*1
763
Westborough Mall,
(quoting
Norma’s five to fifteen contacts
disclose
tiff need not show that each participant
facts,
otherwise,
material
circumstantial or
knew the exact limits of the illegal plan,
that the officers
agreement
formed an
plaintiff
but the
must show evidence suffi violate
plaintiffs]
[the
constitutional
support
cient to
the conclusion that
rights”). Viewing the evidence in a light
agreement
defendants reached an
to de most
Helmig,
favorable to
ho reasonable
prive
plaintiff
constitutionally
guar
juror could infer the existence of a conspir
White,
anteed rights.”
generally proved by circumstantial evi
dence, summary judgment only should be
granted where “the evidence is so one- any
sided as to leave no room for reason opinion
able difference of toas how the
case should be decided.” Burton v. St. Comm’rs,
Louis Bd. of Police 731 F.3d America, UNITED STATES of (8th 2013) Westborough (quoting Plaintiff-Appellee,
Mall, City Cape Girardeau, Mo., Inc. v. 1982)). “The court must be convinced that the evidence presented is insufficient to support any Terry CHRISTENSEN, Defendant- conspiracy.” reasonable inference of a Id. Appellant. *2 America, America, United States of of
United States Plaintiff-Appellee, Plaintiff-Appellee, v. v.
Anthony Pellicano, Defendant- Terry Christensen, Defendant-
Appellant. Appellant. 08-50531, 08-50570, 09-50115, No. No. No. America, of United States 09-50128, 09-50125, No. No. No. 09- Plaintiff-Appellee, 10-50462, 10-50434, No. No. No. v. 10-50464, 10-50472 No. Arneson, Defendant-Appellant. Mark Appeals, United States Court America, United States of Ninth Circuit. Plaintiff-Appellee, Argued November and Submitted v. Pasadena, California 2013 — Rayford Turner, AKA Earl Seal August Filed B, Defendant-Appellant. July
Amended America, States of United
Plaintiff-Appellee,
v. Nicherie, Defendant-Appellant.
Abner America,
United States of
Plaintiff-Appellee,
v. Kachikian, Defendant-Appellant.
Kevin America,
United States
Plaintiff-Appellee,
v.
Rayford Turner, Earl AKA Seal
B, Defendant-Appellant. America,
United States
Plaintiff-Appellee,
v. Arneson, Defendant-Appellant.
Mark America,
United States of
Plaintiff-Appellee,
Anthony Pellicano, Seal AKA
A, Defendant-Appellant. *10 M. (argued),
Seth Hufstedler Dan Mar- malefsky Fox, (argued), Benjamin J. LLP, Angeles, Morrison & Foerster Los California, Terry for Defendant-Appellant Christensen. (argued),
Steven F. Gruel San Francis- co, California, Defendant-Appellant for Anthony Pellicano. (argued)
Chad S. Hummel and Emil Petrossian, Manatt, Phelps Phillips & LLP, California; Angeles, Becky Los James, California, Angeles, Walker Los for Mark Defendant-Appellant Arneson. Oakland, (argued), Karen L. Landau California, Defendant-Appellant Ray- for ford Lee Turner. (argued),
Katherine Kimball Windsor Pasadena, California, Defendant-Ap- for pellant Abner Nicherie.
Benjamin (argued), L. Coleman Cole- LLP, California, Balogh Diego, man & San Defendant-Appellant Kevin Kachikian. *11 pos- or “willfully” manufactured Jr., Attor- or who States Birotte United André device. See United California, wiretapping Robert sessed a ney, District Central 1221, 1225 McIntyre, States v. Division, Chief, Kev- Criminal Dugdale, E. 1978). 1986, part In of the A. Klein (argued) and Joshua Lally in M. Act Privacy Electronic Communications Attor- States (argued), Assistant United (ECPA), substituted the word Congress neys, Plaintiff-Appellee. for in “willfully”
“intentionally” for word C. FISHER RAYMOND Before: Kachikian that argues §§ and 2512. 2511 CLIFTON, Judges, Circuit R. RICHARD to was not this substitution intended CHRISTENSEN, Chief L. and DANA re- the statute’s mental state reduce Judge.** District it. In rather to quirement, but increase he cites to a argument, of this support and Partial Dissent Partial Concurrence Rehnquist’s in Justice footnote Chief Judge CHRISTENSEN District Chief Vopper, dissent Bartnicki 532 U.S. 787, 1753, 514, 149 121 S.Ct. L.Ed.2d
ORDER having “in- Congress as which describes August 2015 is opinion filed requirement” creased the scienter para- last as follows: The hereby amended cul- only that the most 1986 ensure “to through para- last page 41 graph on liability face for disclosure.” pable could slip opinion should page (Rehn- 43 of graph on 4, 121 Id. n. S.Ct. 1753 547 the follow- replaced with be removed C.J., dissenting). quist, 10 ing: anyone to applies Section de- theory of Kachikian’s “intentionally intercepts, The main endeavors who lacked the re- that Kachikian intercept, procures any per or fense to other intent he be- criminal because quired intercept or endeavor inter son using Telesleuth wire, oral, Pellicano was his any or electronic com cept, lieved 2511(l)(a). The court purposes. § for lawful software munication.” U.S.C. that the “in applies anyone instructed who Section 2512 manufactures, “the acted prove had that defendant tentionally ... assem is, purposefully and intentionally, bles, possesses, wiretapping or sells” a 2512(l)(b). not as a of acci- deliberately § result device. U.S.C. merit a in order to dent or mistake” Bartnicki dissent reflects This in- under guilty verdict pre- confusion the courts massive and ade- was both accurate struction meaning of the word ECPA over the quate. Although the “willfully.” Ninth Circuit clearly as one word “in- had defined willful act contends
Kachikian purpose’ a ‘bad or ‘evil mo- §§ 2511 and must be “done tentionally” with ” tive,’ McIntyre, 582 F.2d at some know require read to defendant to in- interpreted his courts “willful” to unlawful.10He bases had his conduct that involved “some form of history wiretap- clude acts argument on the enacted, inadvertence, oversight, negligence,” originally statutes. As ping Brogan, Analysis any person Stephen who “will- J. applied to statutes Term in Federal Criminal Stat- communication fully” intercepted wire Willful Christensen, Montana, designation. sitting by United L. **The Honorable Dana Judge for District of Chief District States utes, 51 NotRE Dame L. Rev. As the presented instruction to the (1976) (cited 99-647). Rep. in H.R. No. jury was sufficient to req- establish the this interpretation, judge Under “a can uisite intent under there was no an act though find to be ‘willful’even it error. intentionally.”
was not committed
Id.
amendment,
With this
petition
In changing
“willfully”
the word from
*12
panel rehearing and for rehearing en banc
“intentionally,” Congress
clarified
filed Appellant Kevin Kachikian on No-
§§
2511
impose
and 2512 “do not
12,
vember
2015 is DENIED. The full
duty
inquire
into the source of the
court has been
petition
advised of the
for
information and
negligently
one could
rehearing en banc
judge
and no
disclose the
illegally
contents of an
inter-
court
requested
has
a vote on whether to
cepted communication without liability.”
rehear the matter en
App.
banc. Fed. R.
P.
Bartnicki,
547,
F.3d (quoting Cir. OPINION S. 99-541). Rep. “[Liability No. for inten CLIFTON, Judge: Circuit tionally engaging in prohibited conduct appeal Six defendants their criminal con- does not turn on an assessment of the victions stemming widespread merit from a crim- party’s of a motive.” Id. “The inal question enterprise offering illegal private in- of whether the defendant had a good vestigation services in purpose or evil Southern California. utilizing the [] is, therefore, At the recording equipment center of criminal enterprise irrel this Townsend, evant.” Agency, United States v. Pellicano Investigative known (2d 1993); Anthony as PIA. Defendant op- see also Pellicano PIA, Hugh, United States v. legitimate erated as a ostensibly pri- 2008) (holding investigation vate many But agency. requires “only” proof of investigation were, fact, intent and not PIA’s methods willfulness). illegal. Pellicano Angeles Los area bribed Defendants at least some counts. officers, Mark dants on as Defendant such police en- appeal law their convictions. Arneson, access to confidential for He orchestrated forcement databases. con- we vacate Turner’s opinion, In this targets so he investigative wiretaps on abetting computer and aiding viction for with their conversations overhear could fraud, computer convictions for Arneson’s friends, family, professionals, medical access, computer unauthorized fraud and telephone compa- paid He legal counsel. aiding Pellicano’s convictions Turner, Rayford Defendant ny employee, computer fraud and unau- abetting both information confidential technical for the access. We also vacate computer thorized wiretaps, and hired for the he needed aiding conviction for and abet- Nicherie’s Ka- Kevin developer, Defendant software interception. The rest of ting a wire ehikian, to rec- custom software to create affirmed, including the convictions are overheard. Pellicano ord the conversations Arneson, Pellicano, convictions *13 RICO success, scores of of PIA’s height At the criminal operating PIA’s and Turner illegal often PIA for its people retained convictions based enterprise, Christensen’s case, De- to this pertinent Most services. enterprise illegally to wire- hiring on Christensen, attorney, an Terry fendant Bonder, and Kachikian’s convic- tap Lisa in which he litigation PIA in hired to assist wiretapping. in PIA’s We tions for his role Kerkorian, client, Kirk his represented imposed on the defen- vacate the sentences wiretapped Pellicano Lisa Bonder. against in were vacated dants whose convictions dis- frequently and telephone Bonder’s Arneson, and Turner— part Pellicano, — what he heard. cussed with Christensen resentencing on their re- and remand for also hired PIA Abner Nicherie Defendant maining, affirmed convictions. We remand a whose wiretap the husband of woman on the vacated proceedings for further hoped to take over. business Nicherie conviction, including possibil- counts of began to un- enterprise criminal PIA’s retrial, may appropriate, be on ity of investigated in the FBI ravel when charges. those reporter, attempt to intimidate PIA’s staggering have raised a Defendants led to a investigation Anita Busch. This appeal. of issues on Their briefs— number warrant, search, pursuant search pages.1 in all—totaled over 900 fourteen By government PIA’s offices. Many appeal of the issues raised on do not scope of investigating widespread was precedential opin- in a warrant discussion grand jury A re- illegal activities. PIA’s many issues in a ion. We thus address Pellicano, charging turned an indictment concurrently disposi- filed memorandum Arneson, under and Turner with crimes tion, affirm on all the issues in which we Corrupt and Or- the Racketeer Influenced opin- in In this covered the memorandum. (RICO), § 1961 Act 18 U.S.C. ganizations ion, those issues that merit an we address seq., for their roles operating PIA’s eb extended discussion. enterprise. The indictment also criminal variously charged Defendants with other Background I. crimes, computer including wiretapping, appeals arise out-of theft, These consolidated fraud, fraud, identity honest services separate in two trials of prosecution proceed- The ease conspiracy offenses. and trials, investigator Anthony Defendant private which re- separate ed to two individuals associated all Defen- Pellicano and several in the convictions of six sulted pages. answering nearly 700 similarly Its brief was verbose. 1. The with him. operated Pellicano owned and and that Arneson accessed law-enforce- (“PIA”). Investigative Agency Pellicano He ment databases to acquire criminal history provided investigation services to clients information from the Department and/or litigation personal connection with (DMV) of Motor Pfeifer, Finn, Vehicles on matters. and Finn’s friends and associates. Arneson gave then this information to Pellicano.
