United States v. Terry Christensen , 828 F.3d 763 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50531
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-8
TERRY CHRISTENSEN,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-50570
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-1
ANTHONY PELLICANO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-50115
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-7
MARK ARNESON,
Defendant-Appellant.
2 UNITED STATES V. CHRISTENSEN
UNITED STATES OF AMERICA, No. 09-50125
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-2
RAYFORD EARL TURNER, AKA
Seal B,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-50128
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-6
ABNER NICHERIE,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-50159
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-3
KEVIN KACHIKIAN,
Defendant-Appellant.
UNITED STATES V. CHRISTENSEN 3
UNITED STATES OF AMERICA, No. 10-50434
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-2
RAYFORD EARL TURNER, AKA
Seal B,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50462
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-7
MARK ARNESON,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50464
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-1
ANTHONY PELLICANO, AKA Seal A,
Defendant-Appellant.
4 UNITED STATES V. CHRISTENSEN
UNITED STATES OF AMERICA, No. 10-50472
Plaintiff-Appellee,
D.C. No.
v. 2:05-cr-01046-
DSF-8
TERRY CHRISTENSEN,
Defendant-Appellant.
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
November 4, 2013—Pasadena, California
Filed August 25, 2015
Amended July 8, 2016
Before: Raymond C. Fisher and Richard R. Clifton, Circuit
Judges, and Dana L. Christensen, Chief District Judge.*
Order;
Opinion by Judge Clifton;
Partial Concurrence and Partial Dissent by Chief District
Judge Christensen
*
The Honorable Dana L. Christensen, United States Chief District Judge
for the District of Montana, sitting by designation.
UNITED STATES V. CHRISTENSEN 5
SUMMARY**
Criminal Law
The panel amended an opinion filed August 25, 2015,
affirming in part, vacating in part, and remanding, in a case
in which six defendants were convicted of multiple offenses
stemming from a widespread criminal enterprise offering
illegal private investigation services in Southern California;
denied petitions for panel rehearing filed by appellants Kevin
Kachikian, Terry Christensen, and Mark Arneson; and denied
on behalf of the court Kachikian’s, Christensen’s, and
Arneson’s petitions for rehearing en banc.
The panel vacated Rayford Earl Turner’s conviction for
aiding and abetting computer fraud, Arneson’s convictions
for computer fraud and unauthorized computer access, and
Anthony Pellicano’s convictions for aiding and abetting both
computer fraud and unauthorized computer access. The panel
also vacated Abner Nicherie’s conviction for aiding and
abetting a wire interception. The panel affirmed the rest of
the convictions, including the RICO convictions of Pellicano,
Arneson, and Turner for operating Pellicano Investigative
Agency’s (PIA’s) criminal enterprise, attorney Christensen’s
convictions based on hiring that enterprise to illegally wiretap
a litigation opponent, and Kachikian’s convictions for his role
in PIA’s wiretapping. The panel vacated the sentences
imposed on the defendants whose convictions were vacated
in part – Pellicano, Arneson, and Turner – and remanded for
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 UNITED STATES V. CHRISTENSEN
resentencing on their remaining, affirmed convictions. The
panel remanded for further proceedings on the vacated counts
of conviction, including the possibility of retrial, as may be
appropriate, on those charges.
Regarding Pellicano’s, Arneson’s, and Turner’s
convictions for racketeering and RICO conspiracy, the panel
(1) held that the government presented sufficient evidence
from which the jury could conclude that Arneson and Turner
knew about the essential nature of their illegal enterprise
with Pellicano; and (2) rejected Pellicano and Arneson’s
challenges to (a) the bribery predicate acts upon which their
RICO convictions rest and (b) Pellicano’s challenge to the
predicate acts of honest services fraud.
The panel held that the jury instructions defining both
computer fraud and unauthorized computer access of United
States agency information under the Computer Fraud and
Abuse Act (CFAA) were plainly erroneous, and that the error
was prejudicial. The panel therefore vacated Turner’s
conviction for aiding and abetting computer fraud, Arneson’s
convictions for computer fraud and unauthorized computer
access, and Pellicano’s convictions for aiding and abetting
both computer fraud and unauthorized computer access. The
panel rejected Turner, Arneson, and Pellicano’s contention
that their convictions for identity theft and racketeering
cannot stand once the CFAA computer fraud and
unauthorized computer access convictions have been set
aside.
The panel rejected Kachikian’s challenges to the jury
instructions which, he argued, required reversal of his
convictions for conspiracy to intercept wire communications
and manufacturing and/or possessing a wiretapping device.
UNITED STATES V. CHRISTENSEN 7
The panel held that after the Electronic Communications
Privacy Act of 1986, by which Congress substituted the word
“intentionally” for “willfully” in 18 U.S.C. §§ 2511 and 2512,
the operative question is whether the defendant acted
consciously and deliberately with the goal of intercepting
wire communications. The panel explained that whether the
defendant had a good or evil purpose is irrelevant.
The panel vacated Nicherie’s conviction for aiding and
abetting wiretapping. The panel held that one of the
government’s two theories was improper, and that although
there was sufficient evidence to support a conviction on the
other theory, the evidence was not so overwhelming to
conclude that the error was harmless.
The panel held that the substantial majority of recordings
that Pellicano secretly made of his conversations with
Christensen did not qualify for protection under the attorney-
client privilege, that production of the limited portions that
might have been privileged was harmless, and that the
recordings did not qualify for production under the work
product doctrine.
The panel held that the district court’s findings regarding
a juror’s untruthfulness and unwillingness during
deliberations to follow the law were not clearly erroneous,
that those findings provided cause for dismissing the juror,
and that neither dismissal of the juror nor the denial of the
defendants’ motion for a new trial was an abuse of discretion.
Affirming Christensen’s sentence, the panel rejected the
defendant’s challenges to an upward adjustment for
supervisory role, to an enhancement for economic gain, and
to an adjustment for abuse of a position of trust. The panel
8 UNITED STATES V. CHRISTENSEN
held that Christensen’s sentence, which included an upward
departure for substantial harm not accounted for in the
Sentencing Guidelines, was not substantively unreasonable.
The panel rejected Pellicano’s argument that the matter
should be assigned to a different district judge.
The panel held that the district court did not err in
ordering Pellicano, Turner, and Arneson to forfeit
$2,008,250, which represents the proceeds they obtained from
their RICO enterprise. The panel rejected the defendants’
argument that they had a right to a jury trial on the forfeiture
amount, that the district court used the incorrect standard of
proof, that the district court incorrectly calculated the amount,
and that liability should not have been joint and several.
The panel addressed others issues in a concurrently filed
memorandum disposition.
Concurring in part and dissenting in part, Chief District
Judge Christensen wrote that the district court erred by
dismissing the juror based on a determination that he was not
credible and had lied to the court on an unrelated issue
concerning his views on federal tax laws.
UNITED STATES V. CHRISTENSEN 9
COUNSEL
Seth M. Hufstedler (argued), Dan Marmalefsky (argued), and
Benjamin J. Fox, Morrison & Foerster LLP, Los Angeles,
California, for Defendant-Appellant Terry Christensen.
Steven F. Gruel (argued), San Francisco, California, for
Defendant-Appellant Anthony Pellicano.
Chad S. Hummel (argued) and Emil Petrossian, Manatt,
Phelps & Phillips LLP, Los Angeles, California; Becky
Walker James, Los Angeles, California, for Defendant-
Appellant Mark Arneson.
Karen L. Landau (argued), Oakland, California, for
Defendant-Appellant Rayford Lee Turner.
Katherine Kimball Windsor (argued), Pasadena, California,
for Defendant-Appellant Abner Nicherie.
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California, for Defendant-Appellant Kevin Kachikian.
André Birotte Jr., United States Attorney, Central District of
California, Robert E. Dugdale, Chief, Criminal Division,
Kevin M. Lally (argued) and Joshua A. Klein (argued),
Assistant United States Attorneys, for Plaintiff-Appellee.
10 UNITED STATES V. CHRISTENSEN
ORDER
The opinion filed August 25, 2015 is hereby amended as
follows: The last paragraph on page 41 through the last
paragraph on page 43 of the slip opinion should be removed
and replaced with the following:
The main theory of Kachikian’s defense
was that Kachikian lacked the required
criminal intent because he believed Pellicano
was using his Telesleuth software for lawful
purposes. The court instructed the jury that
the government had to prove that “the
defendant acted intentionally, that is,
purposefully and deliberately and not as a
result of accident or mistake” in order to merit
a guilty verdict under § 2511. This instruction
was both accurate and adequate.
Kachikian contends that the word
“intentionally” in §§ 2511 and 2512 must be
read to require a defendant to know that his
conduct is unlawful.10 He bases his argument
on the history of the wiretapping statutes. As
originally enacted, the statutes applied to any
person who “willfully” intercepted a wire
communication or who “willfully”
10
Section 2511 applies to anyone who “intentionally intercepts,
endeavors to intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic communication.”
18 U.S.C. § 2511(1)(a). Section 2512 applies to anyone who “intentionally
. . . manufactures, assembles, possesses, or sells” a wiretapping device.
18 U.S.C. § 2512(1)(b).
UNITED STATES V. CHRISTENSEN 11
manufactured or possessed a wiretapping
device. See United States v. McIntyre,
582 F.2d 1221, 1225 (9th Cir. 1978). In 1986,
as part of the Electronic Communications
Privacy Act (ECPA), Congress substituted the
word “intentionally” for the word “willfully”
in §§ 2511 and 2512. Kachikian argues that
this substitution was not intended to reduce
the statute’s mental state requirement, but
rather to increase it. In support of this
argument, he cites to a footnote in Chief
Justice Rehnquist’s dissent in Bartnicki v.
Vopper, 532 U.S. 514, which describes
Congress as having “increased the scienter
requirement” in 1986 “to ensure that only the
most culpable could face liability for
disclosure.” Id. at 547 n.4 (Rehnquist, C.J.,
dissenting).
The Bartnicki dissent reflects the massive
confusion in the courts pre-ECPA over the
meaning of the word “willfully.” Although
the Ninth Circuit had clearly defined a willful
act as one “done with a ‘bad purpose’ or ‘evil
motive,’” McIntyre, 582 F.2d at 1225, some
courts had interpreted “willful” to include acts
that involved “some form of inadvertence,
oversight, or negligence,” Stephen J. Brogan,
Analysis of the Term Willful in Federal
Criminal Statutes, 51 NOTRE DAME L. REV.
786, 787 (1976) (cited in H.R. Rep. No.
99–647). Under this interpretation, “a judge
can find an act to be ‘willful’ even though it
was not committed intentionally.” Id.
12 UNITED STATES V. CHRISTENSEN
In changing the word from “willfully” to
“intentionally,” Congress clarified that
§§ 2511 and 2512 “do not impose a duty to
inquire into the source of the information and
one could negligently disclose the contents of
an illegally intercepted communication
without liability.” Bartnicki, 532 U.S. at 547.
Rather, the statutes require an intentional act,
defined as “an act that is being done on
purpose.” S. Rep. No. 99–541, at 24 (1986).
However, the word “intentional . . . does not
suggest that the act was committed for a
particular evil purpose.” Id. “An ‘intentional’
state of mind means that one’s state of mind is
intentional as to one’s conduct or the result of
one’s conduct if such conduct or result is
one’s conscious objective.” Id. at 23; see also
H.R. Rep. No. 99–647, at 48 (1986).
Thus, after ECPA, the operative question
under § 2511 is whether the defendant acted
consciously and deliberately with the goal of
intercepting wire communications. “The
intentional state of mind is applicable only to
conduct and results.” In re Pharmatrak, Inc.,
329 F.3d 9, 23 (1st Cir. 2003) (quoting S.
Rep. No. 99–541). “[L]iability for
intentionally engaging in prohibited conduct
does not turn on an assessment of the merit of
a party’s motive.” Id. “The question of
whether the defendant had a good or evil
purpose in utilizing the [] recording
equipment is, therefore, irrelevant.” United
States v. Townsend, 987 F.2d 927, 931 (2d
UNITED STATES V. CHRISTENSEN 13
Cir. 1993); see also United States v. Hugh,
533 F.3d 910, 912 (8th Cir. 2008) (holding
that § 2511 requires “only” proof of intent and
not of willfulness).
