*1 But is ridiculous. agree I the distinction no goal that makes paid been they have —a of expand scope it would be reason to all, assuming that is no even at sense nothing to the ac- that has to conduct must be limited Davis-Bacon permissible—it statute, namely Rath- purpose. of subject-matter language its tual to do with a actually paid are ensuring that workers ear- er, issue—while the distinction with do workers wage. What prevailing job deductions to fund marked payroll individu- either point, at that money unlawful, their are mandato- training programs union, no a is of collectively through ally or are internally to fund them ry dues used to Davis-Bacon. concern regulations to DOL’s fine—is attributable them, which interpretations of and its case, wrongly Brock was being the That permitted as certain deductions their carve out pool members If a union’s decided. collectively to program, permit workers job targeting a but do not to fund resources money NLRA in this their own spend of concern under may decide involved, for (if is that it (concluding coercion impermissible way. See id. particular 158(b)(1)), but it 29 U.S.C. see of example, interpretation Davis-Bacon was DOL’s the Davis-Bacon substance”). concern under is of no form over itself that “elevates paid prevailing a workers were Act. The nothing essentially has decision The latter to use collectively decided they wage, Davis-Bacon. goals to do with other con- to subsidize wage of that some sum, view, my regulations DOL’s In benefit. the workers’ collective tractors contravene the deductions barring such if workers clearly, more individual Even Davis-Bacon, I language and intent fund, job targeting voluntarily pay into a Moreover, even defer to them. would not objection more can have no Davis-Bacon position on the deductions taking DOL’s voluntarily have to than it can workers urge I given, morass as would piece of this hardware wages- at spending their Brock in case to reconsider the court drug than the store. store rather case, challenge to the which, this unlike so wages, paid prevailing were workers union-instigated on ban contributions is Davis-Bacon satisfied. traceable to Davis-Ba- job-targeting funds otherwise, contending concluded Brock presented. job wages squarely con be- is no tenable distinction that “there (1) employee deductions of direct tween (2) ... and projects
wages on of a employee payment
union-required gov- wages earned of their
percentage projects',” suggesting
ernment methods distinguish between two
“[t]o to elevate assessment would be
of JTP form over substance.”
unacceptably Yet, Judge at 1200-01. Chief
F.3d Reich, the dissent in noted his
Edwards that the in that case had “conceded DOL America, UNITED STATES from prohibit unions do regulations Plaintiff-Appellee, dues assessment increasing general their portion internally allocating and then job targeting pro- to fund that assessment CHRISTENSEN, Terry Defendant- (Edwards, Reich, 40 F.3d at
grams.” Appellant. C.J., dissenting). *2 America, America,
United States United States of Plaintiff-Appellee, Plaintiff-Appellee,
v. v. Anthony Pellicano, Defendant- Terry Christensen, Defendant-
Appellant. Appellant. 08-50531, 08-50570, Nos. 09-50115, 09- America, United States 50125, 09-50128, 09-50159, 10-50434, Plaintiff-Appellee, 10-50462, 10-50464, 10-50472. v. United States of Appeals, Court Arneson, Defendant-Appellant. Mark Ninth Circuit. America, United States of Argued and Submitted Nov. 2013. Plaintiff-Appellee, Aug. Filed v.
Rayford Turner, Earl aka Seal
B, Defendant-Appellant. America,
United States of
Plaintiff-Appellee,
v. Nicherie, Defendant-Appellant.
Abner America,
United States
Plaintiff-Appellee,
v. Kachikian,
Kevin Defendant-Appellant. America,
United States
Plaintiff-Appellee,
v.
Rayford Turner, Earl aka Seal
B, Defendant-Appellant. America,
United States of
Plaintiff-Appellee,
v. Arneson, Defendant-Appellant.
Mark America,
United States of
Plaintiff-Appellee,
Anthony Pellicano, aka Seal
A, Defendant-Appellant. *10 James, Angeles,
LLP, Becky Los Walker Arne- Mark CA, Defendant-Appellant for spn. Oakland, (argued), Landau
Karen L. Rayford Lee CA, Defendant-Appellant for Turner. (argued), Kimball Windsor
Katherine Pasadena, CA, Defendant-Appellant for Abner Nicherie. (argued), Cole-
Benjamin L. Coleman CA, LLP, Diego, for Balogh San man & Kachikian. Kevin Defendant-Appellant Jr., Attor- United States André Birotte California, Robert ney, District Central Division, Chief, Kev- Dugdale, E. Criminal A. Klein Lally (argued) Joshua M. Attor- States (argued), Assistant United Plaintiff-Appellee. neys, for C. FISHER and Before: RAYMOND CLIFTON, Judges, Circuit RICHARD R. CHRISTENSEN, DANA L. Chief Judge.* District CLIFTON; Partial Opinion by Judge (argued), Dan Mar- Seth M.Hufstedler Partial Dissent Chief Concurrence Fox, Benjamin J. malefsky (argued), and Judge District CHRISTENSEN. LLP, Angeles, Foerster Los Morrison & Terry CA, Defendant-Appellant Chris- for OPINION tensen. CLIFTON, Judge: Circuit Francis- (argued), F. San
Steven Gruel co, CA, Anthony Defendant-Appellant criminal con- appeal their Six defendants Pellicano. widespread crim- stemming from victions in- offering illegal private enterprise inal and Emil (argued) Hummel
Chad S. California. Manatt, vestigation services Southern Petrossian, Phelps Phillips & * Montana, Christensen, sitting by designation. United Dana L. The Honorable Judge the District of Chief District States criminal enterprise variously charged At the center of this Defendants with other Investigative Agency, known crimes, was Pellicano including wiretapping,’ computer *11 Anthony Pellicano op- as PIA. Defendant fraud, fraud, identity theft, honest services PIA, ostensibly legitimate pri- erated as a and conspiracy offenses. The case pro- investigation agency. many But of vate trials, separate jury ceeded to two which were, fact, in investigation PIA’s methods resulted in the of convictions all six Defen- Los illegal. Angeles Pellicano bribed area dants on at least some counts. Defendants officers, police such as Defendant Mark appeal their convictions. Arneson, for to confidential en- access law In opinion, this we vacate Turner’s con- forcement databases. He orchestrated aiding viction for and abetting computer wiretaps on investigative targets so he fraud, computer Arneson’s convictions for could overhear their conversations with access, fraud computer' and unauthorized friends, family, professionals, medical and and aiding Pellicano’s convictions for legal paid telephone compa- counsel. He abetting computer both fraud and unau- Turner, ny employee, Rayford Defendant computer thorized access. alsoWe vacate for the confidential technical information Nicherie’s conviction for aiding and abet- wiretaps, he needed for the and hired a ting interception. a wire The rest of the developer, software Defendant Kevin Ka- chikian, affirmed, to create custom convictions are including software rec- Pellicano, ord conversations Pellicano overheard. Arneson, RICO of convictions success, height At the of PIA’s scores' of for operating Turner PIA’s criminal PIA for people illegal retained its often enterprise, Christensen’s convictions based case, pertinent services. Most to this De- hiring enterprise illegally on wire- Christensen, Terry attorney, fendant an Bonder, tap Lisa and Kachikian’s convic- PIA to in in litigation hired assist which he tions in wiretapping. for his role PIA’s client, Kerkorian, Kirk represented his imposed We vacate the sentences on the against Lisa Bonder. Pellicano wire- defendants whose convictions were vacat- tapped telephone Bonder’s frequently Arneson, part Pellicano, ed in and Tur- — discussed with Christensen what he heard. resentencing ner —and remand for on Defendant Abner Nicherie also hired PIA remaining, their affirmed convictions. We wiretap of a husband woman whose proceedings remand for further on the va- hoped business Nicherie to take over. conviction, including cated counts of enterprise began PIA’s criminal to un- retrial, possibility may appropri- of investigated ravel in when the FBI ate, charges. on those attempt reporter, PIA’s to intimidate a staggering Defendants have raised a investigation Anita Busch. This led to a on appeal. number issues Their search, warrant, pursuant to a search briefs—fourteen in all—totaled over 900 By government PIA’s offices. pages.1 Many ap- of the issues raised on investigating widespread scope was peal prece- do not warrant discussion illegal A grand PIA’s activities. re- many opinion. dential We thus address Pellicano, charging turned indictment concurrently issues in a filed memorandum Arneson, and Turner with crimes under on all disposition, which we affirm Corrupt the Racketeer Influenced and Or- in the memorandum. In (RICO), issues covered ganizations Act 18 U.S.C. opinion, this we address those issues that seq., et operating PIA’s their roles enterprise. criminal The indictment also merit an extended discussion. similarly answering nearly pages.
1. The verbose. Its brief was case, July PIA in Background party in this retained girlfriend, to influence his former appeals arise out of These consolidated Finn, deposition testimony Erin to recant trials of separate two prosecution drug use. The evidence about Pfeifer’s Anthony investigator Defendant private paid that Pellicano Arneson established associated and several individuals Pellicano $2,500, and that Arneson accessed law- operated owned and with him. Pellicano criminal acquire enforcement databases to (“PIA”). Investigative Agency Pellicano De- history information from the and/or investigation services provided He (DMV) partment Motor Vehicles litigation in connection with clients Pfeifer, Finn, and Finn’s friends and asso- *12 personal matters. gave ciates. Arneson then this informa- simple: factual core of this case is The provided tion to Pellicano. Turner Pellica- investigations illegal. were often PIA’s information no with confidential subscriber wiretapped investigative targets, Pellicano SBC, Finn wiretap from and a was instance, proprietary and used soft- wiretap initiated. The revealed extensive “Telesleuth,” which Defendant ware called business, information Finn’s which about developed updated Kevin Kachikian and get Pfeifer used to her to recant her testi- years, of several to record over the course mony. phone conversations. Pellica- wiretapped many Based on Pfeifer’s case and oth- the content of those conversa- no related ers, grand jury an (e.g., by playing recordings) tions returned indictment clients, they Pellicano, Arneson, what charging who often used learned and Turner advantage litigation. an gain with RICO violations. The indictment al- leged they an enterprise formed get To the technical information he purpose earning “the common income wiretaps, to install the Pellicano needed through the conduct of criminal diverse Turner, Rayford paid Defendant tele- to, including, activities but not limited ille- technician, company to obtain cable- phone gal wiretapping, unauthorized access pairing telephone company, data from the fraud, protected computers, bribery, wire himself did not have SBC. Turner access theft, identity justice.” and obstruction of databases, paid but he SBC other SBC predicate bribery, acts included hon- employees, non-parties Wright Teresa and fraud, identity est services wire and theft. Malkin, to Michele access databases Kachikian, developer, the Telesleuth was the information PIA give and Turner violations; charged with RICO he was gave the wanted. Turner then information charged conspiracy with in- intercept, implemented wiretaps. to Pellicano and communications, terception posses- and PIA LAPD paid Pellicano and also wiretapping sion of a device. officer, Arneson, Defendant Mark police search confidential databases for in- government prosecuted also two of investigative formation various tar- about PIA’s clients: Defendants Abner Nicherie gets that information provide to PIA.2 Terry Christensen. Abner Nicherie Shafrir, activity wiretap PIA’s on behalf of client hired Pellicano to Ami Robert Pellicano, Shafrir, husband of concisely Pfeifer illustrates how Sarit whose business Arneson, operated illegal hoped and Turner Nicherie to take over. Nicherie Pfeifer, investigations. many not named as a went to PIA times to listen to and paid police person charged Pellicano also least one other That was not in this action. police officer for information from databases. telephone Ami Shafrir’s conver- warrant. obtaining transcribe After more evidence of sations, which were Hebrew. The inter- widespread illegal extent of PIA’s in- conversations included Ami Shaf- cepted vestigations, obtained rir’s confidential communications with his July more warrants 2003 and seized attorneys. additional records from storage data PIA, previously devices taken from
Terry Pellicano to includ- Christensen hired wiretap ing Lisa Bonder. Bonder was en- recordings. Pellicano-Christensen gaged support dispute in a child with A grand jury indictment,3 returned an client, Kirk A Christensen’s Kerkorian. prosecuted and the Defendants were part strategy central of Christensen’s (1) two trials. The first trial included proving that the child involved in the dis- charges against RICO and related Pellica- was not pute biological his client’s child. no, Arneson, (2) and Turner wiretap- eventually proved A DNA test that anoth- ping Pellicano, charges against related man father. litiga- er was the While the Kachikian, trial, and Nicherie. The second ongoing, intercepted tion was Pellicano in which only Pellicano and Christensen conversations, many of Bonder’s including defendants, were focused on the Lisa Bon- attorneys, family, conversations with her *13 wiretap. der and friends about the support litiga- child (Pellica- against tion. The main evidence The Christen- Defendants the first trial recordings no, sen consisted of of more than Arneson, Turner, Kachikian, and Nich- phone conversations in erie) which he dis- were following convicted on the wiretap cussed with Pellicano the on Bon- charges: recordings, der. These which Pellicano (18 1962(c)); § Pellicano: RICO U.S.C. secretly,
recorded
were seized from PIA’s
(18
conspiracy
RICO
U.S.C.
offices.
1962(d));
§
government’s investigation
into PIA
(18
Honest-services wire fraud
U.S.C.
investigated
when it
began
against
threats
1343,1346);
§§
reporter
morning
Anita Busch. On the
Unauthorized
computer
access of
20, 2002,
car
June
Busch went to her
on
(18
agency
United States
information
the street outside her home and found that
(c)(2)(B)(i));
1030(a)(2)(B),
§§
U.S.C.
her car had been vandalized. The wind-
(18
1028(a)(7));
§
Identity theft
U.S.C.
punctured,
shield had been
a handwritten
(18
Computer
fraud
U.S.C.
sign reading
placed
“STOP” had been
on
1030(a)(4));
§
car,
and a dead fish and a rose had
left on the windshield. An informant
been
Conspiracy
intercept
and use wire
recorded his conversations with Alex Proc-
(18
371);
§
communications
U.S.C.
tor, who stated that Pellicano had hired
Interception of wire communications
him to vandalize Busch’s car. Based in
(18
2611(l)(a), (d));
§
U.S.C.
large part
recordings,
on the informant’s
(18
of a wiretapping
Possession
device
government
in November
ob-
2512(l)(b)).
§
U.S.C.
tained warrants to search PIA for evidence
(18
1962(c));
§
Arneson: RICO
U.S.C.
that Pellicano was
involved
the vandal-
(18
conspiracy
RICO
U.S.C.
computers
ism.
seized
1962(d));
§
storage
pursuant
and data
devices
to the
trial,
Superseding
during
3. The Fifth
Indictment was the
dictment
the'
which
first
dis-
operative charging
govern-
document. The
missed
some counts
renumbered
Superseding
remaining
ment filed a redacted Fifth
In-
ones.
(18
of Review
II.
U.S.C.
Standards
wire fraud
Honest services
1343,1346);
§§
of review
address the standard
We
access of
computer
Unauthorized
the relevant
as we discuss
most
issues
(18
information
agency
United States
they apply to
Because
arguments below.
(c)(2)(B)©);
1030(a)(2)(B),
§ §
U.S.C.
case,
address the
in the
we
multiple issues
(18
1028(a)(7));
§
U.S.C.
Identity theft
and clear error
plain
error
standards
(18
U.S.C.
fraud
Computer
at the outset.
review here
1030(a)(4)).
§
ar
raises an
a defendant
When
1962(c));
(18
§
U.S.C.
Turner: RICO
appeal,
for the first time
gument
(18 U.S.C.
conspiracy
RICO
applies.
review
standard of
plain error
1962(d));
§
52(b);
v.
States
United
See Fed.R.Crim.P.
(18
1028(a)(7));
§
Identity theft
U.S.C.
Pelisamen,
399, 404
Cir.
(18
U.S.C.
fraud
Computer
(1)
2011).
there
requires
Plain error
1030(a)(4));
§
(3)
(2)
error;
plain;
it was
intercept and use wire
Conspiracy
rights. United
affected substantial
error
(18
371);
§
U.S.C.
communications
725, 732-35,
Olano,
507 U.S.
States
communications
of wire
Interception
(1993).
When
123 L.Ed.2d
S.Ct.
2511(l)(a), (d));
(18
§
U.S.C.
.
error,
appeals
plain
with
confronted
(18 U.S.C.
statements
False
and re
exercise its discretion
shall
1001(a)(2)).
§
“seriously
only
affect[s]
if the error
verse
intercept
Conspiracy
Kachikian:
fairness, integrity,
public reputation
.(18
communications
and use wire
Id. at
judicial proceedings.”
371);
U.S.C.
(internal
omit
quotation marks
S.Ct. 1770
*14
(18
wiretapping
a
device
Possession of
ted) (alteration
Plain
original).
error
2512(l)(b)).
§
U.S.C.
appeal
even where
applies
review
direct
Aiding
abetting
and
inter-
Nicherie:
in the law the
intervening change
is
an
(18
wire communications
of
ception
v. United
of the error.