The factual core of this case simple: provided Turner Pellicano with confiden- investigations PIA’s were often illegal. Pel- tial subscriber SBC, information from wiretapped licano investigative targets, for Finn wiretap on was initiated. The wire- instance, proprietary and used software tap revealed extensive information “Telesleuth,” about called which Defendant Kev- business, Finn’s which Pfeifer used developed get Kachikian updated over her to recant .her testimony. the course of years, several to record wire- tapped phone conversations. Pellicano re- Based on Pfeifer’s many case and oth- lated the content of those conversations ers, grand jury returned an indictment (e.g., by clients, playing recordings) to who Pellicano, Arneson, charging and Turner often used they what learned gain with RICO violations. The indictment al- advantage litigation. leged they formed an enterprise for get To the technical information he “the common purpose of earning income needed to install wiretaps, Pellicano through the conduct of criminal diverse paid Turner, Rayford Defendant a tele- *14 including, to, activities but not limited ille- phone technician, company to obtain cable- gal wiretapping, unauthorized access of pairing data from the telephone company, protected computers, fraud, wire bribery, SBC. Turner himself did not have access theft, identity and justice.” obstruction of databases, to SBC paid but he other SBC The predicate acts bribery, included hon- employees, non-parties Wright Teresa and fraud, est services wire identity and theft. Malkin, Michele to access the databases Kachikian, the Telesleuth developer, was give and Turner the information PIA violations; charged with RICO he was wanted. Turner then gave the information charged conspiracy with intercept, in- to Pellicano and implemented wiretaps. terception communications, posses- and Pellicano PIA paid and also an LAPD sion of a wiretapping device. officer, Arneson, Defendant Mark search police confidential databases for in- The also prosecuted two of formation about investigative various tar- PIA’s clients: Defendants Abner Nicherie gets provide and that information to PIA.2 Terry and Christensen. Abner Nicherie Shafrir, hired wiretap
PIA’s Pellicano to Ami activity on behalf of client Robert Shafrir, concisely Pfeifer husband of Sarit Pellicano, illustrates whose business how Arneson, hoped and Turner Nicherie to take over. operated illegal Nicherie Pfeifer, investigations. many went to PIA not named times to listen to and par- ty case, in this PIA in transcribe Ami July telephone retained Shafrir’s conver- sations, to influence girlfriend, his former Erin which were in Hebrew. The inter- Finn, deposition to recant testimony cepted about conversations included Ami Shaf- drug Pfeifer’s use. The evidence estab- rir’s confidential communications with his paid $2,500, lished Pellicano attorneys. Arneson paid Pellicano also police person at least one other charged That was not in this action. police officer for information from databases. PIA, taken from includ- previously devices hired Pellicano
Terry Christensen recordings. Pellicano-Christensen engaged ing the Bonder was Bonder. wiretap Lisa dispute with Christen- support in a child indictment,3 grand A returned client, part A central Kerkorian. Kirk sen’s prosecuted were and the Defendants proving that strategy was of Christensen’s (1) RICO included The trial two trials. first dispute was not involved the child Pellicano, charges against related DNA test child. A biological client’s his (2) Arneson, wiretapping Turner and man was that another eventually proved Pellicano, Ka- charges against and related ongo- litigation father. While trial, in chikian, The second and Nicherie. many of Bon- intercepted Pellicano ing, and Christensen were only Pellicano which conversations, including conversa- der’s defendants, Lisa Bonder on the focused attorneys, family, and her with tions wiretap. litigation. support about child friends (Pellica- trial in the first The Defendants against Christensen main evidence Turner, Kachikian, Arneson, no, Nich- of more than 30 recordings consisted erie) following on the convicted were which he discussed conversations in phone charges: on Bonder. wiretap Pellicano with 1962(c)); (18 § U.S.C. Pellicano: RICO Pellicano record- recordings, which These (18 U.S.C. conspiracy RICO PIA’s offices. from secretly, were seized ed 1962(d)); into PIA investigation government’s (18 wire fraud U.S.C. Honest-services against investigated threats it began when 1343,1346); §§ morning of On the Anita Busch. reporter access of computer Unauthorized car on went to her Busch June (18 agency information United States and found outside her home the street (c)(2)(B)©); 1030(a)(2)(B), §§ U.S.C. The wind- car had been vandalized. her (18 1028(a)(7)); a handwritten punctured, Identity theft U.S.C. had been shield *15 placed on had been reading “STOP” sign (18 fraud U.S.C. Computer ' had car, and a rose and a dead fish 1030(a)(4)); § An informant left on the windshield. been intercept and use Conspiracy wire Alex Proc- conversations with recorded his (18 371); § U.S.C. communications had hired tor, who stated that Pellicano of wire communications Interception Based car. to vandalize Busch’s him (18 2511(l)(a), (d)); and § U.S.C. recordings, the informant’s large part on (18 wiretapping of a device Possession 2002, ob- government November 2512(l)(b)). § U.S.C. PIA for evidence tained warrants search (18 1962(c)); § Arneson: RICO U.S.C. in the vandal- was Pellicano involved (18 conspiracy U.S.C. RICO computers seized government The ism. 1962(d)); § to the pursuant storage data devices and (18 wire fraud U.S.C. Honest services evidence of obtaining more After warrant. 1343,1346); §§ illegal in- of PIA’s widespread extent access of computer Unauthorized obtained vestigations, (18 information agency and seized United States July warrants more (c)(2)(B)®); 1030(a)(2)(B), § § U.S.C. storage the data records from additional trial, dis- during first which dictment was the Superseding Indictment 3. The Fifth renumbered and govern- missed some counts charging operative document. remaining ones. Superseding In- Fifth filed a redacted ment (18 1028(a)(7)); § Identity arguments theft U.S.C. they below. Because apply to multiple case, issues we address the (18 fraud Computer U.S.C. for plain standards error and clear error 1030(a)(4)). § review at here the outset. (18 1962(c)); § Turner: RICO U.S.C. (18 When defendant an raises ar conspiracy
RICO
gument for the
appeal,
first time on
1962(d));
U.S.C.§
plain error standard of
See
applies.
review
(18
Identity
1028(a)(7));
§
theft
U.S.C.
,R.
52(b);
Fed.
United States v.
Crim. P.
(18
Computer
fraud
U.S.C.
Pelisamen,
399,
641 F.3d
1030(a)(4));
§
2011).
(1)
Plain
requires
error
there
Conspiracy to intercept and use wire
(2)
error;
(3)
was
it
plain;
(18
371);
§
communications
U.S.C.
error affected substantial rights. United
Interception of wire communications
Olano,
States v.
725, 732-35,
507 U.S.
(18
2511(l)(a), (d));
§
U.S.C.
(1993).
S.Ct.
We address the of Pellicano, standard review for Arneson, and Turner were all most issues as we discuss the racketeering relevant convicted of under the RICO
780 term “enter defines the 1962(c), RICO § and also of statute, 18 U.S.C. 1962(d). individual, cor partnership, § “any prise” 18 U.S.C. conspiracy, RICO association, entity, insuffi- legal the evidence was or other that They argue poration, enterprise single a RICO asso prove group union or of individuals any cient and Arneson, PIA, Tur- Pellieano, and among legal entity.” although in fact not ciated no evidence there was 1961(4). ner because expansive § This defini 18 U.S.C. oth- knew about each and Turner Arneson v. very demanding.” Odom tion is “not enterprise. We are in the er’s roles (9th 541, 548 Corp., 486 Microsoft govern- argument. this persuaded banc). 2007) (en An associated-in-fact Cir. evidence from sufficient presented ment group persons “a of associat enterprise is that Arne- jury could conclude which the purpose of en together for a common ed about the essential Turner knew son and Id. at 552 in a course .of conduct.” gaging enterprise with Pelli- illegal nature of their Turkette, 452 v. (quoting United States cano. 2524, 576, 583, 69 L.Ed.2d 101 S.Ct. U.S. (1981)). enterprise an has three Such 246 challenged the suffi Defendants (2) (1) an purpose, a common elements: supporting ciency of the evidence (3) continuing motion, ongoing organization, in a Rule 29 enterprise RICO unit. Id. court denied. The denial which the district ac judgment motion for
of a Rule 29
the de
is sufficient
“[I]t
States
is reviewed de novo. United
quittal
(9th
1215,
nature of the
general
Cir.
know the'
Chapman, 528 F.3d
fendant
2008).
enterprise
the evidence
enterprise
“view[s]
The court
and know
government
favorable to the
light
most
role.”
beyond his individual
United
extends
tri
any
whether
rational
n. 29
Eufrasio, 935 F.2d
States v.
determined
have found the essential
er of fact could
1991) (citation
(3d
quota
internal
Cir.
beyond a reasonable
of the crime
elements
omitted). Likewise, a RICO
tion marks
(citation
quotation
and internal
doubt.” Id.
1962(d)
only
requires
under
conspiracy
omitted);
v. Nev
marks
see United States
of the es
that the defendant was “aware
2010)
ils,
1163-64
598 F.3d
enterprise
scope
nature and
sential
(en banc).
in it.” Fernan
participate
and intended to
(citation
dez,
and internal
388 F.3d
here,
provision at issue
The RICO
omitted).
point
marks
quotation
“[T]he
1962(c),
“makes it unlawful for
18 U.S.C.
the de
making
show that
employed by or associated with
any person
the na
knowledge
some
ha[d]
fendants
partici
...
any enterprise
to conduct
enterprise[
is to avoid
]
ture of the
indirectly, in the conduct
pate, directly or
unjust
of the defendant with
association
through
pat
affairs
enterprise’s
of such
States v.
the crimes of others.” United
activity.” Boyle v.
racketeering
tern of
2008).
(1st
Brandao,
938, 943-44,
States,
556 U.S.
United
Nonetheless,
of a
en
the definition
RICO
(2009) (em
L.Ed.2d 1265
S.Ct.
is to be
terprise has “wide reach” and
omit
quotation
internal
marks
phasis and
*17
“liberally
to effectuate its reme
construed
ted).
offense is established
A RICO
944-45,
at
(2)
purposes.” Boyle,
dial
556 U.S.
(1)
enterprise
conduct
of an
“proof of
(internal
(4)
quotation marks
(3)
(citation quotation and internal marks Arneson also testified that Pellicano told omitted). instance, For this court affirmed him about phone company sources and ex- conspiracy a RICO conviction of the wife plained the Telesleuth soft- wiretapping of a Mexican Mafia member where ware to him. Arneson testified that he pro- evidence showed that she “collected thought Pellicano was going patent to Tel- money tection [enterprise] for the on be- enforcement, esleuth and sell it to law but husband,” half “passed of her messages” a jury reasonable required would not be members, among enterprise “smuggled testimony. credit this jury The also heard drugs prisonf,] accepted payment into and evidence that Pellicano openly told his Fernandez, on drugs sold the street.” illegal clients about his wiretapping and at access to law enforcement reports. A rea- sonable could have jury inferred that Pelli- primarily argue
Defendants equally open cano was with evidence was insufficient to Arneson and prove sum, In Turner. Arneson reasonable jury and Turner associated could themselves easily infer that with Arneson and purpose the common of Turner knew the same about each other and knew about alleged enterprise because the es- they did not sential enterprise nature in know each other’s which about roles in it. We they participating were disagree. The both with Pellica- purpose alleged common in no. indictment was income “earning through the conduct of criminal diverse Moreover, jury heard about evidence to, including, activities but not limited ille specific in instances which and Arneson gal wiretapping, unauthorized access of Turner coordinated their with activities fraud, protected computers, wire bribery, Boyle, 945-46, Pellicano. at U.S. theft, identity and justice.” obstruction of (explaining S.Ct. 2237 that an associated- presented ample evidence enterprise may in-fact proven “by be evi find, from which a jury reasonable could at dence of ongoing organization, formal minimum, that Arneson and Turner were informal, and evidence that the vari each aware of the “essential nature and ous associates function as a continuing scope” that enterprise and intended (internal omitted)). quotation unit” marks participate in it. We return the example Pfeif Robert
Arneson’s illegally role included access- er. As background recounted sec ing law tion, enforcement passing databases and above Pfeifer retained PIA the information to Pellicano. July Turner’s role girlfriend, to make his former illegally Finn, included obtaining information Erin damaging deposition retract from SBC to wiretaps. facilitate testimony drug Pellicano’s his about use. The evi heard evidence that 20, 2000, Pellicano dence July established that on paid $2,500, Arneson and Turner for paid their roles Pellicano Arneson and on the enterprise. 2, 2000, Witnesses August testified that Arneson accessed law-en PIA, both Arneson and Turner visited forcement acquire databases criminal- time, at the Pfeifer, sometimes same even history hid information on DMV together Finn, from client associates, PIA’s kitchen. and her friends which *18 Walgren, 885 F.2d also be vacated. That must to Pellicano. provided then Arneson 1424. Pellicano with day, provided Turner same from information
confidential subscriber Here, jury found that Arneson initiated. SBC, wiretap on Finn was and a predicate ten each committed Pellicano introduced evidence also government The law. The bribery under California acts of coordi- Pellicano clients for whom of other against Arneson were based acts predicate Turner. Arneson and the activities of nated § which Penal Code on California not a case where this is Accordingly, an executive or felony it a for either makes unjustly associ- Turner were ], Arneson and agree! ] or ministerial officer “receive! other. and PIA or each ated with Pellicano bribe, receive, upon any agreement any to conclude vote, The evidence was sufficient that his or her understanding or worked-together with Pellicano that each then any matter upon or action opinion, money from criminal to earn and others may brought be before or pending, con- activities, illegally accessing including capacity, official her in his or her him or databases, bribery, wiretap- fidential thereby.”4 Penal influenced Cal. shall be find that A could ping. 68(a). reasonable predicate § acts of brib Code each knew about the Arneson and Turner on Cali ery against Pellicano were based enterprise. The nature of this essential 67, parallel prohibi § a fornia Penal Code denying Defen- court did.not err district § 68 giving § bribes and prohibits tion: on this issue. Rule 29 motion dants’ v. receiving People them. See prohibits Hallner, 715, 717, 277 P.2d 43 Cal.2d Bribery Predicate Acts B. California (1954) (explaining that Penal Code stat “complementary § § 68 are 67 and appeal Arneson also Pellicano and utes”). by challenging their RICO convictions those convic
predicate upon acts which argues Arneson that the evidence RICO, liable under defen tions rest. To be that his him failed to establish against of guilty ‘pattern of dants “must be could have of databases access requires at racketeering activity,’ which any matter then upon “action constituted (often racketeering acts separate least two may brought pending, [have] be[en] or that acts’).” United States v. ‘predicate called capacity.” him ... in his ... official before 1417, 1424 Walgren, 885 68(a). § The district court Penal Code Cal. (citations omitted). 1989) Offenses that rejected arguments denying similar in 18 acts” are listed qualify “predicate motion to strike the state law Arneson’s 1961(1), “any act ... including § U.S.C. him. bribery against acts We predicate bribery charge ... ... which is involving court. agree with the district punishable law and able under State the state law year.” governs If California law more than one imprisonment for bribery charged predicate acts underlying predicate convictions for Frega, vacated, indictment. United States then the RICO conviction acts are vote, any 68(a) opinion, upon matter or action language reads as relevant may brought be- pending, follows: or that be then officer, Every capaci- ministerial em- executive or in his or official fore him or her her appointee the State of Califor- ployee, or thereby, punisha- ty, shall be influenced therein, nia, political county city or or prison by imprisonment in the state ble asks,, receives, thereof, who or subdivision two, three, years or four [.] receive, bribe, upon any any agrees to 68(a). Cal. Penal Code understanding her agreement that his or
783
1999).
806
We “review cer to access the databases. Access to the
de novo a district court’s determination of databases
by statute,
was restricted
regu-
Regina
lation,
state law.”
College
Salve
v. Rus-
and LAPD policy, and Arneson
sell,
225, 231,
499
111
U.S.
S.Ct.
113 could access them only
po-
because of his
(1991).
L.Ed.2d 190
sition as an officer. See Cal. Penal Code
11105(b)
§
(providing that
Attorney
“[t]he
heard evidence that Arneson
General shall furnish
summary
state
crim-
accessed state and federal
law enforce
history
inal
information to
per-
[certain
ment
to investigate
databases
PIA’s tar
sons, including peace officers], if
needed
gets in exchange
payments
for
from Pelli-
duties”);
the course of their
11 Cal. Code
cano. Arneson’s database access occurred
703(b)
Reg. §
(providing that criminal rec-
“in his
capacity.”
official
To meet this ele
may
ords
be released “on a need-to-know
ment, Arneson did not need to
“actu
have
basis, only
persons
agencies
author-
authority”
al
to access the databases to
by
ized
[law]
receive criminal offender
relay
Pellicano,
information to
long
so
information”);
record
28
U.S.C.
accessing the databases
within the
“[fell]
534(a)(4)
(limiting access to
gov-
federal
general
scope
[pur
his duties and he
ernment database to certain statutorily
ported] to act in
capacity.”
his official
Peo
enumerated parties, such as “the States
ple
416, 420,
v. Longo,
Cal.App.2d
119
259
...
penal
institutions”).
and other
(Ct.