As the instruction presented to the jury
was sufficient to establish the requisite intent
under § 2511, there was no error.
With this amendment, the petition for panel rehearing and
for rehearing en banc filed by Appellant Kevin Kachikian on
November 12, 2015 is DENIED. The full court has been
advised of the petition for rehearing en banc and no judge of
the court has requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35. Kachikian may file a new
petition for rehearing and rehearing en banc from the
amended opinion.
The petitions for panel rehearing and for rehearing en
banc filed by Appellants Terry Christensen and Mark
Arneson on November 13, 2015 are DENIED. The full court
has been advised of Christensen and Arneson’s petitions for
rehearing en banc and no judge of the court has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
35. No further petitions for rehearing or rehearing en banc
will be entertained from either Christensen or Arneson.
Appellant Terry Christensen’s November 13, 2015
Motion for Judicial Notice is GRANTED.
14 UNITED STATES V. CHRISTENSEN
OPINION
CLIFTON, Circuit Judge:
Six defendants appeal their criminal convictions
stemming from a widespread criminal enterprise offering
illegal private investigation services in Southern California.
At the center of this criminal enterprise was Pellicano
Investigative Agency, known as PIA. Defendant Anthony
Pellicano operated PIA, ostensibly as a legitimate private
investigation agency. But many of PIA’s investigation
methods were, in fact, illegal. Pellicano bribed Los Angeles
area police officers, such as Defendant Mark Arneson, for
access to confidential law enforcement databases. He
orchestrated wiretaps on investigative targets so he could
overhear their conversations with friends, family, medical
professionals, and legal counsel. He paid a telephone
company employee, Defendant Rayford Turner, for the
confidential technical information he needed for the wiretaps,
and hired a software developer, Defendant Kevin Kachikian,
to create custom software to record the conversations
Pellicano overheard. At the height of PIA’s success, scores of
people retained PIA for its often illegal services. Most
pertinent to this case, Defendant Terry Christensen, an
attorney, hired PIA to assist in litigation in which he
represented his client, Kirk Kerkorian, against Lisa Bonder.
Pellicano wiretapped Bonder’s telephone and frequently
discussed with Christensen what he heard. Defendant Abner
Nicherie also hired PIA to wiretap the husband of a woman
whose business Nicherie hoped to take over.
PIA’s criminal enterprise began to unravel in 2002, when
the FBI investigated PIA’s attempt to intimidate a reporter,
Anita Busch. This investigation led to a search, pursuant to a
UNITED STATES V. CHRISTENSEN 15
search warrant, of PIA’s offices. By 2003, the government
was investigating the widespread scope of PIA’s illegal
activities. A grand jury returned an indictment charging
Pellicano, Arneson, and Turner with crimes under the
Racketeer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. § 1961 et seq., for their roles in operating PIA’s
criminal enterprise. The indictment also variously charged
Defendants with other crimes, including wiretapping,
computer fraud, honest services fraud, identity theft, and
conspiracy offenses. The case proceeded to two separate jury
trials, which resulted in the convictions of all six Defendants
on at least some counts. Defendants appeal their convictions.
In this opinion, we vacate Turner’s conviction for aiding
and abetting computer fraud, Arneson’s convictions for
computer fraud and unauthorized computer access, and
Pellicano’s convictions for aiding and abetting both computer
fraud and unauthorized computer access. We also vacate
Nicherie’s conviction for aiding and abetting a wire
interception. The rest of the convictions are affirmed,
including the RICO convictions of Pellicano, Arneson, and
Turner for operating PIA’s criminal enterprise, Christensen’s
convictions based on hiring that enterprise to illegally wiretap
Lisa Bonder, and Kachikian’s convictions for his role in
PIA’s wiretapping. We vacate the sentences imposed on the
defendants whose convictions were vacated in
part—Pellicano, Arneson, and Turner—and remand for
resentencing on their remaining, affirmed convictions. We
remand for further proceedings on the vacated counts of
conviction, including the possibility of retrial, as may be
appropriate, on those charges.
Defendants have raised a staggering number of issues on
appeal. Their briefs—fourteen in all—totaled over 900
16 UNITED STATES V. CHRISTENSEN
pages.1 Many of the issues raised on appeal do not warrant
discussion in a precedential opinion. We thus address many
issues in a concurrently filed memorandum disposition, in
which we affirm on all the issues covered in the
memorandum. In this opinion, we address those issues that
merit an extended discussion.
I. Background
These consolidated appeals arise out of the prosecution in
two separate trials of private investigator Defendant Anthony
Pellicano and several individuals associated with him.
Pellicano owned and operated Pellicano Investigative Agency
(“PIA”). He provided investigation services to clients in
connection with litigation and personal matters.
The factual core of this case is simple: PIA’s
investigations were often illegal. Pellicano wiretapped
investigative targets, for instance, and used proprietary
software called “Telesleuth,” which Defendant Kevin
Kachikian developed and updated over the course of several
years, to record wiretapped phone conversations. Pellicano
related the content of those conversations (e.g., by playing
recordings) to clients, who often used what they learned to
gain an advantage in litigation.
To get the technical information he needed to install the
wiretaps, Pellicano paid Defendant Rayford Turner, a
telephone company technician, to obtain cable-pairing data
from the telephone company, SBC. Turner himself did not
have access to SBC databases, but he paid other SBC
1
The government was similarly verbose. Its answering brief was nearly
700 pages.
UNITED STATES V. CHRISTENSEN 17
employees, non-parties Teresa Wright and Michele Malkin,
to access the databases and give Turner the information PIA
wanted. Turner then gave the information to Pellicano and
implemented wiretaps. Pellicano and PIA also paid an LAPD
officer, Defendant Mark Arneson, to search confidential
police databases for information about various investigative
targets and provide that information to PIA.2
PIA’s activity on behalf of client Robert Pfeifer concisely
illustrates how Pellicano, Arneson, and Turner operated the
illegal investigations. Pfeifer, not named as a party in this
case, retained PIA in July 2000 to influence his former
girlfriend, Erin Finn, to recant deposition testimony about
Pfeifer’s drug use. The evidence established that Pellicano
paid Arneson $2,500, and that Arneson accessed law-
enforcement databases to acquire criminal history and/or
information from the Department of Motor Vehicles (DMV)
on Pfeifer, Finn, and Finn’s friends and associates. Arneson
then gave this information to Pellicano. Turner provided
Pellicano with confidential subscriber information from SBC,
and a wiretap on Finn was initiated. The wiretap revealed
extensive information about Finn’s business, which Pfeifer
used to get her to recant her testimony.
Based on Pfeifer’s case and many others, the grand jury
returned an indictment charging Pellicano, Arneson, and
Turner with RICO violations. The indictment alleged that
they formed an enterprise for “the common purpose of
earning income through the conduct of diverse criminal
activities including, but not limited to, illegal wiretapping,
unauthorized access of protected computers, wire fraud,
2
Pellicano also paid at least one other police officer for information
from police databases. That person was not charged in this action.
18 UNITED STATES V. CHRISTENSEN
bribery, identity theft, and obstruction of justice.” The
predicate acts included bribery, honest services wire fraud,
and identity theft. Kachikian, the Telesleuth developer, was
not charged with RICO violations; he was charged with
conspiracy to intercept, interception of communications, and
possession of a wiretapping device.
The government also prosecuted two of PIA’s clients:
Defendants Abner Nicherie and Terry Christensen. Abner
Nicherie hired Pellicano to wiretap Ami Shafrir, the husband
of Sarit Shafrir, whose business Nicherie hoped to take over.
Nicherie went to PIA many times to listen to and transcribe
Ami Shafrir’s telephone conversations, which were in
Hebrew. The intercepted conversations included Ami
Shafrir’s confidential communications with his attorneys.
Terry Christensen hired Pellicano to wiretap Lisa Bonder.
Bonder was engaged in a child support dispute with
Christensen’s client, Kirk Kerkorian. A central part of
Christensen’s strategy was proving that the child involved in
the dispute was not his client’s biological child. A DNA test
eventually proved that another man was the father. While the
litigation was ongoing, Pellicano intercepted many of
Bonder’s conversations, including conversations with her
attorneys, family, and friends about the child support
litigation. The main evidence against Christensen consisted
of recordings of more than 30 phone conversations in which
he discussed with Pellicano the wiretap on Bonder. These
recordings, which Pellicano recorded secretly, were seized
from PIA’s offices.
The government’s investigation into PIA began when it
investigated threats against reporter Anita Busch. On the
morning of June 20, 2002, Busch went to her car on the street
UNITED STATES V. CHRISTENSEN 19
outside her home and found that her car had been vandalized.
The windshield had been punctured, a handwritten sign
reading “STOP” had been placed on the car, and a dead fish
and a rose had been left on the windshield. An informant
recorded his conversations with Alex Proctor, who stated that
Pellicano had hired him to vandalize Busch’s car. Based in
large part on the informant’s recordings, in November 2002,
the government obtained warrants to search PIA for evidence
that Pellicano was involved in the vandalism. The
government seized computers and data storage devices
pursuant to the warrant. After obtaining more evidence of the
widespread extent of PIA’s illegal investigations, the
government obtained more warrants in July 2003 and seized
additional records from the data storage devices previously
taken from PIA, including the Pellicano-Christensen
recordings.
A grand jury returned an indictment,3 and the Defendants
were prosecuted in two trials. The first trial included
(1) RICO and related charges against Pellicano, Arneson, and
Turner and (2) wiretapping and related charges against
Pellicano, Kachikian, and Nicherie. The second trial, in which
only Pellicano and Christensen were defendants, focused on
the Lisa Bonder wiretap.
The Defendants in the first trial (Pellicano, Arneson,
Turner, Kachikian, and Nicherie) were convicted on the
following charges:
3
The Fifth Superseding Indictment was the operative charging
document. The government filed a redacted Fifth Superseding Indictment
during the first trial, which dismissed some counts and renumbered the
remaining ones.
20 UNITED STATES V. CHRISTENSEN
Pellicano: RICO (18 U.S.C. § 1962(c));
RICO conspiracy (18 U.S.C. § 1962(d));
Honest-services wire fraud (18 U.S.C.
§§ 1343, 1346);
Unauthorized computer access of
United States agency information
(18 U.S.C. §§ 1030(a)(2)(B),
(c)(2)(B)(i));
Identity theft (18 U.S.C. § 1028(a)(7));
Computer fraud (18 U.S.C.
§ 1030(a)(4));
Conspiracy to intercept and use wire
communications (18 U.S.C. § 371);
Interception of wire communications
(18 U.S.C. § 2511(1)(a), (d)); and
Possession of a wiretapping device
(18 U.S.C. § 2512(1)(b)).
Arneson: RICO (18 U.S.C. § 1962(c));
RICO conspiracy (18 U.S.C. § 1962(d));
Honest services wire fraud (18 U.S.C.
§§ 1343, 1346);
Unauthorized computer access of
United States agency information
(18 U.S.C. § § 1030(a)(2)(B),
(c)(2)(B)(i));
Identity theft (18 U.S.C. § 1028(a)(7));
Computer fraud (18 U.S.C.
§ 1030(a)(4)).
Turner: RICO (18 U.S.C. § 1962(c));
RICO conspiracy (18 U.S.C. § 1962(d));
Identity theft (18 U.S.C. § 1028(a)(7));
Computer fraud (18 U.S.C.
UNITED STATES V. CHRISTENSEN 21
§ 1030(a)(4));
Conspiracy to intercept and use wire
communications (18 U.S.C. § 371);
Interception of wire communications
(18 U.S.C. § 2511(1)(a), (d)); and
False statements (18 U.S.C.