Johnson
source
(d)).
2511(a),
§
U.S.C.
467-68,
States,
461,
S.Ct.
U.S.
of one count
jury acquitted Pellicano
(1997); Pelisamen,
1544,
The RICO
at issue
point making
government
of
show that
1962(c),
18 U.S.C.
“makes it unlawful for
knowledge
the defendants
some
ha[d]
any person employed by or associated with
the nature
enterprise[]
is to avoid
any enterprise ...
to conduct or partici
an unjust association of the defendant with
pate, directly
indirectly,
or
in the conduct
the crimes of others.” United States v.
enterprise’s
through
pat
of such
affairs
Brandao,
(1st Cir.2008).
539 F.3d
52
racketeering activity.”
tern of
Boyle v.
Nonetheless,
States,
the definition of a RICO
938, 943-44,
en
556
United
U.S.
(2009) (em
terprise has
reach”
“wide
and is to be
S.Ct.
Arneson then to Pellicano. That at 1424. day, provided same Turner Pellicano with Here, jury found that Arneson and confidential subscriber information from Pellicano each committed predicate ten SBC, wiretap and a on Finn was initiated. bribery acts of under California law. The government also introduced The evidence predicate acts against Arneson were based of other clients for whom Pellicano coordi- § California Penal Code which the activities of Arneson and nated Turner. felony makes for either an executive or Accordingly, this is not case where ], ministerial officer agree[ or “receive[ ] unjustly Arneson and Turner were associ- receive, bribe, any upon any agreement ated with Pellicano PIA or each other. or understanding vote, that his or her The evidence was sufficient conclude opinion, or action upon any matter then together that each worked with Pellicano pending, or that may brought be before money and others to earn from criminal him or her in his or her official capacity, activities, including illegally accessing con- shall thereby.”4 be influenced Cal.Penal databases, bribery, wiretap- fidential 68(a). § predicate Code acts of brib- A ping. reasonable could find that ery against Pellicano were based on Cali- Arneson Turner each knew about the § fornia Penal Code a parallel prohibi- essential nature of enterprise. this § prohibits tion: giving § bribes and district court did not err in denying Defen- prohibits receiving them. People See v. dants’ Rule 29 motion on this issue. Hallner, 715, 717, 718, 43 Cal.2d 277 P.2d (1954) Bribery (explaining B. California Penal Code Predicate Acts § § 67 and “complementary are stat- Pellicano and Arneson also appeal utes”). their RICO convictions challenging the predicate upon acts which those convic argues Arneson that the evidence RICO, tions rest. To be liable under de against him failed to establish that his fendants “must be guilty ‘pattern of a access of databases could have racketeering activity,’ requires which upon any constituted “action matter then (often separate racketeering least two acts pending, may or that brought [have] be[en] acts’).” ‘predicate called United States before him ... ... capacity.” his official Walgren, 885 F.2d Cir. 68(a). § CaLPenal Code The district court 1989) (citations omitted). Offenses that rejected arguments denying similar qualify “predicate acts” are listed in 18 Arneson’s motion to strike the state law 1961(1), U.S.C. including “any act ... § bribery predicate against acts him. We ... involving bribery ... which charge is agree with the district court. able under punishable by State law and imprisonment year.” for more than one governs If California law the state law convictions for the underlying predicate predicate bribery acts of charged 68(a) vote, language 4. The opinion, relevant upon any reads as action or matter follows: pending, may brought then or that be- officer, Every executive or ministerial em- capaci- fore him or her in his or her official ployee, appointee or of the State of Califor- ty, thereby, punisha- shall be influenced nia, therein, county city political or or a by imprisonment prison ble in the state thereof, asks, receives, subdivision who two, three, years[.] or four *17 receive, bribe, agrees any upon any to 68(a). § Cal.Penal Code agreement understanding or that his or her 988 LAPD offi position as an used his official Frega, 179 States v. United
indictment.
Cir.1999).
Access to
“review
to
the databases.
We
cer
access
793, 806
F.3d
statute, regu
by
court’s determination
was restricted
databases
a district
de novo
College v. Rus
Regina
lation,
and Arneson
policy,
LAPD
law.” Salve
state
1217,
231,
113
225,
111 S.Ct.
sell,
only
posi
499 U.S.
because of his
access them
could
(1991).
190
L.Ed.2d
See CaLPenal Code
tion as an officer.
11105(b)
Attorney
(providing
§
“[t]he
Arneson
heard evidence
summary crimi
furnish state
General shall
federal
law enforce
state
accessed
persons,
to
history
[certain
nal
information
tar
investigate PIA’s
to
ment databases
officers], if
in the
needed
peace
including
from Pelli
payments
for
exchange
in
gets
duties”);
Reg.
11
of their
Cal.Code
course
occurred
database access
Arneson’s
cano.
703(b)
records
that criminal
(providing
§
To meet
this
capacity.”
“in
official
his
basis,
to have
element,
not need
“on a need-to-know
may
Arneson did
be released
the databases
authority”
by
to access
agencies
“actual
authorized
only
persons
Pellicano,
long
so
relay information
offender record
to receive criminal
[law]
within
accessing
534(a)(4) (limit
“[fell]
the databases
as
information”);
§
28 U.S.C.
and he
scope of his duties
general
government database
ing access to federal
capacity.”
in
to act
his official
[purported]
parties,
statutorily enumerated
to certain
420,
Cal.App.2d
119
Longo,
v.
People
...
penal
“the States
such as
People
(Ct.App.1953);
also
P.2d 53
see
institutions”). Moreover,
he
when
other
381, 389,
211 P.
Cal.App.
Lips, 59
v.
databases,
LAPD
he
used
accessed
an officer
(explaining that
(Ct.App.1922)
and LAPD-issued
computer
terminals
by “doing of
capacity
in his official
acts
Every time he accessed
passwords.
the office
properly belong
as
acts
such
databases,
to act
purported
Arneson thus
to be offi
intended
the officer
and are
Longo, 119
capacity.
in
See
his official
cial”).
Cal.App.2d at
259 P.2d
evidence,
testimony
such as
about
inquiries
database
also
Arneson’s
using
for
LAPD manual’s standards
or that
pending,
then
“matter[s]
involved
databases,
accessing
established that
him....”
brought before
may [have been]
general
databases
within
police
§ 68.
law “does
Code
California
CaLPenal
im
duties.
scope of Arneson’s
Just
any
pend
action to be
require
specific
free a sus
action
an officer to
proper
is
ing on the date the bribe
received.”
money
custody
pect
exchange
Gaio,
919, 929, 97
Cal.App.4th
v.
People
“official
action
the officer’s'
constituted
(citation and
(Ct.App.2000)
Cal.Rptr.2d
posi
of his
so did Arneson’s use
capacity,”
omitted). As this
quotation marks
internal
Lips, 59
tion to access the databases.
use
the word
explained, “[t]he
has
(affirming
989 Hence, Similarly, reject the matter we prohibitions”). compara- Pellicano’s against to “enforce the law social arguments whether ble that Arneson’s database police like always vices is before” officer searches were not “official” and not suffi- Gaio, 930, Cal.App.4th 81 at 97 Arneson. ciently connected to a government pro- too is the matter of Cal.Rptr.2d 392. So ceeding. The evidence was sufficient to position whether to use his as an LAPD find that Pellicano paid Arneson bribes investigate in the officer-to someone Los “with intent to him in respect influence Angeles area. Johnson v. United act, decision, Cf. any vote, opinion, or other States, 10, 14, 68 92 333 U.S. S.Ct. proceeding as such officer.” CahPenal (1948) (describing L.Ed. 436 law enforce- § Code 67. The database searches were “competitive enterprise ment as the of fer- influenced, and, the “acts” that Pellicano crime”). reting out use of his Arneson’s discussed, acting Arneson was in his someone, investigate office to via confiden- capacity § official under 68 when he ac- otherwise, necessarily tial databases or in- Likewise, cessed the databases. he was type police volved a classic “matter”— acting § “as such officer” under 67. Gaio, investigation. at Cal.App.4th See 81 argues Pellicano also he could not Cal.Rptr.2d (holding 97 392 that evi- have bribed Arneson because support bribery dence was sufficient to Arneson was only misusing office, conviction's because evidence established the resources of his payment given “any to influence legal authority not the of that office. This instances, types, one or more or courses of distinction support finds no in California action”). official Moreover, case law. even if this were the distinction, right accessing the databases theory brought Arneson’s that an act legal authority. was misuse of Arneson’s discretionary before an officer must be above, authority As discussed he had the cites, support finds no in the cases he only to access the databases because he See, requirement. which state no such was an officer. The district court did not Hallner, 717, 721, e.g., Cal.2d err in denying the motion to strike the (reversing judgment P.2d 393 that “execu predicate bribery. acts of City Angeles tive officers of the of Los are not executive officers of this state as de Code”);
fined section 67 of the Penal see C. Honest Services Fraud Racketeer- Jackson, People also v. 42 Cal.2d ing Skilling Acts (1954). P.2d 6 Section also language 68’s challenges Pellicano also predicate argument. pro forecloses this Section 68 acts of honest services fraud. The receiving hibits “ministerial officers” from found that Pellicano committed 46 such § a bribe. 68. Cal.Penal Code Ministerial predicate acts and that Arneson committed nothing acts under California law “leave 44 such acts. Honest services fraud en- judgment.” the exercise of discretion or “deprive tails a scheme or artifice to an- Strohl, 347, 361, People Cal.App.3d other,” wire, intangible mail or “of the Cal.Rptr. (Ct.App.1976). An offi right of honest services.” 18 U.S.C. paid cer thus need not be a discretion 1346; § §§ see also 18 U.S.C. ary act to meet the elements of 68. In Here, case, government’s theory of honest any if required, even discretion were pay- fraud was that Pellicano’s services type Arneson had discretion over what conduct, police ments to Arneson for access to data- investigation including what persons public right databases to use and to look bases defrauded the its what up. Arneson’s honest as an officer. services *19 “affected in the instructions that the error and Arneson were Pellicano
After
trial”).
sentenced,
while their
of the
the outcome
convicted
Supreme
Court
appeal,
cases were
Skilling,
argues
also
that under
Arneson
services
of the honest
scope
narrowed
under
or kickback as defined
only a bribe
v.
Skilling
United
See
fraud statute.
law,
distinguished from state
federal
as
358,
2896, 177
States,
130 S.Ct.
561 U.S.
law,
services fraud.
may establish honest
(2010). Now, only “fraudu
L.Ed.2d 619
rejected
persuasively
Fifth Circuit has
The
another of honest
deprive
lent schemes
argument:
a similar
sup
through bribes or kickbacks
services
Skilling ...
reveals
reading
A fair
had not been
party who
plied by a third
establishing a uni-
that the Court was
services fraud.
honest
deceived” constitute
by construing
form national standard
404,
(emphasis add
at
turning conviction a showing absent provide him with confidential pro- and they prejudiced the defendant. United prietary information from the firm’s com- Cruz, States v. de 864-65 puters. The Korn/Ferry employees were Cir.1996). authorized to access the information for purposes of doing job, their but the use to 1. Computer Fraud and Unauthorized they put which the information was unau- Computer Access Claims thorized. Nosal was charged with aiding computer Both and unauthorized fraud abetting computer fraud. The district computer access are under crimes court dismissed the charges against Nosal Computer (CFAA), Fraud and Act Abuse offense, failure to state an and we § 18 U.S.C. 1030.5 Turner was convicted affirmed, noting that a broader definition of aiding abetting computer fraud of the term “access” would allow criminal paying telephone company employees, in- liability to “turn on the vagaries of private cluding Wright, Teresa to obtain cable policies.” Id. at 860. pairing information company’s from the The district court here instructed the computer system. This information was jurors to return a guilty verdict if they then used to facilitate PIA’s wiretapping found that Turner “knowingly and inten- activities. Arneson was convicted of unau- aided, tionally counseled, commanded, in- thorized computer access of United States duced, procured or person] [a commit agency information accessing confiden- fraud,” the crime of computer defined in tial police databases to obtain information relevant part “knowingly as accessing] about various PIA investigative targets. without authorization exceeding] or au- Pellieano was convicted of aiding and abet- thorized access of a ... ting computer with the computer both fraud and unauthorized intent to defraud.” computer instructed access for his involvement with further: Arneson’s and Turner’s activities. [A] defendant exceeds authorized access
Following
convictions,
this court de-
... when the defendant accesses a com-
Nosal,
cided United States v.
access to
restrictions
A defendant
obtains
information
Nosal,
on its use.” Id. at 864. Based on
merely by observing it on the computer
1030(a) provides:
§
5. 18 U.S.C.
protected computer
cesses a
without au-
thorization,
(2)
access,
Whoever —...
intentionally
or exceeds
accesses a
authorized
computer without
or
authorization
exceeds
and means of such conduct furthers the
access,
thereby
authorized
(B)
obtains —...
anything
intended fraud and obtains
of val-
any department
information from
punished
ue
provided
...
shall be
as
States;
agency
(4)
of the United
or ...
(c)
subsection
of this section.
defraud,
knowingly and with intent to
ac~
remove the information
under the CFAA for violations of state or
and need not
computer to have violated this
federal law that restrict access to certain
from the
See,
types
e.g.,
of information.
section.
C.F.R.
20.33(d)
(restricting the dissemination of
objected to these instruc-
No defendant
information).
history
certain criminal
This
trial, and thus our review is for
tions at
argument
argu-
lacks merit. Those laws
Although it
not obvi-
error.6
plain
time,
ably prohibited Arneson’s conduct based
the district court
this
ous to
used,
way
on the
the information was
exceeding authorized access
definition of
distinguished
way it
that it allowed the
from the
was ac-
was flawed in
cessed,
expand
of informa-
but that does not
the reach
convict for unauthorized use
only
Congress
rather than
for unauthorized
of the CFAA.
has created other
tion
contrary
access. Such
instruction is
statutes under which a
em-
Nosal,
and therefore the instruction
ployee who abuses his database access
*21
error.
plain
constituted
privileges may
punished,
be
but it did not
expand
scope
intend to
of the federal
prejudicial.
was also
The error
Nosal,
anti-hacking statute. See
676 F.3d
Nosal,
government
anticipating
Not
(refusing
at 857 & n. 3
to “transform' the
attempt
prove
Wright
made no
an
anti-hacking
CFAA from
statute into
any
accessed
databases that she was not
statute,”
expansive misappropriation
in the
doing
authorized to access
course of
citing
restricting
another statute
the use of
job. Although
government
now
her
information under which a defendant
Wright’s
contends that
use of the code
might
charged).
properly be
out in an
upon logging
attempt
“ERR”
constituted evidence of
cover her tracks
jury
defining
instructions
both com-
access,
persuad
we are not
unauthorized
puter
computer
fraud and unauthorized
ac-
“ERR”
a code that phone compa
ed.
was
agency
cess United States
information
ny employees were instructed to use if were
erroneous
plainly
under Nosal. The
an account
they accessed
accident. The
prejudicial.
error was
We therefore va-
necessarily prove
use of that code did not
aiding
cate Turner’s conviction for
employee
that the
was not authorized to
fraud,
abetting computer
Arneson’s convic-
Wright might
access the database.
have
computer
tions for
fraud and unauthorized
simply
used the “ERR” code
to divert
access,
computer
and Pellicano’s convic-
suspicion
doing.
as to what she was
That
aiding
abetting
comput-
tions for
both
may
use of the “ERR” code
have violated
er fraud and
computer
unauthorized
ac-
company policy, Wright may
but
nonethe
proceedings
cess. We remand for further
less have been authorized to access the
may
appropriate.
government
be
If the
Nosal,
database. Under
unauthorized use
decides, may
retry
so
seek to
the defen-
support
enough
was not
the convictions
charges.
on these
dants
of Turner
for aiding
and Pellicano
abetting computer
Wright.
fraud
Identity
2.
Claims
Theft
Turner, Arneson, and Pellicano contend
We reach a similar conclusion on
the convictions associated with
their convictions
certain other of-
Arneson’s
misuse of information from
LAPD
fenses cannot stand once the
com-
da
CFAA
puter
computer
tabase. The
contends that
fraud and unauthorized
ac-
preclude
liability
Nosal does not
criminal
cess convictions have been set aside. The
noted,
Johnson,
466-68,
previously
plain
6. As
error stan-
U.S. at
error.
applies
appeal
dard
on direct
even where an
S.Ct. 1544.
intervening change in the law the
source of
erroneous,
identity
plainly
at issue are for
theft CFAA were
the instruc
convictions
racketeering
§ 1028 and
relating
under 18 U.S.C.'
tions
to the California statute
(both
and the substantive
conspiracy
Although
may
were not.
a verdict that
offense)
1962(c)-(d).
