United States v. John McTiernan
2012 U.S. App. LEXIS 17473
| 9th Cir. | 2012Background
- McTiernan hired Pellicano in 2000 to conduct an illegal wiretap of two individuals, including a film producer.
- The Recording captured a discussion where Pellicano spoke with McTiernan about the wiretap and its contents.
- McTiernan initially pled guilty to a false statement to the FBI; later withdrew the plea and was reindicted on additional false-statement counts.
- McTiernan sought suppression of the Recording and sought recusal of Judge Fischer, with rulings adverse to him.
- After multiple proceedings, McTiernan pled again under a second plea agreement and was sentenced to 12 months and a $100,000 fine; the district court’s judgment was affirmed on appeal.
- The central issues on appeal were suppression of the Recording, any need for an evidentiary suppression hearing, and recusal of Judge Fischer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Recording must be suppressed under § 2515. | McTiernan argues Pellicano’s Recording was made for criminal/tortious purposes. | Government contends the Recording was not made to commit a criminal act; burden lies on McTiernan to show such purpose by preponderance. | Not suppressible; Recording not made for the purpose of committing a criminal or tortious act. |
| Whether an evidentiary hearing was required on suppression. | McTiernan would call witnesses to show Pellicano’s purpose was to remind himself of criminal acts. | Recordkeeping purpose, if any, was not enough to require a hearing; ruling was proper without one. | No abuse of discretion; evidentiary hearing unnecessary. |
| Whether Judge Fischer should be recused. | Judge Fischer showed hostility/partiality based on prior rulings and comments. | Rulings and comments did not show deep-seated bias; remand not required. | No recusal warranted; no disqualification. |
Key Cases Cited
- Moore v. Telfon Commc’ns Corp., 589 F.2d 959 (9th Cir. 1978) (recordings to protect oneself may be lawful under § 2511)
- Cassiere v. United States, 4 F.3d 1006 (1st Cir. 1993) (burden to prove purpose of recording by preponderance)
- Sussman v. Am. Broad. Cos., 186 F.3d 1200 (9th Cir. 1999) (focus on purpose of interception, not illegality of the act)
- Vest v. United States, 639 F. Supp. 899 (D. Mass. 1986) (distinguishes recording for extortion from benign recordkeeping)
- Lam v. United States, 271 F. Supp. 2d 1182 (N.D. Cal. 2003) (distinguishable; government conceded illegality in Lam)