In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2776
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ARY E. P EEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:06-cr-30049-WDS-1—William D. Stiehl, Judge.
S UBMITTED JANUARY 10, 2012—D ECIDED F EBRUARY 6, 2012
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. A jury convicted the defendant
of bankruptcy fraud, obstruction of justice, and posses-
sion of child pornography, and the judge sentenced him
to a total of 144 months in prison (60 months for bank-
ruptcy fraud, 144 months for obstruction of justice, and
120 months for possession of child pornography, with
all the sentences to run concurrently). He appealed,
challenging both the conviction and the sentence. In
2 No. 11-2776
our opinion deciding that appeal, 595 F.3d 763 (7th Cir.
2010), we affirmed in part and reversed in part, and
remanded the case with directions that the district judge
vacate either the bankruptcy fraud conviction or the
obstruction of justice conviction, recalculate the intended
loss, redetermine the guidelines sentencing range, and
resentence the defendant in accordance with 18 U.S.C.
§ 3553(a). On remand the district judge followed our
directions and imposed the same total prison sentence
but reduced the special assessment by $100. The de-
fendant again appeals.
The defendant’s briefs either reargue issues decided
in the first appeal or present arguments that could
have been but were not made in that appeal. The new
appeal is thus an untimely petition to rehear our
previous decision (as well as a successive petition to
rehear—he had filed a timely petition to rehear that had
been denied). When a case is remanded, an appeal taken
from the judgment entered on remand is limited to issues
that could not have been raised in the prior appeal. A
defendant “cannot use the accident of a remand to raise
in a second appeal an issue that he could just as well
have raised in the first appeal.” United States v. Parker,
101 F.3d 527, 528 (7th Cir. 1996). The defendant’s counsel
offers no excuse for filing such an improper appeal, and
indeed seems oblivious to its impropriety.
Vacating the defendant’s conviction for obstructing
justice (which we ordered for double jeopardy reasons)
did not provide a compelling reason for a shorter sen-
tence; the defendant did obstruct justice, and that was
No. 11-2776 3
a proper consideration in sentencing him. Nor does
the defendant argue otherwise.
We instructed the district judge to knock $611,000 off
his estimate of the intended loss from the bankruptcy
fraud. He did so, and as a result reduced that sentence
from 60 to 24 months. The new sentence was actually
below the guidelines range for that count (51 to 63 months,
although the statutory maximum was 60 months), and
even though it was made consecutive to the child pornog-
raphy sentence, the defendant’s overall sentence was
within the adjusted combined guidelines range (135
to 168 months) for when there are multiple counts
of conviction. U.S.S.G. §§ 3D1.4, 5G1.2(d) and Applica-
tion Note 1. The defendant does not challenge the new
sentence for bankruptcy fraud.
The judge vacated the sentence for obstruction of
justice (to which of course the defendant does not ob-
ject), and reimposed the 10-year sentence for the child
pornography counts (there were two, one for images
placed in his ex-wife’s mailbox and one for images
found in his office garbage can), the maximum sen-
tence for the offense. See 18 U.S.C. §§ 2252A(a)(5), (b)(2).
Wanting to give the defendant the same total prison
time as previously, this time the judge, as we have
noted, made the sentence for bankruptcy fraud run con-
secutively to the sentence for child pornography, so that
the total prison sentence was again 144 months. The
appeal does not challenge the judge’s action in making
the new, lower sentence for bankruptcy fraud consecutive.
The defendant’s briefs ignore the actual grounds for
the remand and the adjustments the judge made in
4 No. 11-2776
resentencing the defendant (vacating the conviction
and therefore the sentence for obstructing justice,
reducing the sentence for bankruptcy fraud, and making
the new sentence run consecutively to rather than con-
currently with the reimposed sentence for possession
of child pornography). The appeal challenges only the
conviction and sentence on the child pornography counts.
We upheld both that conviction and the identical sen-
tence in the first round. Nothing has happened to
justify revisiting either ruling. The only challenge the
defendant made in his first appeal to the sentence as
distinct from the conviction was to an enhancement
for “distribution [of child pornography] for pecuniary
gain,” U.S.S.G. § 2G2.2(b)(3)(A), and we rejected the
challenge. All that has changed since is the statement
that the defendant made before being sentenced (his
“allocution,” as it is called); it was less remorseful on
the second round than on the first, and that is putting
it mildly—the second statement was bumptious, defiant,
and devoid of acknowledgment of wrongdoing. It
would have justified a longer sentence on the child-por-
nography counts had that been possible. (It was not,
because, as we said, he received the maximum sentence.)
And the judge could easily have given him a longer
total sentence by giving him a longer consecutive sen-
tence for bankruptcy fraud; he gave him 24 months on
remand—the statutory maximum is 60. The only
changed circumstance—the defiant allocution—under-
mines rather than supports the defendant’s challenge
to the sentence reimposed on remand.
No. 11-2776 5
We could stop here, but will address the defendant’s
remaining arguments regarding the child pornography
counts briefly.
In 1974 the defendant began having sex with his 16-year-
old sister-in-law. In the course of the affair, which
lasted several months, he took nude photographs of her
that the jury in the present case (he had not been prose-
cuted earlier with respect to the sex or the photographs)
found were sexually explicit within the meaning of
the child pornography statute.