§
under 18 U.S.C.
legally
ground
based on a
invalid
must
aside,
ordinarily be set
see
v. Uni
Griffin
Identity
knowing
theft is defined as the
States,
46, 58,
ted
502 U.S.
112 S.Ct.
use, or transfer of a means of
possession,
(1991),
pari, 50 F.3d Defendants have failed to preju- show (“[W]e are inclined to ... strongly agree dice from the erroneous instruction re- until highest that the state’s court has garding felonious intent under the CFAA particular law, on a spoken point of state predicate as a to identity theft. We affirm necessarily the law the state must both the identity theft and RICO convic- unsettled.”). regarded as against tions this challenge.9 It apparent from the verdict that jury jury supported found that facts find- 8. Kachikian’s Wiretapping Claims ing of criminal intent under the California presents Kachikian number chal- statute, permitting so jury rely on lenges jury to the argues instructions and criminal intent under the CFAA was they require reversal his convic- jury harmless. The guilty returned ver- tions for conspiracy to intercept wire com- dicts for the substantive offenses of com- munications violation U.S.C. puter fraud computer and unauthorized ac- 2511(l)(a), § and manufacturing and/or cess under the though CFAA. Even those possessing a wiretapping device in viola- aside, convictions must be set the facts 2512(l)(b). § tion of . 18 U.S.C. We are not jury necessarily found in re- persuaded by arguments. his turning those guilty verdicts clearly evince § intent under 502. Specifically, jury ' a. Intent under section 2511 must have found that Turner induced theory The main of Kachikian’s defense Wright to provide him with confidential was that Kachikian lacked required pairing cable information from ihe phone criminal intent because he believed Pellica- company database and that pro- Arneson no using his Telesleuth software for vided Pellicano with confidential criminal lawful purposes. The court instructed the history information from the LAPD data- to prove had base. The jury instructions defined unau- that “the 'defendant intentionally, acted thorized access under 502 as “the know- is, purposefully deliberately ing taking, access and copying, making not as a result of accident or mistake.” of data use or supporting documentation This instruction was both accurate and from a computer, computer system, or adequate. computer network permission without do so.” Given the presented evidence argues Kachikian that the court abused *24 rendered, the verdict jury the would nec- its in failing to jury discretion instruct the cumstances) challenges 9. Defendants’ other to the Califor- fails because a California wob- identity nia law underlying theft also fail. presumptively felony.” bler "is a United The argument statute of limitations fails be- Salazar-Mojica, States v. 634 F.3d cause the relevant of statute limitations that is (9th Cir.2011). Finally, argument regard- the theft, identity of that underlying of the ing a jury of instruction lack to as to a the Indeed, computer unauthorized access. in required loss amount fails the because mone- theft, order to identity commit crime the of tary amount limits a different section of the only one need the have intent to a commit 502(h)(2) § statute. See Cal.Penal Code felony; it is irrelevant whether or not the (c)(3)). (modifying Even were that not the felony was actually committed. 18 U.S.C. case, harmless, jury the error as the would 1028(a)(7). § argument The that the state no doubt have found the ex- information (i.eit statute is a "wobbler” can be a either changed $250. worth more than felony depending or misdemeanor on the cir- by willfully participat- conspiracy of a guilty, him it must ber that, find in order to the to plan law. Kachi- in the unlawful with ing to the he intended break intent find instruction, object purpose or such further some proposed advance or kian never hand, plain is for error. our review the other conspiracy.... and thus On of conspiracy a knowledge no of one who has that the word contends Kachikian way in that furthers happens to act a but must be “intentionally” the two statutes in conspiracy object purpose or of some that to know require a defendant read to conspirator.” a thereby become does not his He bases is unlawful.10 his conduct understood history wiretap A rational would have juror on the argument enacted, the originally As mean that in order to ping statutes. instructions to those any person who “will applied to jury statutes find guilty, had to find Kachikian communication or fully” intercepted a wire something unlawful agreed he to do possessed “willfully” manufactured who addition, and, he acted with n part In as wiretapping device. agreement. further the unlawful intent to Privacy Electronic Communications hand, If, jury found that on the other Act, “inten substituted word Congress that Pel- knowing acted Kachikian without “willfully” §§ for the word tionally” unlawful, then would licano’s intent argues Kachikian that this sub and 2512. guilty conspir- not have found Kachikian was not intended to reduce stitution acy. requirement, but mental state statute’s inquiry is whether the relevant “[T]he Bartnicki v. to increase it. See rather misleading or as a whole are instructions 4,n. 532 U.S. S.Ct. Vopper, jury’s inadequate guide delibera- (2001) (Rehnquist, L.Ed.2d 787 Garcia-Rivera, States v. tion.” United C.J., by changing dissenting) (arguing (9th Cir.2003) (internal 788, 792 from language in the statute “willful” omitted). think the quotation marks We “intentional,” to in Congress intended guide delib- adequate were instructions Assum requirement). the scienter crease aware of jurors were well eration. (and reach no conclu that is correct we ing that he did not know Kachikian’s defense is), would on whether it the statute sion unlawful intentions. The of Pellicano’s violation of a known require the intentional Kachikian of jury fact that the convicted challenge fails re legal duty. Kachikian’s jury did not conspiracy meant gardless because he has not established story. Kachikian’s version of the believe or that his substan prejudiced that he was rights were otherwise affected. tial b. Intent under section acquitted Kachikian was of the crime argues that the court Kachikian also wire communications viola- intercepting instructing jury on the neces- erred only § tion of 2511. He was convicted manu- sary criminal intent for the crime of intercept wire communica- conspiring device under facturing wiretapping jury, instructing In the district tions. required 2512. The instructions conspiracy the crime of court defined that “the defendant prove agreement something “the to do unlawful.” to know that the de- knew or had reason was told: “One becomes mem- *25 2511(l)(a). applies anyone § applies anyone "in- Section 2512 10. Section who manufactures, intercept, tentionally intercepts, "intentionally endeavors to assem- ... who intercept procures any person bles, or or other wiretapping possesses, or sells” a device. wire, oral, intercept, any or elec- endeavor to 2512(l)(b). § U.S.C. 18 U.S.C. tronic communication.” sign of or ... surreptitious [the other] mechanical device interception” of wire primarily it useful for the pur- rendered communications. Id. pose surreptitious interception of the of “surreptitious” The term as used
wire, oral, or electronic communications.” in the statute was aimed the secret Kachikian contends that the instruction nature of the interception, not the illegality required proof should have that the defen- it. of That is the common understanding dant knew the device would be used ille- Lande, of word. See United States v. gally. Kachikian misunderstands the stat- (9th Cir.1992) 968 F.2d (holding ute. equipment manufactured to intercept Section 2512 makes it a crime to and descramble satellite pro television ], “intentionally ... assem manufacture[ gramming met “surreptitious” element ble!], electronic, possess!], any or sell!] producers because the of pro satellite mechanical, device, or other knowing or gramming were unable to detect the inter having reason to know that design of ception equipment); Bast, United States v. device primarily such 'renders it useful (D.C.Cir.1974) (“The 495 F.2d purpose for the surreptitious inter ‘surreptitious interception’ words con wire, ception oral, or electronic com ], plain ordinary usage, ‘secret note! 2512(l)(b). ” § munications.” 18 U.S.C. (footnote omitted)). listening.’ The rele “Intentionally,” statute, as in the written perspective vant is that persons “manufactures, assembles, modifies pos whose communications intercepted. are sesses, or sells.” It does not modify context, In this “surreptitious intercep “useful” or “use.” crime lies in in tion” means an interception of which the tentionally device, manufacturing targets are unaware. knowing that primarily could be used Even were we accept Kachikian’s def- for wiretapping. The does statute not re surreptitious, i.e., inition of “secret and quire intent or knowledge that the device unauthorized; clandestine; action actually would unlawfully. be used Biro, secretly,” stealth or United States v. Kachikian argues contrary to the based Cir.1998), on the statute’s use of “surrepti- the word require does not accept us to that “surrep- Specifically, tious.” points he out that interception” titious excludes wiretaps by § 2512 covers devices “primarily useful for law enforcement. What matters is that purpose of the surreptitious intercep- interception was not authorized wire, oral, tion or electronic communica- persons involved in the communication. added). (emphasis tions.” Id. pro- He Accordingly, the properly rejected posed to the district court that the Kachikian’s instruction meaning as to the that “surreptitious” interception instructed the word “surreptitious.” “unauthorized, meant in other words un- Moreover, Kachikian’s interpretation interception. lawful” theory, this Under does not make in light sense of the rest of intercepts by lawful law enforcement Congress the statute. carved out an ex- qualify would not surreptitious. Kachi- 2512(2)(b) ception in private citizens kian’s defense was that if he manufactured wiretapping who manufacture un- devices wiretapping believing devices they der exception contract. That would be used primarily for law enforce- provides: “It shall not purposes, ment-authorized be unlawful under he would not be breaking officer, agent, the law he this section for ... an because could not of, have reason to know that design employee person “[had] or a under contract primarily with, States, State, of such device renders it useful politi- the United or a *26 acted, that his creation was not thereof, or an he knew manufacture [to cal subdivision enforcement, so wiretapping by 18 U.S.C. in fact used law being device].” possess 2512(2)(b). fit Kachikian does not with- § a lack of prejudice can be no from there and he does not contend exception, in that for use wiretapping devices instruction be un- exception That would otherwise. Furthermore, an in- by enforcement. law necessary government wiretaps if lawful “electric, mechanical, struction that defines were, definition, by the by not covered by or other device” as a device not use they surreptitious. n lawenforcement are not statute because improperly would have case, the manufacture Were proof govern- to the shifted the burden wiretapping government devices under type that the of device Pelli- ment to show already from exempt would be contract by for use law cano used was never meant 2512(1). § liability under criminal plain It was not error enforcement. support argu- his Kachikian also tries to in- issued such an the court not to have by contending phrase that the “elec- ment struction. mechanical, device,” tronic, or other as A that Kachikian was mistaken belief § art found in is a term of manufacturing the device for law enforce- by law excludes devices destined for use § Ka- ment was no defense under He this on the defini- enforcement. bases argued chikian he manufactured “ ‘electronic, tion found in the statute: me- know- purpose, device for another without chanical, any or other device’ means device as a ing potentially that it could be used can used to inter- apparatus or which device, but the wiretapping instruction wire, oral, or electronic communica- cept defense, given contemplated that and the being than ... used [a device] tion other jury persuaded by was not it. Theoretical- by a of wire or electronic commu- provider if ly, might he have had valid defense ordinary nication service course (1) intentionally not manufac- either he did business, by investigative or law
its or (e.g., he manufactured it ture the device ordinary in the course enforcement officer (2) accident), government or he was a em- 2510(5)(a). of his duties.” 18 U.S.C. ployee government or under contract propose not such an in- Though he did the device. Kachikian did manufacture struction, Kachikian claims that the court argue present any sup- evidence in that, should instructed the have trial, port of either of these defenses at guilty order that Kachikian was prove however, so the lack of an instruction cov- crime, would have to not an ering those circumstances was prove not intend for law enforce- he did abuse of discretion. ment possess device. again, Once Kachikian misunderstands c. instruction Good-faith “to language of the statute. The verb - trial, proposed At Kachikian future, present, use” is not the following instruction: “That Defendant exception applies to devices tense. The believed, actually even if Kevin Kachikian used, being not to be used. A device that in mistakenly, that Defendant Pellicano intercept “can wire communi- be used” market the Telesleuth software tended to from the reach of cations is removed components hardware to law and related actually the criminal until it is “be- statute complete is a defense all [to enforcement It irrele- ing used” law enforcement. charged] he was be therefore, counts with which vant, whether or not Kachikian possess Kachikian would not cause Mr. may have intended Telesleuth to be used requisite ‘knowledge’ and ‘intent’ to be by law enforcement. At the time Kachiki- *27 convicted of these offenses.” The district a supplemental jury instruction to cure give proposed court declined to in- counsel’s misstatement of the law: “[W]ith That regard struction. decision was not errone- to Count in determining the ous. meaning of ‘surreptitious,’ it is not relevant that notification of the interception may proposed instruction was not a so, given.” later be In doing the court did proper statement of the law. It would not abuse its discretion or any pro- violate required jury have to acquit Kachikian cedural rule. See Fed.R.Crim.P. 30 advi- if he believed Pellicano intended to sory (“[T]he comm. n. to 1987 amend. enforcement, sell to law even if he also power retains ... to add instructions knew that Pellicano planning was to use necessitated arguments.”). the software and other illegal devices for wiretapping. It was also incorrect be- e. Recording oneself cause, above, explained it did not matter argues Kachikian that the district court whether Kachikian believed Pellicano in- erred in failing to instruct jury on the tended to market the device to law en- wiretapping exception set forth forcement. He did not fit the exception 2511(2)(d), § which specifies that it is not a statute, provided within the and the stat- violation of the statute to record one’s own broadly ute does not potential exclude law telephone conversations.11 He bases this usage. enforcement It enough that he contention on the fact that the con- knew the device could primarily be used victed him of conspiring wiretap, yet intercept wire communications. Accord- simultaneously acquitted him of all counts ingly, the court did not abuse its discretion him charging with the substantive crime of in rejecting proposed instruction. wiretapping. presented Kachikian no such Supplemental instruction, d. instruction so plain review is for error.12 Counsel for Kachikian stated in clos- Theoretically, if Kachikian were guilty of ing rejected after the court his erro- conspiring intercept wire communica- —even tions, neous interpretation surreptitious of and if one of his co-conspirators —that law enforcement wiretaps surrepti- are not guilty were of the crime of interception of tious because “those communication, who have their calls wire if and the substantive intercepted ... are notified at the wiretapping end of violations were foreseeable as wiretap.” The court thereafter necessary issued a or natural consequence of counts, 11. The full text tapping reads: “It shall not be unlaw- "interception but rather chapter person acting However, ful under this generally. wire communications” wire, oral, intercept under color of law objection complained or supplemen- his that the electronic person communication where such tal instruction created a variance from the party is a to the communication or where charged one scope agreement, indictment's parties given to the communication has that it helping allowed conviction for Pellica- prior interception consent to such unless such no proposed record his own calls. Kachikian intercepted purpose communication is for the relating no instruction to the affirmative de- committing any l(2)(d), criminal or tortious act § fense contained in 18 U.S.C. violation of the Constitution or laws of the duty and the court had no to issue such an any United States State.” 18 U.S.C. sponte. instruction sua See United States v. l(2)(d). Gravenmeir, (9th Cir.1997) 121 F.3d (upholding statutory non-instruction on ex- argues ception noting Kachikian that review de should be this circuit’s "well-settled objected supplemental novo because he to a rule that a defendant bears the burden of defining "object” instruction proving of the con- exception he comes within an spiracy offense”). as not limited to the substantive wire- Anderson, Cir. Kachikian should have then
conspiracy, 2000) (“A instruction, illegal give jury the crime of failure to guilty of found been *28 error, v. United seriously See Pinkerton if in does not affect interception. even 1180, 640, 645, States, 66 S.Ct. judicial pro 328 U.S. integrity the fairness and (1946). in- jurors The were L.Ed. if at trial made no ceedings the defense According much. to Kachiki- as structed instruc argument relevant to the omitted that the an, inconsistent verdict shows the tion.”). mistakenly that Pellieano’s
jurors believed reasons, affirm Kachikian’s For these we conversations was recording of his own jury instruction chal- against conviction his Kachikian admitted he and because illegal, lenges. using was Telesleuth knew Pellicano calls, him they convicted record his own Aiding for E. Nicherie’s Conviction though they did not conspiracy even Abetting Wiretapping help Pellica- Kachikian intended believe aiding convicted for Nicherie was others. wiretap no argues He that abetting wiretapping. substance, argument is less In his conviction must be overturned because in about an error the instruc complaint a in subsequent developments the law have a inconsis potentially tions than is about pre one of the two theories invalidated verdict, verdict is but an inconsistent tent prosecution, impos and it is sented a reason to set aside not in itself sufficient theory jury to know which relied sible Powell, States v. a See United conviction. He also returning guilty verdict. 471, 57, 66, 105 83 L.Ed.2d 469 U.S. S.Ct. that was insufficient evidence argues there (1984). conspiracy A is conviction illegal activity part on his to establish a failure necessarily inconsistent with period. the relevant time Under within charges. on substantive See to convict limitations, any the statute of conviction Fiander, 1036, States v. United be based on conduct after October must (9th Cir.2008). Perhaps jury 1040-41 26, agree gov 2000. that one of the We to show the evidence sufficient believed improper. theories was There ernment’s Pellicano to ille conspired Kachikian with a convic support was sufficient evidence to someone, insufficient to gally wiretap but theory, tion on the other but the evidence specific to the conspired show that he overwhelming to cause us to was so in and instances named individuals was harmless. As conclude the error dictment. result, the conviction. we vacate was, event, no any There obvious trial, presented During instructions, if there was error error guilt on two distinct theories of Nicherie’s Johnson, at at all. 520 U.S. See aiding abetting wiretap- charge Olano, at (citing 507 U.S. S.Ct. support could ping, arguing either 1770) (noting “plain” error is 113 S.Ct. conviction. One was that he hired Pellica- error). synonymous with “clear obvious” Ami wiretap The other Was no to Shafrir. trial that argue Kachikian did not he record- that he listened to and translated only believed Pellicano intended to record intercepted phone calls.13 ings conversations. States of Shafrir’s his own See United him, him, by paying by sitting in the closing, government postulated: “It 13. In proved Investigative Agency that Defendant Nicherie hired De- lab and listen- Pellicano wiretap- purpose fendant Pellicano for intercepted ing translating conver- to and Shafrir, knowingly ping Ami and that he aid- sations.” wiretapping by hiring ed and' abetted that In convict, order jury had to find Pellicano’s within services the statute of (1) that Nicherie paid either Pellicano for limitations period.
wiretapping services after October (2)
2000, or
listened to and translated re-
theory, however,
second
cordings of
ongoing
wiretap after Octo-
rendered legally defective by this court’s
ber
later ruling
Hall,
in Noel v.