1953);
P.2d
App.
53
People
see also
v.
Moreover, when he accessed the databas-
(Ct.
381, 389,
Lips,
Cal.App.
59
22
211 P.
es, he used LAPD computer terminals and
1922)
App.
(explaining that an officer acts
passwords.
LAPD-issued
Every time he
capacity by
his official
“doing of such
databases,
accessed the
Arneson
pur-
thus
acts as properly belong to the office and
ported to act in his official capacity. See
official”).
are
intended
the officer to be
Longo,
People ing Skilling Acts and (1954). fore language 68’s also 6 Section challenges predicate also prohibits Pellicano argument. Section 68 closes this honest services fraud. The receiving a acts of officers” from “ministerial committed 46 such § Ministerial found Pellicano Code 68. Cal. Penal bribe. acts and that Arneson committed nothing predicate law “leave under California acts 44 such acts. Honest services fraud entails judgment.” discretion or exercise of another,” 347, 361, Strohl, “deprive or artifice to Cal.App.3d a scheme People (Ct. 1976). wire, right of intangible mail or “of the App. An offi Cal.Rptr. 1346; see for a discretion honest services.” U.S.C. paid not be cer thus need Here, §§ In 1343. the elements of also 18 U.S.C. ary act to meet theory honest services government’s case, required, if discretion were any even payments to fraud was that Pellicano’s type over what Arneson had discretion databases de- conduct, police Arneson for access to including what investigation to right to Arneson’s public of its to look frauded persons databases to use and what honest services as an officer. up.
After Pellicano and Arneson were requires dice a “reasonable probability” sentenced, convicted and while their that the error in the instructions “affected appeal, Supreme cases were on trial”). Court the outcome of the scope narrowed the of the honest services Arneson argues also that under Skilling, fraud statute. Skilling See v. United only a bribe or as defined kickback under States, 561 U.S. 130 S.Ct. law, federal distinguished from state (2010). Now, only L.Ed.2d 619 “fraudulent law, may establish honest services fraud. *21 deprive to schemes another of honest ser Fifth The Circuit persuasively rejected has through vices bribes or supplied kickbacks argument: similar by party a third who not had been de A fair reading of ... Skilling reveals ceived” constitute honest services fraud. that the Court was establishing a uni- 404, Id. at 130 S.Ct. (emphasis 2896 add form national standard construing ed). Previously held, it had in this been § clearly 1346 to exclude conduct out- others, circuit and that failing to disclose bribery kickbacks, side of and such as conflict of interest could be a basis for schemes, conflict-of-interest not to es- fraud, honest services but that longer is no tablish law as the uniform na- federal 411, 130 the case. Id. at 2896. S.Ct. tional standard for the elements of argues Pellicano that predi bribery § and kickbacks in prose- cate acts of honest services fraud must be Moreover, cutions. the Skilling Court vacated because the jury instructions did further asserted that “[o]verlap with Skilling’s reflect narrowing of the other federal statutes does not render disagree. crime. We § 1346 superfluous. principal feder- bribery statute, al 201, § jury [18 U.S.C.] found that both Pellicano and for example, applies generally only Arneson bribery predicate committed fed- acts officials, public eral so 1346’s applica- under California law. Skilling, Under brib tion to state and ery corruption local remains a basis for honest services private sector fraud apparent fraud. It is reaches jury’s miscon- from find duct that might ings go unpun- otherwise regarding bribery that the Defen ished.” we Accordingly, Skilling read dants would have been convicted on the recognizing that prosecutions bribery theory of honest services fraud may involve misconduct that is also a itself. The references to the invalidated violation of state law. conflict of theory interest in jury structions and the government’s argument Teel, United States v. 691 F.3d 583-84 at trial therefore prejudice did not Defen (5th 2012) (citations Cir. and footnote omit- Wilkes, dants. United States v. ted) (emphasis in original). agree We with (9th 2011) 524, 544 (holding Cir. that “the the Fifth Circuit. The district court did not jury’s guilty verdict on separate sub err on this issue. We affirm. stantive bribery count of [under federal Jury Challenges D. Instruction beyond any law] confirms reasonable jury doubt would have convicted jury Whether instructions omit [the defendant] honest services fraud if or misstate statutory of a elements crime the court’s definition had been adequately limited to prof cover a defendant’s bribery that Skilling expressly basis fered defense questions are of- law re approved”); see also United States Mar viewed de Hofus, novo. States v. United cus, 258, 262, (9th 2010). U.S. 130 S.Ct. 176 598 F.3d Cir. We (2010) L.Ed.2d 1012 (explaining preju- review a district court’s formulation of Nosal, we on Id. at 864. Based Id. on its use.” of discretion. for abuse instructions under the CFAA. the convictions so vacate has substantial latitude “The trial court fairly and ade- instructions long as its employee was a former Nosal presented.” Unit- cover the issues quately He in- firm. Korn/Ferry executive search 1038, 1045 Hicks, 217 F.3d ed States v. enterprise competing to start a tended instructions, 2000). if (9th even Jury colleagues several of his and asked former overturning a for are not a basis imperfect, pro- him with confidential provide they prej- showing conviction absent firm’s com- from the prietary information dev. United States udiced the defendant. Korn/Ferry employees were puters. The 1996). Cruz, 864-65 information to access the authorized job, the use doing their but
purposes of Fraud and Unauthorized Computer unau- they put the information which Access Claims Computer aiding charged with thorized. Nosal was The district abetting computer fraud. *22 fraud and unauthorized computer Both Nosal charges against court dismissed crimes under access are computer offense, and we to state an for failure (CFAA), Abuse Act and Computer Fraud affirmed, definition that a noting broader of § Turner was convicted 18 U.S.C. 1030.5 allow criminal “access” would of the term computer fraud abetting aiding and vagaries private of liability to “turn on the in- employees, telephone company paying Id. at 860. policies.” cable Wright, to obtain cluding Teresa company’s from the pairing information instructed The district court here system. This information computer they if verdict guilty to return a jurors wiretapping PIA’s to facilitate then used and inten- “knowingly Turner found that of unau- was convicted activities. Arneson counseled, commanded, in- aided, tionally States access of United computer thorized duced, to commit person] procured [a or accessing confiden- agency information fraud,” defined computer of the crime to obtain information police tial databases accessing] “knowingly part as relevant targets. investigative PIA about various au- exceeding] or authorization without aiding and abet- of Pellieano was convicted ... computer with thorized access of fraud and unauthorized ting computer both court instructed to defraud.” The intent with for his involvement computer access further: Turner’s activities.
Arneson’s and
access
exceeds authorized
defendant
[A]
a com-
...
the defendant accesses
when
convictions,
court de-
this
Following the
such
authorization but uses
puter with
Nosal,
puter
erroneous, the instruc-
plainly
aside. The
were
have been set
CFAA
convictions
cess
statute
identity
relating
theft
to the California
tions
at issue are
convictions
may
racketeering
a verdict that
be
not. Although
18 U.S.C.
were
under
(both
must
ground
the substantive
invalid
conspiracy
legally
on a
based
1962(c)-(d).
offense)
aside,
v.
18 U.S.C.
see
Unit-
ordinarily
under
be set
Griffin
46, 58,
States,
112 S.Ct.
ed
502 U.S.
knowing
as the
Identity theft is defined
(1991),
not
reversal
is
L.Ed.2d 371
use,
of a means
or transfer
possession,
open
“if it
reasonable
required
was
intent
to commit
with the
identification
jury would have
that a reasonable
doubt
or state
either federal
crime under
another
valid
on the
convicted”
defendant
Similarly, a racke-
§ 1028.
law.7 18 U.S.C.
Pelisamen,
(quot-
ute because
“defines ‘access’
cess under California law.
”
terms redolent
‘hacking,’
and “[o]ne
Moreover,
cannot reasonably
any
describe
error that might have
[Chrisman’s]
improper computer inquiries
about
infected the
celebri
instructions was not
*25
ties, friends, and
hacking.”
plain.
synonymous
others as
Other
“‘Plain’ is
with ‘clear’
”
,
or,
California
Appeal
point
Court of
decisions
equivalently, ‘obvious.’
507
Olano
conclusion,
(citation
to a
different
however. For ex U.S. at
Oi rH
§
Statutes,
under
2511. This instruction was both Criminal
51 Notre DaME L. Rev.
(1976) (cited
786,
adequate.
accurate and
787
in H.R. Rep. No. 99-
647). Under
interpretation,
this
“a judge
Kachikian contends that
the word “in
can find an act to be ‘willful’even though it
§§
tentionally” in
2511 and 2512 must be
was not committed intentionally.” Id.
require
read to
a defendant to know that
In changing the
“willfully”
word from
his
to
conduct is unlawful.10 He bases his
“intentionally,” Congress clarified that
argument
history
on
wiretap
of the
§§ 2511 and 2512 “do not impose duty
to
enacted,
ping
originally
statutes. As
inquire into the source of the information
applied
any person
statutes
who “will
negligently
one could
disclose the con
fully” intercepted a wire communication or
tents of an illegally intercepted communi
“willfully”
who
possessed
manufactured or
Bartnicki,
cation without
liability.”
532
a wiretapping device. See United States v.
547,
Rather,
U.S. at
F.3d wire, oral, communica- “only” proof of intent and of or electronic requires § tion added). willfulness). He proposed tions.” Id. (emphasis not of jury be in- the district court that jury presented to As the instruction interception “surreptitious” that structed requisite to establish the was sufficient “unauthorized, in other words un- meant no error. § there was intent under theory, this interception. Under lawful” under section 2512 b. Intent intercepts by law enforcement lawful surreptitious. Kachiki- qualify would not argues that the court Kachikian also that if he manufactured an’s defense was the neces- instructing on erred in believing they that wiretapping devices criminal for the crime of manu- intent sary primarily for law enforce- would be used device under facturing wiretapping purposes, he would not be ment-authorized required gov- § The instructions he could not breaking the law because prove that “the defendant ernment design to know that the have reason “[had] that the de- knew or had reason know primarily it useful of such device renders device sign other] of mechanical or [the interception” of surreptitious for ... wire pur- primarily rendered it useful for Id. communications. interception of pose surreptitious of the wire, oral, or electronic communications.” “surreptitious” as used term that the instruction
Kachikian contends in the was aimed at the secret statute that the defen- required proof should have interception, illegali of the not the nature the device would be used ille- dant knew ty understanding it. That is the common the stat- gally. Kachikian misunderstands Lande, States v. See United the word. ute. 1992) (9th (holding Cir. 2512 makes it a crime to Section equipment intercept that manufactured to ], “intentionally ... assem manufacture[ pro and descramble satellite television electronic, ble[], any or possess[], sell[] “surreptitious” met the element gramming device, mechanical, knowing or other producers pro of satellite because design that having reason to know were unable to detect the inter gramming primarily it useful for such device renders Bast, States v. United equipment); ception intercep surreptitious purpose 1974) (“The (D.C. 495 F.2d wire, oral, or electronic communica tion of interception’ con ‘surreptitious words 2512(l)(b). “Intention tions.” 18 U.S.C. ], plain ordinary usage, ‘secret note! statute, in the modifies ally,” as written ” (footnote omitted)). listening.’ The rele “manufactures, assembles, possesses, or persons that of the perspective vant modify “useful” or “use.” sells.” It does not intercepted. whose communications are In manufactur intentionally crime lies context, “surreptitious interception” this device, knowing that it could be ing the interception targets means an of which the wiretapping. The stat primarily used unaware. are knowledge require ute intent or does not actually used would be the device accept Kachikian’s def- Even were we unlawfully. i.e., surreptitious, inition of “secret and unauthorized; clandestine; action contrary based argues Kachikian to the Biro, United States secretly,” stealth or “surrepti- of the word on the statute’s use 1993), that out Specifically, points tious.” he require accept “surrep- us to “primarily useful for does not 2512 covers devices *28 interception” struction, wiretaps by titious excludes Kachikian -claims that the court law enforcement. What matters is that the that, should have jury instructed the interception not by was authorized prove order to that Kachikian guilty was persons in the crime, involved communication. Ac- the government would have to cordingly, properly rejected the court Ka- prove he did not intend for law enforce- chikian’s instruction as to the meaning possess of ment to the device. “surreptitious.” the word again, Once Kachikian misunderstands Moreover, interpretation Kachikian’s the language of the statute. The verb “to light does not make sense in of the rest of use” present, future, is not the Congress the statute. excep- carved out an tense. The exception applies to devices be- 2512(2)(b) § tion in private used, ing citizens who not to be used. A device that “can wiretapping manufacture devices under be intercept used” to wire communications government contract. That exception pro- is not removed from the reach of crimi- vides: “It shall not be unlawful under this nal statute until it actually “being used” officer, ... agent, section for by or em- irrelevant, law enforcement. It is there- of, ployee person with, fore, or a under contract whether or not Kachikian may have States, State, the United political or a intended Telesleuth to by be used law thereof, subdivision [to manufacture or acted, enforcement. At the time Kachikian possess a wiretapping device].” 18 U.S.C. he knew that his creation was not in fact 2512(2)(b). § Kachikian does not fit being within by enforcement, used law so there exception, that and he does not contend can be no prejudice from a lack of instruc- otherwise. That exception would be unnec- tion on wiretapping by devices for use law essary if lawful government were, wiretaps Furthermore, enforcement. an instruction definition, by by not covered “electric, the statute mechanical, defines or other they because surreptitious. are not Were device” as a by device not for use law case, that the the manufacture of wiretap- enforcement would have improperly shift- ping devices under government contract ed the proof burden of government to the already would exempt be from criminal to show that type of device Pellicano 2512(1). liability § under used was never meant by for use law enforcement. It was not plain error for the Kachikian also tries to support argu- his court not to have issued such an instruc- by ment contending that the phrase “elec- tion. tronic, mechanical, device,” or other as §in found is a term of art A mistaken belief that Kachikian was excludes devices by destined for use manufacturing law the device for law enforce- enforcement. He bases this on the defini- ment was no defense under 2512. Kachi- “ ‘electronic, tion found in the statute: argued me- kian that he manufactured the de- chanical, or other device’ means any device vice for purpose, another knowing without apparatus or which can be used to inter- that it potentially could be used as a wire- wire, oral, cept a device, or electronic tapping communica- but the instruction given tion other than ... being contemplated defense, [a device] used and the by a provider of wire or electronic commu- persuaded by was not Theoretically, it. he (1) nication service in the ordinary course of might have had a valid if defense either business, its or an investigative or law intentionally he did not manufacture the enforcement officer in ordinary (e.g., course device he manufactured it acci- 2510(5)(a). (2) dent), his duties.” 18 U.S.C. government or he employ- Though he did not propose such an in- ee or under contract to manu- Accordingly, the court did cations. argue did not Kachikian
