Case Information
*2 GILMAN, Circuit Judge:
John McTiernan, a famous Hollywood movie director, hired former private investigator Anthony Pellicano in 2000 to illegally wiretap the telephone conversations of two indi- viduals. Six years later, when the Federal Bureau of Investiga- tion (FBI) questioned McTiernan about Pellicano’s activities, McTiernan claimed that he knew nothing about any wiretap- ping. But the FBI had obtained a digital recording (the Recording) that Pellicano had made—unbeknownst to McTiernan—of a telephone conversation in which the two men discussed an illegal wiretap. Caught red-handed, McTier- nan pleaded guilty to one count of making a material false statement to the FBI.
Shortly thereafter, McTiernan engaged new counsel who convinced him to seek the withdrawal of his guilty plea, which the district court eventually allowed. McTiernan was indicted again, this time on two counts of making a material false statement to the FBI and on one count of making a false statement to the district court during his guilty-plea hearing. His motions to suppress the Recording and to recuse United States District Judge Dale S. Fischer were denied. McTiernan then conditionally pleaded guilty to all three counts, reserving his right to appeal the district court’s adverse rulings. He was sentenced to 12 months’ imprisonment and ordered to pay a $100,000 fine. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
This case returns to us for a second time. In the first deci- sion, the undisputed facts were summarized as follows:
On February 13, 2006, McTiernan was inter- viewed by telephone by Special Agent Stanley Ornellas of the Federal Bureau of Investigation (“FBI”) in connection with an investigation into for- mer private investigator Anthony Pellicano’s use of illegal wiretapping. Ornellas asked whether McTier- nan had knowledge of Pellicano’s wiretapping activ- ities and [whether he] had previously discussed wiretapping with Pellicano. In response, McTiernan stated that he had never discussed wiretapping with Pellicano, that Pellicano had never mentioned his ability to wiretap telephone calls, and that he had used Pellicano’s services only once, in connection with his divorce.
The responses made to Special Agent Ornellas’ inquiries were false. McTiernan later admitted that he had hired Pellicano in or around August 2000 and paid him at least $50,000 to conduct an illegal wire- tap of two individuals, one of whom was Charles Roven, the producer of a movie that McTiernan was then directing. Pellicano installed the wiretaps, lis- tened to the subjects’ business and personal tele- phone calls, and reported their contents to McTiernan.
Several weeks after Ornellas interviewed McTier- nan, the government contacted McTiernan and sug- gested that he retain . . . an attorney. On March 4, 2006, McTiernan retained the services of John Carl- ton, Esq. On March 16, 2006, McTiernan met with Carlton and the government regarding McTiernan’s statements to Special Agent Ornellas. At that meet- ing, the government revealed its evidence of discus- sions between McTiernan and Pellicano regarding the wiretapping. The evidence included a digital recording that Pellicano had made of a telephone conversation between himself and McTiernan (the “Recording”). The Recording, which was made on August 17, 2000, was recovered by the FBI from Pellicano’s computer pursuant to a search warrant in the related investigation and prosecution of Pelli- cano, who was charged with over one-hundred Rack- eteer Influenced and Corrupt Organizations (RICO) Act violations, bribery of police officers, and wiretapping. In the Recording, Pellicano informed McTiernan, who at that time was directing a movie in Canada, that he had intercepted “tons of stuff” and that he could not “even listen to all of them.” McTiernan instructed Pellicano to focus on instances where the producer was “saying one thing to the stu- dio and saying something else to others,” and said that catching the producer “bad mouthing” the “stu- dio guys” would “really be useful.” On March 24, 2006, McTiernan entered into a written plea and cooperation agreement with the government, in which he agreed to plead guilty to a forthcoming information charging him with making a false statement [to an FBI agent] in violation of 18 U.S.C. § 1001(a)(2). . . .
. . . . On April 17, 2006, . . . . the district court con- ducted McTiernan’s Rule 11 [of the Federal Rules of Criminal Procedure plea] hearing. . . .
The court [ ] questioned McTiernan about his attorney’s representation and read aloud the stipu- lated factual basis from McTiernan’s plea agree- ment. McTiernan confirmed that he and his attorney had discussed his case candidly and that his attorney had considered and advised McTiernan as to the existence of any possible defenses. McTiernan also confirmed that he understood the consequences of his plea and that he was competent to make the plea. He then allocated [sic] to the facts, admitting that he knowingly made false statements to the FBI agent.