Many years after the affair he and his wife divorced,
and made a marital settlement over which they later
quarreled. In the course of negotiations to resolve
their differences the defendant tried to blackmail her
with the nude photographs of her sister, many of which
he had retained. He hoped by doing so to induce her
to agree to a modification of the marital agreement
that would have reduced his long-term obligations to
her by some three-quarters of a million dollars. Instead
of knuckling under to his demands she complained to
the police, and an investigation ensued that led to his
prosecution and conviction.
As we explained in our first opinion, at the time
the defendant took the photographs the federal statute
under which he now stands convicted had not been
enacted. When it was enacted, in 1978, it defined “child” as
a minor under the age of 16, and the sister-in-law was
16 when she was photographed. But the defendant
was convicted of possessing child pornography during
2005 and 2006, and the statute had been amended in
6 No. 11-2776
1984 to raise the cut-off age to 18. In the first round
we rejected his argument (made for the first time in
that appeal rather than at his trial, see 595 F.3d at 770,
and therefore forfeited) that the statute grandfathers
the possession of pornography that was legal when it
was created. If accepted the argument would have the
ridiculous consequence of allowing a person who hap-
pened to possess pornographic photographs of 16- and 17-
year-olds taken before 1984 to market them, giving him
a market that being shielded from new competition
would offer substantial profit opportunities because
after 1984 there could be no further legal production
or possession of such pornography. He would enjoy
the same kind of quasi-monopoly as someone who pos-
sesses paintings by a successful artist when the artist
dies prematurely, which by freezing his output pushes
up the price. Or as someone who possesses “pre-ban”
elephant ivory (meaning ivory acquired before the Con-
vention on International Trade in Endangered Species
barred the importing and exporting of ivory). It’s no
longer legal to sell ivory domestically unless it was im-
ported before the ban—and there’s no such “unless”
exception in the child-pornography statute.
The defendant argues that to use the money he hoped
to save by blackmailing his ex-wife as a measure of
“pecuniary gain” from the photos was improper because
that money was not a measure of their “retail value,”
which is how the guidelines tell the sentencing judge
to calculate pecuniary gain. U.S.S.G. § 2G2.2(b)(3)(A).
That is another argument that we rejected in the first
No. 11-2776 7
appeal, noting that the defendant had been offering to
sell the pornographic photographs to his ex-wife in ex-
change for forgiveness of part of his debt to her under
their marital settlement agreement, and that while the
primary aim of the enhancement for pecuniary gain is
to discourage trafficking in pornography, which in-
creases the incentive to create pornography and thus
the amount of child pornography and the number of
abused children (the “models” for the photographs), the
use of pornography for blackmail was not obviously less
evil than its sale in the open market, or indeed materially
different from such a sale. It is hard to see why selling
one pornographic photo to each of (say) five people
deserves a heavier punishment than selling five photos
to one person, especially given the underlying concern
with the harm to the minor depicted in the photographs.
Anyway, all that “retail value” means is price obtained
from a sale to the ultimate purchaser, as distinct from
a sale made higher in the chain of distribution, as by a
wholesaler to a retailer (necessarily at a lower price
than the retailer will resell the product for, to cover
his cost). The defendant’s ex-wife would have been the
ultimate purchaser of the photos had she submitted to
his attempt at blackmail. She would have been their
retail purchaser for a price of some $750,000 in forgone
future income under the marital settlement. That she
would have destroyed the photos does not mean she
hadn’t bought them; she had acquired them for money.
A publisher of a book found to contain plagiarized
material might decide as a public relations gesture to
8 No. 11-2776
buy back copies from the persons who had bought
them, and having done so destroy the copies; still the
publisher would have bought them at retail.
The current appeal, besides repeating arguments
made in the previous one, argues that to punish the
defendant for the illegal possession of child pornog-
raphy legal when he created it violates both the free-
speech clause of the First Amendment and the ex post
facto clause of Article I. Those are frivolous arguments,
as well as arguments that he forfeited by failing to
raise them in the first appeal.
His final argument, and the one he presses with the
greatest vehemence, though it was also forfeited by
not having been raised in the previous appeal, is that
this is so atypical a child pornography case that the
sentence is unreasonably severe. For all he had done,
he argues, was to have sex with an “adult,” take some
risqué pictures, and retain them. He had never dis-
tributed them, even after his blackmail attempt failed.
A 16-year-old is not an adult; and in the first appeal
the defendant rightly did not argue that because the
photos of his sister-in-law were not criminal when he
took them they could not constitute sexual abuse of a
minor. In fact under Illinois law in 1976 the sister-in-
law was a child and in having sex with her the
defendant was guilty of contributing to the sexual delin-
quency of a minor, Ill. Rev. Stat. 1967, ch. 38, ¶ 11-5;
People v. Keegan, 286 N.E.2d 345, 346 (Ill. 1971), a misde-
meanor form of statutory rape. The law has since been
amended to make the kind of conduct in which he
No. 11-2776 9
engaged a felony. See 720 ILCS 5/11-1.60(d), (g). When
one considers the ugliness of the defendant’s criminal
affair with his 16-year-old sister-in-law, the gross impro-
priety of his making and retaining (for decades) nude
photographs of her, his use of those photographs to
blackmail the girl’s sister (his ex-wife), the very large
financial gain that he anticipated from the blackmail,
the fact that he is a lawyer, the effrontery of his allocution,
and the fact that we had already upheld his 10-year
sentence for possession and distribution of child pornog-
raphy, we can find no basis for criticizing the sentence
that the judge reimposed, let alone for vacating it.
A FFIRMED.
2-6-12