14. The
manded, induced,
instructions were as follows:
procured
person
In order for Defendant Nicherie to be
interception
commit
crime of
of wire
found guilty
aiding
abetting
and
the in-
communications.
terception
communications,
of wire
third,
And
Defendant Nicherie acted be-
prove
Government must
ing
each of the follow-
fore the
completed.
crime was
beyond
elements
a reasonable doubt.
you
....
If
find from the
evidence
First, the crime
interception
of wire
interception
of wire communications of
communications was committed
some-
occurred, you
Ami Shafrir
must
find
further
one.
that the offense continued after October
Second, Defendant Nicherie knowingly
aided, counseled,
and intentionally
com-
Johnson,
at 469-
biguous”);
520 U.S.
jury
in the
instructions was
error
cf.
(reversal
wiretap-
for erroneous
The crime of
plain
recording was
when the
where
complete
jury
instruction was unwarranted
ping
recording did not
made,
replaying
“overwhelming”).
evidence was
supporting
Because “a
interception.
a new
constitute
re-
reasonably
that the
possible
It is
aiding
may not be convicted of
defendant
sup-
evidence
jected the non-time-barred
offense,”
completed
abetting a
United
in-
theory and convicted
the first
porting
1186, 1191
Lopez, 484 F.3d
States v.
Therefore we
theory.
stead on the second
(en
Cir.2007)
banc),
subsequent
Nicherie’s
rights
that Nicherie’s substantial
conclude
listening
translating
did not
itself
error, as
by the instructional
were affected
intercep-
aiding
abetting
constitute
based on
jury’s
may have been
verdict
tion
of wire
communication under
support the
that did not
finding
a factual
2511(l)(a)
Act,
Wiretap
the of-
Harrison,
F.3d at
conviction. See
charged
which he was
and con-
fense for
is satis-
error standard
plain
1161. The
victed.
fied.
argues that the convic-
result,
convic-
As a
we vacate Nicherie’s
*30
inconsistent with Noel be-
tion was not
abetting a wire inter-
aiding
tion for
and
permitted
cause the evidence
pro-
for such further
ception and remand
review and translation
find that Nicherie’s
If the
ceedings
may
appropriate.
recordings occurred while
wire-
of the
decides, may seek to
government so
it
place,
in
after Oc-
tap hardware remained
charge.
retry Nicherie on the
26, 2000,
aided
so
his actions
tober
Yet each
wiretapping.
continuation of
Attorney-client
privilege
and
F.
interception is a violation of the
discrete
product doctrine
work
statute,
recording
thus each
is associ-
and
above, the enforcement of
As described
completed
crime. A conviction
ated with
in
for PIA’s offices No-
search warrant
abetting
aiding
interception
and
there-
discovery of re-
vember 2002 led to the
only on
and
fore cannot be based
review
secretly
had
made of his
cordings Pellicano
recorded commu-
previously
translation of
calls with
In the re-
phone
Christensen.
held,
specifically
nications. As Noel
subse-
and
dis-
corded calls Pellicano
Christensen
conversation,
use of the recorded
quent
Bonder, the ex-
wiretap
cussed the
on Lisa
listening
translating
to and
its
including
Kerkorian,
Kirk
wife of
whom Christensen
contents,
governed by
prohibition
on
support
litigation.
in child
represented
intercepted
conversa-
use and disclosure
government subsequently
obtained a
previously intercepted
tions. Misuse
permitting the seizure of
broader warrant
information is not what Nicherie was
key
recordings,
they
became
evi-
doing.
convicted of
charged with or
in
wiretap
dence of the Bonder
the second
though
Even
there was sufficient evi-
trial.
jury to convict
the first
dence for the
argue
Pellicano and Christensen
that the
theory,” the
was
“procurement
evidence
recordings of their conversations discuss-
overwhelming that the
not so
instructional
ing
wiretap
the Bonder
should
have
“listening
second
regarding
error
prosecutors
been released to the
this
translating” theory was harmless. See
into
case and thereafter admitted
evidence
Harrison,
United States v.
(9th Cir.2009) (erroneous
in the
trial because their conversa-
second
jury in-
protected
attorney-
under the
tions were
struction was not harmless when evidence
argue that
privilege.
“am-
Defendants
support
proper ground
of the
client
private
lege,’ including
hired
as a
exception,
Christensen
Pellicano
the crime-fraud
litiga-
investigator
questions
assist Kerkorian
‘involve mixed
of law and fact
Bonder. Because the record-
against
novo,
tion
and are reviewable de
unless the
ings
reflected
conversations
between
scope of the privilege is clear and the
discussing
and Pellicano
Christensen
decision made
the district court is es
litigation
revealing
confidences
factual;
sentially
only
in that case
clear
”
client, Kerkorian,
con-
they
Christensen’s
justifies
error
Napster,
reversal.’
In re
attorney-client
tend
privilege pro-
Copyright
Inc.
Litigation, 479 F.3d
They
argue
recordings.
tected the
also
(9th Cir.2007) (citation omitted),
abro
that we
the district
should reverse
court gated
grounds by
on other
Mohawk Indus
procedures
because it failed to follow the
tries,
Carpenter,
Inc. v.
558 U.S.
handling
investigation
potentially
599, 175
(2009).
S.Ct.
L.Ed.2d 458
privileged materials established in United
2. n Reconsideration under
Zolin,
States v.
491 U.S.
109 S.Ct.
the correct
(1989).
2619,
We
result
district
gaged
relating
legal
work
matters
*31
analysis.
court’s reconsidered Zolin
The
gov-
and at the
of attorneys,
behest
the
majority
recordings
substantial
of the
did
ernment
a separate group
established
of
qualify
protection under the attor-
attorneys
investigators—the
“filter
ney-client privilege,
the
production
of
team”—to screen items for
be-
privilege
portions
limited
have
might
priv-
been
fore the items were released to the team
ileged was harmless.
re-
Neither did the
investigating
underlying
the
case.
cordings qualify for
the
protection under
Among the
nu-
materials seized were
product
work
doctrine.
phone
of
recordings
merous
conversa-
tions between Christensen and Pellica-
1. Standard
Review
of
no. The filter team believed that
the
an evidentiary
“Whether
show
privileged
were not
conversations
ing is sufficient to allow camera
in
review
in
were
furtherance
a crime. The
question
under the Zolin test is a mixed
application]
team
an ex
for a
parte
[filed
subject
law and fact
to de novo review.”
stating
allowing
court order
such and
In
Jury Investigation,
re Grand
974 F.2d
recordings
to
the
the team
release
to
Cir.1992);
1071
see also Grand
investigating
underlying
the
case.
those
92-l(SJ),
Jury
Subpoena
granted
The
court then
a court
district
(9th Cir.1994).
adequate showing
Once an
permitting
order
the filter team to release
made,
step
under Zolin’s first
has been
recordings.
the
engage
“the decision whether to
in in cam
argues
grant
Christensen
that in
era
rests in
review
the sound discretion
order,
Zolin,
ing
the
the court
the district court did
district court.”
at
U.S.
process
2619.
not follow the correct
under Zolin
S.Ct.
Under Zolin’s second
“ ‘rulings
scope
step,
on the
of the
to
that the
privi
determine
Pellieano-Christen
in
The district court did not err
privileged or work
recordings
sen
were not
requires
reconsidering
a
and crime-fraud is
privilege
Zolin
dis
product protected.
two-step
parte
trict
to follow a
ex
the
Zolin framework
court
sues under
correct
whether the crime-
process
erroneously
to determine
after it had
considered
applies
potentially privi
exception
fraud
in its
rul
recordings
initial
content
materials,
the Pellicano
leged
such as
ing
government’s
parte applica
ex
on the
491 U.S. at
recordings.
Christensen
Jara,
la
F.2d
tion. United States v. de
h
First,
judge should
2619.
“the
S.Ct.
(9t
There,
Cir.1992),
is instructive.
showing of a factual basis ade
require a
a
court admitted
letter to
district
a
faith
a
quate
good
belief
support
attorney
ruling
from his
after
defendant
camera review
person
reasonable
fell
sponte
sua
the letter
within
reveal evidence to
may
materials
exception.
at
The
Id.
crime-fraud
claim that
the crime-fraud
establish the
district court did not follow Zolin in admit
(citation and inter
exception applies.” Id.
ting the letter. This court affirmed on
omitted). Second, if
quotation
nal
marks
had
ground that the defendant
waived
preliminary
government
makes such
attorney-client privilege. Id.
749. Had
other than the
showing
on evidence
based
ground,
affirmed on that
the court
materials
them
potentially privileged
explained,
required
it “would be
to remand
selves,
cam
may
the court
conduct
properly
to the
court”
case
district
mate
era
to determine whether the
review
Id.
n. 1.
the dis
apply Zolin.
at 749
As
and,
so,
if
privileged
rials are
whether
present
rightly
trict court
matter
exception applies. Id.
crime-fraud
out, if
pointed
we would remand for
initially releasing
In
the Pellicano-
applying
district court to fix a
mistake
recordings
in-
Christensen
after
two-step process
the court
Zolin’s
vestigators, the district court did not fol-
document,
potentially privileged
saw the
two-step process.
govern-
low Zolin’s
district
“surely
acceptable
[it’s]
parte application seeking
an ex
ment filed
to correct
own mistake
court
its
before
ruling
on the Pellicano-
crime-fraud
appeal.”
recordings that cited their
Christensen
routinely
limit-
juries
trust
follow
We
granted
content.
district
ing
evidence
errone-
instructions when
referencing or
application
applying
without
*32
ously admitted. See United States
error,
realizing
Zolin. Later
its
the dis-
(9th Cir.1995)
Mende,
F.3d
trict
the issue under
court reconsidered
presumed
that
to
(explaining
jurors are
two-step
ruling
the
in
on a
process
correct
limit-
have
the district
“followed]
court’s
by
to dismiss the in-
motion
Christensen
instructions”).
similarly
ing
trust dis-
We
suppress
recordings.15
the
dictment or
judges
put
to
out of their
trict
evidence
gov-
that the
district
concluded
a motion
granting
minds. The
to strike
showing
a sufficient
under
ernment made
routinely
in a bench trial does not
evidence
step
of Zolin
warrant
in camera
one
simply
in a mistrial
the
result
because
The district court then conducted
review.
judge
already
district
has
heard the evi-
recordings
an in camera review of the
(1)
present-
dence that should not have been
recordings
held that
were neither
Instead,
judge
expected
ed.
the district
is
nor work
attorney-client privileged
prod-
(2)
were,
Dis-
disregard
improper
if
evidence.
protected,
they
uct
even
judges
adept
are
at recon-
exception applied.
especially
the crime-fraud
trict
recordings.
tó
The motion
15.
filed a motion to recuse the
the content
Christensen
judge.
judge
exposed
a
district
she had been
was denied
different
district
because
decisions,
sidering prior
they
are asked
S. Zolin’s
step
first
all
to do so
the time. See C.D. Cal. L.R.
The district court did not
err
holding
(explaining
7-18
standard for reconsidera-
that the
met its minimal bur-
tion).
den
step.
under Zolin’s first
Moreover,
is analytically easy
for a
step
Zolin’s first
requires “a fac
judge to separate what
appropriate
is
to tual
adequate
basis
support
faith
good
consider at
step
each
analysis.
Zolin
belief
person
reasonable
that in cam
one,
step
At
judge
era
may
only
consider
review
may
materials
reveal
evidence other than
evidence to
potentially
establish the
privi-
claim that
Zolin,
crime-fraud
leged
exception applies.”
material
two,
itself. At step
(citation
at
U.S.
109 S.Ct.
judge
must also
consider the content of the
internal quotation
omitted).
marks
material. There is no
reason
believe
government must
only
make
“a minimal
analytical
this
framework cannot be ap-
showing
the crime-fraud exception
plied properly just because
judge got
could apply.”
Jury
Grand
Investigation,
peek
step-two
sneak
evidence.