United States v. McTiernan
,
The district court also asked McTiernan whether Carlton, his attorney, had advised him on how he should answer any of the court’s questions during the plea hearing. McTiernan told the court: “No, he did not, ma’am.” Satisfied with McTiernan’s answers during the plea hearing, the court accepted his guilty plea.
Two months later, and “eleven days before McTiernan was scheduled to be sentenced, S. Todd Neal, Esq. [ ], advised the government that he would be substituted for Carlton as McTiernan’s new counsel.” Id. at 1164. McTiernan’s sentenc- ing was continued so that Neal could properly prepare for the hearing. Two months later, McTiernan filed a motion to with- draw his guilty plea, indicating that he would seek to suppress the Recording if given the opportunity. As detailed by this court’s decision on his previous appeal,
McTiernan claimed that he was entitled to withdraw his plea because his former counsel had provided ineffective assistance. Specifically, McTiernan claimed that his former counsel (1) failed to obtain any discovery materials from the government prior to the time McTiernan entered his pre-indictment plea; and (2) failed to advise him that he could have sought to suppress the Recording on the ground that the Recording was made by Pellicano without McTiernan’s knowledge and consent and for an allegedly “criminal or tortious purpose,” in violation of Title III and 18 U.S.C. § 2515. . . .
On September 24, 2007, the district court held a hearing on McTiernan’s motion to withdraw his guilty plea. The court denied the motion, immedi- ately proceeded to sentencing, and sentenced McTiernan to a term of imprisonment of four months, to be followed by a two-year period of supervised release. The district court further ordered that McTiernan pay a $100,000 fine and a $100 spe- cial assessment.
Id. at 1165.
McTiernan appealed, claiming that he should have been allowed to withdraw his guilty plea because his attorney at the time of his plea never informed him of the potential basis to suppress the Recording, the key evidence against him. Id. at 1167. This court determined that the district court had erred by not holding an evidentiary hearing to determine if McTier- nan could establish a fair and just reason to withdraw his plea. Id. at 1167-69. Accordingly, the district court’s judgment was vacated and the case remanded for a full evidentiary hearing on this issue. Id. at 1169.
Upon remand, McTiernan filed a motion requesting that Judge Fischer recuse herself from the remaining case proceed- ings. The motion was referred by random assignment to United States District Court Judge Terry Hatter, who denied the motion. At this point the government dropped its opposi- tion to McTiernan’s motion to withdraw his guilty plea, and the district court ordered the plea withdrawn.
No longer bound by a plea agreement, the government reindicted McTiernan on two counts of making a false state- ment to the FBI (one count for claiming that he had hired Pel- licano only in connection with his divorce proceedings and the other for denying that he had ever discussed wiretapping with Pellicano), both in violation of 18 U.S.C. § 1001(a)(2), and on one count of making a false statement to the district court during his guilty-plea hearing, in violation of 18 U.S.C. § 1623(a) and (c). The latter charge was based on the fact that, during McTiernan’s guilty-plea hearing, he told the district court that his attorney had not advised him what to say at the hearing, but he later signed a declaration in connection with his plea withdrawal stating that his attorney had coached him and gave him specific wording to use to avoid admitting cer- tain facts.
Following his reindictment, McTiernan moved to suppress the Recording under 18 U.S.C. §§ 2511(2)(d) and 2515 and requested that the district court hold an evidentiary hearing on the motion. Both his motion and his request for a hearing were denied. He then once more moved for Judge Fischer’s recusal, a request again denied by Judge Hatter.
After his motions were denied, McTiernan and the govern- ment reached a second plea agreement. The government promised to seek a sentence of no more than 12 months’ imprisonment in exchange for McTiernan entering a condi- tional guilty plea that reserved his right under Rule 11(a)(1)(2) of the Federal Rules of Criminal Procedure to appeal the adverse rulings of the district court. This second plea agreement was accepted by the district court, after which McTiernan was sentenced to a below-the-Guidelines term of 12 months in prison, a total fine of $100,000, and 3 years of supervised release. This timely appeal followed.
II. ANALYSIS
A. Suppression of the recorded telephone conversation
McTiernan’s primary argument is that the district court
erred in denying his motion to suppress the Recording. When
a district court denies a motion to suppress, we review de
novo its conclusions as to questions of law and mixed ques-
tions of law and fact.