§ 1001(a)(2)).
Kachikian: Conspiracy to intercept and use wire
communications (18 U.S.C. § 371);
Possession of a wiretapping device
(18 U.S.C. § 2512(1)(b)).
Nicherie: Aiding and abetting interception of
wire communications (18 U.S.C.
§ 2511(a), (d)).
The jury acquitted Pellicano of one count of unauthorized
computer access, Turner of four counts of intercepting wire
communications, and Kachikian on all counts of intercepting
wire communications.
In the second trial, Pellicano and Christensen were each
convicted of one count of conspiracy to intercept and use wire
communications, 18 U.S.C. § 371, and one count of
interception of wire communications, 18 U.S.C.
§§ 2511(1)(a), (d).
Pellicano was sentenced to 180 months of imprisonment,
Arneson to 121 months, Turner to 121 months, Kachikian to
27 months, Nicherie to 21 months, and Christensen to 36
months. Pellicano, Arneson, and Turner were also ordered to
forfeit $2,008,250, jointly and severally.
22 UNITED STATES V. CHRISTENSEN
II. Standards of Review
We address the standard of review for most issues as we
discuss the relevant arguments below. Because they apply to
multiple issues in the case, we address the standards for plain
error and clear error review here at the outset.
When a defendant raises an argument for the first time on
appeal, the plain error standard of review applies. See Fed. R.
Crim. P. 52(b); United States v. Pelisamen, 641 F.3d 399, 404
(9th Cir. 2011). Plain error requires that (1) there was error;
(2) it was plain; and (3) the error affected substantial rights.
United States v. Olano, 507 U.S. 725, 732–35 (1993). When
confronted with plain error, an appeals court shall exercise its
discretion and reverse only if the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted)
(alteration in original). Plain error review applies on direct
appeal even where an intervening change in the law is the
source of the error. Johnson v. United States, 520 U.S. 461,
467–68 (1997); Pelisamen, 641 F.3d at 404.
We review for clear error a district court’s findings of
fact. A finding of fact is clearly erroneous only where it is
“(1) illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the record.”
United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir.
2012) (citation and internal quotation marks omitted). Clear
error review is deferential, and “[w]here there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” United States v.
Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc)
(quotation omitted).
UNITED STATES V. CHRISTENSEN 23
III. Discussion
A. Sufficiency of RICO Enterprise
Pellicano, Arneson, and Turner were all convicted of
racketeering under the RICO statute, 18 U.S.C. § 1962(c),
and also of RICO conspiracy, 18 U.S.C. § 1962(d). They
argue that the evidence was insufficient to prove a single
RICO enterprise among Pellicano, PIA, Arneson, and Turner
because there was no evidence that Arneson and Turner knew
about each other’s roles in the enterprise. We are not
persuaded by this argument. The government presented
sufficient evidence from which the jury could conclude that
Arneson and Turner knew about the essential nature of their
illegal enterprise with Pellicano.
Defendants challenged the sufficiency of the evidence
supporting the RICO enterprise in a Rule 29 motion, which
the district court denied. The denial of a Rule 29 motion for
judgment of acquittal is reviewed de novo. United States v.
Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008). The court
“view[s] the evidence in the light most favorable to the
government and determine[s] whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (citation and internal
quotation marks omitted); see United States v. Nevils,
598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).
The RICO provision at issue here, 18 U.S.C. § 1962(c),
“makes it unlawful for any person employed by or associated
with any enterprise . . . to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through
a pattern of racketeering activity.” Boyle v. United States,
556 U.S. 938, 943–44 (2009) (emphasis and internal
24 UNITED STATES V. CHRISTENSEN
quotation marks omitted). A RICO offense is established by
“proof of (1) conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity.” United States v.
Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2004) (citation and
internal quotation marks omitted).
RICO defines the term “enterprise” as “any individual,
partnership, corporation, association, or other legal entity, and
any union or group of individuals associated in fact although
not a legal entity.” 18 U.S.C. § 1961(4). This expansive
definition is “not very demanding.” Odom v. Microsoft Corp.,
486 F.3d 541, 548 (9th Cir. 2007) (en banc). An associated-
in-fact enterprise is “a group of persons associated together
for a common purpose of engaging in a course of conduct.”
Id. at 552 (quoting United States v. Turkette, 452 U.S. 576,
583 (1981)). Such an enterprise has three elements: (1) a
common purpose, (2) an ongoing organization, and (3) a
continuing unit. Id.
“[I]t is sufficient that the defendant know the general
nature of the enterprise and know that the enterprise extends
beyond his individual role.” United States v. Eufrasio,
935 F.2d 553, 577 n.29 (3d Cir. 1991) (citation and internal
quotation marks omitted). Likewise, a RICO conspiracy
under § 1962(d) requires only that the defendant was “aware
of the essential nature and scope of the enterprise and
intended to participate in it.” Fernandez, 388 F.3d at 1230
(citation and internal quotation marks omitted). “[T]he point
of making the government show that the defendants ha[d]
some knowledge of the nature of the enterprise[ ] is to avoid
an unjust association of the defendant with the crimes of
others. ” United States v. Brandao, 539 F.3d 44, 52 (1st Cir.
2008). Nonetheless, the definition of a RICO enterprise has
“wide reach” and is to be “liberally construed to effectuate its
UNITED STATES V. CHRISTENSEN 25
remedial purposes.” Boyle, 556 U.S. at 944–45 (internal
quotation marks omitted) (holding that a RICO enterprise
does not need to have a formal, business-like structure or
hierarchy).
As the First Circuit has explained, “[t]he RICO net is
woven tightly to trap even the smallest fish, those
peripherally involved with the enterprise.” United States v.
Marino, 277 F.3d 11, 33 (1st Cir. 2002) (citation and internal
quotation marks omitted). For instance, this court affirmed a
RICO conspiracy conviction of the wife of a Mexican Mafia
member where the evidence showed that she “collected
protection money for the [enterprise] on behalf of her
husband,” “passed messages” among enterprise members,
“smuggled drugs into prison[,] and accepted payment for
drugs sold on the street.” Fernandez, 388 F.3d at 1230.
Defendants primarily argue that the evidence was
insufficient to prove that Arneson and Turner associated
themselves with the common purpose of the same alleged
enterprise because they did not know about each other’s roles
in it. We disagree. The common purpose alleged in the
indictment was “earning income through the conduct of
diverse criminal activities including, but not limited to, illegal
wiretapping, unauthorized access of protected computers,
wire fraud, bribery, identity theft, and obstruction of justice.”
The government presented ample evidence from which a
reasonable jury could find, at a minimum, that Arneson and
Turner were each aware of the “essential nature and scope”
of that enterprise and intended to participate in it.
Arneson’s role included illegally accessing law
enforcement databases and passing the information to
Pellicano. Turner’s role included illegally obtaining
26 UNITED STATES V. CHRISTENSEN
information from SBC to facilitate Pellicano’s wiretaps. The
jury heard evidence that Pellicano paid Arneson and Turner
for their roles in the enterprise. Witnesses testified that both
Arneson and Turner visited PIA, sometimes at the same time,
and even hid from a client together in PIA’s kitchen.
Although it was not required that either be aware of the
specific identity or activity of the other, in this instance the
evidence would have permitted a reasonable jury to infer that
they were.
Arneson also testified that Pellicano told him about phone
company sources and explained the Telesleuth wiretapping
software to him. Arneson testified that he thought Pellicano
was going to patent Telesleuth and sell it to law enforcement,
but a reasonable jury would not be required to credit this
testimony. The jury also heard evidence that Pellicano openly
told his clients about his illegal wiretapping and access to law
enforcement reports. A reasonable jury could have inferred
that Pellicano was equally open with Arneson and Turner. In
sum, a reasonable jury could easily infer that Arneson and
Turner knew about each other and knew about the essential
nature of the enterprise in which they were both participating
with Pellicano.
Moreover, the jury heard evidence about specific
instances in which Arneson and Turner coordinated their
activities with Pellicano. Boyle, 556 U.S. at 945–46
(explaining that an associated-in-fact enterprise may be
proven “by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function
as a continuing unit” (internal quotation marks omitted)). We
return to the example of Robert Pfeifer. As recounted in the
background section, above at 17, Pfeifer retained PIA in July
2000 to make his former girlfriend, Erin Finn, retract
UNITED STATES V. CHRISTENSEN 27
damaging deposition testimony about his drug use. The
evidence established that on July 20, 2000, Pellicano paid
Arneson $2,500, and that on August 2, 2000, Arneson
accessed law-enforcement databases to acquire
criminal-history and DMV information on Pfeifer, Finn, and
her friends and associates, which Arneson then provided to
Pellicano. That same day, Turner provided Pellicano with
confidential subscriber information from SBC, and a wiretap
on Finn was initiated. The government also introduced
evidence of other clients for whom Pellicano coordinated the
activities of Arneson and Turner.
Accordingly, this is not a case where Arneson and Turner
were unjustly associated with Pellicano and PIA or each
other. The evidence was sufficient to conclude that each
worked together with Pellicano and others to earn money
from criminal activities, including illegally accessing
confidential databases, bribery, and wiretapping. A
reasonable jury could find that Arneson and Turner each
knew about the essential nature of this enterprise. The district
court did not err in denying Defendants’ Rule 29 motion on
this issue.
B. California Bribery Predicate Acts
Pellicano and Arneson also appeal their RICO convictions
by challenging the predicate acts upon which those
convictions rest. To be liable under RICO, defendants “must
be guilty of a ‘pattern of racketeering activity,’ which
requires at least two separate racketeering acts (often called
‘predicate acts’).” United States v. Walgren, 885 F.2d 1417,
1424 (9th Cir. 1989) (citations omitted). Offenses that qualify
as “predicate acts” are listed in 18 U.S.C. § 1961(1),
including “any act . . . involving . . . bribery . . . which is
28 UNITED STATES V. CHRISTENSEN
chargeable under State law and punishable by imprisonment
for more than one year.” If convictions for the underlying
predicate acts are vacated, then the RICO conviction must
also be vacated. Walgren, 885 F.2d at 1424.
Here, the jury found that Arneson and Pellicano each
committed ten predicate acts of bribery under California law.
The predicate acts against Arneson were based on California
Penal Code § 68, which makes it a felony for either an
executive or ministerial officer to “receive[], or agree[] to
receive, any bribe, upon any agreement or understanding that
his or her vote, opinion, or action upon any matter then
pending, or that may be brought before him or her in his or
her official capacity, shall be influenced thereby.”4 Cal.
Penal Code § 68(a). The predicate acts of bribery against
Pellicano were based on California Penal Code § 67, a
parallel prohibition: § 67 prohibits giving bribes and § 68
prohibits receiving them. See People v. Hallner, 43 Cal. 2d
715, 717, 718 (1954) (explaining that Penal Code § 67 and
§ 68 are “complementary statutes”).
4
The relevant language of § 68(a) reads as follows:
Every executive or ministerial officer, employee, or
appointee of the State of California, a county or city
therein, or a political subdivision thereof, who asks,
receives, or agrees to receive, any bribe, upon any
agreement or understanding that his or her vote,
opinion, or action upon any matter then pending, or that
may be brought before him or her in his or her official
capacity, shall be influenced thereby, is punishable by
imprisonment in the state prison for two, three, or four
years[.]
Cal. Penal Code § 68(a).
UNITED STATES V. CHRISTENSEN 29
Arneson argues that the evidence against him failed to
establish that his access of government databases could have
constituted “action upon any matter then pending, or that may
[have] be[en] brought before him . . . in his . . . official
capacity.” Cal. Penal Code § 68(a). The district court rejected
similar arguments in denying Arneson’s motion to strike the
state law bribery predicate acts against him. We agree with
the district court.
California law governs the state law predicate acts of
bribery charged in the indictment. United States v. Frega,
179 F.3d 793, 806 (9th Cir. 1999). We “review de novo a
district court’s determination of state law.” Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991).