facture the device. rejecting pro- ei- support abuse its discretion any evidence present *29 however, trial, so posed at instruction. ther of these defenses those covering lack of an instruction the Supplemental d. instruction not an abuse of discre-
circumstances was tion. in clos- Kachikian stated Counsel for erro- rejected the his ing after court —even instruction
c.Good-faith surreptitious interpretation neous of —that trial, the proposed At Kachikian surrepti- wiretaps are not law enforcement “That Defendant following instruction: their calls “those who have tious because believed, if actually even Kevin Kachikian at the end of ... are notified intercepted in mistakenly, that Defendant Pellicano a The court thereafter issued wiretap.” the the Telesleuth software tended to market jury to cure coun- supplemental instruction lawto components and related hardware re- “[W]ith of the law: sel’s misstatement all defense complete [to is a enforcement determining the gard to Count be charged] he was counts with which it is not relevant meaning ‘surreptitious,’ of the possess cause Mr. Kachikian would may interception of the that notification - ‘intent’ to be ‘knowledge’ and requisite so, doing In the court did given.” later be The district offenses.” convicted of these any pro- violate not abuse its discretion or in give proposed court declined to P. 30 advi- rule. Fed. R. Crim. cedural See was not erroneous. (“[T]he struction. That decision sory comm. n. to 1987 amend. ... instructions power court retains to add was not proposed instruction arguments.”). necessitated have of the law. It would proper statement Kachikian if he jury acquit to required the Recording e. oneself to intended to sell that Pellicano believed argues that the district court enforcement, knew that Kachikian even if he also law jury on the failing erred in to instruct use the software planning Pellicano to set forth wiretapping. wiretapping exception illegal for and other devices 2511(2)(d), specifies that it is not a because, explained which incorrect It was also one’s own of the statute to record above, whether Kachikian violation it did not matter this He bases telephone to market the conversations.11 believed Pellicano intended con- on the fact that did not fit contention enforcement. He device to law statute, wiretap, yet him conspiring victed of within exception provided simultaneously acquitted him of all counts broadly exclude does not and the statute him crime of usage. charging It was with substantive potential enforcement law presented Kachikian no such wiretapping. could be enough that the device he knew instruction, plain so review is for error.12 wire communi- primarily intercept used any U.S.C. United States or of State.” 18 not be unlaw- 11. The full text reads: “It shall (2)(d). acting person not chapter ful for a under this wire, oral, intercept a under color of law to person de argues where such that review should be electronic communication 12. Kachikian supplemental party objected or where one is a to the communication novo because he given defining "object” parties has of the con- of to the communication instruction prior interception unless such to the substantive wire- spiracy consent to such as not limited counts, "interception of intercepted purpose tapping but rather communication is However, generally. act in wire communications” committing any or tortious criminal supplemen- objection complained that the his or laws of the violation of the Constitution Theoretically, was, if Kaehikian guilty event, were There in any no obvious conspiring intercept wire communica- instructions, error in the if there was error tions, and if one of his co-conspirators Johnson, all. See 520 U.S. at guilty were of interception crime Olano, S.Ct. 1544 (citing 507 U.S. at communication, wire and if the substantive 1770) (noting S.Ct. that “plain” error is wiretapping violations were foreseeable as error). synonymous with “clear or obvious” necessary consequence or natural of the Kaehikian argue did not at trial that he conspiracy, then Kaehikian should have believed Pellicano only intended to record been found guilty illegal of the crime of his own conversations. See United States v. *30 interception. See Pinkerton v. United Anderson, (9th 1145, 201 F.3d Cir. States, 640, 645, 1180, 328 U.S. 66 S.Ct. 90 2000) (“A give jury instruction, failure to (1946). jurors L.Ed. 1489 were in- error, even if in seriously does not affect According Kaehikian, structed as much. integrity judicial fairness and pro- the inconsistent ju- verdict shows that the ceedings if the defense at trial made no mistakenly rors believed that Pellicano’s argument relevant to the omitted instruc- recording of his own conversations was tion.”). illegal, and because Kaehikian admitted he reasons, For these we affirm Kaehikian’s knew Pellicano was using Telesleuth to against conviction jury his instruction chal- calls, they record his own convicted him lenges. for conspiracy even though they did not believe Kaehikian help intended to Pellica- E. Aiding Nicherie’s Conviction for wiretap
no others. Abetting Wiretapping and substance, In argument is less Nicherie was convicted for aiding a complaint about an error in the instruc abetting and wiretapping. argues He tions than it is potentially about a inconsis his conviction must be overturned verdict, because tent but an inconsistent verdict is subsequent developments in the law have not itself a sufficient reason to set aside invalidated one of the two pre theories Powell, conviction. See United v. States sented 57, prosecution, and it 66, impos is 469 U.S. 105 S.Ct. 83 L.Ed.2d (1984). theory sible to know which jury relied A conspiracy conviction for on in returning guilty necessarily not verdict. He inconsistent also with a failure argues that there was to convict on insufficient evidence substantive charges. See Fiander, United illegal to establish States activity part on his 547 F.3d (9th 2008). within period. 1040-41 the relevant time Perhaps jury Under the limitations, any believed the evidence statute of sufficient to conviction must show conspired Kaehikian with be based on conduct after Pellicano to ille October someone, gally wiretap agree govern but insufficient to We that one of the conspired show that he as to specific improper. ment’s theories was There was individuals and instances named in the in sufficient support evidence to a conviction dictment. on the other theory, but the evidence was
tal instruction created a variance
sponte.
from the
instruction sua
See United States v.
Gravenmeir,
charged scope
1997)
agreement,
indictment’s
not
helping
that it allowed
(upholding
conviction for
Pellica-
statutory
on
non-instruction
ex-
proposed
ception
no record his own calls.
noting
Kaehikian
this circuit’s "well-settled
relating
no instruction
to the affirmative de-
rule that a defendant bears the burden of
2511(2)(d),
fense contained in 18
proving
exception
U.S.C.
he comes within an
to an
offense”).
duty
and the court had no
to issue such an
both the desire
Nicherie had
us to con- meant
overwhelming to
so
cause
during the relevant
means to do so
harmless. As a
the error was
clude that
included checks
evidence
period. This
result,
the conviction.
we vacate
Management, which
from Gedese
Pellicano
trial,
presented
During
of Nicher-
testified was one
Shafrir
Sarit
on
guilt
theories of Nicherie’s
two distinct
testified
companies. She also
ie’s shell
wiretap-
aiding
abetting
charge of
by Nicherie. We
signed
were
the checks
support a
either could
arguing that
ping,
presented was
the evidence
conclude that
Pellicano
that he hired
One was
conviction.
jury to find
for a rational
sufficient
was that
Ami
The other
wiretap
Shafrir.
the wire inter-
and abetted
Nicherie aided
recordings of
translated
to and
he listened
Pellieano’s
procuring
services
ception by
In or-
phone calls.13
intercepted
Shafrir’s
period.
limitations
statute of
within the
convict,
to find that
had
der
(1)
for wire-
paid
either
Pellicano
Nicherie
however, was
theory,
The second
26, 2000, or
after October
tapping services
by this court’s
legally defective
rendered
(2)
recordings of
to and translated
listened
Hall, 568 F.8d 743
ruling in Noel v.
later
*31
26, 2000.
ongoing wiretap after October
(9th
2009),
that
in which we held
Cir.
theory
valid.
first
was
government’s
The
inter
recording
previously
a
of a
playing
hired Pelli-
found that
jury
If
Nicherie
the
not amount
communication did
cepted wire
the
wiretapping during
the
cano to do
in violation of
interception
to a new
time, meaning after Oc-
of
period
relevant
interception occurs
Wiretap
“No new
Act.
con-
26, 2000,
properly
could
be
he
tober
copies
to or
person
when a
listens
intercep-
abetting
and
aiding
of
victed
already
cap
that has
been
communication
that
the evidence
argues
tion. Nicherie
subsequent use of
Any
tured or redirected.
a
on
support
conviction
was insufficient
not
governed
conversation is
the recorded
evidence
theory,
disagree.
but we
The
that
by
but
interception,
on
by
prohibition
that
testimony from Sarit Shafrir
included
disc
... on the use and
prohibition
private
a
her he had hired
told
Nicherie
intercepted wire communica
of
losure]
“[ajround
of 2000 until
August
investigator
(second
orig
at 749
alteration
tions.” Id.
2001,”
December,
testimo-
January of
and
omitted).
inal) (internal
marks
quotation
that Pellicano told
ny from Tarita Virtue
jury
given to the
al-
retained
instructions
the Nicherie brothers
her that
a
aiding
abetting
and
lowed
wiretapping services
conviction
perform
PIA to
theory that
interception based on the
2001.” The wire
beginning of
“the
of
end
a
in-
recording
previously
a
translating
that
also introduced
evidence
constituted
tercepted wire communication
wiretap prior
paid Pellicano
Nicherie
object
did
a crime.14Because Nicherie
not
argued that this
period and
the relevant
to be
for Defendant Nicherie
closing,
government postulated: "It
In order
13. In
aiding
abetting
and
the in-
guilty
De-
found
proved
hired
is
that Defendant Nicherie
communications,
wiretap-
terception
wire
purpose of
Pellicano for the
fendant
Shafrir,
knowingly
prove
follow-
he
aid-
must
each of the
ping Ami
and that
Government
by hiring
wiretapping
ing
beyond doubt.
elements
reasonable
ed and abetted
him,
him,
First,
by sitting
interception
in the
by paying
and
of wire
the crime of
Agency
and listen-
Investigative
some-
Pellicano
lab
was committed
communications
translating
intercepted conver-
ing
to and
one.
Second,
knowingly
sations.”
Nicherie
Defendant
counseled,
aided,
intentionally
com-
and
induced,
manded,
procured
person
were as follows:
instructions
trial,
jury
to the
instruction at
we
including
review
listening to and translating its
error,
contents,
for plain
as discussed above at 779.
governed
is
prohibition
on
review, changes
On direct
in the law be- use and disclosure of intercepted conversa-
tween the time of trial and the time of
tions.
previously
Misuse of
intercepted in-
appeal
applied
are
to illuminate error even formation is not what Nicherie was
if
might
the error
apparent
have been
charged with or
doing.
convicted of
at the time of the trial.
enough
“[I]t is
though
Even
there was sufficient evi-
‘plain’
an error be
at the
appellate
time of
jury
dence for the
to convict on the first
Johnson,
consideration.”
520 U.S. at
“procurement
theory,” the evidence was
The error
and
instructions was
translating”
theory was harmless.
plain under Noel. The
See
wiretap-
crime of
Harrison,
United States v.
ping
complete
was
recording
when the
was
(9th
2009) (erroneous
made,
jury in-
replaying
and
the recording did not
struction was not harmless
when evidence
interception.
constitute
new
Because “a
support
proper ground
was “am-
may
defendant
not be
aiding
convicted of
biguous”);
Johnson,
469-70,
offense,”
520 U.S. at
abetting
completed
United
cf.
(reversal
S.Ct. 1544
for erroneous
Lopez,
States v.
2007) (en
instruction
banc),
sup-
unwarranted where
subsequent
Nicherie’s
porting evidence was
listening
“overwhelming”). It
translating
did not in itself
reasonably
possible
jury reject-
that the
aiding
constitute
abetting
the intercep-
ed the non-time-barred evidence support-
tion
of wire
communication
under
*32
2511(l)(a)
ing
theory
the first
and convicted
Act,
instead
Wiretap
the of-
on the
theory.
second
Therefore
fense
we con-
charged
for which he was
and con-
clude that
rights
Nicherie’s substantial
victed.
error,
were affected
the instructional
as
government argues
The
that the convic-
jury’s
verdict may have been based on
tion was not inconsistent with Noel be-
a factual finding that did not support the
cause the evidence permitted
Harrison,
conviction. See
to commit the crime you of of wire .... If find from the evidence that interception of wire communications of communications. occurred, you Ami Shafrir must further find third, And Defendant Nicherie acted be- 26, that the offense continued after October completed. fore the crime was priv- been portions might have discovery of re- limited 2002 led to vember secretly of his Neither did the re- ileged made was harmless. cordings Pellicano had protection In the re- under cordings qualify calls with Christensen. phone dis- Pellicano and Christensen doctrine. product corded calls work Bonder, the ex- wiretap on Lisa cussed 1. Standard Review Kerkorian, Kirk whom Christensen
wife of
of
support litigation.
represented
child
evidentiary
show
“Whether
subsequently
obtained
camera review
ing is sufficient
allow in
the seizure of
permitting
warrant
broader
question
under the Zolin test
mixed
recordings,
they
key
became
evi-
subject
review.” In
law and fact
to de novo
wiretap in the second
of the Bonder
dence
Jury Investigation, 974 F.2d
re Grand
trial.
(9th
1992);
Cir.
see also Grand
argue that the
92-1(SJ),
Pellicano
Christensen
Jury Subpoena
recordings
(9th
1994).
of their conversations discuss
showing
adequate
Once an
not have
ing
wiretap
the Bonder
should
made,
step
first
has been
under Zolin’s
in this
prosecutors
released to the
been
engage in in cam
“the decision whether to
and thereafter admitted into evidence
case
rests in the sound discretion of
era review
their conversa
in the second trial because
Zolin,
court.”