United States v. Caseres
,
communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of” 18 U.S.C. §§ 2510 through 2522. McTiernan contends that the Record- ing should have been suppressed pursuant to § 2515 because Pellicano made the Recording in violation 18 U.S.C. § 2511(2)(d), which prohibits anyone from intercepting an oral communication “for the purpose of committing any crim- inal or tortious act.” Unlike the Fourth Amendment, § 2515 excludes “evidence obtained by entirely private misconduct. The limitation on use turns on improper interception . . . regardless of whether the interception was governmental or private.” Chandler v. U.S. Army , 125 F.3d 1296, 1298 (9th Cir. 1997) (citation omitted). To merit suppression under §§ 2511(2)(d) and 2515, a
defendant must prove by a preponderance of the evidence that
the recording at issue was made for an unlawful purpose.
United States v. Zarnes
,
McTiernan asserts that he proved by a preponderance of the evidence that the Recording was made “for the purpose of committing a[ ] criminal or tortious act” because he presented evidence that Pellicano made the Recording as part of a recordkeeping process in support of Pellicano’s “far-reaching criminal enterprise.” As his principal evidence of Pellicano’s purpose, McTiernan cited the opening statement that Pelli- cano made (in the third person) while representing himself at his own trial:
Mr. Pellicano, during the course of his endeavors and work, would have a minimum of 50 phone calls a day. And during that—during those phone calls there would be calls from people that he was investi- gating, from clients and other individuals that he needed to keep constant contact with.
Now, he decided to record those conversations for —you know, for his inventory; for safekeeping; for, in effect, to remind himself of what he needed to do and what a client professed a need to have, and thought, well, the best way to do that is . . . to record those conversations in an encrypted fashion so that no one else but Mr. Pellicano could listen to those recordings ever.
Pellicano was subsequently convicted on 78 separate counts relating to his widespread illegal wiretapping activities. The specific charges involved identity theft, wire fraud, bribery, and unauthorized access of protected computer databases.
McTiernan argues that the Recording was “for the purpose of committing a[ ] criminal or tortious act” because it served as a reminder of the illegal acts that Pellicano intended to commit. The government responds by contending that Pelli- cano’s opening statement is not credible evidence and is therefore insufficient to prove Pellicano’s purpose in making the Recording. Although the district court acknowledged the “questionable” evidentiary value of the opening statement, it assumed for the purposes of its ruling that McTiernan had demonstrated that the Recording was made as a part of Pelli- cano’s effort to create a digital “to do” list of criminal tasks. The court nonetheless determined that such a purpose was not criminal or tortious, explaining:
There is some evidence that Pellicano kept the phone recordings of his conversations to remind himself of “things he needed to do.” However, even assuming that the “things he needed to do” were criminal or tortious in some way, the Court rejects the proposi- tion that this alone demonstrates that the recordings were made for the purpose of committing a criminal act. [McTiernan’s] definition of “for the purpose of committing a criminal or tortious act” would include virtually any recording related to a criminal act made by one of the criminal participants because such a recording could always be construed as “recordkeep- ing” under [McTiernan’s] excessively broad defini- tion. There is no evidence that the Recording was to be used for a criminal or tortious act independent of the very criminal acts described in the Recording itself. Shielding defendants from their own self- made evidence of their crimes cannot be what Con- gress intended in enacting § 2515.
(Citation and footnotes omitted.)
We find the district court’s analysis persuasive. Like the district court, we need not determine whether the opening statement is sufficient evidence of Pellicano’s purpose in recording his conversation with McTiernan because even if the Recording was a “to do” list of criminal activities as McTiernan asserts, it was not made “for the purpose of com- mitting any criminal or tortious act.”
[3] The Ninth Circuit has never previously addressed this specific issue, but we have held that “the focus [of the inquiry] is not upon whether the interception itself violated another law; it is upon whether the purpose for the interception—its intended use—was criminal or tortious.” Sussman v. Am. Broad. Cos. , 186 F.3d 1200, 1202 (9th Cir. 1999) (internal quotation marks omitted) (emphasis in origi- nal). For § 2511(2)(d) to apply, the recording must have been “done for the purpose of facilitating some further impropriety, such as blackmail.” Id. In a civil action involving a claim of invasion of pri-
vacy under § 2511, we have also held that, in enacting § 2511,
“Congress . . . intended to permit one party to record [a] con-
versation with another when the recorder is acting ‘out of a
legitimate desire to protect himself.’ ”
Moore v. Telfon
Commc’ns Corp.
,
cited above, Pellicano’s Recording was not made to protect
himself. But Pellicano’s purpose of having a “to do” list was
perhaps even more innocuous. The fact that Pellicano was
recording a conversation in which an illegal enterprise was
discussed is not determinative under § 2511(2)(d) because
Sussman
requires that we look to the purpose and not to the
subject matter of the recording.