The jury heard evidence that Arneson accessed state and
federal law enforcement databases to investigate PIA’s
targets in exchange for payments from Pellicano. Arneson’s
database access occurred “in his official capacity.” To meet
this element, Arneson did not need to have “actual authority”
to access the databases to relay information to Pellicano, so
long as accessing the databases “[fell] within the general
scope of his duties and he [purported] to act in his official
capacity.” People v. Longo, 119 Cal. App. 2d 416, 420 (Ct.
App. 1953); see also People v. Lips, 59 Cal. App. 381, 389
(Ct. App. 1922) (explaining that an officer acts in his official
capacity by “doing of such acts as properly belong to the
office and are intended by the officer to be official”).
The evidence, such as testimony about the LAPD
manual’s standards for using the databases, established that
accessing police databases was within the general scope of
Arneson’s duties. Just as improper action by an officer to free
a suspect in custody in exchange for money constituted action
30 UNITED STATES V. CHRISTENSEN
in the officer’s “official capacity,” so did Arneson’s use of his
position to access the databases. Lips, 59 Cal. App. at 384,
390 (affirming bribery conviction where officer apprehended
suspect but then agreed to release him in exchange for
money); see also People v. Markham, 64 Cal. 157, 159 (Cal.
1883) (explaining that because it is a duty of an officer to
arrest, an officer who is paid not to arrest someone is “bribed
with respect to a matter which might be a subject of his
official action”). Ample evidence at trial established that
Arneson used his official position as an LAPD officer to
access the databases. Access to the databases was restricted
by statute, regulation, and LAPD policy, and Arneson could
access them only because of his position as an officer. See
Cal. Penal Code § 11105(b) (providing that “[t]he Attorney
General shall furnish state summary criminal history
information to [certain persons, including peace officers], if
needed in the course of their duties”); 11 Cal. Code Reg.
§ 703(b) (providing that criminal records may be released “on
a need-to-know basis, only to persons or agencies authorized
by [law] to receive criminal offender record information”);
28 U.S.C. § 534(a)(4) (limiting access to federal government
database to certain statutorily enumerated parties, such as
“the States . . . and penal and other institutions”). Moreover,
when he accessed the databases, he used LAPD computer
terminals and LAPD-issued passwords. Every time he
accessed the databases, Arneson thus purported to act in his
official capacity. See Longo, 119 Cal. App. 2d at 420.
Arneson’s database inquiries also involved “matter[s]
then pending, or that may [have been] brought before him
. . . .” Cal. Penal Code § 68. California law “does not require
any specific action to be pending on the date the bribe is
received.” People v. Gaio, 81 Cal. App. 4th 919, 929 (Ct. App.
2000) (citation and internal quotation marks omitted). As this
UNITED STATES V. CHRISTENSEN 31
court has explained, “[t]he use of the word ‘may’” in § 68
indicates that “payments designed to alter the outcome of any
matter that could conceivably come before the official are
within the prohibition of the statute.” Frega, 179 F.3d at 805
(citation and internal quotation marks omitted) (concluding
that “a bribe . . . intended to influence, generally, a judge’s
future actions with respect to matters that may come before
him, falls within the statute’s prohibitions”). Hence, the
matter of whether to “enforce the law against social vices is
always before” a police officer like Arneson. Gaio,
81 Cal. App. 4th at 930. So too is the matter of whether to use
his position as an LAPD officer to investigate someone in the
Los Angeles area. Cf. Johnson v. United States, 333 U.S. 10,
14 (1948) (describing law enforcement as the “competitive
enterprise of ferreting out crime”). Arneson’s use of his office
to investigate someone, via confidential databases or
otherwise, necessarily involved a classic type of police
“matter”—investigation. See Gaio, 81 Cal. App. 4th at 931
(holding that evidence was sufficient to support bribery
convictions because evidence established that payment was
given to influence “any one or more instances, types, or
courses of official action”).
Arneson’s theory that an act brought before an officer
must be discretionary finds no support in the cases he cites,
which state no such requirement. See, e.g., Hallner, 43 Cal. 2d
at 717, 721 (reversing judgment that “executive officers of
the City of Los Angeles are not executive officers of this state
as defined in section 67 of the Penal Code”); see also People
v. Jackson, 42 Cal. 2d 540 (1954). Section 68’s language also
forecloses this argument. Section 68 prohibits “ministerial
officers” from receiving a bribe. Cal. Penal Code § 68.
Ministerial acts under California law “leave nothing to the
exercise of discretion or judgment.” People v. Strohl,
32 UNITED STATES V. CHRISTENSEN
57 Cal. App. 3d 347, 361 (Ct. App. 1976). An officer thus need
not be paid for a discretionary act to meet the elements of
§ 68. In any case, even if discretion were required, Arneson
had discretion over what type of investigation to conduct,
including what databases to use and what persons to look up.
Similarly, we reject Pellicano’s comparable arguments
that Arneson’s database searches were not “official” and not
sufficiently connected to a government proceeding. The
evidence was sufficient to find that Pellicano paid Arneson
bribes “with intent to influence him in respect to any act,
decision, vote, opinion, or other proceeding as such officer.”
Cal. Penal Code § 67. The database searches were the “acts”
that Pellicano influenced, and, as discussed, Arneson was
acting in his official capacity under § 68 when he accessed
the databases. Likewise, he was acting “as such officer”
under § 67.
Pellicano also argues that he could not have bribed
Arneson because Arneson was only misusing the resources of
his office, not the legal authority of that office. This
distinction finds no support in California case law. Moreover,
even if this were the right distinction, accessing the databases
was a misuse of Arneson’s legal authority. As discussed
above, he had the authority to access the databases only
because he was an officer. The district court did not err in
denying the motion to strike the predicate acts of bribery.
C. Honest Services Fraud Racketeering Acts and
Skilling
Pellicano also challenges the predicate acts of honest
services fraud. The jury found that Pellicano committed 46
such predicate acts and that Arneson committed 44 such acts.
UNITED STATES V. CHRISTENSEN 33
Honest services fraud entails a scheme or artifice to “deprive
another,” by mail or wire, “of the intangible right of honest
services.” 18 U.S.C. § 1346; see also 18 U.S.C. §§ 1341,
1343. Here, the government’s theory of honest services fraud
was that Pellicano’s payments to Arneson for access to police
databases defrauded the public of its right to Arneson’s
honest services as an officer.
After Pellicano and Arneson were convicted and
sentenced, and while their cases were on appeal, the Supreme
Court narrowed the scope of the honest services fraud statute.
See Skilling v. United States, 561 U.S. 358 (2010). Now, only
“fraudulent schemes to deprive another of honest services
through bribes or kickbacks supplied by a third party who had
not been deceived” constitute honest services fraud. Id. at 404
(emphasis added). Previously it had been held, in this circuit
and others, that failing to disclose a conflict of interest could
be a basis for honest services fraud, but that is no longer the
case. Id. at 411.
Pellicano argues that the predicate acts of honest services
fraud must be vacated because the jury instructions did not
reflect Skilling’s narrowing of the crime. We disagree.
The jury found that both Pellicano and Arneson
committed bribery predicate acts under California law. Under
Skilling, bribery remains a basis for honest services fraud. It
is apparent from the jury’s findings regarding bribery that the
Defendants would have been convicted on the bribery theory
of honest services fraud by itself. The references to the
invalidated conflict of interest theory in the jury instructions
and the government’s argument at trial therefore did not
prejudice Defendants. United States v. Wilkes, 662 F.3d 524,
544 (9th Cir. 2011) (holding that “the jury’s guilty verdict on
34 UNITED STATES V. CHRISTENSEN
the separate substantive count of bribery [under federal law]
confirms beyond any reasonable doubt that the jury would
have convicted [the defendant] of honest services fraud if the
court’s definition had been limited to the bribery basis that
Skilling expressly approved”; see also United States v.
Marcus, 560 U.S. 258, 262 (2010) (explaining that prejudice
requires a “reasonable probability” that the error in the
instructions “affected the outcome of the trial”).
Arneson also argues that under Skilling, only a bribe or
kickback as defined under federal law, as distinguished from
state law, may establish honest services fraud. The Fifth
Circuit has persuasively rejected a similar argument:
A fair reading of Skilling . . . reveals that the
Court was establishing a uniform national
standard by construing § 1346 to clearly
exclude conduct outside of bribery and
kickbacks, such as conflict-of-interest
schemes, not to establish federal law as the
uniform national standard for the elements of
bribery and kickbacks in § 1346 prosecutions.
Moreover, the Skilling Court further asserted
that “[o]verlap with other federal statutes does
not render § 1346 superfluous. The principal
federal bribery statute, [18 U.S.C.] § 201, for
example, generally applies only to federal
public officials, so § 1346’s application to
state and local corruption and to private
sector fraud reaches misconduct that might
otherwise go unpunished.” Accordingly, we
read Skilling as recognizing that § 1346
prosecutions may involve misconduct that is
also a violation of state law.
UNITED STATES V. CHRISTENSEN 35
United States v. Teel, 691 F.3d 578, 583–84 (5th Cir. 2012)
(citations and footnote omitted) (emphasis in original). We
agree with the Fifth Circuit. The district court did not err on
this issue. We affirm.
D. Jury Instruction Challenges
Whether jury instructions omit or misstate elements of a
statutory crime or adequately cover a defendant’s proffered
defense are questions of law reviewed de novo. United States
v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). We review a
district court’s formulation of jury instructions for abuse of
discretion. Id. “The trial court has substantial latitude so
long as its instructions fairly and adequately cover the issues
presented.” United States v. Hicks, 217 F.3d 1038, 1045 (9th
Cir. 2000). Jury instructions, even if imperfect, are not a
basis for overturning a conviction absent a showing that they
prejudiced the defendant. United States v. de Cruz, 82 F.3d
856, 864–65 (9th Cir. 1996).
1. Computer Fraud and Unauthorized Computer Access
Claims
Both computer fraud and unauthorized computer access
are crimes under the Computer Fraud and Abuse Act
(CFAA), 18 U.S.C. § 1030.5 Turner was convicted of aiding
5
18 U.S.C. § 1030(a) provides:
Whoever— . . . (2) intentionally accesses a computer
without authorization or exceeds authorized access, and
thereby obtains— . . . (B) information from any
department or agency of the United States; or . . .
(4) knowingly and with intent to defraud, accesses a
protected computer without authorization, or exceeds
36 UNITED STATES V. CHRISTENSEN
and abetting computer fraud by paying telephone company
employees, including Teresa Wright, to obtain cable pairing
information from the company’s computer system. This
information was then used to facilitate PIA’s wiretapping
activities. Arneson was convicted of unauthorized computer
access of United States agency information for accessing
confidential police databases to obtain information about
various PIA investigative targets. Pellicano was convicted of
aiding and abetting both computer fraud and unauthorized
computer access for his involvement with Arneson’s and
Turner’s activities.
Following the convictions, this court decided United
States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc).
Nosal held the term “exceeds authorized access,” an element
of both offenses under the CFAA, to be “limited to violations
of restrictions on access to information, and not restrictions
on its use.” Id. at 864. Based on Nosal, we vacate the
convictions under the CFAA.
Nosal was a former employee of the Korn/Ferry executive
search firm. He intended to start a competing enterprise and
asked several of his former colleagues to provide him with
confidential and proprietary information from the firm’s
computers. The Korn/Ferry employees were authorized to
access the information for purposes of doing their job, but the
use to which they put the information was unauthorized.
Nosal was charged with aiding and abetting computer fraud.
The district court dismissed the charges against Nosal for
authorized access, and by means of such conduct
furthers the intended fraud and obtains anything of
value. . . shall be punished as provided in subsection (c)
of this section.
UNITED STATES V. CHRISTENSEN 37
failure to state an offense, and we affirmed, noting that a
broader definition of the term “access” would allow criminal
liability to “turn on the vagaries of private policies.” Id. at
860.