mistake submission dispute with Bonder. issuing order, before whereas here the 2. Evidence that firm Christensen’s judge district corrected the error after paid $186,000 had Pellicano near the issuing an stating order the crime-fraud time of the recorded conversations *33 exception applied. cases, In both the de- at issue. got
fendants they what were entitled to: a 3. An FBI reflecting record Pellieano’s court properly district applying Zolin girlfriend’s former statement that without considering the content of the po- Pellicano told her he was listening to tentially privileged materials.16 Bonder’s conversations. reject We argument Christensen’s only that the "non-privileged the gov- evidence” the improperly district court submitted, considered the con- ernment analysis the court's recordings of the tent even when reconsider- did refer to the recordings. content of the ing the issue. The expressly court considered of the furtherance in gal assistance evi- explained, this court
As district the scheme). the inference that the “raised dence exchange in was, part,
$186,000 at least Jp. step Zolin’s second We wiretapping services.”17 illegal district analy- step, the court’s second the district Zolin’s Although Under agree. review Chris- in camera that conducts an speculation” court required “some sis privi are repre- the materials attempt tensen, determine whether misguided in a and, so, government the hired Pellicano if whether vigorously, leged sent Kerkorian the showing was that Bonder, facie speculation prima such has made wiretap Zolin, at Id. step. applies. first Zolin’s exception under permitted crime-fraud 2619; also Unit see 1072-73. at S.Ct. U.S. Bauer, F.3d ed States had also additional court The district Cir.1997). conclud court here The district Zolin’s to conclude that it before evidence the communications “[n]early all of ed that pro- government met. step first was by the attor protected not to appear Pellicano recorded that evidence duced than a- No more ney-client privilege.... he dis- with whom many persons other six approximately the few statements would This evidence wiretapping. cussed arguably recordings even tape of hours aby reasonable faith belief support good informa might be confidential what reveal re- the Pellicano-Christensen person that To concerning Kerkorian.”- from or tion discussions similar might contain cordings of the portion that a small the extent con- especially wiretapping, about qualified otherwise have recordings might representation of Christensen’s text confidential, court concluded district money as large sums Kerkorian they privileged because they were not Pellicano. that paid firm had Christensen’s advice, were legal relate testimony did not recounted also The affidavit activity, or fell within illegal “con- furtherance employees PIA that from former exception. crime-fraud wiretapping use of widespread firmed investigations.” in Pellicano’s with the district agree We privilege applied attorney-client government that the We conclude Pellicano- of the limited portions that most to showing” “minimal requisite made the not find recordings. doWe recordings Christensen Pellicano-Christensen ex the crime-fraud necessary to consider showing crime- evidence might contain apparent it is because ception, any privileged applied exception fraud harmless. was portions of those production them. Grand within communications Cf. the il evidence of incriminating 92-1(SJ), at 830 Extensive Jury Subpoena within available legal wiretapping was Zolin’s met (holding that covered recordings not of the exports portion involving illegal step in case first The small privilege. attorney-client “testimony of two affidavit based where have recordings might as on tele fraction ... as well employees former communications privileged invoices, docu entailed records, and other phone the rest of with or intertwined large so a cor mentary evidence” established require as to conversations the recorded disguise license to export used poration all of over privilege extension le sought its counsel’s illegal exports 104(a). privilege exists. Fed.R.Evid. to a apply do not *34 of evidence rules 17. The whether preliminary determination court's
1007 Fischel, attorney.” 209, recordings. product As for the work In re 557 F.2d the (9th Cir.1977) doctrine, any argument (holding 212 attorney- Defendants waived that by to client applied failing privilege protect attorney’s this doctrine did we raise the their briefs. Even if summaries of client’s issue business transac tions). issue, Further, agree were to the we with the reach communication from product attorney district that the doc- the to a party acting work third as his apply illegal wiretap- trine “for agent purpose advising did not to the the end, defending In the ping. may protect we conclude that his clients” also be in releasing district court did not err ed if it reveals confidential client communi Judson, under recordings step Zolin’s second or cations. United v. States 322 (9th Cir.1963); permitting recordings use F.2d 462 see also Jacobs, second trial. v. F.Supp. United States 322 Rice, (C.D.Cal.1971); Paul R. Attor Attorney-client 'privilege ney-Client Privilege in the United States (2014) § (explaining 3:3 that “courts have “The attorney-client privilege privilege extended the to confidential com protects by a confidential disclosures made munications ... attorney from the attorney legal client to an ... obtain agent, and agent from the attorney attorney’s advice ... as well as an advice Chen, (provided that the communications not response such disclosures.” (citation from prior the client reveal confidences of quota F.3d at 1501 and internal client)”). omitted); Bauer, does not tion marks see also dispute that communications between a (explaining “attorney- F.3d at 507 that the street”).18 lawyer and a private investigator privilege two-way client retained is by lawyer lawyer’s repre to assist the purpose attorney-client privi may sentation of a client be lege covered “encourage is to full and frank com privilege. attorneys munication between and their thereby promote clients pub broader “The claim of privilege must
lic in the interests observance of law and be made and on a question-by- sustained justice.” Upjohn administration Co. v. basis; question document-by-document or States, 383, 389, United 449 U.S. 101 S.Ct. privilege unaccepta blanket claim of is (1981). 677, 66 must L.Ed.2d Clients scope privilege ble. The should be lawyers be candidly, able to consult their ‘strictly pos confined within narrowest and the in turn lawyers must be able to Lawless, sible limits.’” States United Chen, provide legal candid advice. 99 F.3d Cir.1983) (quoting 709 F.2d at 1499-1501. 2291). Wigmore, Evidence An entire may A communication from at document or set of documents be torney to the client that does privileged privileged por not contain when it contains legal may protected “directly inextricably advice be if it tions are “so intertwined or indirectly they of a with text reveal[s] communications the rest of the cannot confidential nature by the client to the be separated.” United States v. Chevron are, instance, attorney-client privilege eight permanently 18. The has ele- at the client's (7) ments: protected by from disclosure client “(1) (8) legal any legal protec- When advice of kind adviser unless the (2) sought professional legal from a adviser tion waived.” such, (3) capacity in his Martin, or her the com- United States v. (4) relating purpose, munications to that (9th Cir.2002). client, (6) (5) by made confidence *35 (N.D.Cal. contend, as nearly enough simply is to *5 Mar. Corp., 1996 WL has, 13, 1996) (citing Corp. Resolution Trust that discussions between Christensen (S.D.N.Y. Diamond, F.Supp. “refer- and Christensen Pellicano included 1991)). contrast, nonprivileged In litigation.” “[i]f Refer- ongoing to the ences are distinct portions of a communication litigation would not necessar- ences to severable, and their disclosure would and ily of information entail revelation of the effectively reveal the substance Indeed, from to Kerkorian. confidential the court must legal portions, privileged review, our most such references designate portions of the communi which recordings did not. may are therefore be protected cation and out) (blocked prior to or redacted excised the bulk of importantly, More Rice, Attorney-Client Privi disclosure.” Ker simply was not about discussion lege 11:21. The court described korian. district communications, referring to recorded recording Based on our review of name, Bonder by her married Bonder agree transcripts, we with district more a Kerkorian: than “[n]o court’s assessment in the approximátely few statements six focus on two The communications recordings arguably even tape hours topics. main The first is Bonder Kerko- might be confidential informa- reveal what part, herself. the most Pellica- rian For concerning tion from or Kerkorian.” to conveys the content no Christensen argument contrary is to Christensen’s tone of between and communications con- remarkably unspecific. Christensen others, including Bonder Kerkorian examples by tends that cited the dis- two friends, attorneys, and the mediator. did, fact, trict court reflect confidential expresses personal his Pellicano own client communications: terms feelings concerning Bonder Kerkorian willing would offer client Kerkorian to lawyers, provides her his own accept litigation to resolve the thoughts and to advice Christensen putting fact that Kerkorian his faith should handle various how Christensen asserts, in the mediator. He also a foot- subject aspects litigation. of the This note, Recordings contain other “[t]he permeated matter is with the “fruits” of by statements Christensen reference conversations overheard Pellica- client, from his privileged communications through wiretap- no—apparently illegal including Kerkorian’s lit- statements about ping. identify his to igation objections, desires father, second, and other biological Kira’s refer- topic is the true related ongoing That as- litigation.” enees parentage of Kira The ma- Kerkorian. is a citation nine accompanied by sertion jority this on [a discussion focuses pages transcripts from the record- person]. much of this dis- named While ings. incorporates the content of Bon- cussion telephone der Kerkorian’s conversations That claim is overbroad. district (Pellicano repeats that Kerkori- Bonder questioned, for example, whether person] named is a “can- [the stated willing the terms that Kerkorian was father, for Kira’s but she later didate” confidential, actually noting offer were father, etc.), the mediator he told might that those terms have been commu- portion a substantial also documents nicated that time to Bonder’s counsel. to act as a apparent Pellicano’s efforts argued Christensen has not the con- negotiate a deal be- trary example, “go-between” to us. Aside from that
1009 person] leged, remaining portions tween named and Kerkori- the could have [the severed, an. any been admitting and error in the potentially privileged portions was descrip- did not this Christensen contest harmless. The correctly district court not involve tion. That discussion did confi- attorney-client the privilege concluded did by Kerkorian to dential disclosures made not apply. attorney-client no Christensen. There is favor of of
privilege any in Kerkorian over product 6. protection Work that discussion. Neither nor Christensen Pellicano has transcripts recordings of the totaled presented a separate argument appeal Our indi- approximately pages. 370 review on percent less cates that than 10 of those that district the court should have withheld that have pages may contained information recordings the or denied their admission been confidential to Kerkorian. Christen- into evidence based on the product work potentially sen has not shown that the doctrine. Christensen’s briefs referred to privileged portions recordings were attorney the product only work doctrine “inextricably intertwined” with the remain- support argument his standing he had recordings they der of the such could object to the seizure of recordings.19 not be not separated, appear and it does Pellicano’s briefs no made reference to the Chevron, they us that were. See 1996 WL They have, doctrine whatsoever. there *5. potentially privileged 264769 at Those fore, appeal. waived the on issue See Mil pages separated have been from the could Indus., Inc., ler v. Fairchild pages re- nonprivileged indirectly without (9th Cir.1986) (“The Appeals Court of or vealing removing nec- client confidences will ordinarily ap not consider matters essary nonprivileged context from the peal specifically distinctly that are not pages. brief.”). argued appellant’s opening possibility Even disregarding the if vague Even defendants’ references exception applied crime-fraud to ne- were doctrine deemed sufficient to gate any privilege, producing error issue, agree raise the we with district admitting was portions those harm- product court that the work doctrine did Yin, less. Chu Kong See United States here. apply (9th Cir.1991) (“A non- F.2d doctrine, “The product error re- work codi evidentiary constitutional will be if only versed for abuse of discretion fied in Federal Rule Civil Procedure ruling likely 26(b)(3), court’s more than not protects from docu discovery verdict.”). affected Christensen and tangible things by prepared ments and repeatedly frequently Pellicano dis- anticipation party representative or his illegal wiretapping cussed their of Bonder litigation.” Jury Subpoena In re Grand throughout nonprivileged portions of (9th Cir.2004) (Torf), 357 F.3d recordings. That was evidence (citation quotation and internal marks incriminating, pro- and was not omitted). It requires documents to have any privilege. tected (1) they pre “two be characteristics: must sum, pared anticipation litigation or for majority
In
vast
the Pellica-
(2)
trial,
privi-
they,
prepared by
were not
or
recordings
no-Christensen
must
reject
particular,
argued
standing,
In
Christensen
that the
reach that issue of
for we
product
challenges
attorney
to the
on the
work
doctrine confirmed
seizure
merits.
legitimate
personally
expecta-
separately
that he
discussed
mem-
had a
issue is
in the
filed
recordings.
disposition,
privacy
tion of
in the
We
8-9.
do
orandum
Doe,
F.2d
Cir.
by or
that other
In re
party
for another
(cita
1981) (“No
at 907
work
representative.”
construing
Id.
party’s
[the
omitted).
marks
quotation
and internal
attorney
tion
... has held that an
product] rule
work-product
core,
doctrine
could,
“At its
invoking
committing
a crime
attor
processes of the
the mental
doctrine,
shelters
himself
product
work
insulate
*37
privileged area within
ney,
a
providing
abusing
prosecution
from criminal
analyze
prepare his
he can
.and
which
Indeed,
system
protect.”).
he
to
is sworn
Nobles,
States v.
case.” United
client’s
indicate,
precedents
above
as some
2160,
225, 238, 95
45
S.Ct.
422 U.S.
merely un
by
attorney that is
conduct
an
(1975). The
under
privilege
141
L.Ed.2d
ethical,
may
as
to
be
opposed
illegal,
not absolute. Where it
the doctrine is
enough
product
to
the work
doc
vitiate
if
facially applies, may
it
be overridden
Parrott,
1271-72;
707
at
trine.
F.2d
protected
that seeks
otherwise
party
(“[A]t
Merced,
1079-80
F.3d at
on the merits
juror’s
views
from
stems
Thomas, 116 F.3d at
(quoting
original)
dismiss the
case,
court must not
616).
original).
(emphasis
at 1087
juror.” Id.
to dis-
contrast,
permissible
it is not
In
words,
evidence
the available
In other
regard-
on his views
based
juror
charge
firmly
one
to leave
“sufficient
must be
evidence. United
sufficiency of the
ing
juror’s
for a
impetus
convinced
1080, 1085
F.3d
Symington, 195
States
posi-
her]
[his
dismissal is unrelated
Cir.1999).
a case
in such
Removal
n. 5. After
Id. at 1087
on merits.”
tion
Amendment
Sixth
a defendant’s
violates
that, in
record,
concluded
we
reviewing the
an im-
from
to a unanimous verdict
right
available, “the
the limited evidence
light of
jury.
Id.
partial
‘firmly
have been
could not
district
days of
after five
deliber-
Symington,
In
impetus for
convinced’
Cote/s
trial, the
fraud
criminal financial
in a
ation
position
her
was unrelated
dismissal
complaining
note
judge
jury sent
n. 7.
Id. at 1088
case.”
merits of the
participate
would
juror
who
about
jurors
some
“[t]he statements
Because
judge
at 1082-83. The
Id.
deliberations.
Cotey
with
that their frustration
indicated
them
jurors reminding
to the
wrote back
their dis-
derived more from
*39
have
may
days
A few
duty to deliberate.
of their
of the
her on the merits
with
agreement
another, more detailed
sent
jury
later the
case,
from their dissatisfaction
or at least
of the
majority
why “the
explaining
note
views,”
in
dismissal
of her
with her defense
juror
ques-
in
sincerely feel that
jurors
1084.
Id. at
improper.
was
that case
dis-
participate
properly
tion cannot
whether
to determine
may be difficult
It
discussing
After
1083.
Id. at
cussion.”
to deliber
unwillingness
juror’s alleged
a
sides, the
counsel for both
the matter with
merits or
views on the
from his
ate stems
each member
separately questioned
judge
may
court
not
law. “[A]
his
on the
views
of the
the nature
to determine
jury
be
juror’s
into a
motivations
deeply
delve
that
jurors stated
other
problem. The
secrecy of
intrude on the
may
cause
in her
Cotey,
apparently
a woman
Juror
(al
at 1086
Id.
jury’s
deliberations.”
dur-
mid-70’s,
and unfocused
confused
was
United States
original) (quoting
teration
“just
deliberations,
that
she
ing
(D.C.Cir.
Brown,
F.2d
596
Id. at
mind set.”
to have her
seem[ed]
challenges”
1987)).
“special
creates
This
Cotey,
judge questioned
1084. When
attempting
determine
judge
the trial
to discuss
willing
that “she was
she stated
among de
problem
between
whether
jurors,
the other
case with
elements
disagreement
from
jurors stems
liberating
ev-
when
became intimidated
but that she
of the case. Id.
on merits
that
and demanded
at once
eryone talked
to the
defer
district
“generally
stated
as she
We
her views
soon
justify
she
be-
determinations”
good cause
court’s
other
them.”
She also “noted
Id.
in the
best
“the district
might be be-
cause
her
jurors’
with
frustration
jury’s ability
to evaluate
position
majority all
agree with the
T can’t
cause
Vartanian,
F.3d at
researching and
deliberate.”
And I’m
the time....
still
’
omitted)
(alteration
quotation marks
case.”
Id.
more in the
looking for
1194);
Beard,
see also
161 F.3d at
(quoting
Cotey because
to dismiss
judge decided
Boone,
F.3d
States v.
to United
unwilling or unable
“either
she was
Cir.2006)
(3d
(“[W]e
dis-
emphasize
Id.
colleagues.”
her
deliberate with
court,
triet
based on
unique perspective
its
tempered by the concerns raised in Sym
scene,
is in a far superior position ington
at the
about
inappropriateness of in
than this Court to appropriately
truding
consider
into deliberations because the eval
juror misconduct,
allegations of
uation
credibility
both dur-
will not usually require
deliberations.”).
ing
and during
trial
that kind of inquiry. When the concern
involves the possibility
juror
has lied
Lying to the court about matters
court,
to the
the district court will not
potential
may
related
bias
also consti
always suffer from the same lack of inves
good
tute
juror.
cause for dismissal of a
tigative power that limits the court’s abili
Vartanian,
See
ation room.” its OK for the 1098. affirmed it We do conviction, get and not caught. noting particular that “the record amply supports the district Then it’s should be OK for him. Stan- court’s findings that juror] [the was ‘un #7. truthful with the court’ and ‘untrustwor In response, brought the court jury ” Id. at 1099. thy.’ back into the courtroom and reread the “special
We afford following deference” to a trial instruction: court’s adverse credibility finding because your duty It is to find the facts from all the determination of credibility “largely is in the evidence case. To those facts Yount, one of demeanor.” Patton v. you apply will give you. law as I it to 1025, 1038, U.S. 104 S.Ct. 81 L.Ed.2d You must follow the I give it to law 847 (1984). This deference you, need not be you agree whether with it or not. verbatim, 21. quoted The notes are including spelling grammatical errors. n discussed the and counsel The court received anoth- day, the court
Later that attributed statements of whether question of It recited some from Juror er note the mer- his 7 indicated views to Juror from oth- questions responses 7’s Juror the law. validity of on the or his views its example: jurors. For er question a an intent court indicated need?” you do evidence Q: “What individually.22 The next jurors selection say + here Ray Turner “I want A: briefing from the receiving morning, after tapped.” wire he issue, correctly decided to on the parties Uribe, 748 F.3d Bell v. do so.23 See [...] Cir.2014) (“The remedy allega- for is il- [wiretapping] you believe Q: “Do hear- prompt a misconduct juror is tions legal?” determines the the trial court in which ing pay have to law we don’t “In the A: the im- transpired, of what circumstances taxes, taxes.” just state federal not or jurors, and whether on the pact see also prejudicial.”); misconduct note, signed portion The bottom (“[WJhere ... Boone, F.3d at 329 an alternate requested explicitly Juror ... nullification allegations credible not talk about 7 “will juror because Juror deliberations, a district during arise[ ] law;” participate “will or evidence discretion, in- may, within its sound court deliberations;” “ANTI-govern- and is juror through allegations vestigate the unsigned and final note was ment.” The means.”). appropriate other or questioning joke” “a case calling Juror quoted be examined.24 “I the first to announcing, Juror was “no one died” and because notes from knowledge of the denied He seriously.” treat this case don’t from— Okay. I a note COURT: have THE there is at “I know least 22. The said: suggests juror approach apparently from on the Circuit case one Ninth said, okay I the Govern- you "If it’s for I don’t believe take. have Court should caught, two juror get one or then it merely because' do it and not excuse ment to refusing to deliber- that he is at the same jurors okay him.” And contend should colloquy there is now ate. I do believe with a little bit different got a note time I plus said, 7] or required [Juror 7] [Juror either is you "If it’s suggesting that language inquiry relate to whether will others.... The wiretap okay Government to for the and whether he willing the law he is to follow okay him.” Did it’s get caught, then willing deliberate.” something like things those you say those things? have read the explained: “I 23. The court [(cid:127) (cid:127) (cid:127)] night, two from the were sent last emails that *41 Well, say Gov- if the I didn't THE JUROR: defense, and I from the and one Government can, wiretap, he whoever ernment can then by cited both the cases that were have read sides, prob- that note He “he” to. wrote referred a number of other have also read and I towards ably anger and emotions on based concluded along lines.... I’ve cases the same me. in the notes contained that the information you? Toward THE COURT: least, me, very permits me requires or at the angry because I He Yes. was THE JUROR: jurors, and I have question more to one or jurors. majority of the disagreed with the course I should that that’s the determined [...] take.” you you say that Okay. Did THE COURT: wiretap- about couple with the law Okay. agree don’t I have 24. THE COURT: you jury. ping? know I assume notes from say you you Okay. Did that? THE COURT: wiretap- about agree with law no, don't Actually, I don’t. THE JUROR: ping? me a note? you THE Did write COURT: ' [...] No. THE JUROR: jurors other and disavowed the statements follow the law in this case.” That finding regarding attributed to him wiretap- both was “based on the statements that [were] ping and tax laws. suggested Juror 7 in the notes and that jurors the [other] juror who wrote one of the notes was confirmed.” The court also found that angry disagreed Juror 7 because with the “Juror Court,” No. 7 has lied to the citing majority jurors and because he “c[ould that independent as “an ground[ for ] ex- agree judge to not] [his] decision cir- cusing him.” cumstantial evidence.” In process, the court specifically The court questioned then five other found “that jurors the five other are credi- jurors who all confirmed that the state- ble and that Juror No. 7 is not.” The notes, ments in the including “it should be court also found that Juror 7 had lied okay for him” wiretap, and “we don’t omission voir during dire when he did not taxes,” have to pay federal were “more or speak up in response to question either the less what [Juror said.” 7] Juror by the court juror as whether any had foreperson, “not percent was sure [of “any feelings particular about the charges what was because everybody said] in the against defendants,” question time,” room talks at the same but recalled Pellieano as to any whether jurors hearing say Juror 7 something about not “any had knowledge of [wiretapping laws] having pay federal taxes and confirmed or ... any opinions on [them].” that Juror 7 “if okay had said it’s for the The district court was aware of the stan- government wiretap get caught, dard set out in Symington. The court okay then it’s for him.” Juror 9 told the concluded that impetus for dismissal court that she wrote down Juror 7’s state- stemmed not from Juror 7’s views on the ments contemporaneously as he made merits of the case but from his views on them; Juror 3 also wrote down Juror 7’s the law. In issuing the ruling, judge statements. Juror told the court that stated, “I don’t believe there is a reason- “the words exactly weren’t [as written able possibility that impetus even the notes],” but that was “the substance” jurorsf] notes or their request of Juror 7’s statements. said if the “[H]e alternate stems from Juror No. 7’s views federal can do it and not be on the merits.” guilty, found private then a citizen “ shouldn’t be. That’s what it was.” Juror Because the ‘may not intrude on ” 11 likewise confirmed that Juror had secrecy jury’s deliberations,’ expressed doubt about both wiretapping Symington, 195 F.3d at (quoting and federal tax law. Brown, 596), 823 F.2d at inqui- the court’s After hearing ry from parties, necessarily was the court constrained. The court found there just rightly cause juror to dismiss Ju- instructed each questioned ror 7. The court found that “Juror No. 7 is not to volunteer beyond information what willing to follow the law and will not the court asked and not to discuss the
THE
Okay.