See
McTiernan, however, cites two district court cases, United States v. Lam , 271 F. Supp. 2d 1182 (N.D. Cal. 2003), and United States v. Vest , 639 F. Supp. 899 (D. Mass. 1986), aff’d , 813 F.2d 477 (1st Cir. 1987), to support the opposite conclusion—that Pellicano’s recording was done for the pur- pose of committing criminal or tortious acts. But both cases are distinguishable.
The recordings in Lam were made by an illegal gambling operation to serve as proof of telephone bets that the defen- dant had placed. Although the district court in Lam sup- pressed the recordings under §§ 2511(2)(d) and 2515, the question of whether the recordings at issue were made for the purpose of committing criminal or tortious acts never arose because the government conceded their illegal purpose. 271 F. Supp. 2d at 1184. And the district court did not explain the basis for this concession. We therefore find Lam unpersuasive on the point at issue.
Vest is also distinguishable from the present case. Defen- dant George Vest, a police officer, was the middleman in a bribery conspiracy involving Jesse James Waters and police officer Frank Tarantino. Waters had shot Tarantino and was consequently indicted for assault with the intent to commit murder, among other charges. Not wanting to go to prison, Waters promised to make a series of cash payments totaling $300,000 to Tarantino in exchange for Tarantino “fixing” Waters’s trial so that Waters would not be sentenced to a term of imprisonment. Vest agreed to physically transfer the pay- ments from Waters to Tarantino. But Vest lied when called before a grand jury, denying that he knew anything about the bribery scheme.
Unbeknownst to Vest, Waters had tape recorded their con-
versation when he brought Vest the first payment because “he
wanted to have . . . proof [of the exchange], in case Tarantino
denied receiving the money.”
Vest
,
Vest moved to suppress the tape at his subsequent perjury trial on the ground that Waters made the recording “for the purpose of a[ ] criminal or tortious act” under § 2511(2)(d). The district court granted Vest’s motion, finding that Waters’s intent in making the tape was “to force Tarantino to fulfill his end of the bargain,” thereby advancing their criminal conspir- acy. Id. at 907. This finding of intent is the key distinction between
Vest and the present case. Waters made his tape recording so that he could later extort Tarantino, whereas Pellicano made the Recording simply to remind himself of what he had agreed to do. Unlike recordkeeping, blackmail in and of itself is a criminal act, which explains why the court in Vest sup- pressed the recording. Because there is no assertion that Pelli- cano had any similar criminal intent in making the Recording here, we conclude that the district court did not err in denying McTiernan’s motion to suppress.
B. Evidentiary hearing
McTiernan alternatively argues that even if we do not reverse the district court’s denial of his motion to suppress, we should remand for an evidentiary hearing on the issue. A district court’s decision not to conduct an evidentiary hearing on a motion to suppress is reviewed under the abuse-of- discretion standard. United States v. Quoc Viet Hoang , 486 F.3d 1156, 1163 (9th Cir. 2007).
[7] “An evidentiary hearing on a motion to suppress need be held only when the moving papers allege facts with suffi- cient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” Id. (internal quotation marks omitted). If an evidentiary hearing were held in this case, McTiernan asserts that he would call witnesses to demonstrate that Pellicano made the Recording for the purpose of having something to remind himself of the criminal acts he intended to commit. The district court, how- ever, assumed for the purposes of its ruling that McTiernan had proven that recordkeeping was indeed Pellicano’s pur- pose in making the Recording, and we do the same. An evi- dentiary hearing on this point is thus unnecessary. The district court therefore did not abuse its discretion in declining to hold an evidentiary hearing.
C. Recusal of Judge Fischer
The final issue that McTiernan raises on appeal is whether Judge Hatter erred in denying McTiernan’s two motions for Judge Fischer’s recusal under 28 U.S.C. § 144 and § 455(a). McTiernan argues that recusal was warranted because Judge Fischer (1) made a series of hostile comments about him dur- ing court proceedings, and (2) repeatedly denied motions to suppress Pellicano’s recordings under 18 U.S.C. §§ 2511(2)(d) and 2515 that were brought by McTiernan in his own proceeding and by another defendant in a related action before her. Rulings on motions for recusal are reviewed under the abuse-of-discretion standard. United States v. Wilkerson , 208 F.3d 794, 797 (9th Cir. 2000). “The substantive standard for recusal under 28 U.S.C.
§ 144 and 28 U.S.C. § 455 is the same: Whether a reasonable
person with knowledge of all the facts would conclude that
the judge’s impartiality might reasonably be questioned.”
United States v. Hernandez
, 109 F.3d 1450, 1453 (9th Cir.