The district court here instructed the jurors to return a
guilty verdict if they found that Turner “knowingly and
intentionally aided, counseled, commanded, induced, or
procured [a person] to commit the crime of computer fraud,”
defined in relevant part as “knowingly access[ing] without
authorization or exceed[ing] authorized access of a computer
. . . with the intent to defraud.” The court instructed further:
[A] defendant exceeds authorized access . . .
when the defendant accesses a computer with
authorization but uses such access to obtain
information in the computer that the
defendant is not entitled to obtain.
A defendant obtains information merely
by observing it on the computer and need not
remove the information from the computer to
have violated this section.
No defendant objected to these instructions at trial, and
thus our review is for plain error.6 Although it was not
obvious to the district court at the time, this definition of
exceeding authorized access was flawed in that it allowed the
jury to convict for unauthorized use of information rather
than only for unauthorized access. Such an instruction is
6
As previously noted, the plain error standard applies on direct appeal
even where an intervening change in the law is the source of the error.
Johnson, 520 U.S. at 466–68.
38 UNITED STATES V. CHRISTENSEN
contrary to Nosal, and therefore the instruction constituted
plain error.
The error was also prejudicial. Not anticipating Nosal,
the government made no attempt to prove that Wright
accessed any databases that she was not authorized to access
in the course of doing her job. Although the government now
contends that Wright’s use of the code “ERR” upon logging
out in an attempt to cover her tracks constituted evidence of
unauthorized access, we are not persuaded. “ERR” was a
code that phone company employees were instructed to use
if they accessed an account by accident. The use of that code
did not necessarily prove that the employee was not
authorized to access the database. Wright might have used the
“ERR” code simply to divert suspicion as to what she was
doing. That use of the “ERR” code may have violated
company policy, but Wright may nonetheless have been
authorized to access the database. Under Nosal, unauthorized
use was not enough to support the convictions of Turner and
Pellicano for aiding and abetting computer fraud by Wright.
We reach a similar conclusion on the convictions
associated with Arneson’s misuse of information from the
LAPD database. The government contends that Nosal does
not preclude criminal liability under the CFAA for violations
of state or federal law that restrict access to certain types of
information. See, e.g., 28 C.F.R. § 20.33(d) (restricting the
dissemination of certain criminal history information). This
argument lacks merit. Those laws arguably prohibited
Arneson’s conduct based on the way the information was
used, as distinguished from the way it was accessed, but that
does not expand the reach of the CFAA. Congress has
created other statutes under which a government employee
who abuses his database access privileges may be punished,
UNITED STATES V. CHRISTENSEN 39
but it did not intend to expand the scope of the federal anti-
hacking statute. See Nosal, 676 F.3d at 857 & n.3 (refusing
to “transform the CFAA from an anti-hacking statute into an
expansive misappropriation statute,” and citing another
statute restricting the use of information under which a
defendant might properly be charged).
The jury instructions defining both computer fraud and
unauthorized computer access of United States agency
information were plainly erroneous under Nosal. The error
was prejudicial. We therefore vacate Turner’s conviction for
aiding and abetting computer fraud, Arneson’s convictions
for computer fraud and unauthorized computer access, and
Pellicano’s convictions for aiding and abetting both computer
fraud and unauthorized computer access. We remand for
further proceedings as may be appropriate. If the government
so decides, it may seek to retry the defendants on these
charges.
2. Identity Theft Claims
Turner, Arneson, and Pellicano contend that their
convictions for certain other offenses cannot stand once the
CFAA computer fraud and unauthorized computer access
convictions have been set aside. The convictions at issue are
for identity theft under 18 U.S.C. § 1028 and racketeering
(both the conspiracy and the substantive offense) under
18 U.S.C. § 1962(c)–(d).
Identity theft is defined as the knowing possession, use,
or transfer of a means of identification with the intent to
40 UNITED STATES V. CHRISTENSEN
commit another crime under either federal or state law.7
18 U.S.C. § 1028. Similarly, a racketeering conviction
requires the jury to find certain other criminal violations.
Here, to support a conviction for identity theft, the
government alleged criminal intent in the form of either
computer fraud under CFAA or unauthorized computer
access under the California Penal Code. Identity theft was
then identified as an underlying predicate act for the RICO
conviction. Defendants argue that the need to vacate their
CFAA convictions requires that the identity theft and RICO
convictions also be set aside.
Defendants’ arguments fail. The alleged errors are
subject to plain error review because timely objections were
not made at trial. Defendants cannot establish that the CFAA
error prejudiced them or affected their substantial rights in
connection with the identity theft and racketeering
convictions.
To return a guilty verdict for identity theft, the jurors were
instructed that they had to find criminal intent under either
the CFAA, 18 U.S.C § 1030(a)(4), or under California Penal
Code § 502(c)(2). While the jury instructions relating to the
CFAA were plainly erroneous, the instructions relating to the
California statute were not. Although a verdict that may be
based on a legally invalid ground must ordinarily be set aside,
7
In relevant part, the text of the identity theft statute reads:
“(a) Whoever, in a circumstance described in subsection (c) of this section
. . . (7) knowingly transfers, possesses, or uses, without lawful authority,
a means of identification of another person with the intent to commit, or
to aid or abet, or in connection with, any unlawful activity that constitutes
a violation of Federal law, or that constitutes a felony under any applicable
State or local law . . . shall be punished as provided in subsection (b) of
this section.” 18 U.S.C. § 1028.
UNITED STATES V. CHRISTENSEN 41
see Griffin v. United States, 502 U.S. 46, 58 (1991), reversal
is not required “if it was not open to reasonable doubt that a
reasonable jury would have convicted” the defendant on the
valid ground. Pelisamen, 641 F.3d at 406 (quoting United
States v. Black, 625 F.3d 386, 388 (7th Cir. 2010)) (internal
quotation marks omitted); see also Johnson, 520 U.S. at 470
(declining to exercise discretion to correct plain error where
evidence in support of guilt was “‘overwhelming’”).
We do not doubt that the jury would have convicted
Turner, Arneson, and Pellicano for identity theft on the valid
ground of underlying intent to violate the California Penal
Code. The statute provides:
(c) Except as provided in subdivision (h), any
person who commits any of the following acts
is guilty of a public offense . . . (2) Knowingly
accesses and without permission takes, copies,
or makes use of any data from a computer,
computer system, or computer network, or
takes or copies any supporting documentation,
whether existing or residing internal or
external to a computer, computer system, or
computer network.
Cal. Penal Code § 502.8 “Access” is defined as “to gain entry
8
Subdivision (h) exempts “acts which are committed by a person within
the scope of his or her lawful employment.” Cal. Penal Code § 502(h)(1).
“For purposes of this section, a person acts within the scope of his or her
employment when he or she performs acts which are reasonably necessary
to the performance of his or her work assignment.” Id. Defendants do not
argue that Wright and Arneson were acting within the scope of their
employment. Had they made this argument, we would have rejected it.
Neither Wright’s nor Arneson’s database searches were necessary for the
42 UNITED STATES V. CHRISTENSEN
to, instruct, . . . or communicate with, the logical,
arithmetical, or memory function resources of a computer,
computer system, or computer network.” Cal. Penal Code
§ 502(b)(1).
Defendants argue that we should interpret the state statute
consistent with the federal statute as interpreted by Nosal, but
we disagree. The statutes are different. In contrast to the
CFAA, the California statute does not require unauthorized
access. It merely requires knowing access. Compare
18 U.S.C. § 1030(a)(2) with Cal. Penal Code § 502(c)(2).
What makes that access unlawful is that the person “without
permission takes, copies, or makes use of” data on the
computer. Cal. Penal Code § 502(c)(2). A plain reading of
the statute demonstrates that its focus is on unauthorized
taking or use of information. In contrast, the CFAA
criminalizes unauthorized access, not subsequent
unauthorized use. Nosal, 676 F.3d at 864.
Defendants argue that the state statute’s definition of
“access” does not cover mere use of the computer. They cite
Chrisman, 155 Cal. App. 4th at 34–35, in which the California
Court of Appeal held that a police officer who logged in to a
police database to satisfy personal curiosity did not violate
the statute because § 502 “defines ‘access’ in terms redolent
of ‘hacking,’” and “[o]ne cannot reasonably describe
[Chrisman’s] improper computer inquiries about celebrities,
friends, and others as hacking.” Other California Court of
Appeal decisions point to a different conclusion, however.
performance of any legitimate work assignment. But see Chrisman v. City
of Los Angeles, 155 Cal. App. 4th 29, 34–37 (2007) (policeman who logged
in to a police database to satisfy personal curiosity about celebrities was
acting within the scope of his employment).
UNITED STATES V. CHRISTENSEN 43
For example, in Gilbert v. City of Sunnyvale, 130 Cal. App. 4th
1264, 1281 (2005), the court cited § 502(c)(2) in upholding
a police officer’s termination after he accessed a police
database and revealed to a third party the results of the
searches he ran. In another case, the court never doubted that
the defendant “accessed” information when he made a copy
of his employer’s proprietary source code and used it to found
a competing business. People v. Hawkins, 98 Cal. App. 4th
1428 (2002).
We conclude that the term “access” as defined in the
California statute includes logging into a database with a
valid password and subsequently taking, copying, or using the
information in the database improperly. We base that
conclusion primarily on the plain language of the statute.
Otherwise, the words “without permission” would be
redundant, since by definition hackers lack permission to
access a database. The exception carved out in subdivision
(h) provides further support for our position. If access were
by definition unauthorized, there would be no need to exempt
employees acting within the scope of their lawful
employment. Accordingly, we find no error in the jury
instructions regarding unauthorized computer access under
California law.
Moreover, any error that might have infected the jury
instructions was not plain. “‘Plain’ is synonymous with
‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734
(citation omitted). A “court of appeals cannot correct an error
[under plain error review] unless the error is clear under
current law.” Id. State case law is yet undeveloped on this
issue: the California Supreme Court has never ruled on the
definition of access in § 502(c)(2), and thus the asserted error
was, and is, not clear. See Hagan v. Caspari, 50 F.3d 542,
44 UNITED STATES V. CHRISTENSEN
547 (8th Cir. 1995) (“[W]e are strongly inclined to agree . . .
that until the state’s highest court has spoken on a particular
point of state law, the law of the state necessarily must be
regarded as unsettled.”).
It is apparent from the jury verdict that the jury found
facts that supported a finding of criminal intent under the
California statute, so permitting the jury to rely on criminal
intent under the CFAA was harmless. The jury returned
guilty verdicts for the substantive offenses of computer fraud
and unauthorized computer access under the CFAA. Even
though those convictions must be set aside, the facts that the
jury necessarily found in returning those guilty verdicts
clearly evince intent under § 502. Specifically, the jury must
have found that Turner induced Wright to provide him with
confidential cable pairing information from the phone
company database and that Arneson provided Pellicano with
confidential criminal history information from the LAPD
database. The jury instructions defined unauthorized access
under § 502 as “the knowing access and taking, copying, or
making use of data or supporting documentation from a
computer, computer system, or computer network without
permission to do so.” Given the evidence presented and the
verdict rendered, the jury would necessarily have found
criminal intent to violate § 502.
Defendants have failed to show prejudice from the
erroneous instruction regarding felonious intent under the
CFAA as a predicate to identity theft. We affirm both the
identity theft and RICO convictions against this challenge.9
9
Defendants’ other challenges to the California law underlying identity
theft also fail. The statute of limitations argument fails because the
relevant statute of limitations is that of identity theft, not that of the
UNITED STATES V. CHRISTENSEN 45
3. Kachikian’s Wiretapping Claims
Kachikian presents a number of challenges to the jury
instructions and argues that they require reversal of his
convictions for conspiracy to intercept wire communications
in violation of 18 U.S.C. § 2511(1)(a), and manufacturing
and/or possessing a wiretapping device in violation of
18 U.S.C. § 2512(1)(b). We are not persuaded by his
arguments.
a. Intent under section 2511
The main theory of Kachikian’s defense was that
Kachikian lacked the required criminal intent because he
believed Pellicano was using his Telesleuth software for
lawful purposes. The court instructed the jury that the
government had to prove that “the defendant acted
intentionally, that is, purposefully and deliberately and not as
a result of accident or mistake” in order to merit a guilty
verdict under § 2511. This instruction was both accurate and
adequate.
underlying unauthorized computer access. Indeed, in order to commit the
crime of identity theft, one need only have the intent to commit a felony;
it is irrelevant whether or not the felony was actually committed.