COURT:
And
after the
THE
I don't
JUROR:
recall
At
that.
all.
deliberate,
went back to
I received another
That doesn’t
sense
make
I couldn’t
me.
*42
note,
suggests
perhaps
that note
that
specific questions
answer to
wiretapping
you,
you
someone said to
"If
knew someone
with the federal taxes.
was wiretapping and the law said it was
you
THE COURT: So
didn’t—
illegal,
you
illegal?”
do
believe it’s
And
say
THE
I
anything
JUROR:
didn't
about
was,
your
that
response
"In the law we
taxes.
taxes,
don’t
pay
have to
just
federal
state
you
taxes.”
say something
Did
like that?
By con-
trial.
lengthy
complicated
any juror’s
deliberations
content of
came
first note
trast,
the
Indeed,
Symington,
ques-
when
the merits.
on
views
of deliberations.
days
five
after
repeatedly
the
jurors,
tioning the
Brown,
F.2d at
1083;
see also
at
pre-
to
off mid-sentence
cut them
had to
dis-
court’s
the district
(holding that
in- 594
afoul of this
running
from
them
vent
of delib-
five weeks
juror
after
missal of
Nevertheless,
the court
because
struction.
right to a
the defendant’s
violated
separate
five
erations
from
confirm
to
was able
evi-
the record
jury, because
unanimous
statements
7 had made
jurors that Juror
evi-
found the
juror
the
suggested
wiretap-
dence
the
disagreement with
expressing
conviction). The
for a
insufficient
to dence
“sufficient
laws,
was
inquiry
its
ping
con-
is
Symington
period of time
impe-
longer
that the
firmly convinced
leave one
engage
to
juror attempting
with a
to sistent
is unrelated
dismissal
7’s]
tus for [Juror
unable
but
on the merits
at 1087 in deliberations
Id.
the merits.”
on
position
[his]
contrast,
In
cohort.
or her
to convince his
n. 5.
enough
háve been
unlikely to
one hour is
finding
that the court’s
acknowledge
We
have ascertained
jurors
the
to
time for
to follow
unwillingness
7’s
regarding Juror
on the
in their views
such a difference
conflict with Juror
arguably
is
the law
evidence.
that he
questioning
during
7’s statement
he
jurors because
other
the
disagreed with
Furthermore,
Symington,
unlike
on
judge
decision
[his]
to
agree
“cannot
sug
to
evidence
“considerable
there is not
7 also
Yet Juror
evidence.”
circumstantial
frustrations
jurors’
that
other
gest
the
the
about
made statements
having
denied
from
primarily
derived
[Juror 7]
with
federal
tax
wiretapping and
validity of
position opposite
held
[he]
fact that
the other five
laws,
every one of
whereas
Syming
of the
the merits
case.”
theirs on
that he had in
confirmed
jurors questioned
7 made it
ton,
Juror
1017
above,
light
stated
of
contradictory
credibility
of
was an “obvious error” that
testimony
jurors,
of five other
the court
worthy
“alone is
of reversal.”
validly
credibility.
discounted Juror 7’s
held,
We have previously
however, that
Furthermore,
just
Vartanian,
as in
juror’s
“[a]
assurance that he or she can
existence of
passing
such
reference does
render a fair
impartial
verdict is not
necessarily
not
evoke the concerns
cited
dispositive.” Egbuniwe,
tion multiple see (1976)). below at 1029-30 & reason, L.Ed.2d For this 1030-31, culminating with the assertion, at judge required “is independent make an 1031 that the failure to that question ask assessment.” Id. The district court was before dismissing Juror 7 based on a required lack to take Juror 7’s word it.
1018 law, valid, “in that the was wiretapping law the is what assessment independent An taxes, just pay to federal have It com- we don’t case. in this made court district reasonably court The district with taxes.” of events state 7’s version pared Juror this state- deter- 7 made jurors and Juror that five other concluded descriptions in willing to not Defendants was that suggest 7 Juror ment to that mined time, the comply same with At the have to not the law. this case did follow 7 lied had that finding that Juror fact The noted the court’s wiretapping laws. court ground independent an thus the law was court follow to the was not 7 would Juror excusing him. for erroneous. clearly not by the cited dismissal for grounds finding by district The was Neither per- and appropriate were court district to the had “lied court.” that Juror court above, at 1031-32, As described missible. at dissenting opinion, below The are reviewed findings 1012-13, error,” those “clear finding as that characterizes to defer” “generally error, we clear 7’s that Juror it because concludes but not The cause. good of determinations these were inquiry the court’s to responses of the standard contest does not dissent Rather, takes dissent truthful. For it either. apply not does but review intentionally dishon an that “even position 1031, that below complains, example, it it “be unless not matter answer” does est any point to to “fails majority opinion our Dyer citing impartiality,” of a lack speak[s] demonstrating in the record evidence solid Cir. Calderon, F.3d in nullification.” engaging was Juror that that the dis 1998) (en banc), noting reviewing the district to approach That denying a that decision trict court cited set To it has backwards. finding court’s dissent con new trial.26 motion persuaded aside, to be we have finding assuming “even tends, that below at court that by the district finding that tax state the federal 7 lied about Juror law to follow the willing “not 7 was Juror failing saying to recall ment, rather than case” in this the law not will follow by the during questioning as he stated Egbuniwe, See clearly erroneous. necessarily court, this falsehood does above, at 1013- described F.2d at 761. As impartiality.” a lack of bespeak ques- court jurors the district five however, Here, Juror 7’s statements reported state- credible and found tioned response taxes were made about expressing had made that Juror ments wire- he believed about whether questions wiretapping law with the disagreement testi- valid. Credible laws were tapping They reported also principle. a of matter jurors also confirmed multiple mony from a stated, response 7 had that Juror okay for it’s that “[i]f 7 stated Juror that he believed whether about question any relatives during as to whether voir dire quote cite to and did court 26. The district of the victim ever friends had been a close with different Dyer, in connection but from than any offense other or accused entirely claim crime involving different argument her later discovered It was cases. on the traffic based claim juror misconduct: killed, shot and previously had been brother juror to admit of one alleged failure juror in a as a she after sat prose- until but prejudicial comments potentially joined a convict- trial verdict is dis- murder That issue overheard. had cutor been him death. and sentenced the defendant rejected ed argument and Defendants' cussed relief, concluding granted habeas together disposition filed Our memorandum dire warrant- during voir note, juror’s lies more- We opinion, at 989-90. this with Dyer, 151 implied bias. an inference over, Dyer bias ed was that decision in that our Dyer that a point was not at 981. The juror an- F.3d who had be attributed should disregarded. lies questions juror’s should negative to the usual in the swered get and not wiretap court then denied the motion. It *45 okay Yet caught, statements, then it’s for him.” Juror found that 7’s quoted Juror as 7 failed to mention his views about the notes, “suggested] in the a bias on his though wiretapping laws even he was part against the government.” federal pointedly during about them voir asked The court noted the discrepan- “numerous Dyer potential dire.27 Although concerned cies between No. testimony Juror 7’s bias, juror nullification, in just not as that jurors” of that the other and reiterated its case, Juror 7’s lies were material and finding that 7 during Juror “lied the spoke squarely ques- the fundamental Court’s likely examination and during most willingness tion of his to follow the law and regard voir dire with that issues were discharge duty juror. as a his Dismissal relevant to his bias the It case.” added: on proper. this basis was thus juror “The submitted declarations—even if they were not barred Federal Rule of findings The district court’s factual were 60603), they Evidence which erroneous, are—do not they clearly supported not previous undermine the Court’s findings its that there conclusion was no reasonable credibility jurors to the of questioned the impetus that the possibility dismissal and the conclusions as to stemmed from Juror 7’s on the Juror No. 7’s views mer- veracity willingness of Accordingly, its the case. the to follow the law.” dismissal give agree. of Juror 7 We does reason set aside
the from trial convictions the second or to Sentencing H.
require a on charges. new trial those We review de the novo district dismissed, After 7 jury Juror was interpretation court’s Sentencing guilty returned verdicts. Christensen sub Rivera, Guidelines. States United v. sequently moved a new trial. The 891, (9th Cir.2008). F.3d The court’s accompanied motion was by declarations application of the Guidelines to is facts jurors from several what regarding hap reviewed for an abuse of discretion. Unit pened prior room to Juror 7’s (9th Carty, ed States v. 520 F.3d dismissal. lower correctly court held Cir.2008) (en banc). findings Factual are juror declarations were barred reviewed for error. clear United States v. from consideration Federal Rule of Evi (9th Treadwell, 593 F.3d 606(b), Cir. prohibits juror dence which a from 2010). may A sentence be set aside if testifying about made during statements substantively if procedur unreasonable or argue deliberations. Defendants that Rule 606(b) ally way in a not harm apply they does erroneous that is because were 993; juror less. inquiring Carty, into the 520 F.3d at United dismissal rather verdict, Acosta-Chavez, validity than the but that States 727 F.3d (9th Cir.2013). rejected distinction United States v. Procedural error includes Decoud, failing calculating 1018-19 Cir. to calculate or incorrect 2006). ly the proper range, Guidelines failing dire, During specifi- 27. voir you district make it difficult for to be fair and cally anyone any difficulty impartial asked: "Will juror have case?” Defendant Pelli- following my applying any you any instructions and cano asked: “Have formed opinion law to you approve 'wiretapping' this case whether or dis- about term from approve you?” reading newspapers of the law as I state government’s and the you already, “Other legislation regarding wiretapping? than what have heard new ... do you feelings any particular Anybody any have knowledge about the have or have charges against any opinions these defendants would on it?” Sentencing under in 18 of the offense level outlined U.S.C. factors consider the 3553(a), objection on One is to a two-level choosing sentence based § Guidelines. facts, failing to ex clearly upward adjustment ground erroneous Carty, selected. plain supervisory sentence role occupied Christensen F.3d over Pellicano. 3Bl.l(c), upward an Under U.S.S.G. 1. Christensen adjustment the defen- appropriate “[i]f of conspiracy convicted Christensen was leader, manager, or organizer, dant was *46 of wire communications interception and criminal supervisor” activity. of The dis- § and 18 U.S.C. of 18 U.S.C.