1997) (per curiam) (brackets and internal quotation marks
omitted). Importantly, “[p]arties cannot attack a judge’s
impartiality on the basis of information and beliefs acquired
while acting in his or her judicial capacity.”
United States v.
Frias-Ramirez
,
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossi- ble. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hos- tile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.
Liteky v. United States , 510 U.S. 540, 555 (1994); accord Wilkerson , 208 F.3d at 799 (“To disqualify a judge, the alleged bias must constitute animus more active and deep- rooted than an attitude of disapproval toward certain persons because of their known conduct.” (internal quotation marks omitted)).
McTiernan first argues that Judge Fischer should have been disqualified from his case because of “hostile” comments that she made about him in various proceedings and orders. He points to the following comments made by Judge Fischer in her September 25, 2007 order that denied McTiernan’s motion to withdraw his guilty plea:
McTiernan is clearly willing to lie whenever it suits his purpose, whether or not he has been advised of the ramifications of doing so. . . . [A]nd he is either lying to this Court now or he lied when signing the plea agreement and entering his plea in open court. . . . These statements are patently absurd on several levels. . . . Bluntly stated, the Court finds McTier- nan’s allegations to be false. . . . McTiernan’s alleged . . . reasons for seeking withdrawal lack cred- ibility.
Then, in an order issued on October 2, 2007, Judge Fischer reiterated that “Mr. McTiernan [had] lied in his declaration” supporting the motion for withdrawal of his guilty plea and had “breached his promise to be truthful with the Court.”
[9] These statements, however, do not demonstrate that Judge Fischer had a deep-seated animus toward McTiernan, but only that she acquired “an attitude of disapproval” toward him because of his known conduct—specifically, his lies to federal officers. He did, after all, later plead guilty to two charges of lying to the FBI and to one charge of lying to the court.
“[E]xpressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect
men and women, even after having been confirmed as federal
judges, sometimes display,” do not establish bias or partiality.
Liteky
, 510 U.S. at 555-56. The judge who has become “ex-
ceedingly ill disposed towards the defendant . . . . is not
thereby recusable for bias or prejudice, since [her] knowledge
and the opinion it produced were properly and necessarily
acquired in the course of the proceedings.”
Id.
at 550-51.
Furthermore, Judge Fischer’s comments about
McTiernan at his sentencing hearings had absolutely no nega-
tive effect on his ultimate sentence. He was given a term of
12 months’ imprisonment, a below-the-Guidelines sentence
that was exactly what he expected under the terms of his sec-
ond plea agreement, even though Judge Fischer had the dis-
cretion to give him more time. Judge Fischer also exercised
her discretion to allow McTiernan to remain free on bail
pending appeal, which again negates his claim that she har-
bored a deep-seated animus toward him. Moreover, “the
judge’s conduct during the proceedings should not, except in
the ‘rarest of circumstances’ form the sole basis for recusal
under § 455(a).”
United States v. Holland
,
McTiernan alternatively argues that Judge Fischer’s “pre- judgment” of the suppression issue required her recusal. In support of this claim, he highlights her previous rulings in the related criminal action against Terry Christensen. Christensen, who had been tried as Pellicano’s coconspirator, had moved to suppress recordings that Pellicano had made of their tele- phone conversations, but Judge Fischer had denied Christen- sen’s motion to suppress. The problem with McTiernan’s argument is that a
“judge’s prior adverse ruling is not sufficient cause for recus-
al.”
Taylor v. Regents of Univ. of Cal.
,
McTiernan nevertheless contends that Judge Fischer’s
remark in her September 25, 2007 order denying his motion
to withdraw his guilty plea—that McTiernan’s and Christen-
sen’s purported basis for suppressing Pellicano’s recordings
“doesn’t even come close” to warranting an evidentiary hear-
ing for a motion to suppress—demonstrates that she had pre-
judged the issue. This court subsequently vacated that order
in
United States v. McTiernan
,
[12]
Although this court concluded that Judge Fischer
erred in her September 25, 2007 decision, her doesn’t-even-
come-close comment was not so egregious as to require her
removal from the case. This is especially true because, for the
reasons previously stated, we fully agree that an evidentiary
hearing on the suppression issue was unnecessary. We further
note that “[i]t has long been regarded as normal and proper
for a judge to sit in the same case upon its remand.”
Liteky
,
Judge Fischer’s disqualification from his case. The district court accordingly did not abuse its discretion in denying McTiernan’s two motions for Judge Fischer’s recusal.
III. CONCLUSION
For all the reasons set forth above, the district court’s judg- ment is AFFIRMED .