The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant's motion in limine (Doc. 28) to which the government filed a response (Doc. 34). The Court, having previously indicated that the motion is really more in the nature of a motion to suppress, held an evidentiary hearing on the motion and took the matter under advisement pending further briefing by the parties. The post-hearing briefs have now been filed and the matter is ready for ruling (See, Docs. 46 and 47).
In his motion the defendant asserts that on January 31, 2006, he was approached by an Assistant United States Attorney and two Special Agents of the Federal Bureau of Investigation at a restaurant in Glen Carbon, Illinois. He was advised that he had been implicated in criminal activity, and after briefly being questioned in a parked car at the restaurant, he drove himself to the United States Attorney's Office in Fairview Heights, Illinois where he agreed to cooperate with the government. At that time he entered into a standard proffer agreement used by the United States' Attorney's Office, which detailed the nature of the cooperation agreement (Exhibit 1 to Doc. 28). The defendant gave two statements to the government. The first occurred on January 31st, as detailed above, and the second on February 14, 2006.
The defendant claims that he cooperated fully and truthfully answered all questions posed to him to the best of his ability. He asserts, therefore, that under the terms of the cooperation agreement (the proffer letter), this Court should enter an order precluding the government from introducing in its case in chief any and all oral statements and admissions made by the defendant. In addition, the defendant seeks to preclude the admission of tangible items which Peel produced in accordance with his cooperation agreement. In addition, the defendant seeks to preclude the government from introducing any of the tangible items which were produced by Peel as part of his cooperation agreement.
EVIDENCE ADDUCED AT THE HEARING
The government introduced the testimony of two Special Agents of the Federal Bureau of Investigation, Jonathan Kelly and Melanie Jiminez. Special Agent Kelly testified that he received a call on January 20, 2006, from Assistant United States Attorney Jerry Burke about a possible bankruptcy fraud case involving photographs being placed in the mail. At that time, the criminal division of the United States Attorney's Office became involved in the investigation. The investigation revealed that on January 20, 2006, the defendant and his former wife, Debbie Peel, had a meeting where four color photographs of Debbie Peel's sister, which had been photocopied on a piece of paper, were discussed. Debbie Peel then contacted the United States Attorneys Office. She then met with Assistant United States Attorney Kevin Burke and Special Agent Kelly. Kelly took custody of the photocopied photographs at that time.
The defendant acknowledged at the January 31, 2006, proffer that he had placed the photocopied photos in a manilla envelope marked"Confidential. Debbie Peel," in her mailbox. There were also legal documents placed in the mailbox of Debbie Peel. The manilla envelope contained nude photographs of Debbie Peel's sister, Donna Rogers. Debbie Peel agreed to consensual monitoring of telephone conversations with the defendant and the first recorded call occurred on January 25, 2006. The photographs and the bankruptcy action were both discussed in this call and the two agreed to meet on January 31st where the defendant was to give Debbie Peel the photographs in exchange for a signed settlement agreement.*fn1 This recorded conversation between the defendant and Debbie Peel included a plan that both would view the original photographs, they would then be placed an envelope, which was to be sealed and both would sign and date the envelope. Based on the recorded conversations, the government obtained two anticipatory search warrants, one to search the defendant and the other to search his vehicle. The warrants were based upon the defendant showing up at the pre-arranged meeting place with Debbie Peel, at Hardee's in Glen Carbon, Illinois. There was also a separate search warrant for defendant's law office at the Lakin Law Offices in Alton, Illinois.
The January 31st meeting occurred, and their approximately 45 minute discussion was recorded on a digital recorder concealed in Debbie Peel's purse. As soon as the defendant left the Hardee's he was approached by FBI Special Agents Kelly and Tyrone Forte. The defendant was asked to voluntarily speak with AUSA Kevin Burke. He agreed, and was given an opportunity to call an attorney. He called several attorneys. He was asked to turn over the pictures of Donna Rogers which he had with him. His answer was that if he "hypothetically" had pictures of a "hypothetical nude girl" he would decline to hand them over at that time. With that response, they executed the warrant for the search of his person. At that point, Peel reached into his pocket and pulled out the sealed envelope which contained the five photographs. The envelope had both Deborah J. Peel's and Gary E. Peel's signatures on the outside flap and the date of 1-31-06. The search warrant for his car was also executed and bankruptcy and divorce papers were taken from four boxes in the back of the car.
The defendant was taken back to the United States Attorney's Office in Fairview Heights, Illinois, where he was met by his then attorney, Clyde Kuehn. At the office, the defendant, after being given an opportunity to talk with his attorney, signed a proffer letter and gave a statement to officers and prosecutors. A main concern of the proffer was whether there were other copies of the photographs, and the defendant, when asked, indicated that there were no other copies. He also indicated that there were no pictures at his office. In addition, he was asked if he had sent threatening mail to Debbie Peel's residence, which he denied doing. He also denied threatening to send copies of the photographs to Debbie Peel's parents. This statement is in contrast to the recorded conversations between the defendant and Debbie Peel.
The proffer agreement was based on truthful cooperation. Based on what appeared to to them to be a candid proffer at the time, the agents called off other agents who were on standby to execute the search at the law office. The defendant indicated that the copies had been made on his printer at home, which he agreed to turn over to the agents. In addition, he consented to a search of his office. Based on his representations, the agents did not believe that there were any photographs at his office at the Lakin Law Firm in Alton, Illinois. Peel did indicate that the copies had been with him at his office, but before that had been kept at his home. This differed from the recorded conversations, where he indicated to Debbie Peel that he had kept those photographs at his office. He indicated that the pictures had actually been taken at his former office at Reed, Armstrong, Gorman and Coffey, but that he had later stored them at his office at Peel, Beatty and Motil.
The defendant also indicated that he had made no other copies of the photographs, and that there were none in his office at the Lakin Law Firm. This, however, turned out to be a false statement, because Special Agent Jiminez testified that during the search of his office at the Lakin Law Firm she found torn up pieces of photographs the trash can in the defendant's office. The search occurred after his proffer, when the defendant went to his office to meet the agents for the search. A consent to search form was executed by the defendant, who then attempted to limit the search to just photographs. Jiminez testified that the defendant was specifically asked if he knew where any photographs they were looking for might be located, and he pointed to his credenza which had several framed family photographs. She stated that he was behaving arrogantly and when the torn up photographs were found he was not happy. After the search of the office, Agent Kelly met the defendant at his home where he turned over his printer. In light of the photos that were found in the office, two additional search warrants were obtained, one for his residence and the other for his office. These warrants were served on February 3, 2006. No additional photographs were found.
On February 14, 2006, the defendant and his attorney went to the United States Attorney's Office for a second proffer. At that time the photographs found at the office were discussed. He indicated that he had attempted to make copies, but that the first couple of tries were not successful and he ripped up the photos and put them in the trash.
The proffer letter provides that the defendant's statements to the government will be "offthe- record" and that no statement of information provided by the defendant will be used against him at trial. It further provides that the government may make derivative use of any information revealed during the proffer and pursue any investigative leads. It further provides that if the defendant is a witness in any future trials and provides testimony that is materially different from that provided during the proffer, the government may cross-examine the defendant about the differences. It also includes the following language, "Your client should understand that by agreeing to make an 'off-the-record' proffer your client waives the right to any Kastigar-type objection and, by extension, to a Kastigar hearing." Further, "you should know that before any offer is accepted, the government will assess whether your client was completelytruthful during the 'off-the-record' proffer or discussion. The determination of whether your ...