violation that “was trict court found Christensen 2511(l)(a). The district court sentenced § conduct, for Mr. Pellicano’s- responsible for each imprisonment him to 36 months of phone as in the recorded indicated counts, to be served concurrent- of the two calls, throughout him the reten- supervised range That was within ly. sentence tion.” . advisory suggested by months 30-37 Guidelines, upon based the dis- Sentencing finding The district court’s factual determination the total trict court’s clearly finding The was not erroneous. criminal histo- was 19 and the (2) (3) offense level “(1) implausible, or illogical, was not The level calcu- was I. offense ry category may support without in inferences upward depar- a three-level lation included in the Pine drawn from facts record.” 5K2.0(a)(2) (2001), § ture, under U.S.S.G. da-Doval, (explaining at 944 F.3d con- which district court for factors standard). though Even Pelli clear error adequately ac- cluded were not otherwise racke engaged illegal had been cano Sentencing in the Guidelines. counted for long teering activities before Christensen levels, three those additional Without him, that not mean could hired does he solely total level based offense supervised by led have been or someone a have been with Guidelines would activ engaging illegal else while further range 21 to 27 corresponding months ity. It was who directed Pel Christensen history a level of I. criminal line, phone wiretap licano to Lisa Bonder’s of 16 at the offense level from arrived wiretap required the coordinated adding by level of levels base offense imple of five more to people efforts or 3Bl.l(c) § for Chris- pursuant to U.S.S.G. who, ment, Christensen role, pursuant 3 levels supervisory tensen’s found, “gave district court Mr. Pellicano 2H3.1(b) pursuing § economic gain, told assignments his Mr. Pellicano pursuant § 3B1.3 for abuse and levels to cease his activities.” That was when public private trust. position of a or “super enough to make him a “leader” or his sentence as challenges Christensen activity. of the criminal visor” erroneous, contending to- procedurally lower tal offense level should be because gain b. Economic adjustments by made the court in cal- challenges Christensen the court’s culating the total offense level and gain application of three-level economic were im- upward departure three-level § enhancement 2H3.1. The factual under challenges his proper. He also sentence adjustment related was not finding to that substantively affirm. unreasonable. We erroneous, applica clearly court’s tion it was an abuse of discretion. Supervisory role a. 2H3.1(b), upward § a three-level Under objections raises to three Christensen if adjustment purpose “the appropriate the district court’s calculation elements of of the offense was to obtain ... economic Court and expect to be respected and to gain.” The district court found “the have their representations accepted as purpose of the offense was to obtain a true. Attorneys also trust each other tactical advantage in litigation which is an they least are supposed to be able to gain.” indirect economic Christensen con- trust each other not to engage in illegal tends that he merely hired Pellicano or unethical conduct. It is imag hard to in identifying assist biological father of ine system how our could work at all if daughter, Bonder’s and that Kerkorian these fundamental principles weren’t sought to modify never- his support child honored members of the Bar who obligation or otherwise obtain financial swore uphold them. gain through litigation his with Bonder. Christensen was an attorney. po- That Whether or not wiretapping provided sition was a position of trust. applica- immediate gain Kerkorian, economic tion notes to 3B1.3 explicitly state that however, dispositive. is not Christensen lawyers have a “special skill” as that term was motivated his own gain. economic is used in the section and among include As the district court observed, al- “[fit’s *47 the of illustrations an abuse of trust the to an ways attorney’s economic benefit to example of an' embezzlement of a client’s keep a client happy.” logical a That was by funds an attorney serving guard- as a interpretation of purpose the of the wire- ian. tap, and the finding court’s was not clearly
erroneous. Christensen argues, however, that he not use position did his attorney an to c. position Abuse a trust of of commit or crime, conceal the as required Christensen argues also that the court apply to the enhancement. He also argues incorrectly applied a upward two-level ad- qualify that to for this enhancement the justment § under 3B1.3 of the Sentencing relationship of trust that was violated must Guidelines for position abuse of a of trust. be between the defendant and the victim 3B1.3, § Under that enhancement should and that he not occupy did position a of apply the “[fif defendant position a abused in trust Bonder, relation to Lisa the victim trust, of or public private or special used a of the wiretapping scheme. According to skill, in a manner that significantly facili- Christensen, applied the court the en- the tated commission or concealment of hancement simply because was an he at- the offense.” torney, which is insufficient support to The district applied court the enhance- adjustment § under 3B1.3. ment, finding that “Christensen abused a practical matter, As a this argument is position public of trust which significantly more than theoretical real. The district contributed to the commission conceal- or court noted a that close question was ment the offense.” The court noted raised application of an enhance- that Christensen did not hold “the tradi- § ment under 3B1.3 to the facts of this position tional of trust” with to regard case that it found no directly cases victims .of the .and wiretapping, but concluded point. It went on to sense, that a state explicitly, “[fin real how- legal community ever, justice if, and that system here,' are based on victims of the facts this It § crime.” elaborated: 3B1.3 did support a adjust- two-level in ment justice calculating level, entire system [O]ur based on offense is theory court attorneys would imposed can have be trusted the same sen- to act ethically representing by applying their tence an upward variance in clients. Attorneys are officers of the equivalent an amount: Kerkorian, certainly it almost not fit is circumstances do
Even if these 3B1.3, they- conspiracy intercept Section within the letter of case that the spirit, and if hap- fit within its a certainly included would not have Christensen were not under that section departure pened otherwise. would be. then a variance appropriate, scope § enhance- As for the of the 3B1.3 position his attorney An who abuses ment, con- disagree we with Christensen’s degree that Mr. this manner only if the apply tention that should certainly more did here Christensen ran be- position of trust that was violated of a sen- deserving greater culpable of the tween the defendant and victim position has no such tence than one who That view is too constrained. wiretapping. imposed I not [H]ad abuse.... provision of the Guidelines relevant for abuse trust a enhancement “public or specifically refers to abuse departure, I would upward three level trust,” private suggesting concern reasons that have concluded for similar more than the individual interests equivalent variance an upward beneficiary. U.S.S.G. specific client See imposed. amount should be con- public may 3B1.3. The interest conclude, event, any We Similarly, § when applies sidered. 3B1.3 application the court’s enhancement skill,” special has the defendant “used appropri
under circumstances was these regard without whether victim was ate. the defendant’s client. recognized The district adjustment ap- has been upward terms, only if applied, its enhancement attorney in circum- plied defendants *48 (or skill) trust of special of use abuse victim, narrow- stances where defined the commission or “significantly facilitated ly, was not client. In defendant’s of the offense.” The court concealment Kubick, 205 F.3d 1117 United States position 'as an found that “Christensen’s (9th Cir.1999), for example, we affirmed way significant in a to attorney contributed § of application 3B1.3 enhance- commission or concealment of the of- attorney ment to an defendant who had finding clearly That was er- fenses.” bankruptcy his client in fraud. assisted roneous. That his client was not the victim did not wiretap The to Bonder was motivation ap- prevent being the enhancement from directly represen- to related Christensen’s plied. Id. at support tation Kerkorian in his child of Goldman, In United States v. F.3d direct- dispute with Bonder. Christensen (8th Cir.2006), opinion in an written ed Pellicano based on what Christensen by Judge Murphy, Diane a former chair of attorney knew Kerkorian’s in that dis- as Commission, § Sentencing 3B1.3 to pute. Payment initially Pellicano’s firm attorney was to applied enhancement an came firm. Christen- from Christensen’s- participated help in a scheme to who his attorney sen’s status as Kerkorian’s fraudulently client loan. Gold- obtain for which the commission of the offenses man’s client was not the victim of the conspiracy count he convicted—one of scheme, yet application adjustment of the intercept and use wire communications was affirmed. The court reasoned: “A interception of wire com- and one count of acting in an at- capacity defendant his It munications—were not coincidental. torney of occupies position public trust. Bon- likely wiretapping seems that the of knowledge attorney of as an gained Use but for der would not have occurred Chris- attorney subjects commit a crime a defendant an involvement as tensen’s enhancement for abuse of a position of d. Harm not accounted public trust § under U.S.S.G. 3B1.3.” Id. the sentencing guidelines (internal omitted). at 1096 citation In Christensen contends that the court Goldman, might the victim narrowly have abused its discretion in imposing a three- been identified as the bank that was the level upward departure for substantial target scheme, but court took a harm not accounted for under the Guide- view, so, broader and properly citing the lines. such a Imposing departure, the dis- defendant’s testimony false to the bank- trict explained: court ruptcy court as an illustration of his abuse There question is no the base position of a public of trust. See id. offense level does not begin to account Similarly, in United Fitzhugh, States v. for the scope particular crime, this Cir.1996), F.3d 1326 Eighth the invasion the attorney-client privi- Circuit upheld the application of the two- lege, and the direct and collateral dam- level enhancement to an attorney defen- age to justice system, as well as the dant in a conspiracy involved to defraud massive invasion privacy repre- the Small Administration, Business even sents. The Court finds a three level though his client was not the victim. Id. upward departure is appropriate. at 1332. noted the defendant’s The court specifically cited Christensen’s “status as attorney an ‘shrouded the “knowing and deliberate efforts obtain with [transactions] regu- presumption protected information by the attorney- larity, and thus significantly contributed client privilege” and the people “number of facilitating fraud,’ the commission of the who had their privacy The Sen- invacled.” and his offense legal ‘harmed the system tencing ” Guidelines themselves authorize he was uphold.’ sworn to Id. 1331-32 departure, such a as the district court (quotations and alterations in original). 5K2.0(a)(2) (2001). § noted. U.S.S.G. The concern expressed by the district In imposing upward departure, court for Christensen’s abuse of his obli- court relied on application appear- note gation, court, as an officer of the to the ing in the 2007 Guidelines Manual. See legal system itself is consistent with Gold- 2H3.1, (2007). U.S.S.G. cmt. n.3 man and Fitzhugh and our with under- *49 that, note stated for cases “in which the standing §of 3B1.3. offense level guide- determined under this To sure, be the fact that a defendant is line substantially understates the serious- also an attorney would not by itself justify ness of the offense ... an upward depar- application of the A lawyer enhancement. ture may be warranted.” example Id. One who robbed a bank on the likely side would so identified was case which “[t]he qualify 3B1.3, § under because the offense caused or risked substantial non- guidelines that require position the of trust monetary harm (e.g. ... [ a] substantial be abused or special the skills used “in interest) invasion privacy to individuals a manner significantly facilitated the whose private or protected information commission or concealment offense.” was obtained.” Id. But if that requirement met, is the en- § hancement Under may apply. 3553(b), 18 As U.S.C. we have con- district cluded may that the depart upward district finding court’s to or downward that effect clearly erroneous, was not from range suggested we the Guide affirm its application of the lines enhancement calculations based on aggravating or in calculating Christensen’s mitigating offense level adequately circumstances “not under the Sentencing Guidelines. taken into Sentencing consideration
1024
1069,
Ressam, 679 F.3d
v.
States
United
guidelines.”
formulating the
Commission
banc).
Cir.2012) (en
stan
(9th
This
Booker, 543
v.
1086
States
since United
At least
to a
738,
621
deference
significant
160 L.Ed.2d
“afford[s]
220,
dard
125 S.Ct.
U.S.
decision,”
Sentencing Guide
(2005),
sentencing
made
which
district court’s
mandatory,
than
Id.
advisory rather
cases.”
only in rare
lines
relief
provide
“will
authority
depart
to
if,
broader
court’s
district
may reverse
1086,
“‘[W]e
at
clear.
has been
range
Guidelines
from the
record,
a defi
we'have
reviewing
upon
limited
longer
nois
ability
depart
district
conviction
firm
nite and
inadequately
been
held to have
grounds
judgment
a clear error
court committed
United
in the Guidelines.
considered
weighing
upon
it reached
in the conclusion
(9th
1023, 1030
”
Mitchell,
F.3d
624
v.
States
(quoting
at 1087
factors.’
Id.
the relevant
reject
can
Cir.2010) (“[Sentencing judges
567
Amezcua-Vasquez,
v.
States
United
Guideline,
provided
Sentencing
any
Cir.2009)).
(9th
1050, 1055
F.3d
reasonable.”).
In
is
imposed
the sentence
of ‘reasonableness’
“The touchstone
advisory
sen
determining
deed, after
reflects
a whole
as
record
whether
expected
courts are
range, district
tencing
meaningful consideration
rational and
identi
specifically
factors
to consider
in 18 U.S.C.
factors enumerated
3553(a)
imposing
§
before
fied in 18 U.S.C.
(citation
inter
3553(a).”
1089
Id. at
§
below
depart
above
a sentence
omitted). A district
marks
See
appropriate.
quotation
if
nal
range
Guidelines
270,
3553(a)
owed
determinations are
549 U.S.
California,
§
Cunningham v.
court’s
856,
856
166 L.Ed.2d
sen
286-87,
“[t]he
127 S.Ct.
because
deference
significant
are
sentencing courts
(2007)
position
(noting
superior
in a
judge is
tencing
”
range
the Guidelines
“obliged” to consider
import’ due
their
judge
find facts
goals enumerated
sentencing
as well
familiarity
the individual
with[]
“greater
3553(a)).
before
defendant
and the individual
case
38,
States,
some
argue
[her],”
at
552 U.S.
v.
Although
parties
Gall United
(2007)
appropriateness
586,
about the
L.Ed.2d 445
length
128 S.Ct.
application
on an
reliance
court’s
marks
(citations
district
quotations
and internal
Sentencing
added to the
note
was
omitted).
persists “[e]ven
This deference
com-
the crime
until after
Guidelines
im
have
we would
certain that
if we are
any
depar-
such
mitted,
review
do not
we
had
worn
we
sentence
posed a different
correctness, as we do
procedural
ture for
States
United
judge’s robe.”
the district
in cal-
adjustments
and downward
upward
(9th
Whitehead,
Cir.
v.
under
offense level
culating the total
Gall,
128 S.Ct.
2008)
U.S.
(citing
States
See United
Sentencing Guidelines.
1086;
Ressam,
F.3d at
586);
also
see
Cir.2011)
Ellis,
F.3d
at 993.
Carty,
F.3d
*50
from
depart
that decisions
(explaining
objection to
specific
Christensen’s
for
are not reviewed
range
the Guidelines
for substan-
departure
upward
three-level
correctness).
Instead,
con-
we
procedural
for under
accounted
not
tial harm
of our
part
departure as
upward
sider this
above,
immediately
Guidelines, discussed
reason-
substantive
of a sentence’s
review
court’s reliance
district
focused on
See id.
ableness.
2H3.1, quot-
§to
application
note
upon
reasonableness
Substantive
in the
appeared
e.
That note first
ed above.
Manual
Manual. U.S.S.G.
2007 Guidelines
a criminal
reviewing
When
(2007).
was no such
2H3.1,
There
§
n.3
reasonableness,
for substantive
sentence
Manu-
Guidelines
commentary in the 2001
standard.
of discretion
an abuse
we apply
al,
applied to Christensen’s offenses.
other respected
which
members of the Califor-
above,
But, we
we
as
noted
do
review
nia Bar
the complete
and
disdain that he
procedural regularity.
departure
for
had for them and for the law was shock-
Ellis,
See
See United States Cir.2009). (9th (9th Though man, 1235, 2 1026, we 659 F.3d 1239 n. Cir. 1047 2011). authority to the sen- have leave no might the We have held that there is place, counts see tences on the affirmed right jury to have a decide constitutional Evans-Martinez, 611 v. United States Phillips, v. 704 forfeiture. United States (9th 635, Cir.2010), dowe not (9th F.3d 645 Cir.2012) 754, (citing Li F.3d 769-70 departure from our usual that a believe States, 29, 49, 116 bretti v. United U.S. in this case. Ac- practice is appropriate (1995)). 356, 133 Simi S.Ct. L.Ed.2d vacate the sentences cordingly, we of larly, we concluded that Federal Rule and remand to the three defendants these require Criminal Procedure a 32.2 does resentencing. district court for jury determination for forfeiture in the the money judgment, to further address addi- a personal We decline form of which by these defen- challenges presented tional is what obtained here. Id. sentences, except now-vacated dants at 771. that reject argument Pellieano’s of We next address the standard assigned to a different matter should be proof for Forfeiture is RICO forfeiture. Nothing in the
judge resentencing. sentence, an aspect of the element sup- or actions judge’s comments district Libretti, underlying crime. 516 U.S. claim that port that or Pellicano’s request 38-39, 116 a Accordingly, S.Ct. 356. judge predisposed against him only need find jury district court or facts by a warranting preponderance forfeiture I. forfeiture RICO Shryock, of the evidence. United States v. sentences, Pellieano, their part As of Cir.2003) (conclud (9th 948, 342 F.3d Turner, and Arneson were ordered ing “statutorily-prescribed that forfeiture $2,008,250, represents forfeit which is constitutional when supported by from their proceeds they obtained RICO evidence”); preponderance of the also see that a enterprise. provides de- law Fruchter, United States v. 411 F.3d a fendant of RICO offense convicted (2d Cir.2005); v. Najjar, United States ... “shall to the United States forfeit (4th Cir.2002); 300 F.3d 485-86 Unit constituting, derived any property DeFries, from, ed States v. 129 F.3d 1312- any proceeds person which the ob- (D.C.Cir.1997). tained, indirectly, But see directly or from racke- United States teering activity....” U.S.C. Cherry, n. 18 1963(a)(3). Cir.2003). Rule 32.2’s Committee Notes support preponderance also standard argue they right Defendants that had 32.2, for forfeiture. Fed.R.Crim.P. Com amount, trial on the forfeiture (2000) (explaining mittee Notes that “the court used the incorrect district government must establish the forfeitabili forfeiture, proof ordering standard of ty property preponderance incorrectly calculat- district court evidence”). amount, liability We thus conclude that the ed the forfeiture joint should not have and several. using been district court did not err disagree arguments We with these preponderance the evidence standard affirm. compute the forfeiture amount. argue Defendants also that the district argument first address the
We
improperly
calculated the amount to
right
Defendants
to have a
had
be forfeited.
district court deter-
jury, decide the forfeiture amount. We
PIA’s
interpretation
gross receipts,
review de novo
feder mined that
rather
*52
profits,
than its
“proceeds”
constituted the
ing the
“proceeds”
word
broadly has the
subject
properly
forfeiture under 18
benefit of punishing,
through RICO’s
1963(a)(3).
§
U.S.C.
Accordingly,
provisions,
forfeiture
all convicted crimi-
court ordered Defendants
to forfeit
nals who receive
from illegal
income
ac-
“proved
payments”
Pellicano,
client
tivity,
merely
and not
those whose crimi-
$2,008,250.
which amounted to
Arneson
nal activity
profit.
turns a
argue
Turner
this was error.
Simmons,
(citations
fers to receipts rather prof than net including lottery winners those who its. Eighth As the explained: Circuit helped the defendant an illegal gam run legislative history of the 1984 bling enterprise, money constituted laun amendments to RICO states that “the dering. “proceeds” If money laun ‘proceeds’ term has been used in lieu dering statute included gross receipts from the term ‘profits’ in order to alleviate illegal gambling enterprise, pay then the unreasonable govern- burden ments to winners and the people who ment of proving profits. net It should helped run the enterprise would constitute not be necessary for prosecutor money laundering. If “proceeds” was lim prove what the defendant’s overhead ex- ited to profits, such payments would not. penses were.” ... These statements A plurality explained the term “pro indicate that Congress meant the word ceeds” ambiguous. was 511-14, Id. at “proceeds” to be read more than broadly S.Ct. 2020. The rule merely lenity required “profits.” ... In addition, Con- gress that the term has explicitly favor directed that construed in RICO liberally “shall be construed “profits,” to effectu- defendant mean gross re ate its remedial purposes.” ... ceipts. 514-15, 128 Read- Id. at S.Ct. 2020. statute, 1956(a)(1), The full § 18 U.S.C. erty transaction, involved in the whichever is "Whoever, reads as follows: knowing that the greater, imprisonment for not more than property involved in a financial transaction twenty added). years, or (emphasis both” Af represents proceeds of some form of un Santos, § ter 18 U.S.C. amended to activity, lawful attempts conducts or con specifically "proceeds” define "any proper duct such a financial transaction which in ty derived from or or retained obtained ... proceeds specified fact involves the unlaw through some form activity, of unlawful in activity (A)(i) ful with the promote intent to — cluding gross receipts activity.” of such carrying specified on of activity unlawful 111-21, Pub.L. (2009) No. 123 Stat. 1617 ... shall be sentenced to fine of not more (codified 1956(c)(9)). at 18 U.S.C. $500,000 than or twice the prop value of the *53 1028 Id. statutes. of other with violations of reasoning the that argue Defendants 7, 128 & n. S.Ct. at 528 of interpretation same compels the
Santos
1963(a)(3);
contrast,
in
criminal forfeiture
issue
the
The
By
§in
“proceeds”
issue. Un-
different,
merger
no
however.
presents
statute
quite
was
Santos
statute,
laundering
af-
anti-money
in Santos
“proceeds”
like the
of
interpretation
liability
982(a)(2)
punishment
of
is a form
of criminal
scope
section
the
fected
of for-
of-
amount
criminal
the
laundering, not
a substantive
rather
than
money
risk of
no
therefore
is
fense. There
feiture.