18 U.S.C. § 1028(a)(7). The argument that the state statute is a “wobbler”
(i.e., it can be either a felony or misdemeanor depending on the
circumstances) fails because a California wobbler “is presumptively a
felony.” United States v. Salazer-Mojica, 634 F.3d 1070, 1073 (9th Cir.
2011). Finally, the argument regarding a lack of instruction to the jury as
to a required loss amount fails because the monetary amount limits a
different section of the statute. See Cal. Penal Code § 502(h)(2)
(modifying (c)(3)). Even were that not the case, the error is harmless, as
the jury would no doubt have found the information exchanged worth
more than $250.
46 UNITED STATES V. CHRISTENSEN
Kachikian contends that the word “intentionally” in
§§ 2511 and 2512 must be read to require a defendant to
know that his conduct is unlawful.10 He bases his argument
on the history of the wiretapping statutes. As originally
enacted, the statutes applied to any person who “willfully”
intercepted a wire communication or who “willfully”
manufactured or possessed a wiretapping device. See United
States v. McIntyre, 582 F.2d 1221, 1225 (9th Cir. 1978). In
1986, as part of the Electronic Communications Privacy Act
(ECPA), Congress substituted the word “intentionally” for the
word “willfully” in §§ 2511 and 2512. Kachikian argues that
this substitution was not intended to reduce the statute’s
mental state requirement, but rather to increase it. In support
of this argument, he cites to a footnote in Chief Justice
Rehnquist’s dissent in Bartnicki v. Vopper, 532 U.S. 514,
which describes Congress as having “increased the scienter
requirement” in 1986 “to ensure that only the most culpable
could face liability for disclosure.” Id. at 547 n.4 (Rehnquist,
C.J., dissenting).
The Bartnicki dissent reflects the massive confusion in the
courts pre-ECPA over the meaning of the word “willfully.”
Although the Ninth Circuit had clearly defined a willful act
as one “done with a ‘bad purpose’ or ‘evil motive,’”
McIntyre, 582 F.2d at 1225, some courts had interpreted
“willful” to include acts that involved “some form of
inadvertence, oversight, or negligence,” Stephen J. Brogan,
10
Section 2511 applies to anyone who “intentionally intercepts,
endeavors to intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic communication.”
18 U.S.C. § 2511(1)(a). Section 2512 applies to anyone who “intentionally
. . . manufactures, assembles, possesses, or sells” a wiretapping device.
18 U.S.C. § 2512(1)(b).
UNITED STATES V. CHRISTENSEN 47
Analysis of the Term Willful in Federal Criminal Statutes,
51 NOTRE DAME L. REV. 786, 787 (1976) (cited in H.R. Rep.
No. 99–647). Under this interpretation, “a judge can find an
act to be ‘willful’ even though it was not committed
intentionally.” Id.
In changing the word from “willfully” to “intentionally,”
Congress clarified that §§ 2511 and 2512 “do not impose a
duty to inquire into the source of the information and one
could negligently disclose the contents of an illegally
intercepted communication without liability.” Bartnicki,
532 U.S. at 547. Rather, the statutes require an intentional
act, defined as “an act that is being done on purpose.” S.
Rep. No. 99–541, at 24 (1986). However, the word
“intentional . . . does not suggest that the act was committed
for a particular evil purpose.” Id. “An ‘intentional’ state of
mind means that one’s state of mind is intentional as to one’s
conduct or the result of one’s conduct if such conduct or
result is one’s conscious objective.” Id. at 23; see also H.R.
Rep. No. 99–647, at 48 (1986).
Thus, after ECPA, the operative question under § 2511 is
whether the defendant acted consciously and deliberately
with the goal of intercepting wire communications. “The
intentional state of mind is applicable only to conduct and
results.” In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir.
2003) (quoting S. Rep. No. 99–541). “[L]iability for
intentionally engaging in prohibited conduct does not turn on
an assessment of the merit of a party’s motive.” Id. “The
question of whether the defendant had a good or evil purpose
in utilizing the [] recording equipment is, therefore,
irrelevant.” United States v. Townsend, 987 F.2d 927, 931
(2d Cir. 1993); see also United States v. Hugh, 533 F.3d 910,
48 UNITED STATES V. CHRISTENSEN
912 (8th Cir. 2008) (holding that § 2511 requires “only”
proof of intent and not of willfulness).
As the instruction presented to the jury was sufficient to
establish the requisite intent under § 2511, there was no error.
b. Intent under section 2512
Kachikian also argues that the court erred in instructing
the jury on the necessary criminal intent for the crime of
manufacturing a wiretapping device under § 2512. The
instructions required the government to prove that “the
defendant knew or had reason to know that the design of [the
mechanical or other] device rendered it primarily useful for
the purpose of the surreptitious interception of wire, oral, or
electronic communications.” Kachikian contends that the
instruction should have required proof that the defendant
knew the device would be used illegally. Kachikian
misunderstands the statute.
Section 2512 makes it a crime to “intentionally . . .
manufacture[], assemble[], possess[], or sell[] any electronic,
mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily
useful for the purpose of the surreptitious interception of
wire, oral, or electronic communications.” 18 U.S.C.
§ 2512(1)(b). “Intentionally,” as written in the statute,
modifies “manufactures, assembles, possesses, or sells.” It
does not modify “useful” or “use.” The crime lies in
intentionally manufacturing the device, knowing that it could
be primarily used for wiretapping. The statute does not
require intent or knowledge that the device would actually be
used unlawfully.
UNITED STATES V. CHRISTENSEN 49
Kachikian argues to the contrary based on the statute’s
use of the word “surreptitious.” Specifically, he points out
that § 2512 covers devices “primarily useful for the purpose
of the surreptitious interception of wire, oral, or electronic
communications.” Id. (emphasis added). He proposed to the
district court that the jury be instructed that “surreptitious”
interception meant “unauthorized, in other words unlawful”
interception. Under this theory, lawful intercepts by law
enforcement would not qualify as surreptitious. Kachikian’s
defense was that if he manufactured the wiretapping devices
believing that they would be used primarily for law
enforcement-authorized purposes, he would not be breaking
the law because he could not have “[had] reason to know that
the design of such device renders it primarily useful for . . .
surreptitious interception” of wire communications. Id.
The term “surreptitious” as used in the statute was aimed
at the secret nature of the interception, not the illegality of it.
That is the common understanding of the word. See United
States v. Lande, 968 F.2d 907, 910 (9th Cir. 1992) (holding
that equipment manufactured to intercept and descramble
satellite television programming met the “surreptitious”
element because the producers of satellite programming were
unable to detect the interception equipment); United States v.
Bast, 495 F.2d 138, 143 (D.C. Cir. 1974) (“The words
‘surreptitious interception’ connote[], in plain and ordinary
usage, ‘secret listening.’” (footnote omitted)). The relevant
perspective is that of the persons whose communications are
intercepted. In this context, “surreptitious interception”
means an interception of which the targets are unaware.
Even were we to accept Kachikian’s definition of
surreptitious, i.e., “secret and unauthorized; clandestine;
action by stealth or secretly,” United States v. Biro, 143 F.3d
50 UNITED STATES V. CHRISTENSEN
1421, 1428 (11th Cir. 1993), that does not require us to accept
that “surreptitious interception” excludes wiretaps by law
enforcement. What matters is that the interception was not
authorized by the persons involved in the communication.
Accordingly, the court properly rejected Kachikian’s
instruction as to the meaning of the word “surreptitious.”
Moreover, Kachikian’s interpretation does not make sense
in light of the rest of the statute. Congress carved out an
exception in § 2512(2)(b) for private citizens who
manufacture wiretapping devices under government contract.
That exception provides: “It shall not be unlawful under this
section for . . . an officer, agent, or employee of, or a person
under contract with, the United States, a State, or a political
subdivision thereof, [to manufacture or possess a wiretapping
device].” 18 U.S.C. § 2512(2)(b). Kachikian does not fit
within that exception, and he does not contend otherwise.
That exception would be unnecessary if lawful government
wiretaps were, by definition, not covered by the statute
because they are not surreptitious. Were that the case, the
manufacture of wiretapping devices under government
contract would already be exempt from criminal liability
under § 2512(1).
Kachikian also tries to support his argument by
contending that the phrase “electronic, mechanical, or other
device,” as found in § 2512, is a term of art that excludes
devices destined for use by law enforcement. He bases this
on the definition found in the statute: “‘electronic,
mechanical, or other device’ means any device or apparatus
which can be used to intercept a wire, oral, or electronic
communication other than . . . [a device] being used by a
provider of wire or electronic communication service in the
ordinary course of its business, or by an investigative or law
UNITED STATES V. CHRISTENSEN 51
enforcement officer in the ordinary course of his duties.”
18 U.S.C. § 2510(5)(a). Though he did not propose such an
instruction, Kachikian claims that the court should have
instructed the jury that, in order to prove that Kachikian was
guilty of the crime, the government would have to prove he
did not intend for law enforcement to possess the device.
Once again, Kachikian misunderstands the language of
the statute. The verb “to use” is in the present, not the future,
tense. The exception applies to devices being used, not to be
used. A device that “can be used” to intercept wire
communications is not removed from the reach of the
criminal statute until it is actually “being used” by law
enforcement. It is irrelevant, therefore, whether or not
Kachikian may have intended Telesleuth to be used by law
enforcement. At the time Kachikian acted, he knew that his
creation was not in fact being used by law enforcement, so
there can be no prejudice from a lack of instruction on
wiretapping devices for use by law enforcement.
Furthermore, an instruction that defines “electric, mechanical,
or other device” as a device not for use by law enforcement
would have improperly shifted the burden of proof to the
government to show that the type of device Pellicano used
was never meant for use by law enforcement. It was not plain
error for the court not to have issued such an instruction.
A mistaken belief that Kachikian was manufacturing the
device for law enforcement was no defense under § 2512.
Kachikian argued that he manufactured the device for another
purpose, without knowing that it could potentially be used as
a wiretapping device, but the instruction as given
contemplated that defense, and the jury was not persuaded by
it. Theoretically, he might have had a valid defense if either
(1) he did not intentionally manufacture the device (e.g., he
52 UNITED STATES V. CHRISTENSEN
manufactured it by accident), or (2) he was a government
employee or under government contract to manufacture the
device. Kachikian did not argue or present any evidence in
support of either of these defenses at trial, however, so the
lack of an instruction covering those circumstances was not
an abuse of discretion.
c. Good-faith instruction
At trial, Kachikian proposed the following instruction:
“That Defendant Kevin Kachikian actually believed, even if
mistakenly, that Defendant Pellicano intended to market the
Telesleuth software and related hardware components to law
enforcement is a complete defense [to all counts with which
he was charged] because Mr. Kachikian would not possess
the requisite ‘knowledge’ and ‘intent’ to be convicted of these
offenses.” The district court declined to give the proposed
instruction. That decision was not erroneous.
The proposed instruction was not a proper statement of
the law. It would have required the jury to acquit Kachikian
if he believed that Pellicano intended to sell to law
enforcement, even if he also knew that Pellicano was
planning to use the software and other devices for illegal
wiretapping. It was also incorrect because, as explained
above, it did not matter whether Kachikian believed Pellicano
intended to market the device to law enforcement. He did not
fit the exception provided within the statute, and the statute
does not broadly exclude potential law enforcement usage.
It was enough that he knew the device could be used
primarily to intercept wire communications. Accordingly, the
court did not abuse its discretion in rejecting the proposed
instruction.