491 U.S. at
the district
attorney-
protected under the
tions were
step,
Zolin’s second
States
the correct
2. Reconsideration under
(1989).
2619,
We affirm the result of legal analysis. gaged relating The work matters court’s reconsidered Zolin attorneys, gov- majority recordings did and at the behest of substantial of the separate group under the ernment established a qualify protection attor- “filter ney-client attorneys investigators privilege, production —the privilege initially items for be- In releasing team” —to screen the Pellicano-Chris- recordings government tensen items were released to the team fore the investi- gators, the district court did not follow investigating underlying case. Zolin’s two-step process. government Among the materials seized were nu- parte filed an ex application seeking a recordings phone merous conversa- crime-fraud ruling on the Pellicano-Chris- tions between Christensen and Pellica- tensen recordings that cited their content. no. The filter team believed that The district court granted the application privileged conversations were not referencing without or applying Zolin. La- were furtherance of a crime. The error, realizing ter its the district court parte application] team an ex [filed for a reconsidered the issue under the correct stating allowing court order such and two-step process in ruling on a motion the team to recordings release the to Christensen to dismiss the indictment or investigating underlying those case. suppress recordings.15 The district court concluded that the made court granted district then a court a showing sufficient step under one of permitting order the filter team to release Zolin to warrant in camera review. The recordings. district court then conducted an in camera that in argues grant
Christensen (1) recordings review of the and held that order, ing the court the district court did the recordings attorney-client were neither under Zolin privileged nor work product protected, and process not follow the correct (2) to determine that the Pellicano-Christen- were, if they even ex- crime-fraud recordings privileged sen were not or work ception applied. product protected. Zolin requires a district The district court did not err two-step parte court to follow a ex process reconsidering privilege and crime-fraud is to determine whether the crime-fraud ex sues under the correct Zolin framework ception applies potentially privileged erroneously after it had considered the materials, such as the Pellicano-Christen- recordings content of the in its initial rul recordings. sen U.S. 109 S.Ct. ing government’s on the parte applica ex First, “the judge require should Jara, tion. United States v. lade showing of a factual adequate basis 1992), There, is instructive. support good faith belief a reasonable the district court admitted letter to the person that in camera review of the mate attorney defendant from his ruling after may rials reveal evidence to establish the sponte sua that the letter fell within the claim exception the crime-fraud ap Id. at 748. The dis exception. crime-fraud (citation Id.
plies.” quotation and internal trict court did not follow Zolin in admit *34 omitted). Second, government marks if the ting the letter. This court affirmed on the makes such a preliminary showing based ground that the defendant had waived the on potentially evidence other than the attorney-client privilege. Id. at 749. itHad themselves, privileged materials the court ground, not affirmed on that the court may conduct an in camera review to deter explained, required it “would be to remand mine privileged whether the materials are the case to the properly district court” to and, so, if apply Zolin. excep whether the crime-fraud Id. at n. 1. 749 As the district Id. applies. tion present rightly pointed court the matter 15. Christensen filed a recordings. motion to recuse the to the content of the The motion judge exposed judge. district because she had been was denied a different district
800 as the correct standard as soon under a district court the
out, remand for would if we to its attention. See brought Zolin’s two- error was applying a mistake to fix Chen, v. 1503 United States poten- the 99 F.3d the court saw after step process (9th 1996) document, “surely govern- ac- (holding [it’s] that the tially privileged to correct its priv- court submitting potentially for the district error in ceptable ment’s appeal.” applica- the parte before with an ex ileged own mistake material tion for Zolin crime-fraud determination limit- follow juries to routinely trust We judge because the district was harmless is errone- evidence when ing instructions allegedly privi- disregarded the explicitly States See United ously admitted. materials). It makes no difference leged 1995) Mende, F.3d the that in Chen judge caught district to are jurors presumed (explaining government’s mistake in the submission limit- court’s the district “follow[ed] have order, here the issuing an whereas before instructions”). similarly trust dis- ing We after judge corrected error district their out of judges put to evidence trict stating the crime-fraud issuing order a to strike granting of motion minds. The cases, defen- exception applied. In both routinely in a trial does evidence bench a they were to: got dants what entitled simply in a mistrial because result Zolin properly applying court district already the evi- judge has heard district considering po- the content of the without present- not have been that should dence tentially materials.16 privileged Instead, expected is judge the district ed. Dis- improper evidence. disregard to adept at recon- especially are judges
trict step 3. Zolin’sfirst decisions, they are asked sidering prior holding not err court did district time. See C.D. Cal. L.R. 7- do so all the bur- that the met its minimal for reconsidera- standard (explaining under Zolin’s first step. den tion). Moreover, easy for a analytically it is “a fac Zolin’s step requires first appropriate what is judge separate faith support good adequate tual basis analysis. Zolin step of the at each consider that in cam person belief reasonable only one, may judge consider step At may reveal era review of the materials potentially privi- other than the evidence the claim that evidence to establish two, step At material itself. leged Zolin, exception applies.” crime-fraud the content of the must also consider judge (citation U.S. at 109 S.Ct. believe this is no reason to material. There omitted). The quotation internal marks applied cannot be analytical framework only “a minimal government must make got just judge because properly exception showing that the crime-fraud peek step-two at evidence. sneak Jury Investigation, could apply.” Grand speculation at 1071. “Some sum, it was error for the although In under the Zolin Id. at required threshold.” not to follow Zolin’s two-step court district stringent is “not ... a Jara, threshold process, de la camera review of docu one” because “in the district harmless because error was intrusion on the ments is a much smaller its decision reconsidered properly court *35 gov- only "non-privileged evidence” reject argument that the Christensen’s 16. We submitted, analysis improperly the con- court considered and the district ernment court’s recordings even reconsider- recordings. when tent did to the content of the not refer expressly ing court considered the issue. The attorney-client privilege than full disclo- text of representation Christensen’s at 1072. step sure.” Id. The first is meant Kerkorian and the large sums of money only prevent ‘groundless “to Christensen’s firm fishing expe- paid had Pellicano. The ” affidavit also testimony ditions.’ Id. at 1073. recounted from former PIA employees that “confirmed the correctly The district court held that the widespread use of in wiretapping Pelliea- government step-one showing. made a A investigations.” no’s believe, person good reasonable could in faith, exception may that the crime-fraud conclude government We that the applied recordings have to the based on made the requisite “minimal showing” that following: Pellicano-Christensen recordings might contain showing evidence the crime- 1. Evidence that Christensen repre- fraud exception applied any privileged sented Kerkorian in a child support communications within them. Grand dispute with Bonder. Cf. Jury 92-1(SJ), Subpoena at 2. Evidence that firm Christensen’s (holding government that the met Zolin’s $186,000 paid had Pellicano near the step first in involving case illegal exports time of the recorded conversations where affidavit based on “testimony of two at issue. employees former ... as well as on tele An reflecting 3. FBI record Pellicano’s records, phone invoices, and other docu girlfriend’s former statement mentary evidence” established that a cor Pellicano told her he was listening to poration export used an disguise license to Bonder’s conversations. illegal exports sought its counsel’s le As the district explained, court this evi- gal assistance furtherance dence “raised the inference that scheme). $186,000 was, at least in part, exchange for illegal wiretapping services.”17 We Zolin’s second step A agree. Although the analy- district court’s Under Zolin’s step, second the district required speculation” sis “some that Chris- court conducts an in camera review to tensen, in misguided attempt repre- determine whether the privi- materials are vigorously, sent Kerkorian hired Pellicano so, leged and, if whether the government Bonder, wiretap speculation such prima has made a showing facie that the permitted under Zolin’s step. first Id. at Zolin, exception applies. crime-fraud 1072-73. 2619; U.S. 109 S.Ct. see also Unit-
The district court also had additional Bauer, ed States v. evidence before it to conclude that 1997). Zolin’s Cir. The district court here conclud- step first was met. pro- ed that “[n]early all of the communications duced evidence that Pellicano recorded appear not to protected by be the attor- many persons other with whom he dis- ney-client privilege- No more than a wiretapping. cussed This evidence would few approximately statements six support good faith belief a reasonable tape recordings hours of arguably even person that the Pellicano-Christensen re- reveal might what be confidential informa- cordings might contain similar discussions concerning tion from or Kerkorian.” To the wiretapping, about especially the con- portion extent that a small of the record- 104(a). apply privilege The rules of evidence do not ato exists. Fed. R. Evid. preliminary court’s determination on whether *36 802 attorney’s advice ... as well as an con- advice qualified have as otherwise
ings might Chen, 99 response to such disclosures.” that fidential, court the district concluded (citation quota- internal 1501 and F.3d at they did privileged not because they were Bauer, omitted); 132 see also tion marks advice, in further- were legal relate to not “attorney- that the (explaining F.3d at 507 the activity, or within illegal of fell ance street”).18 The two-way a privilege client is exception. crime-fraud is attorney-client privilege of the purpose court with the district agree We and frank communica- “encourage to full applied at attorney-client privilege the that attorneys and their clients between tion Pellicano- portions limited the most inter- thereby public broader promote it not find recordings. We do Christensen and adminis- observance of law ests the ex the crime-fraud necessary to consider v. United justice.” Upjohn tration of Co. that the apparent it is because ception, 677, 383, 389, States, 101 66 449 S.Ct. U.S. harmless. portions of those was production (1981). must be able L.Ed.2d 584 Clients il of the incriminating evidence Extensive candidly, and the lawyers consult their within the wiretapping was available legal be able to lawyers provide in turn must by recordings not covered of the portion Chen, F.3d at 1499- candid advice. 99 legal The small privilege. attorney-client the 1501. might have recordings that fraction A from the at communication communications privileged entailed that does not contain torney to the client with the rest of large or intertwined not so “directly may if it legal protected be advice require conversations as the recorded communications of indirectly reveal[s] all of privilege the over the extension by the client to the confidential nature product the recordings. As for work Fischel, attorney.” In 557 F.2d re any doctrine, argument waived Defendants 1977) (9th attorney-client (holding that Cir. by failing to applied this doctrine that attorney’s protect sum privilege did if we in their Even the issue briefs. raise transactions). business maries of client’s issue, agree we with to reach
were Further, from attor communication doc product that the work court district acting agent as ney party to a third his illegal wiretap to the apply did not trine advising defending purpose “for the end, we conclude In the ping. if it may protected clients” also be his releasing not err court did district client communications. reveals confidential step or in Zolin’s second recordings under Judson, States v. United recordings at the use of the permitting (9th 1963); v. see also United States trial. second (C.D. Jacobs, F.Supp. Cal. 1971); Rice, Attorney-Client Priv Paul R. Attorney-client privilege (2014) States 3:3 ilege in the United have attorney-client privilege “courts extended (explaining “The privilege made to confidential communications disclosures protects confidential attorney agent, ... from the to the attorney legal ... to obtain client to instance, (7) protected eight permanently privilege ele- attorney-client has client's 18. legal byor from the client ments: disclosure (8) protection “(1) sought be legal any unless advice of kind adviser When (2) legal his professional adviser in from a waived.” such, (3) Martin, capacity communica- or her United States (4) purpose, made in relating 2002). tions client, are, (6) (5) at the by the confidence *37 attorney from agent (provided client communications: the terms that not from the communications client Kerkorian willing would be to offer prior client reveal confidences of the or accept to resolve litigation and the client)”). dispute The does not fact that Kerkorian was putting his faith lawyer asserts, communications a the mediator. between He also in a foot- note, private investigator by retained that law- Recordings “[t]he contain other yer lawyer’s representation to assist the by statements Christensen that reference may by privilege. privileged client be covered client, communications from his including statements about Kerkorian’s lit- privilege “The claim of must igation objections, identify his desires to question-by- be made and sustained on a father, biological Kira’s and other refer- question basis; or document-by-document ongoing ences to the litigation.” That as- privilege unaccepta blanket claim of is sertion accompanied by is a citation to scope ble. The of the privilege should be pages nine from the transcripts of the re- ‘strictly confined within pos the narrowest cordings. Lawless, sible limits.’” United States v. That claim is overbroad. The district 1983) (quoting court questioned, example, whether the 2291). Wigmore, Evidence An entire terms that willing Kerkorian was to offer may document or set of documents be confidential, actually were noting that privileged privileged when it contains por those terms might have been communicat- inextricably tions that are “so intertwined by ed that time to Bonder’s counsel. Chris- they with the rest of the text that cannot argued tensen has not contrary to the separated.” be United States v. Chevron us. Aside from that example, it is not (N.D. Corp., 1996 WL *5 Cal. Mar. nearly enough contend, simply to as Chris- 13,1996) (citing Corp. Resolution Trust has, tensen that discussions between Pelli- (S.D.N.Y. Diamond, 773 F.Supp. cano and Christensen included “references 1991)). contrast, In nonprivileged “[i]f ongoing litigation.” to the References to portions of a communication are distinct litigation necessarily would not entail severable, and their disclosure would the revelation of information confidential effectively reveal the substance of the Indeed, review, to Kerkorian. from our privileged legal portions, the court must most such recordings references did designate portions which of the communi not. protected cation are may and therefore be (blocked out) excised or prior redacted importantly, More the bulk of the Rice, disclosure.” Attorney-Client Privi simply discussion was not about Kerkori- lege 11:21. an. The district court described the record communications, ed referring to Bonder Based on our recording review of the name, her married Bonder Kerkorian: transcripts, agree we with the district court’s assessment that more than a “[n]o communications focus on two few statements in the approximately topics. six main first is Bonder Kerkori- tape recordings arguably hours of part, even an herself. For the most Pellicano reveal might conveys what be confidential informa- to Christensen the content and concerning tion from or Kerkorian.” tone of communications between Bonder others, argument contrary Christensen’s to the including Kerkorian and attor- remarkably friends, unspecific. neys, Christensen con- and the mediator. Pellica- examples tends that two expresses personal feelings cited the dis- no his own did, fact, trict court concerning reflect confidential Bonder Kerkorian and her nec- removing vealing client confidences thoughts provides his own lawyers, nonprivileged essary context from on how Chris- and advice Christensen pages. aspects of handle various tensen should *38 per- subject matter is litigation. This
the that disregarding possibility the Even the conversa- the “fruits” of meated with ne- exception applied to the crime-fraud apparent- overheard tions any producing Pellicano — error gate privilege, the through illegal wiretapping. ly harm- portions was admitting and those second, true topic is the Yin, related Kong States Chu less. See United ma- (9th 1991) (“A Kira Kerkorian. The parentage non- 935 F.2d 994 focuses on jority [a of this discussion evidentiary will be re- error constitutional much of this dis- if person]. only named While for an abuse of discretion versed of Bon- the content incorporates likely cussion than not ruling court’s more the verdict.”). telephone conversations and der Kerkorian’s Christensen affected the (Pellicano Bonder Kerkori- repeats frequently that dis- repeatedly Pellicano a “can- person] wiretapping named of Bonder illegal an stated their [the cussed father, nonprivileged portions but she later throughout for Kira’s the didate” etc.), father, the evidence that recordings. the mediator he is That was the told portion incriminating, protected also documents and it was not a substantial act as a apparent efforts to by any privilege. Pellicano’s be- negotiate to a deal “go-between” sum, majority of the Pelliea- In the vast and Kerkori- person] tween named [the recordings privi- were not no-Christensen an. could have remaining portions leged, descrip- contest this did not Christensen severed, admitting any error been not involve confi- tion. That discussion did portions was privileged potentially by Kerkorian to disclosures made dential correctly con- harmless. The district court attorney-client There is no Christensen. attorney-client privilege did not cluded the any over in favor of Kerkorian privilege apply.