“practical
a
called
Stevens
what Justice
rejected a
recently
Circuit
The Second
jeopardy,”
to double
tantamount
effect
in inter
on Santos
based
argument
similar
2020,
section
527,
when
128 S.Ct.
id. at
in 18 U.S.C.
“proceeds”
the term
preting
to the
982(a)(2)
essential
captures funds
forfei
the
imposing
982(a)(2), a statute
§
of-
predicate
its
of one of
commission
of the sentence
part
as
proceeds
ture
fenses.
Peters,
at
F.3d
732
offenses.
certain
v.
100;
refers
States
“proceeds”
that
see also United
held
at
732 F.3d
Peters
98-99.
(9th
in
receipts
803,
Cir.
814
gross
F.3d
Alstyne, 584
forfeiture
to the
Van
court re
2009)
“[o]nly
the desire
982(a)(2).
at 101-02.
that
(explaining
Id.
plu
the
required
that
united”
Santos
argument
‘merger problem’
jected
avoid a
Santos).
Marks
Under
99-101.
Id. at
Stevens
rality and Justice
otherwise.
193,
States, 430 U.S.
v. United
and we
persuasive,
is
reasoning
Peters’s
(1977),
Justice
L.Ed.2d
S.Ct.
a form of
is
forfeiture
it. RICO
adopt
controlled
Santos
concurrence
Stevens’s
a substantive
rather
than
punishment
nar
on the
reached
result
he
because
Defining proceeds
criminal offense.
and,
plurality,
unlike
ground,
rowest
no
presents
in this
receipts
context
gross
“proceeds”
that
held
that concurrence
1963(a)(3) re-
§When
merger problem.
San
contexts.
“receipts”
other
meant
from
obtained
proceeds
forfeiture
quires
2020; see
tos,
128 S.Ct.
at
U.S.
does
forfeiture
activity,
racketeering
such
As Peters
Peters,
at 100.
732 F.3d
also
con-
same
problem
create the
elaborated:
crimes.
different
give rise
will
duct
two
among
agreement
key point
[A]
extent
argues that the
Finally, Arneson
was
Stevens
and Justice
plurality
racketeering ac-
from the
proceeds
of the
“merger problem.”
a
to avoid
desire
him, and
not foreseeable
tivities was
lot-
illegal
of the
the context
...
In
held
have been
should not
he
therefore
Santos,
plurality
tery at issue
RICO
severally
for the
liable
jointly and
meant
‘proceeds’
explained
“[i]f
be-
argument
reject this
forfeiture. We
every violation of
nearly
‘receipts,’
legal standard.
it misstates
cause
a
also be
would
statute
illegal-lottery
sentencing court
long as the
“So
stat-
money-laundering
of the
violation
evidence
of the
preponderance
a
finds
winning
a
bettor
ute,
paying
because
which
through
conduct
the criminal
receipts
involving
transaction
foreseeable
were made
proceeds
promote
intends to
the defendant
form
defendant,
proceeds should
Santos,
lottery.”
carrying on of
Fru
judgment.”
forfeiture
bf the
part
2020. Jus-
at
128 S.Ct.
U.S.
added)
(emphasis
chter,
at 384
plu-'
agreed
...
with the
tice Stevens
Edwards,
F.3d
States
(citing United
not have
Congress could
rality that
Cir.2002)).
proceeds
Specific
606, 644
money-laun-
of the
violations
intended
Hence,
where
be foreseeable.
way
need
in this
“merge”
dering statute
defendant was
scope
“aware of the
al of Juror 7 in the second trial involving
racketeering enterprise,
proceeds
its
were
defendants Christensen and Pellicano. Ma-
necessarily foreseeable to him.” Id. As
jority
at
op.
1010-19. The district court
above,
985-87,
discussed
the evidence
erred by dismissing Juror 7
based
*54
amply established that Arneson and Tur
determination that Juror 7 was not credi-
ner knew about the essential nature of the
ble and had lied to the court on an unrelat-
RICO enterprise.
Joint
several
and
liabili
ed
concerning
issue
his views on federal
ty was
Simmons,
therefore appropriate.
tax laws.
(“Codefendants
AFFIRMED IN VACATED IN juror A PART, requires note the judge trial AND REMANDED. consult with counsel and to craft a narrow CHRISTENSEN, Judge, District Chief response. concise taking When the concurring part dissenting in part: rare of juror, act dismissing trial Although I concur in court majori- most safeguard must secrecy jury ty opinion, I dissent portion deliberations, from the and steadfastly protect the majority opinion affirming the against dismiss- the dismissal juror of a based content of expose quiry must of a guilt about doubts juror’s this dilem- Recognizing Id. deliberations. only when the It criminal defendant. “if the record held that ma, has purposefully this Court an intent
juror discloses
possibili-
any
on the
reasonable
instructions
discloses
court’s
evidence
disregard the
recognized
dismissal
impetus
juror’s
other
some
law,
ty that
or commits
must
misconduct,
juror
on merits
juror’s
views
from the
form of
stems
in the record
If the evidence
not dismiss
case, the
must
dismissed.
juror’s
possibility
either
judge
must
supports
trial
Id.
juror.”
are moti-
the case
merits of
deliberating
on the
views
to continue
jury back
send the
guilt
regarding
by doubts
vated
Id.
a mistrial.
or declare
manifest-
clearly
defendant,
than
rather
circumstances,
court’s circum-
*55
a
In such
law,
nullify the
disregard
intent to
ed
here
court
as the
inquiry,
district
scribed
dismissed.
not be
must
juror
that
then
[the
“whether
concluded,
focus on
should
Thomas, 116 F.3d
v.
States
United
the law
to follow
willing
juror]
Cir.1997).
vio-
(2d
do otherwise
To
608
willing to
he is
deliberate.”
whether
right
Amendment
Sixth
a defendant’s
lates
however,
case,
strayed
in
court
this
district
Symington,
jury verdict.
unanimous
to a
interviews, which
its
during
focus
from this
case, when
In this
1085.
F.3d at
and five
of Juror
interviews
included
court, Juror 7
by the district
interviewed
interviewing
in
Importantly,
jurors.
other
he
follow
could
whether
never asked
was
asked
never
the district
Juror
law or en-
on the
instructions
court’s
or
follow
law
could
Juror 7
whether
fact,
And,
during
in
gage
deliberations.
deliberate —it
willing to
he
whether
was
interview,
7 indicat-
Juror
his
course
of the accusa-
confirmation
for
only asked
regarding the
had concerns
that he
ed
Moreover, during
jury notes.
tions in
against
case
government’s
strength of
7, he de-
of Juror
questioning
dis-
error -to
the court’s
was clear
It
defendants.
to
attributed
statements
making the
nied
Juror 7.
miss
follows:
jury
*56
nieation
jurors
between
was at its highest
that did not occur. While a
ques-
direct
and the opportunity for
building
consensus
tion
to
juror
as
whether a
willing
is
to
lowest,
was at
instructing
its
jury
the
to
follow the law is
always
not
dispositive,
continue with deliberations was the appro-
Florida,
Murphy v.
794,
421
800,
U.S.
95
course,
priate
if not
required
the
one.
2031,
S.Ct.
44
(1975),
L.Ed.2d 589
it is a
The district court
not
pro-
should
have
necessary starting point before
judge
a
1,
ceeded to
9, 3,
interview Jurors
2 and
may take the rare step of dismissing a
11. This Court has emphasized
“ju-
that
juror
bidding
at the
jurors
of other
who
ror privacy is a prerequisite
debate,
of free
disagree with
subject juror
the
about
without which the decisionmaking process
merits of the case. To overcome
jury
would
crippled.”
Id. Accordingly, this
system’s “crucial assumption,”
Parker
Court has cautioned that a trial judge’s
Randolph,
62,
442
U.S.
99 S.Ct.
limited
role
investigating alleged juror
(1979)
does by his up on general juror’s ganged a holdout a ror 7 was finding about vague a is alone error his views disagreed That obvious with “credibility.” jurors who. fellow worthy of reversal. evidence. of the sufficiency regarding he 7 whether asked Juror concluded, the court When likewise court
The district him That attributed to the Court. the statements 7 has lied made No. “Juror excusing them, for grounds making independent notes, an he denied jury is clear also constitutes finding This angry him.” were jurors the other and said that acknowledged because, court as error them. with disagreed he him because with trial, “even a new a motion denying his not base could that he He then stated [during answer intentionally dishonest evidence. circumstantial decision the false- fatal, long so not dire] voir possi- a reasonable raised These answers impartiali- lack of a bespeak hood does jurors the other impetus bility that Calderon, 151 F.3d Dyer v. ty.” his from stemmed dismissed have him United Cir.1998). majority cites (9th state- case. No of the merits views on the Vartanian, 1098- States v. refute Juror jurors from the other ments Cir.2007) proposition for the sup- Indeed, the record statements. 7’s juror dismiss may properly district Juror point, oneAt the assertion. ports had juror on its determination based how his (the discussing began foreperson) potential or her his about untruthful been Juror with differed on the evidence to stand views Vartanian I do read biases. if federal law. proposition 7] stated “[Juror broad 7’s: for this dismissed properly someone, in- juror in Vartanian they’re charges outside of misconduct for “her can’t accept nocent, he was—won’t —I im- room,” multiple including deliberation volun- also Juror evidence.” talk about de- “members with *57 contacts proper on it unanimous are all “[w]e teered counsel, ap-- and family, defense fendant’s a vote....”2 have taken there. We himself,” defendant even parently the oth- similarly that indicated jury notes the trial about which, questioned when assess- Juror 7’s disagreed jurors with er Vartanian, 476 lied judge, she about. note case. One the merits of ment of Dishonesty during voir 1098-99. F.3d at was that Juror alleged specifically “bespeak[s] it when only relevant dire is note in- another “ANTI-government,” at Dyer, F.3d impartiality.” lack of Juror from stemmed problems that dicated 7 lied Here, assuming Juror even light of In for more “need” evidence. 7’s statement, rather tax federal about the conclusion this, majority’s all of he stated saying it recall as failing to than by the expressed concerns of the “[a]ll court, this by the during questioning Juror the views of related to jurors other bespeak a necessarily not does falsehood persua- is not law, evidence” on the on federal His view impartiality. lack of Symington, Ultimately, as he sive. of whether is not indicative tax law de- any high “support in- law as does not wiretapping evidence would follow court, underlying indicate mo- nor does as to the certainty gree structed anti-government. 7 was Ju- request that Juror to dismiss jury’s tive” 1088, n. F.3d at Symington, ror conclusion the court’s considering Even cireum- uncertain just such it is under credible, but the record 7 was not that Juror Sym a mistrial. basis to declare a sufficient was a clear violation 2. This statement ington, F.3d 1085-87. have been would alone instruction and court’s juror stances dismissal is improp- rights fendant’s under the Sixth Amend- er. ment.
Contrary to the majority’s assertion, The district court confronted an unusual speed, with which jury sent out its difficult first situation. A couple of vocal certainly note is not clear evidence jurors insistent were obviously unhap- Juror 7 engaging was py nullification. It is with the concerns that Juror 7 ex- just likely Juror was adamantly pressed concerning the government’s case, stating his view government’s that the evi- and set about the effort of getting him dence was insufficient for a conviction as it removed from so that their desire is that he was expressing an unwillingness to quickly convict the defendants could be law, follow or that Juror 7 was accomplished. The district court was simply taken to flights of when hyperbole drawn effort, into this and abused its dis- encountering hostility to skepticism his cretion in removing Juror 7 for reasons about the merits of government’s case. unrelated to his ability to follow the law or Likewise, if we are to engage in specula- willingness to deliberate. Having succeed- tion, certainly it is possible that a vocal few ined getting juror, rid of one the chilling were impatient a long after trial and were effect on the deliberations of the remaining trying to force a conviction without a full jurors would be manifest. For that rea- discussion of the evidence. son, As this Court I dissent from the majority opinion. pointed has out previously, it is for the The convictions of defendants Christensen judge inquire speculate going what is and Pellicano in the second trial should be inon the jury room. why That is it was so reversed their sentences vacated. important for the district court to ask Ju-
ror if7 he was willing to follow the wire-
tapping law and willing to engage in delib-
erations jurors. with his fellow key information, Without that this Court INTERNATIONAL ALLIANCE OF forced make baseless assumptions THEATRICAL STAGE EMPLOYEE founded on things like the length of delib- AND MOVING PICTURE TECHNI erations and the fact that the jury convict- CIANS, ARTISTS, AND ALLIED ed once Juror 7 replaced. I do not CRAFTS OF STATES, THE UNITED ' *58 believe conjecture such appropriate is IT’S TRUSTED LOCAL 720 LAS VE when simple alternative asking exists— GAS, NEVADA, aka Local IATSE juror if he or she will deliberate and Plaintiff-Appellee, follow the law. The district court’s failure to do so here violated the Defendants’ PRODUCTIONS, InSYNC SHOW Sixth Amendment right to a unanimous INC., Defendant-Appellant. impartial jury. right This is too im- portant No. 12-17200. to allow removal juror of a based on insufficient questioning and baseless as- United Court of Appeals, States sumptions. The thing worst that could Ninth Circuit. have happened here that Juror 7 would Argued and Submitted Dec. 2014. have remained steadfast his view that Sept. Filed had prove failed to its case, resulting in hung mistrial,
a not infrequent result that ensures a de- notes inade during questioning about very ment That began. after deliberations evidence, but, as quacy of circumstantial after a early process, especially in the 1031-32, 7 was not attributed to Juror he comment that dissenting opinion, below 25. The that if at all: "He stated a reason- about evidence that was expresses the view there someone, they're charges jurors ganged federal possibility that other able surprisingly, 1 went on Juror innocent.” Not a holdout based up 7 because he was on Juror everybody say comment "floored that no evidence. It asserts on his view suggest at all That does not proposi- in the room." jurors by other refute statements differing with had to by do differences a statement specifically to points tion and problem with evidence. views on the evidence "how their views Juror 1 on jurors the other Juror 7 court.’’ identified being cut off prior to differed off, willing law. to follow the he was and the juror cut Actually, the himself
Notes
in the
notes
him
Procedure
Criminal
Rule of
Federal
may
dis-
(cid:127)
23(b)
juror
be
say
that
if
Government
“Well,
I
provides
didn’t
good
can,
during deliberations
‘he’
he
whoever
wiretap, then
missed
can
illness,
juror
cause” includes
prob-
that note
“Good
He wrote
cause.
to.
referred
nullification, an in-
misconduct, juror
to-
juror
emotions
anger and
ably based on
communicate,
inability
ability to
me.”
wards
rea-
among other
impartial,
fair and
(cid:127)
disagreed
I
angry because
was
“He
1085;
F.3d at
Symington,
See
sons.
jurors.”
majority of the
with
McGrath,
1079-
F.3d
Merced
(cid:127)
if he said
asked
specifically
When
Cir.2005).
law,
wiretapping
with
not agree
he did
of one
the removal
jury seeks
aWhen
“No,
say
I didn’t
7 responded
Juror
task
the difficult
faces
juror, the court
agree
I
I
cannot
that.
said
requested remov-
determining whether the
circumstantial
my
judge
decision
mer-
on the
disagreement
from
al stems
evidence.”
at
F.3d
Symington,
of the case.
its
law
(cid:127)
he said the
asked whether
When
powers investigative
court’s
federal
pay
him to
require
did
limited
order
are
circumstance
this
At
taxes,
“I don’t recall that.
he said
jury
secrecy of
deliberations
maintain
I
sense me.
That doesn’t make
all.
of the
integrity
“the
jeopardizing
avoid
questions
specific
couldn’t answer
in-
The court’s
Id.
process.”
deliberative
wiretapping with the federal taxes....
on whether Juror 7 had truthfully an-
I
say
didn’t
about
anything
taxes.”
swered the
questions
court’s
about his al-
leged statements regarding the federal tax
At
point,
this
based on Juror
re-
7’s
law during deliberations. This turned
sponses to the district
questions
court’s
what should have
been
investiga-
narrow
and the various notes that precipitated the
tion into a
Moreover,
sideshow.
questioning, it
apparent
was
rec-
Juror 7
ord
problems
had
makes clear
questioned
that the
jurors’
with
strength
of the
government’s
answers to
against
ease
inquiries
court’s
defendants
were root-
ed,
and that
“disagreed
he
at
with the
least
majority
potentially, in
disagree-
their
jurors”
about the merits of the ment with Juror 7
his
about
assessment of
government’s case. Symington is clear
the merits of the government’s case.
circumstances,
under such
the district
The majority
juror
discusses
nullifica-
court should have instructed Juror 7 to tion
at length,
law
but fails to point to any
return to
room and continue with solid evidence in the record demonstrating
deliberations, or
simply
else
declare a mis-
that Juror 7 was
engaging
nullification.
trial. Symington,