UNITED STATES V. CHRISTENSEN 53
d. Supplemental instruction
Counsel for Kachikian stated in closing—even after the
court rejected his erroneous interpretation of
surreptitious—that law enforcement wiretaps are not
surreptitious because “those who have their calls intercepted
. . . are notified at the end of the wiretap.” The court
thereafter issued a supplemental jury instruction to cure
counsel’s misstatement of the law: “[W]ith regard to Count
77, in determining the meaning of ‘surreptitious,’ it is not
relevant that notification of the interception may later be
given.” In doing so, the court did not abuse its discretion or
violate any procedural rule. See Fed. R. Crim. P. 30 advisory
comm. n. to 1987 amend. (“[T]he court retains power . . . to
add instructions necessitated by the arguments.”).
e. Recording oneself
Kachikian argues that the district court erred in failing to
instruct the jury on the wiretapping exception set forth in
§ 2511(2)(d), which specifies that it is not a violation of the
statute to record one’s own telephone conversations.11 He
bases this contention on the fact that the jury convicted him
of conspiring to wiretap, yet simultaneously acquitted him of
all counts charging him with the substantive crime of
11
The full text reads: “It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a wire, oral, or electronic
communication where such person is a party to the communication or
where one of the parties to the communication has given prior consent to
such interception unless such communication is intercepted for the
purpose of committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any State.” 18 U.S.C.
§ 2511(2)(d).
54 UNITED STATES V. CHRISTENSEN
wiretapping. Kachikian presented no such instruction, so
review is for plain error.12
Theoretically, if Kachikian were guilty of conspiring to
intercept wire communications, and if one of his co-
conspirators were guilty of the crime of interception of wire
communication, and if the substantive wiretapping violations
were foreseeable as a necessary or natural consequence of the
conspiracy, then Kachikian should have been found guilty of
the crime of illegal interception. See Pinkerton v. United
States, 328 U.S. 640, 645 (1946). The jurors were instructed
as much. According to Kachikian, the inconsistent verdict
shows that the jurors mistakenly believed that Pellicano’s
recording of his own conversations was illegal, and because
Kachikian admitted he knew Pellicano was using Telesleuth
to record his own calls, they convicted him for conspiracy
even though they did not believe Kachikian intended to help
Pellicano wiretap others.
In substance, the argument is less a complaint about an
error in the instructions than it is about a potentially
inconsistent verdict, but an inconsistent verdict is not in itself
12
Kachikian argues that review should be de novo because he objected
to a supplemental instruction defining the “object” of the conspiracy as not
limited to the substantive wiretapping counts, but rather “interception of
wire communications” generally. However, his objection complained that
the supplemental instruction created a variance from the indictment’s
charged scope of agreement, not that it allowed conviction for helping
Pellicano record his own calls. Kachikian proposed no instruction relating
to the affirmative defense contained in 18 U.S.C. § 2511(2)(d), and the
court had no duty to issue such an instruction sua sponte. See United
States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997) (upholding non-
instruction on statutory exception and noting this circuit’s “well-settled
rule that a defendant bears the burden of proving he comes within an
exception to an offense”).
UNITED STATES V. CHRISTENSEN 55
a sufficient reason to set aside a conviction. See United
States v. Powell, 469 U.S. 57, 66 (1984). A conviction for
conspiracy is not necessarily inconsistent with a failure to
convict on substantive charges. See United States v. Fiander,
547 F.3d 1036, 1040–41 (9th Cir. 2008). Perhaps the jury
believed the evidence sufficient to show Kachikian conspired
with Pellicano to illegally wiretap someone, but insufficient
to show that he conspired as to the specific individuals and
instances named in the indictment.
There was, in any event, no obvious error in the
instructions, if there was error at all. See Johnson, 520 U.S.
at 467 (citing Olano, 507 U.S. at 734) (noting that “plain”
error is synonymous with “clear or obvious” error).
Kachikian did not argue at trial that he believed Pellicano
intended only to record his own conversations. See United
States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) (“A
failure to give a jury instruction, even if in error, does not
seriously affect the fairness and integrity of judicial
proceedings if the defense at trial made no argument relevant
to the omitted instruction.”).
For these reasons, we affirm Kachikian’s conviction
against his jury instruction challenges.
E. Nicherie’s Conviction for Aiding and Abetting
Wiretapping
Nicherie was convicted for aiding and abetting
wiretapping. He argues that his conviction must be
overturned because subsequent developments in the law have
invalidated one of the two theories presented by the
prosecution, and it is impossible to know which theory the
jury relied on in returning a guilty verdict. He also argues
56 UNITED STATES V. CHRISTENSEN
that there was insufficient evidence to establish illegal
activity on his part within the relevant time period. Under the
statute of limitations, any conviction must be based on
conduct after October 26, 2000. We agree that one of the
government’s theories was improper. There was sufficient
evidence to support a conviction on the other theory, but the
evidence was not so overwhelming to cause us to conclude
that the error was harmless. As a result, we vacate the
conviction.
During trial, the government presented two distinct
theories of Nicherie’s guilt on the charge of aiding and
abetting wiretapping, arguing that either could support a
conviction. One was that he hired Pellicano to wiretap Ami
Shafrir. The other was that he listened to and translated
recordings of Shafrir’s intercepted phone calls.13 In order to
convict, the jury had to find that Nicherie either (1) paid
Pellicano for wiretapping services after October 26, 2000, or
(2) listened to and translated recordings of an ongoing
wiretap after October 26, 2000.
The government’s first theory was valid. If the jury found
that Nicherie hired Pellicano to do the wiretapping during the
relevant period of time, meaning after October 26, 2000, he
could properly be convicted of aiding and abetting the
interception. Nicherie argues that the evidence was
insufficient to support a conviction on that theory, but we
disagree. The evidence included testimony from Sarit Shafrir
13
In closing, the government postulated: “It is proved that Defendant
Nicherie hired Defendant Pellicano for the purpose of wiretapping Ami
Shafrir, and that he knowingly aided and abetted that wiretapping by
hiring him, by paying him, and by sitting in the Pellicano Investigative
Agency lab and listening to and translating the intercepted conversations.”
UNITED STATES V. CHRISTENSEN 57
that Nicherie told her he had hired a private investigator
“[a]round August of 2000 until December, January of 2001,”
and testimony from Tarita Virtue that Pellicano told her that
the Nicherie brothers retained PIA to perform wiretapping
services at “the end of 2000, beginning of 2001.” The
government also introduced evidence that Nicherie paid
Pellicano to wiretap prior to the relevant period and argued
that this meant Nicherie had both the desire and the means to
do so during the relevant period. This evidence included
checks to Pellicano from Gedese Management, which Sarit
Shafrir testified was one of Nicherie’s shell companies. She
also testified that the checks were signed by Nicherie. We
conclude that the evidence presented was sufficient for a
rational jury to find that Nicherie aided and abetted the wire
interception by procuring Pellicano’s services within the
statute of limitations period.
The second theory, however, was rendered legally
defective by this court’s later ruling in Noel v. Hall, 568 F.3d
743 (9th Cir. 2009), in which we held that playing a recording
of a previously intercepted wire communication did not
amount to a new interception in violation of the Wiretap Act.
“No new interception occurs when a person listens to or
copies the communication that has already been captured or
redirected. Any subsequent use of the recorded conversation
is governed not by the prohibition on interception, but by the
prohibition . . . on the use and disclos[ure] of intercepted wire
communications.” Id. at 749 (second alteration in original)
(internal quotation marks omitted).
The instructions given to the jury allowed conviction for
aiding and abetting a wire interception based on the theory
that translating a recording of a previously intercepted wire
58 UNITED STATES V. CHRISTENSEN
communication constituted a crime.14 Because Nicherie did
not object to the jury instruction at trial, we review for plain
error, as discussed above at 22. On direct review, changes in
the law between the time of trial and the time of appeal are
applied to illuminate error even if the error might not have
been apparent at the time of the trial. “[I]t is enough that an
error be ‘plain’ at the time of appellate consideration.”
Johnson, 520 U.S. at 468.
The error in the jury instructions was plain under Noel.
The crime of wiretapping was complete when the recording
was made, and replaying the recording did not constitute a
new interception. Because “a defendant may not be
convicted of aiding and abetting a completed offense,” United
14
The instructions were as follows:
In order for Defendant Nicherie to be found guilty
of aiding and abetting the interception of wire
communications, the Government must prove each of
the following elements beyond a reasonable doubt.
First, the crime of interception of wire
communications was committed by someone.
Second, Defendant Nicherie knowingly and
intentionally aided, counseled, commanded, induced, or
procured that person to commit the crime of
interception of wire communications.
And third, Defendant Nicherie acted before the
crime was completed.
. . . . If you find from the evidence that the
interception of wire communications of Ami Shafrir
occurred, you must further find that the offense
continued after October 26, 2000.
UNITED STATES V. CHRISTENSEN 59
States v. Lopez, 484 F.3d 1186, 1191 (9th Cir. 2007) (en
banc), Nicherie’s subsequent listening and translating did not
in itself constitute aiding and abetting the interception of wire
communication under § 2511(1)(a) of the Wiretap Act, the
offense for which he was charged and convicted.
The government argues that the conviction was not
inconsistent with Noel because the evidence permitted the
jury to find that Nicherie’s review and translation of the
recordings occurred while the wiretap hardware remained in
place, after October 26, 2000, so that his actions aided the
continuation of the wiretapping. Yet each discrete
interception is a violation of the statute, and thus each
recording is associated with a completed crime. A conviction
for aiding and abetting interception therefore cannot be based
only on review and translation of previously recorded
communications. As Noel specifically held, subsequent use
of the recorded conversation, including listening to and
translating its contents, is governed by the prohibition on use
and disclosure of intercepted conversations. Misuse of
previously intercepted information is not what Nicherie was
charged with or convicted of doing.
Even though there was sufficient evidence for the jury to
convict on the first “procurement theory,” the evidence was
not so overwhelming that the instructional error regarding the
second “listening and translating” theory was harmless. See
United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir.
2009) (erroneous jury instruction was not harmless when
evidence in support of the proper ground was “ambiguous”);
cf. Johnson, 520 U.S. at 469–70 (reversal for erroneous jury
instruction was unwarranted where supporting evidence was
“overwhelming”). It is reasonably possible that the jury
rejected the non-time-barred evidence supporting the first
60 UNITED STATES V. CHRISTENSEN
theory and convicted instead on the second theory. Therefore
we conclude that Nicherie’s substantial rights were affected
by the instructional error, as the jury’s verdict may have been
based on a factual finding that did not support the conviction.
See Harrison, 585 F.3d at 1161. The plain error standard is
satisfied.
As a result, we vacate Nicherie’s conviction for aiding
and abetting a wire interception and remand for such further
proceedings as may be appropriate. If the government so
decides, it may seek to retry Nicherie on the charge.
F. Attorney-client privilege and work product
doctrine
As described above, the enforcement of a search warrant
for PIA’s offices in November 2002 led to the discovery of
recordings Pellicano had secretly made of his phone calls
with Christensen. In the recorded calls Pellicano and
Christensen discussed the wiretap on Lisa Bonder, the ex-
wife of Kirk Kerkorian, whom Christensen represented in
child support litigation. The government subsequently
obtained a broader warrant permitting the seizure of the
recordings, and they became key evidence of the Bonder
wiretap in the second trial.
Pellicano and Christensen argue that the recordings of
their conversations discussing the Bonder wiretap should not
have been released to the prosecutors in this case and
thereafter admitted into evidence in the second trial because
their conversations were protected under the attorney-client
privilege. Defendants argue that Christensen hired Pellicano
as a private investigator to assist Kerkorian in litigation
against Bonder. Because the recordings reflected
UNITED STATES V. CHRISTENSEN 61
conversations between Christensen and Pellicano discussing
the litigation and revealing confidences of Christensen’s
client, Kerkorian, they contend that the attorney-client
privilege protected the recordings. They also argue that we
should reverse the district court because it failed to follow the
procedures for handling the investigation of potentially
privileged materials established in United States v. Zolin,
491 U.S. 554 (1989).
Although we agree that the district court initially erred in
not applying Zolin, the district court recognized its own error
and reconsidered its decision under the correct framework.