that discussion. protection product 6. Work recordings totaled transcripts of the nor Pellicano has indi- Neither Christensen pages. Our review
approximately
separate argument
appeal
on
presented
of those
percent
that
less than 10
cates
have withheld
that the district court should
may
information that
have
pages contained
their admission
recordings
or denied
Kerkorian. Christen-
been confidential to
product
based on the work
potentially
that
into evidence
has not shown
sen
to
briefs referred
recordings were
doctrine. Christensen’s
portions of the
privileged
attorney
product
only
doctrine
remain-
work
“inextricably intertwined” with the
argument
standing
that he had
they
support
could
his
recordings
such
der
recordings.19
object
the seizure of the
appear
not
to to
separated, and it does
not be
to the
Chevron,
briefs made no reference
Pellicano’s
they
were. See
WL
us
have, therefore,
They
doctrine whatsoever.
potentially privileged
at *5. Those
Miller v.
appeal.
the issue on
See
from the waived
separated
could have been
pages
Indus., Inc.,
indirectly re- Fairchild
nonprivileged pages without
standing,
reject
for we
argued that
reach that issue of
particular, Christensen
In
challenges
on the merits. The
to the seizure
attorney
product
doctrine
confirmed
work
separately filed mem-
expecta-
is discussed in the
personally
legitimate
issue
that he
had
disposition, at 8-9.
recordings.
orandum
We do not
privacy
tion of
1986) (“The
Appeals
ploitation
Court of
will
of a party’s efforts in preparing
ordinarily
appeal
not
consider matters on
litigation.”).
surprisingly,
Not
it does
specifically
distinctly
that are not
ar-
apply
to foster a distortion of the
brief.”).
gued
appellant’s opening
adversary process by protecting illegal ac-
tions
an attorney. Because
purpose
its
vague
Even if defendants’
references to
“is to protect
integrity
of the adver-
the' doctrine were deemed sufficient to
sary process[,] ...
it
improper
would be
issue,
agree
raise the
we
with the district
attorney
allow an
exploit
the privilege
court that the
product
work
doctrine did
for ends that are antithetical to
pro-
not apply here.
Parrott,
cess.”
(holding
at 1271
*39
doctrine,
product
“The work
codi
attorney’s
an
unethical conduct in secretly
fied in Federal Rule of Civil Procedure
recording conversations with witnesses vi-
26(b)(3), protects
discovery
from
docu
tiated
product protection
the work
as to
tangible
ments and
things prepared by a
those recordings) (citing
I.R.S.,
Moody v.
party or
representative
anticipation
his
in
(D.C.
795,
654
1981));
F.2d
800
Cir.
see
litigation.”
Jury
of
In re
Subpoena
Grand
Doe,
1073,
(4th
also In re
662 F.2d
1078
(9th
2004)
900,
(Torf), 357 F.3d
906
Cir.
1981) (“No
Cir.
court construing [the work
(citation
quotation
and internal
marks
product] rule ...
attorney
has held that an
omitted). It requires documents to have
could,
committing a
by
crime
invoking the
(1) they
“two characteristics:
pre
must be
doctrine,
product
work
insulate himself
in
pared
anticipation
litigation
of
or for
from criminal prosecution for abusing the
(2)
trial,
they
and
prepared by
must be
or
system
protect.”). Indeed,
he is sworn to
party
by
for another
or
or for that other
as
precedents indicate,
some of the above
(citation
party’s representative.” Id. at 907
attorney
conduct
that is merely un-
omitted).
and internal quotation marks
“At
ethical,
opposed
illegal,
as
to
may be
core,
its
the work-product doctrine shel
enough to vitiate the work product doc-
processes
ters
mental
of the attorney,
Parrott,
1271-72;
trine.
707 F.2d at
providing a privileged area within which he
(“[A]t
Moody,
“[T]he
advice
product
preparation
and
of cases for
privilege
protect
integrity
is to
Hickman,
511,
trial.”
adversary process.”
of the
Moody, 654
un-
must affirm
court’s discretion and we
here. The district
apply
not
doctrine did
firm
less we are left with the definite
recordings
by making
did not err
court
committed a clear
conviction that the court
admitting
prosecutors
to the
available
conclu-
judgment
reaching
its
error
trial.20
into evidence at
them
weighing the relevant factors.”
sion after
Beard,
v.
7’s dismissal
States
G. Juror
United
(9th
1998) (quoting
States
United
began in the
Shortly after deliberations
Egbuniwe, 969 F.2d
trial,
involving defendants Chris-
second
omitted)).
1992) (internal quotation marks
Pellicano,
received a
the court
tensen and
from members
*40
not follow
juror
question
in
would
for a new
that the
denial of defendants’ motion
the
addition,
juror
and,
that the
had
an abuse of discretion.
the law
trial was
inde-
Based on those two
to the court.
lied
juror during de-
may
A court
dismiss a
the
the court dismissed
grounds,
pendent
Fed. R. Crim.
good
liberations for
cause.
alternate,
seated
juror
question,
23(b)(3).
independent
P.
Each of the two
begin
delibera-
jury to
its
the
instructed
by
court in this
grounds cited
the district
jury
The reconstituted
again.
tions over
discharging
Juror 7—that he was
case
finding Christensen and
verdicts
reached
law,
the
and that he
willing
not
follow
argue
Those
guilty.
defendants
Pellicano
may justify
lied to the
the dis-
had
court—
improper
of Juror 7 was
that the dismissal
juror.
charge of a
improperly denied their
that the court
juror’s
disregard
A
intentional
for a new trial based on
subsequent motion
law,
juror
of
of the
often
the form
juror.
the
of the
dismissal
nullification,
good
can
cause for
constitute
for abuse of discre
review
We
juror.
of the
Merced v.
dismissal
See
juror
(9th
of a
after
1076,
tion both the dismissal
McGrath, 426 F.3d
1080
Cir.
2005)
have commenced and the de
deliberations
(noting that “trial courts have the
a new trial based on
nial of a motion for
duty
prevent
to forestall or
such conduct”
alia,
States v. Vartani
by,
offending
such a dismissal. United
inter
dismissal of an
(9th
2007);
1095,
Thomas,
an,
1098
Cir.
juror
476 F.3d
v.
(quoting United States
1071,
(2d
1997))).
1076
King,
juror
v.
660 F.3d
A
United States
116 F.3d
616
Cir.
2011).
(9th
district court’s factual
engages
by refusing
The
in nullification
to re
Cir.
juror
to the issue of
mis
“in
of both
findings relating
guilty
turn a
verdict
the teeth
facts,”
(quoting
for clear error. Var-
law and
id. at 1079
Horn
conduct are reviewed
Columbia,
135, 138,
v.
tanian,
ing
at 1098. “The decision to
Dist.
U.S.
476 F.3d
however,
in,
shown,
involved
that the disclosure
20. We
Kerkorian was not
assume
of,
product
recordings
Christensen and Pellicano's
or aware
work
in the
"trauma-
illegal
nature of Chris-
criminal conduct.
adversary process
than the
more
tize[d]
actions, therefore, does not vitiate
tensen’s
underlying legal
Moody,
misbehavior.”
interest
in non-disclosure of
Kerkorian's
801; Parrott,
follow the law as instructed
them.” Id. She also “noted that the other
duty
court—trial
jurors’
courts have
to fore-
frustration with her might be be-
conduct,
or prevent
agree
stall
such
whether
cause T can’t
majority
with the
all
or,
firm instruction or admonition
the time....
I’m
researching
And
still
”
guaran-
looking
where it does not interfere with
for more
the case.’
Id.
rights
protect
judge
teed
or the need to
Cotey
decided to dismiss
because
deliberations,
secrecy
...
dis-
unwilling
she was “either
or unable to
offending juror
missal of an
from the
colleagues.”
deliberate with her
Id.
jury.
venire or the
reversed, holding
We
that “if the record
*41
(alteration
Merced,
In response, brought jury the court its or his validity on the views law. back into the courtroom and reread the The court indicated an intent to question a following instruction: jurors selection of individually.22The next your duty
It is
to find the
from
morning,
facts
all
after receiving briefing from the
issue,
the evidence
the case. To those facts parties on the
it correctly
decided
you will
I
apply
give
you.
Uribe,
law as
it to
do so.23
See Bell
give
2014) (“The
You must follow the law as I
it to
remedy
allega-
you,
you agree
whether
with it or not.
juror
tions of
prompt
misconduct is a
hear-
ing in which
trial
court determines the
day,
Later that
the court received anoth-
transpired,
circumstances of what
the im-
er note from
It
Juror 9.
recited some of
pact
jurors,
on the
and whether or not the
responses
questions
Juror 7’s
from oth-
prejudicial.”);
misconduct was
see also
jurors.
er
example:
For
(“[W]here
Boone,
(observing
sufficiency of
views on the
they
the dismissed understand his
suggested that
viewed
reaching
to
a ver-
the evidence.
juror “as an obstacle
dict”).
to Juror 7’s view
only
The
reference
that
dissenting opinion
concludes
statement
was his own
of the evidence
by failing to ask
the district court erred
inadequacy
about the
during questioning
willing
whether he was
point-blank
Juror 7
evidence, but, as stated
circumstantial
dissent,
According
law.
to the
to follow the
contradictory
above,
testi-
light
of “whether he
question
below at
validly
jurors, the court
mony of five other
by
as instructed
could follow
law
credibility. Further-
7’s
discounted Juror
appropriate ques-
“the most
court” was
Vartanian,
more,
the existence
just as
that should have been asked. The
tion”
does not nec-
a
reference
passing
of such
multiple
repeats
proposition
that
dissent
Sym-
cited in
essarily evoke the concerns
825-26,
times,
culmi-
below at 825 &
see
juror
discharge of the
ington
preclude
or
assertion,
at 827 that the
nating with
Vartanian,
good
for
cause. See
question
that
before dismiss-
failure to ask
(observing
passing
that a
reference
credibility
on a lack of
ing
7 based
Juror
juror’s
that the de-
to the dismissed
view
that “alone is wor-
was an “obvious error”
did not evoke the
fendant was innocent
thy of reversal.”
Symington
raised in
because
concern
juror’s
was her mis-
for the
dismissal
basis
held, however, that
previously
haveWe
conduct,
views on the merits of the
not her
can
juror’s assurance
he
she
“[a]
case).
impartial
verdict is not
render
fair
addition,
that at least one
In
we note
F.2d at 762
dispositive.” Egbuniwe, 969
regret as to what
juror expressed
other
Florida,
Murphy v.
421 U.S.
(citing
7’s
Juror 3 stated
Juror
happened.
(1975)).
813
misconduct,
apply
it makes no sense to let that
but does not
it either. For example,
827,
say
complains,
majori-
that “I did not
that”
it
at
juror’s statements
below
that our
“I
an ty opinion
point
any
and
can
the law” serve as
“fails to
to
solid
follow
evi-
if
pass,
sup-
automatic free
other evidence
demonstrating
dence
the record
that
ports findings
contrary.
to the
Such a limi-
Juror 7
engaging
was
nullification.”
on the
court’s freedom to
tation
district
approach
reviewing
That
to
the district
jurors
flatly
question
would be
inconsistent
finding
court’s
has it backwards. To set the
“duty”
with its affirmative
to “forestall or
aside,
finding
we
persuaded
have
be
Merced,
prevent [jury
426
nullification].”
finding by
that the
the district court that
(citation
quota-
F.3d at 1080
and internal
7
“not willing
Juror was
to follow the law
omitted).
tion marks
and will not follow the law in this case”
clearly
Egbuniwe,
erroneous. See
969
The
that
7
possibility
might
Juror
have
above,
808-11,
F.2d at 761. As described
at
by
that
responded
saying
apply
he would
jurors
questioned
the five
the district court
enough
the law as instructed is not
reported
found credible
statements
require the district court to leave him on
expressing
that Juror 7 had made
dis-
if the court has otherwise made
agreement
wiretapping
with the
law as a
findings
good
that would constitute
cause
“
principle. They
matter of
reported
also
for
The
his removal.
