United States v. Terry Christensen
801 F.3d 970
| 9th Cir. | 2015Background
- Anthony Pellicano ran Pellicano Investigative Agency (PIA) supplying private investigative services, many illegal: bribing LAPD officers for database access, procuring cable-pairing data to install wiretaps, and recording conversations with custom software (Telesleuth).
- Co-defendants included LAPD Officer Mark Arneson (accessed confidential law‑enforcement databases), SBC employee Rayford Turner (obtained cable‑pairing/subscriber info via company employees), developer Kevin Kachikian (built Telesleuth), clients Terry Christensen (attorney who hired PIA to wiretap Lisa Bonder) and Abner Nicherie (hired PIA to wiretap Ami Shafrir).
- FBI searches in 2002–2003 seized recordings and data; a grand jury returned a multi‑count indictment charging RICO, wiretapping, CFAA offenses, identity theft, honest‑services fraud, and related counts. Trials produced multiple convictions and varied sentences.
- On appeal the Ninth Circuit affirmed most convictions but vacated certain CFAA‑based convictions (and related convictions), vacated Nicherie’s aiding‑and‑abetting wiretap conviction, and ordered resentencing where necessary; remanded vacated counts for further proceedings.
- Key legal issues addressed on appeal: sufficiency of RICO enterprise; state‑law bribery as RICO predicates; honest‑services fraud after Skilling; CFAA scope post‑Nosal; jury instruction and privilege/Zolin handling; juror dismissal for alleged nullification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of RICO enterprise (knowledge of enterprise scope) | Gov't: Arneson, Turner, Pellicano formed an associated‑in‑fact enterprise; payments, coordinated acts, and overlaps show awareness of essential nature | Defendants: Arneson and Turner didn’t know of each other’s roles so no single enterprise | Affirmed: Evidence supported that each knew the enterprise’s essential nature and participated; Rule 29 denial proper |
| California bribery as RICO predicates | Gov't: Payments to Arneson were bribes under Cal. Penal Code §§67–68 and qualified as racketeering acts | Arneson/Pellicano: Database searches weren’t "action upon any matter then pending" or not official acts | Affirmed: Access was within official capacity and could influence matters that "may" be brought before officer; bribery predicates valid |
| Honest‑services fraud post‑Skilling | Gov't: Honest‑services conviction based on bribery remains valid under Skilling | Pellicano: Jury instructions relied on invalid conflict‑of‑interest theory after Skilling | Affirmed: Jury found bribery; Skilling allows bribery/kickback theory so no prejudice |
| CFAA convictions & scope after Nosal | Gov't: Convictions for unauthorized access/use under CFAA (Turner, Arneson, Pellicano) | Defendants: Nosal limits "exceeds authorized access" to access restrictions, not use; instructions allowed criminalizing misuse | Vacated: Instruction was plain error under Nosal; CFAA convictions for those counts vacated and remanded (possible retrial) |
| Identity theft and RICO durability after CFAA vacatur | Defendants: Vacatur of CFAA predicates requires vacating identity theft and RICO | Gov't: Alternative valid predicate under Cal. Penal Code §502 supports identity theft and RICO | Affirmed: Jury necessarily found intent under §502; identity‑theft and RICO convictions stand |
| Nicherie aiding/abetting wiretap (two theories) | Gov't: Conviction could rest on (1) procuring wiretap after date or (2) listening/translating recordings after date | Nicherie: Listening/translating is not a new interception under Noel; some alleged acts predate statute of limitations | Vacated: Second theory (listening/translating) invalid after Noel; because error not harmless, conviction vacated and remanded |
| Attorney‑client privilege and Zolin procedure | Christensen/Pellicano: Recordings should have been withheld; district court failed to follow Zolin | Gov't: Filter team, ex parte filings; recordings show crime‑fraud; court later applied Zolin in camera | Affirmed: Court corrected procedural misstep, Zolin step‑one met, in camera review showed minimal privileged material or crime‑fraud/harmlessness; admission proper |
| Juror 7 dismissal during deliberations | Defendants: Dismissal deprived them of impartial unanimous jury; dismissal stemmed from jurors’ disagreement on merits; court failed to ask whether juror could follow the law | Gov't/Court: Notes and multiple juror interviews showed Juror 7 expressed unwillingness to follow law and lied in voir dire; good cause to dismiss | Affirmed (majority): District court’s credibility findings not clearly erroneous and dismissal for unwillingness to follow law and dishonesty was justified; concurrence dissents on dismissal |
Key Cases Cited
- Boyle v. United States, 556 U.S. 938 (2009) (RICO "enterprise" may be informal; definition construed liberally)
- Nosal v. United States, 676 F.3d 854 (9th Cir. 2012) (en banc) (CFAA "exceeds authorized access" limits liability to access restrictions, not misuse)
- Skilling v. United States, 561 U.S. 358 (2010) (honest‑services fraud limited to bribery and kickbacks)
- Noel v. Hall, 568 F.3d 743 (9th Cir. 2009) (replaying/listening to already intercepted communications is not a new interception under Wiretap Act)
- United States v. Santos, 553 U.S. 507 (2008) (plurality on interpreting "proceeds" in money laundering statute; discussed in forfeiture context)
- United States v. Zolin, 491 U.S. 554 (1989) (two‑step ex parte test for in camera review when crime‑fraud exception to attorney‑client privilege is asserted)
- United States v. Eufrasio, 935 F.2d 553 (3d Cir. 1991) (defendant need only know general nature of enterprise to be part of RICO conspiracy)