(CN) – The 7th Circuit ordered the resentencing of a former attorney convicted of blackmailing his ex-wife into dropping her bankruptcy claim in exchange for the return of nude photographs of her 16-year-old sister. The court said Gary E. Peel could be convicted of bankruptcy fraud or obstruction of justice, but not both.
A jury convicted Gary E. Peel of bankruptcy fraud, obstruction of justice and possession of child pornography after he used the photos, which he took during an affair with his ex-wife’s sister, as leverage to get his ex-wife to drop her bankruptcy claim against him.
Peel had the affair in 1974, when his sister-in-law was 16 years old.
Peel and his wife divorced in 2003, and Peel tried to get their divorce settlement vacated a year later. He then filed for bankruptcy and asked the court to discharge his alimony payments to his ex-wife.
She responded by filing a claim for the $2,500 per month he owned her under the divorce settlement.
Peel then told her about nude photographs he’d kept of her sister and threatened to release them if she didn’t drop her bankruptcy claim.
With the help of police, Peel’s ex-wife recorded his various blackmail attempts over the phone and in person.
Peel was convicted on all three counts and sentenced to 12 years in prison.
On appeal, he successfully argued that his bankruptcy fraud and obstruction of justice convictions violated the double-jeopardy clause of the Fifth Amendment, because one offense is included in the other.
“This is like a case in which a person is tried for both murder and attempted murder,” Judge Richard Posner wrote for the three-judge panel. “The elements are different, but since conviction for murder automatically convicts the defendant of attempted murder (for there can be no murder without attempting the deed), the defendant cannot be convicted of both crimes.”
A person can’t commit bankruptcy fraud without committing obstruction of justice, Posner said.
He left it up to the trial court to vacate one of the convictions, recalculate the intended loss and resentence Frazier.