‘determination of
stated, in response
that Juror 7 had
to a
impartiality,
plays
which demeanor
such
about whether he believed the
question
important part,
particularly
an
within
”
valid,
law,
wiretapping law was
that “in the
province
judge.’ Egbuni
of the trial
taxes,
pay
just
we don’t have to
federal
we,
(quoting
Here, 7’s statements Juror from accompanied tion was declarations response taxes were made about happened in jurors regarding what he believed wire- several questions about whether 7’s dismissal. prior the room to Juror Credible testimo- tapping laws were valid. the correctly held that jurors The lower court multiple from also confirmed ny from con- okay juror for declarations were barred it’s “[i]f that Juror stated by Federal Rule of Evidence wiretap get and not sideration 606(b), juror from testi- prohibits him.” which caught, okay then it’s Yet Juror during delib- fying about statements made his about the wire- failed to mention views argue that Rule pointedly he was erations. Defendants tapping though laws even 606(b) they apply Al- not because were during voir dire.27 does asked about them juror dismissal rather juror inquiring into the though Dyer potential concerned verdict, nullification, case, but that bias, just validity in that than the of the not as rejected in United States v. spoke material and distinction was Juror 7’s lies were Decoud, of 1018-19 question to the fundamental squarely 2006). willingness to follow the law and dis- his duty juror. Dismissal on charge his as the motion. It The court then denied proper. was thus
this basis statements, quoted found that Juror 7’s as notes, findings “suggested] in the a bias on his court’s factual were The district erroneous, they supported part against government.” the federal clearly and discrepancies that there was no reasonable court noted the “numerous conclusion its testimony Juror 7’s and that impetus for dismissal between No. possibility jurors” mer- of the other and reiterated its find- stemmed from Juror 7’s views on the Dyer juror point of was not that a alleged one to admit that F.3d at 981. failure of prose- potentially by a prejudicial disregarded. comments juror’s lies should be been overheard. That issue is dis- cutor had argument rejected in cussed and Defendants’ dire, During specifi- voir the district court together disposition filed memorandum anyone any difficulty cally asked: "Will have note, opinion, at We more- with this 827-29. following my applying instructions and over, Dyer that our decision in was that bias you approve or dis- law to this case whether juror who had an- should be attributed to you?” approve of the law as I state it to questions negative to the usual swered in you already, "Other than what have heard do during any voir dire as to whether relatives you any feelings particular have about the the victim of close had ever been friends charges against defendants that would these any other than crime or accused of offense you be a fair and make it difficult for her It was later discovered that traffic cases. impartial juror Defendant Pelli- in the case?” killed, previously been shot and brother had any any you cano asked: "Have formed juror in a but not until after she sat as a opinion 'wiretapping' from about the term joined a verdict that convict- murder trial reading newspapers government’s and the death. ed the defendant and sentenced him to regarding wiretapping? legislation new ... relief, concluding granted Our court habeas Anybody any knowledge that or have have during juror’s voir dire warrant- that the lies Dyer, any opinions on it?” implied bias. ed an inference ing during suggested by advisory 7 “lied the Court’s 30-37 months Juror Guidelines, likely during Sentencing upon examination and most voir based the dis- regard dire with to issues that were rele- trict court’s determination that the total It vant to his bias the case.” added: offense level was 19 and the criminal histo- if juror ry category “The submitted declarations —even was I. The offense calcu- level they upward were not Federal Rule of lation included a three-level depar- barred 5K2.0(a)(2) 606(b), ture, they (2001), Evidence which are—do not under U.S.S.G. previous findings undermine Court’s for factors which the district court con- jurors credibility questioned adequately cluded were not otherwise ac- Sentencing and the conclusions as to Juror No. 7’s counted for in the Guidelines. levels, veracity willingness to follow the law.” those additional Without three *48 agree. total level solely We offense based on the 16,
Guidelines would have been with a Sentencing H. 21 corresponding range of to 27 months history for a criminal level of I. The court review de novo the district We arrived at the offense level of 16 from a interpretation Sentencing court’s of the by adding base offense level of 9 2 levels Rivera, Guidelines. v. 527 United States 3Bl.l(c) § pursuant to for U.S.S.G. Chris- (9th 2008). F.3d Cir. The court’s role, supervisory pursuant tensen’s 3 levels application of the Guidelines to the facts is 2H3.1(b) § pursuing gain, for economic reviewed for an abuse of discretion. United pursuant § and 2 levels for 3B1.3 abuse (9th Carty, States 520 F.3d Cir. position of a public private of or trust. 2008) (en banc). findings Factual are re challenges Christensen his sentence as viewed for clear error. United States v. (9th erroneous, Treadwell, procedurally contending the to- 593 F.3d 2010). tal offense level should be lower because may A sentence be set aside if sub adjustments stantively made the court cal- procedurally unreasonable or if culating the total offense level and the way erroneous a that is not harmless. 993; upward departure three-level were im- Carty, 520 F.3d United States v. Acosta-Chavez, proper. challenges He also his sentence as 2013). substantively unreasonable. We affirm. failing Procedural error includes calculating incorrectly calculate or Supervisory a. role proper range, Guidelines failing to consid er the factors outlined 18 U.S.C. objections Christensen raises to three 3553(a), § choosing a sentence based on elements of the district court’s calculation facts, clearly failing erroneous or to ex Sentencing of the offense level under the plain the sentence Carty, selected. objection to a Guidelines. One is two-level at 993. upward adjustment ground on the that occupied supervisory
Christensen a role I. Christensen over Pellieano. 3Bl.l(e), § conspiracy upward
Christensen was convicted of Under U.S.S.G. interception adjustment appropriate of wire communications in the defen- “[i]f leader, § violation an organizer, manager, of 18 U.S.C. 371 and 18 U.S.C. dant was or 2511(l)(a). § activity. of criminal The dis- supervisor” district court sentenced imprisonment him to 36 months of each trict for court found Christensen “was conduct, counts, responsible of the two to be served concurrent- for Mr. Pellicano’s ly. range phone That sentence within the of in the recorded was indicated Kerkorian, gain to
calls,
throughout
him
the reten-
immediate economic
supervised
however,
dispositive.
is not
Christensen
tion.”
gain.
own economic
was motivated
his
The district
court’s factual
observed,
al-
As the district court
“[fit’s
clearly
not
erroneous.
finding was
ways
attorney’s
to an
economic benefit to
“(1)
(2)
finding
illogical,
implausi
not
was
logical
That
keep
happy.”
a client
was
(3)
ble,
support
in inferences
or
without
of the wire-
interpretation
purpose
from
facts in the
may
be drawn
finding
clearly
tap, and the court’s
Pineda-Doval,
Under
based
theory
attorneys
if
adjustment
appropriate
purpose
is
“the
that
can be trusted
ethically
...
in representing
of the offense was to obtain
economic
to act
their
gain.”
Attorneys
district court found that “the
clients.
are officers of the
a
purpose
expect
respected
of the offense was to obtain
Court and
to be
and to
advantage
litigation
representations accepted
tactical
which is an
have their
as
con-
gain.”
Attorneys
indirect economic
Christensen
true.
also trust each other or
merely
they
supposed
tends that he hired Pellicano
to
at least
are
to be able to
identifying
biological
engage
illegal
father of
trust each other not to
assist
daughter,
imag-
Bonder’s
Kerkorian
or unethical conduct. It is hard to
that
system
if
sought modify
support
never
to
his child
ine how our
could work at all
principles
obligation or otherwise obtain financial
these fundamental
weren’t
Bonder.
of the Bar
gain through
litigation
his
with
honored
members
who
them.
wiretapping provided
uphold
or not the
swore to
Whether
attorney.
posi-
was an
That
Christensen
enhancement for abuse of trust
a
application
of trust. The
position
upward
tion was
three level
I
departure, would
explicitly
notes to
3B1.3
state that law-
have
concluded
similar reasons that
yers
“special
have a
skill” as that term is
an upward
equivalent
variance in an
among
used in the section and include
imposed.
amount should be
an
of trust
illustrations of
abuse
the exam-
conclude,
event,
any
We
ple of an embezzlement of a client’s funds
application
the court’s
of the enhancement
attorney serving
guardian.
as a
under these
appropri
circumstances was
however,
argues,
Christensen
that he
ate.
position
attorney
did not use his
as an
to
recognized
The district court
crime,
required
commit or conceal the
terms,
applied, by
enhancement
if
only
its
apply
argues
the enhancement. He also
(or
skill)
the abuse of trust
special
use of
qualify
for this
enhancement
“significantly facilitated the commission or
relationship of trust that was violated must
concealment of the offense.” The court
be between the defendant and the victim
found that
position
“Christensen’s
as an
occupy
position
and that he did not
attorney
in significant way
contributed
Bonder,
trust in relation to Lisa
the victim
the commission or concealment of the of-
wiretapping
According
scheme.
fenses.” That finding
clearly
was not
erro-
Christensen,
court applied
the en-
neous.
simply
hancement
because he was an at-
wiretap
motivation to
Bonder
torney,
was
support
which is insufficient to
directly
represen-
related to Christensen’s
adjustment
under
3B1.3.
tation of Kerkorian in
support
his child
matter,
practical
argument
As a
this
dispute with Bonder. Christensen directed
more theoretical
than real. The district
Pellicano based on what Christensen knew
question
court noted that a close
*50
attorney
as Kerkorian’s
in that dispute.
by
application
raised
the
of an enhance-
Payment to
firm initially
Pellieano’s
came
§
ment under
3B1.3 to the facts of this
from Christensen’s firm. Christensen’s sta-
directly
case and that it found no cases
on
attorney
tus as Kerkorian’s
and the com-
It
point.
explicitly,
went on to state
howev-
mission of the offenses for
he
which
er,
if,
here, §
that
based on the facts
3B1.3
conspiracy
convicted—one count of
to in-
support
adjustment
did not
a two-level
in
tercept and use wire communications and
level,
calculating the offense
the court
interception
one count of
of wire communi-
would have imposed
the same sentence
cations—were not coincidental. It seems
applying
upward
an
variance in an equiva-
likely
wiretapping
the
of Bonder
lent amount:
not
would
have occurred but for Christen-
Even if these circumstances
fit
do not
attorney
sen’s involvement as the
for Ker-
3B1.3,
within the letter of
they
Section
korian,
certainly
and it is almost
the case
certainly fit
spirit,
within its
and if a
conspiracy
intercept
the
in-
departure under that section were not
hap-
cluded Christensen
not have
would
appropriate,
then a variance would be.
pened otherwise.
attorney
An
position
who abuses his
degree
§
this manner and to the
that Mr.
As for the
of
enhance-
scope
the
3B1.3
ment,
certainly
disagree
Christensen did here is
more
we
con-
with Christensen’s
culpable
of a
if
deserving
greater
apply only
sen-
tention that
it should
tence than one who has
such position
position
no
of trust that was violated ran be-
imposed
to abuse....
I not
tween the
victim of the
[H]ad
defendant and the
an illustration of his abuse of
constrained.
court as
That view is too
wiretapping.
id.
position
public
trust. See
provision of the Guidelines
The relevant
“public
to abuse
specifically
refers
Fitzhugh,
v.
Similarly, United States
trust,”
a concern for
suggesting
private
(8th
1996),
Eighth
821
see
that
is anoth-
tences on the affirmed
in
outrageous.
place,
It shows
there
counts
Evans-Martinez,
States v.
er side to Mr. Christensen than the one United
611
(9th
635,
2010),
I
F.3d
645
Cir.
the letters
received
we do
[from
shown in
believe that a
family].
departure
from our usual
Christensen’s friends
practice
appropriate
is
in this case. Ac-
This is not
ease
which we
cordingly, we vacate the
sentences
firm
have “a definite and
conviction that
these three defendants and
remand
district court committed a clear error
resentencing.
district court for
judgment”
in the conclusion it reached
We decline to further address the addi-
Res
factors,
upon weighing the relevant
challenges
tional
presented
these defen-
sam,
(quotation
822 “proved to forfeit client jury forfeiture. dered Defendants right to have a decide al 754, Pellicano, to Phillips, v. which amounted United States payments” 704 F.3d to 2012) v. (9th Libretti (citing $2,008,250. argue Turner that 769-70 Cir. Arneson and States, 29, 49, 116 S.Ct. United 516 U.S. error. this was (1995)). 356, Similarly, we L.Ed.2d 271 133 “proceeds” have held that Some circuits Rule of Criminal concluded that Federal States v. Sim United gross receipts. mean jury a require not Procedure 32.2 does (8th 1998); mons, 765, 770-71 Cir. 154 F.3d in the form of for forfeiture determination DeFries, 1313-14; United 129 F.3d is what money judgment, which personal a (1st 1, 21 Hurley, v. Cir. States 63 F.3d obtained here. Id. at 771. government 1995). “proceeds” have held that Others the standard of v. next address United States Ge
We
profits.
refers to net
(7th
2003)
nova,
750,
forfeiture. Forfeiture is
proof
for RICO
F.3d
761
Cir.
séntence,
1963(a)(3)
an element of
of the
aspect
§in
(explaining
proceeds
that
Libretti, 516 U.S. at
underlying
crime.
of the
“profits
means
net of the costs
38-39,
Accordingly,
business”).
dis
tion
knew
than a
criminal of-
enterprise.
rather
substantive
and several liabili-
RICO
Joint
Simmons,
There is therefore no risk of what
fense.
ty
appropriate.
was therefore
“practical
(“Codefendants
Stevens called a
effect
Justice
at 769-70
are
jeopardy,”
tantamount
to double
id.
jointly
severally
held
liable
properly
*56
527,
2020,
section
128 S.Ct.
when
enterprise....
the
of a
proceeds
for
RICO
982(a)(2)
to the
captures funds essential
required
prove
is not
predicate
of one of its
of-
commission
for
specific portion
proceeds
the
of
which
fenses.
responsible.”).
each defendant is
100;
F.3d at
also United States v.
732
see
ordering
not err in
The district court did
803,
(9th
Alstyne,
814
Cir.
Van
in this case. We affirm on
RICO forfeiture
2009)
“[o]nly
the desire to
(explaining
this issue.
