proffer.
Burke said Peel was obliged to be "completely truthful" during his proffer discussion but did not live up to his obligation.
According to Burke, Peel's lack of candor falls into four areas:
At the evidentiary on Oct. 16, special agent Jonathan Kelly testified that Peel was asked whether he had made any other copies of the photographs besides the copy that he admittedly placed in his ex-wife's mailbox.
Kelly testified that Peel was specifically told that the government needed to know, for the sake of D.R., that there were no other copies of the photographs made. Agent Kelly testified that Peel said that no other copies were made.
"This statement is demonstrably false. Other copies were made, and they were made by Gary Peel," Burke wrote.
Another FBI agent testified that she found copies in the trash can in Gary Peel's office in the early evening of Jan. 31.
"Further, in a February 14, 2006 proffer discussion, Gary Peel admitted that he had made other copies, a direct contradiction to his January 31, 2006 proffer statement," Burke wrote.
Burke said based upon the defense cross-examination of government witnesses, it is anticipated that Peel may emphasize that these copies were of low quality.
"Gary Peel was not asked to inform the Government of only high quality reproductions, nor was Gary Peel asked to only talk about copies that he had not thrown away," Burke wrote.
"Gary Peel was asked whether he had made any other copies. Peel was obliged to answer questions truthfully and completely, not selectively and not subject to his own discretion as to what the government needed to know," Burke added.
"If a woman knew of stray copies of pornographic images from her sixteenth year, it would be cold comfort that the copies were low quality," he wrote.
Burke said Peel did not have the right to decide that the government did not need to know about these copies simply because they were low quality.
Burke also stated that he anticipates Peel will testify that he simply forgot about the underage nude photos he had in the trash at the Lakin Law firm in Wood River.
"While it is true that Gary Peel was cavalier in his treatment of the pictures and D.R.'s privacy, his carelessness does not equal forgetfulness," Burke writes.
Burke claims Peel had plenty of time over the course of the proffer and his private consultations with his attorney to remember that he had discarded pictures in his office.
"Agent Kelly testified that Peel expressed confidence that nothing would be found at his office," Burke wrote. "It is not a plausible inference that Gary Peel simply forgot about the pictures in his office."
Burke also pointed out that if Peel did not forget about the pictures, one may question what he was thinking when he agreed to a search of his office.
"People consent to searches that they know could reveal incriminating evidence with astonishing frequency," Burke wrote. "Gary Peel may have expected that his trash would have been emptied by the time of the consent search."
"Peel would certainly have preferred a low visibility consent search to the higher visibility potential of a search warrant executed at his law office," Burke added.
"It is a much more plausible inference that Gary Peel was trying to control the situation and hoped for the best."
Burke wrote that during the search of his office, Peel responded to questions with sarcasm and with misdirection when asked by FBI where they should look for photos.
As far as the legal issue, Burke states that Peel is relying on the Hubbell case to suppress evidence.
"Webster Hubbell was between the hammer and the anvil," Burke wrote. "He was immunized and therefore forced to testify as to the documents he was compelled to provide."
"Gary Peel was not between the hammer and the anvil. He was not forced to give any statement. He was free to leave at any time. He had counsel and could have chosen, with benefit of counsel's advice, to terminate the proffer at any time. Unlike Hubbell, Peel was not compelled to give statements. Unlike Hubbell, Peel chose to give a statement. Unlike Hubbell, if Peel had chosen not to provide statements, he would not have been jailed for contempt."