‘merger problem’
plu-
a
united” the
avoid
Santos).
rality and Justice Stevens
IV. Conclusion
reasoning
persuasive,
Peters’s
and we
challeng-
The district court handled this
it.
forfeiture is a form of
adopt
RICO
ing
admirably.
develop-
case
Based on
punishment
rather
than a substantive
trial,
subsequent
ments in the law
to the
Defining proceeds
offense.
criminal
aiding
we vacate Turner’s conviction for
gross receipts
presents
in this context
no
fraud,
abetting computer
and
Arneson’s
1963(a)(3)
merger problem.
re-
When
computer
convictions for
fraud and unau-
proceeds
forfeiture of
obtained from
quires
access,
computer
thorized
and Pellicano’s
activity,
racketeering
such forfeiture does
aiding
abetting
convictions for
and
both
problem
create the
that the same con-
computer
comput-
fraud and unauthorized
give
crimes.
duct will
rise
two different
er access. Those defendants’ other convic-
Finally,
argues
Arneson
that the extent
affirmed,
tions are
but their sentences are
proceeds
racketeering
of the
from the
ac-
Their
fur-
vacated.
cases are remanded for
him,
tivities was not foreseeable to
and
proceedings,
including resentencing
ther
hqve
therefore he should not
been held
on the convictions that stand. The convic-
jointly
severally
for the
and
liable
RICO
of
Kachikian
tions
Christensen and
are
reject
argument
forfeiture.
this
be-
We
affirmed,
imposed
and so are the sentences
legal
cause it misstates the
standard.
on them. We vacate Nicherie’s conviction
long
sentencing
as the
court
“So
aiding
abetting
interception,
and
a wire
by
of the
preponderance
finds
evidence
proceedings.
and remand for further
through
that the criminal conduct
which
PART,
AFFIRMED IN
VACATED IN
proceeds
were made was foreseeable
PART, AND REMANDED.
defendant,
proceeds
to the
should form
Fruchter,
judgment.”
forfeiture
part of the
CHRISTENSEN,
Judge,
Chief District
added)
(emphasis
(citing
The district
disagreed
court
likewise
fellow
who
with his views
“Juror No. 7 has
to the
That
regarding
sufficiency
lied
Court.
is
of the evidence.
important
prior
parties’ peremptory challenge,
1. It is
to remember that
to
and had sur-
being
jury,
selected to serve on the
Juror 7
any challenges
vived
for cause.
subjected
questioning,
was
to
dire
voir
adamantly
just
likely
that Juror was
7 whether he
the court asked Juror
When
government’s evi-
stating his view that the
to him
attributed
made the statements
a conviction as it
them,
insufficient for
notes,
dence was
making
jury
he denied
unwillingness
expressing
is that he was
jurors
angry
were
said that the other
law,
7 was
to follow the
or
Juror
them.
disagreed
he
with
with him because
when
flights
hyperbole
simply taken to
his
that he could not base
He then stated
hostility
skepticism
to his
encountering
These
on circumstantial evidence.
decision
case.
government’s
the merits of the
about
possibility
a reasonable
answers raised
Likewise,
engage
specula-
to
if we are
jurors
other
impetus
for the
tion,
that a vocal few
certainly possible
it is
his
him dismissed stemmed from
have
long
trial and were
impatient
were
after
of the case. No state-
views on the merits
full
a conviction without a
trying to force
jurors refute Juror
ments from the other
this Court
of the evidence. As
discussion
Indeed,
sup-
the record
7’s statements.
previously, it is not for the
pointed
has
out
point,
At one
Juror
ports the assertion.
going
judge
inquire
speculate
what is
(the
began discussing how his
foreperson)
why it was so
jury
on in the
room. That is
with Juror
views on the evidence differed
ask Ju-
for the district court to
important
stated that if the federal
7]
7’s: “[Juror
willing to follow the wire-
ror 7 if he was
someone, they’re in-
charges
willing
engage
delib-
tapping law and
nocent,
accept
can’t
and he was—won’t
—I
jurors.
erations with his fellow
Juror
also volun-
talk about evidence.”
all unanimous on it
teered
are
information,
“[w]e
key
this Court
Without that
have taken a vote....”2
there. We
assumptions
forced to make baseless
is
similarly indicated that the oth-
jury notes
length
like the
of delib-
things
founded on
jurors disagreed with Juror 7’s assess-
er
and the fact that the
convict-
erations
of the ease. One note
ment of the merits
replaced. I do not
ed once Juror 7 was
alleged that
Juror
specifically
conjecture
appropriate
believe such
in-
and another note
“ANTI-government,”
simple
asking
alternative
when
exists—
from Juror
problems
stemmed
dicated
juror if
he or she will deliberate
light
In
of all
7’s “need” for more evidence.
failure
follow the law. The district court’s
this,
majority’s
that “[a]ll
conclusion
here violated the Defendants’
to do so
expressed by the other
of the concerns
a unanimous
right
Sixth Amendment
7 on
jurors related to
views
Juror
impor-
is too
impartial jury.
right
This
law,
persua-
not the evidence” is not
juror
on
tant to allow removal of a
based
Ultimately,
Symington,
as in
the evi-
sive.
and baseless as-
questioning
insufficient
*60
“support any high degree
dence does
sumptions.
thing
The worst
that could
certainty
underlying
as to the
motive”
that Juror 7 would
happened
have
here is
jury’s request
to dismiss Juror
have remained steadfast
his view
1088, 7,
n.
but it is
Symington, 195 F.3d
prove
had failed to
its
mistrial,
just
case,
uncertain circumstances
resulting
hung jury
under
such
in a
juror
improper.
that dismissal of a
that ensures a de-
infrequent
a not
result
Amend-
rights
fendant’s
under the Sixth
assertion,
Contrary
majority’s
to the
ment.
out
speed
jury
with which the
sent
its first
district court confronted an unusual
certainly
note is
not clear evidence
couple
A
of vocal
in nullification. It is
and difficult situation.
engaging
Juror 7 was
Sym-
basis to declare a mistrial.
was a clear violation of the
sufficient
2. This statement
ington,
py with the concerns that Juror 7 ex- case,
pressed concerning government’s getting
and set about the effort of him
removed from the so that their desire quickly convict the defendants could be
accomplished. The district court was effort,
drawn into this and abused its dis- in removing
cretion Juror 7 for reasons ability
unrelated to his to follow the law or
willingness Having deliberate. succeed- juror, in getting chilling
ed rid of one
effect on the deliberations of the remaining
jurors reason, would be manifest. For that
I majority opinion. dissent from the
convictions of defendants Christensen and
Pellieano the second trial should be
reversed and their sentences vacated. ANDRADE-GARCIA,
Nelson
Petitioner, LYNCH, Attorney
Loretta E.
General, Respondent.
No. 13-74115 Appeals,
United States Court of
Ninth Circuit. *
Submitted March
Pasadena, California April
Filed July
Amended *61 * 34(a)(2). panel unanimously App. concludes this case is See Fed. R. P. argument. suitable for decision without oral notes series of handwritten conclude that the district We particu- about one jury complaining un regarding 7’s findings court’s Juror sug- juror, identified as Juror lar unwillingness to follow truthfulness to follow the unwilling that he was Those gesting clearly erroneous. the law were disagreed with it. After he dismissing law because cáuse for findings provided matter, the court found into the 7 nor inquiring the dismissal of Juror juror. Neither
Notes
notes assume know willing is to deliberate.” that? no, explained: Actually, 23. The court “I have read the THE JUROR: I don’t. night, you that emails were sent last two from the THE COURT: Did write me a note? notes],” “the substance” but that was statements jurors disavowed the other said if the “[H]e of Juror 7’s statements. wiretap- regarding to him both attributed it and not be can do federal that suggested Juror 7 and tax laws. ping citizen private then a guilty, found one of the notes was juror who wrote it Juror That’s what was.” shouldn’t be. disagreed with the Juror 7 angry because 7 had ex- confirmed that Juror likewise “c[ould and because he majority jurors wiretapping doubt about both pressed on cir- judge decision agree [his] to not] tax law. federal evidence.” cumstantial court hearing parties, from the After five other questioned court then Ju- just cause to dismiss found there was the state- all confirmed that jurors who 7 is found that “Juror No. ror 7. The court notes, “it should be including in the ments not the law and will willing not to follow wiretap, him” to and “we don’t okay for finding in this case.” That the law follow taxes,” were “more or pay federal have that [were] “based on the statements was 1, the said.” Juror 7] less what [Juror jurors [other] in the notes and that percent sure [of was “not 100 foreperson, that “Ju- The court also found confirmed.” in the everybody was because said] what Court,” citing that 7 has lied to the ror No. time,” at the same but recalled room talks excusing for independent ground[ ] “an as something hearing say Juror 7 about him.” taxes and confirmed having pay federal okay “if it’s for process, specifically that Juror 7 had said In the court wiretap get caught, jurors and not are credi- government to “that the five other found him.” 9 told the not.” The court okay then it’s for Juror and that Juror No. ble by omis- down Juror 7’s state- that Juror 7 had lied court that she wrote also found he made when he did not during sion voir dire contemporaneously ments question them; up response Juror 7’s to either speak also wrote down Juror 3 any juror had that court as to whether 2 told the court statements. Juror feelings particular charges “any about exactly written [as “the words weren’t Okay. you say you Did that THE COURT: No. THE JUROR: wiretap- agree with the law about don’t Okay. I have a note from— THE COURT: ping? juror suggests that apparently that from No, say didn’t that. I said THE JUROR: I said, okay for the Govern- you “If it’s have agree judge my I cannot decision on get caught, then it it and not ment to do circumstantial evidence. okay And at the same be for him.” should [....] a little bit different got I a note with time Okay. And after the THE COURT: said, suggesting you "If it's language deliberate, I received another went back to wiretap and not okay the Government to note, suggests perhaps and that note you get caught, okay for him.” Did then it’s you, you said to "If knew someone someone something say things like those those wiretapping the law said it was things? illegal?” illegal, you it’s And that do believe [...] was, your response "In the law we don’t Well, say if the Gov- JUROR: I didn’t THE taxes, pay just taxes.” have to federal state can, wiretap, then he whoever ernment can something you say like that? Did proba- He wrote that note "he” referred to. At all. JUROR: I don't recall that. THE bly anger and emotions towards based on to me. I couldn’t That doesn’t make sense me. questions wiretapping specific answer you? Toward THE COURT: with the federal taxes. angry He was because I THE JUROR: Yes. you didn't— THE COURT: So
notes
little more than an hour
on the merits.”
after
began.
very
deliberations
That is
ear
ly
process,
in the
especially
compli
after a
“ ‘may
court
Because the
not intrude on
lengthy
contrast,
cated and
By
trial.
”
deliberations,’
secrecy
jury’s
Symington, note
first
came after five
Symington,
at
(quoting
195 F.3d
1083;
see
days of deliberations. 195
at
Brown,
596),
inqui-
823 F.2d at
the court’s
Brown,
also
him in the
notes
follows:
decisionmaking process
without which the
(cid:127) “Well,
say if the
I didn’t
Government
crippled.”
Accordingly,
Id.
this
would be
can,
‘he’
then he
whoever
wiretap,
can
judge’s
trial
has cautioned that a
Court
proba-
that note
to. He wrote
investigating alleged juror
referred
in
limited role
to-
anger and emotions
bly
compromise
based on
the se-
misconduct “must
crecy
jury
me.”
deliberations.” Id. The dis-
wards
of
here,
interviews
of five addi-
trict court’s
(cid:127)
I disagreed
angry
“He was
because
certainly compromised the
jurors,
tional
majority
jurors.”
with the
of
But, to
secrecy
jury
of the
deliberations.
(cid:127)
if
specifically asked
he said
When
felt it
the district court here
the extent
law,
wiretapping
agree
he did not
with
ju-
the other
necessary
inquire
to
of
was
“No,
say
I didn’t
responded
Juror 7
rors,
inquiry
should
then the focus of
agree
I cannot
to
that. I said that
extremely narrow and directed
have been
circumstantial
judge my decision on
7 could follow the law
to whether Juror
evidence.”
willing to deliberate.
and whether he was
(cid:127)
Instead,
whether he said the law
in-
When asked
the district court’s extensive
jurors
him
federal
require
pay
did not
to
the five additional
focused
quiries of
At
taxes,
truthfully
“I don’t recall that.
7 had
an-
he said
on whether Juror
I
al-
questions
make sense to me.
the court’s
about his
all. That doesn’t
swered
regarding the federal tax
specific questions
leged
of
statements
couldn’t answer
what
during deliberations. This turned
the federal taxes....
law
wiretapping with
investigation
narrow
should have been a
say anything about taxes.”
I didn’t
Moreover,
independent grounds
into a sideshow.
the record
an
for excusing him.”
questioned jurors’
makes clear that
finding
This
also constitutes clear error
because,
inquiries
answers to the court’s
were root-
acknowledged
as the court
in de-
ed,
potentially,
disagree-
at least
their
nying
trial,
a motion for a new
“even
ment with Juror 7 about his assessment of
intentionally dishonest
[during
answer
voir
government’s
fatal,
merits
case.
long
is not
so
dire]
as the falsehood
bespeak
does not
a lack of impartiality.”
majority
juror nullifica-
discusses
Calderon,
Dyer
v.
(9th
151 F.3d
length,
any
tion
at
but fails to
point
law
1998).
The majority cites United
demonstrating
solid evidence
the record
Vartanian,
States v.
1098-
engaging
that Juror 7 was
nullification.
2007)
for the proposition that a
every
The district court had
opportunity may properly
district court
juror
dismiss a
willing
ask Juror 7 if he was
follow
based on
juror
its determination that a
had
law,
it,
despite any disagreement with
but
been untruthful
potential
about his or her
question
that did not occur. While a direct
biases. I do not read Vartanian to stand
juror willing
as to
whether
is
to follow
proposition
juror'
this broad
of
law.
Murphy
always dispositive,
the law is not
Vartanian properly
dismissed for
Florida,
794, 800,
421 U.S.
95 S.Ct.
“her misconduct outside of the
delib-
(1975),
it
a necessary
L.Ed.2d 589
room,” including multiple
eration
improper
starting point
judge may
before a
take
contacts with “members of the defendant’s
juror
step
dismissing
rare
at
counsel,
family, defense
apparently
bidding
jurors
disagree
other
who
with
himself,” which,
even the defendant
when
subject juror
about the merits of the
questioned
about
judge,
the trial
she
jury system’s
case. To overcome the
“cru-
Vartanian,
lied about.