Any error in not applying Zolin earlier in the case was
harmless.
We affirm the result of the district court’s reconsidered
Zolin analysis. The substantial majority of the recordings did
not qualify for protection under the attorney-client privilege,
and production of the limited portions that might have been
privileged was harmless. Neither did the recordings qualify
for protection under the work product doctrine.
1. Standard of Review
“Whether an evidentiary showing is sufficient to allow in
camera review under the Zolin test is a mixed question of law
and fact subject to de novo review.” In re Grand Jury
Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); see also
Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 829 (9th Cir.
1994). Once an adequate showing under Zolin’s first step has
been made, “the decision whether to engage in in camera
review rests in the sound discretion of the district court.”
Zolin, 491 U.S. at 572. Under Zolin’s second step, “‘rulings
on the scope of the privilege,’ including the crime-fraud
62 UNITED STATES V. CHRISTENSEN
exception, ‘involve mixed questions of law and fact and are
reviewable de novo, unless the scope of the privilege is clear
and the decision made by the district court is essentially
factual; in that case only clear error justifies reversal.’” In re
Napster, Inc. Copyright Litigation, 479 F.3d 1078, 1089 (9th
Cir. 2007) (citation omitted), abrogated on other grounds by
Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).
2. Reconsideration under the correct Zolin process
After the government obtained the Pellicano-Christensen
recordings, it recognized that the recordings could contain
privileged information. So, it set up a system to screen the
recordings for privilege. The district court described that
system:
Recognizing that Pellicano regularly engaged
in work relating to legal matters and at the
behest of attorneys, the government
established a separate group of attorneys and
investigators—the “filter team”—to screen
items for privilege before the items were
released to the team investigating the
underlying case.
Among the materials seized were
numerous recordings of phone conversations
between Christensen and Pellicano. The filter
team believed that the conversations were not
privileged and were in furtherance of a crime.
The team [filed an ex parte application] for a
court order stating such and allowing the team
to release the recordings to those investigating
the underlying case.
UNITED STATES V. CHRISTENSEN 63
The district court then granted a court order permitting the
filter team to release the recordings.
Christensen argues that in granting the court order, the
district court did not follow the correct process under Zolin to
determine that the Pellicano-Christensen recordings were not
privileged or work product protected. Zolin requires a district
court to follow a two-step ex parte process to determine
whether the crime-fraud exception applies to potentially
privileged materials, such as the Pellicano-Christensen
recordings. 491 U.S. at 572. First, “the judge should require
a showing of a factual basis adequate to support a good faith
belief by a reasonable person that in camera review of the
materials may reveal evidence to establish the claim that the
crime-fraud exception applies.” Id. (citation and internal
quotation marks omitted). Second, if the government makes
such a preliminary showing based on evidence other than the
potentially privileged materials themselves, the court may
conduct an in camera review to determine whether the
materials are privileged and, if so, whether the crime-fraud
exception applies. Id.
In initially releasing the Pellicano-Christensen recordings
to government investigators, the district court did not follow
Zolin’s two-step process. The government filed an ex parte
application seeking a crime-fraud ruling on the Pellicano-
Christensen recordings that cited their content. The district
court granted the application without referencing or applying
Zolin. Later realizing its error, the district court reconsidered
the issue under the correct two-step process in ruling on a
motion by Christensen to dismiss the indictment or suppress
64 UNITED STATES V. CHRISTENSEN
the recordings.15 The district court concluded that the
government made a sufficient showing under step one of
Zolin to warrant in camera review. The district court then
conducted an in camera review of the recordings and held
that (1) the recordings were neither attorney-client privileged
nor work product protected, and (2) even if they were, the
crime-fraud exception applied.
The district court did not err in reconsidering privilege
and crime-fraud issues under the correct Zolin framework
after it had erroneously considered the content of the
recordings in its initial ruling on the government’s ex parte
application. United States v. de la Jara, 973 F.2d 746 (9th
Cir. 1992), is instructive. There, the district court admitted a
letter to the defendant from his attorney after ruling sua
sponte that the letter fell within the crime-fraud exception. Id.
at 748. The district court did not follow Zolin in admitting the
letter. This court affirmed on the ground that the defendant
had waived the attorney-client privilege. Id. at 749. Had it not
affirmed on that ground, the court explained, it “would be
required to remand the case to the district court” to properly
apply Zolin. Id. at 749 n.1. As the district court in the present
matter rightly pointed out, if we would remand for a district
court to fix a mistake in applying Zolin’s two-step process
after the court saw the potentially privileged document,
“surely [it’s] acceptable for the district court to correct its
own mistake before the appeal.”
We routinely trust juries to follow limiting instructions
when evidence is erroneously admitted. See United States v.
15
Christensen filed a motion to recuse the district judge because she had
been exposed to the content of the recordings. The motion was denied by
a different district judge.
UNITED STATES V. CHRISTENSEN 65
Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining that
jurors are presumed to have “follow[ed] the district court’s
limiting instructions”). We similarly trust district judges to
put evidence out of their minds. The granting of a motion to
strike evidence in a bench trial does not routinely result in a
mistrial simply because the district judge has already heard
the evidence that should not have been presented. Instead, the
district judge is expected to disregard the improper evidence.
District judges are especially adept at reconsidering prior
decisions, as they are asked to do so all the time. See C.D.
Cal. L.R. 7-18 (explaining standard for reconsideration).
Moreover, it is analytically easy for a judge to separate
what is appropriate to consider at each step of the Zolin
analysis. At step one, the judge may consider only evidence
other than the potentially privileged material itself. At step
two, the judge must also consider the content of the material.
There is no reason to believe this analytical framework
cannot be applied properly just because the judge got a sneak
peek at step-two evidence.
In sum, although it was error for the district court not to
follow Zolin’s two-step process, de la Jara, 973 F.2d at 749,
the error was harmless because the district court properly
reconsidered its decision under the correct standard as soon
as the error was brought to its attention. See United States v.
Chen, 99 F.3d 1495, 1503 (9th Cir. 1996) (holding that the
government’s error in submitting potentially privileged
material with an ex parte application for Zolin crime-fraud
determination was harmless because the district judge
explicitly disregarded the allegedly privileged materials). It
makes no difference that in Chen the district judge caught the
mistake in the government’s submission before issuing an
order, whereas here the district judge corrected the error after
66 UNITED STATES V. CHRISTENSEN
issuing an order stating the crime-fraud exception applied. In
both cases, the defendants got what they were entitled to: a
district court properly applying Zolin without considering the
content of the potentially privileged materials.16
3. Zolin’s first step
The district court did not err in holding that the
government met its minimal burden under Zolin’s first step.
Zolin’s first step requires “a factual basis adequate to
support a good faith belief by a reasonable person that in
camera review of the materials may reveal evidence to
establish the claim that the crime-fraud exception applies.”
Zolin, 491 U.S. at 572 (citation and internal quotation marks
omitted). The government must make only “a minimal
showing that the crime-fraud exception could apply.” Grand
Jury Investigation, 974 F.2d at 1071. “Some speculation is
required under the Zolin threshold.” Id. at 1073. The
threshold is “not . . . a stringent one” because “in camera
review of documents is a much smaller intrusion on the
attorney-client privilege than full disclosure.” Id. at 1072. The
first step is meant only “to prevent ‘groundless fishing
expeditions.’” Id. at 1073.
The district court correctly held that the government made
a step-one showing. A reasonable person could believe, in
16
We reject Christensen’s argument that the district court improperly
considered the content of the recordings even when reconsidering the
issue. The court expressly considered only the “non-privileged evidence”
the government submitted, and the court’s analysis did not refer to the
content of the recordings.
UNITED STATES V. CHRISTENSEN 67
good faith, that the crime-fraud exception may have applied
to the recordings based on the following:
1. Evidence that Christensen represented Kerkorian in a
child support dispute with Bonder.
2. Evidence that Christensen’s firm had paid Pellicano
$186,000 near the time of the recorded conversations
at issue.
3. An FBI record reflecting Pellicano’s former
girlfriend’s statement that Pellicano told her he was
listening to Bonder’s conversations.
As the district court explained, this evidence “raised the
inference that the $186,000 was, at least in part, in exchange
for illegal wiretapping services.”17 We agree. Although the
district court’s analysis required “some speculation” that
Christensen, in a misguided attempt to represent Kerkorian
vigorously, hired Pellicano to wiretap Bonder, such
speculation was permitted under Zolin’s first step. Id. at
1072–73.
The district court also had additional evidence before it to
conclude that Zolin’s first step was met. The government
produced evidence that Pellicano recorded many other
persons with whom he discussed wiretapping. This evidence
would support a good faith belief by a reasonable person that
the Pellicano-Christensen recordings might contain similar
discussions about wiretapping, especially in the context of
Christensen’s representation of Kerkorian and the large sums
17
The rules of evidence do not apply to a court’s preliminary
determination on whether a privilege exists. Fed. R. Evid. 104(a).
68 UNITED STATES V. CHRISTENSEN
of money Christensen’s firm had paid Pellicano. The affidavit
also recounted testimony from former PIA employees that
“confirmed the widespread use of wiretapping in Pellicano’s
investigations.”
We conclude that the government made the requisite
“minimal showing” that the Pellicano-Christensen recordings
might contain evidence showing the crime-fraud exception
applied to any privileged communications within them. Cf.
Grand Jury Subpoena 92-1(SJ), 31 F.3d at 830 (holding that
the government met Zolin’s first step in case involving illegal
exports where affidavit based on “testimony of two former
employees . . . as well as on telephone records, invoices, and
other documentary evidence” established that a corporation
used an export license to disguise illegal exports and sought
its counsel’s legal assistance in furtherance of the scheme).
4. Zolin’s second step
Under Zolin’s second step, the district court conducts an
in camera review to determine whether the materials are
privileged and, if so, whether the government has made a
prima facie showing that the crime-fraud exception applies.
Zolin, 491 U.S. at 572; see also United States v. Bauer,
132 F.3d 504, 509 (9th Cir. 1997). The district court here
concluded that “[n]early all of the communications appear not
to be protected by the attorney-client privilege . . . . No more
than a few statements in the approximately six hours of tape
recordings even arguably reveal what might be confidential
information from or concerning Kerkorian.” To the extent
that a small portion of the recordings might otherwise have
qualified as confidential, the district court concluded that they
were not privileged because they did not relate to legal
UNITED STATES V. CHRISTENSEN 69
advice, were in furtherance of illegal activity, or fell within
the crime-fraud exception.
We agree with the district court that the attorney-client
privilege applied at most to limited portions of the Pellicano-
Christensen recordings. We do not find it necessary to
consider the crime-fraud exception, because it is apparent that
the production of those portions was harmless. Extensive
incriminating evidence of the illegal wiretapping was
available within the portion of the recordings not covered by
the attorney-client privilege. The small fraction of the
recordings that might have entailed privileged
communications was not so large or intertwined with the rest
of the recorded conversations as to require the extension of
the privilege over all of the recordings. As for the work
product doctrine, Defendants waived any argument that this
doctrine applied by failing to raise the issue in their briefs.
Even if we were to reach the issue, we agree with the district
court that the work product doctrine did not apply to the
illegal wiretapping. In the end, we conclude that the district
court did not err in releasing the recordings under Zolin’s
second step or in permitting use of the recordings at the
second trial.
5. Attorney-client privilege
“The attorney-client privilege protects confidential
disclosures made by a client to an attorney . . . to obtain legal
advice . . . as well as an attorney’s advice in response to such
disclosures.” Chen, 99 F.3d at 1501 (citation and internal
quotation marks omitted); see also Bauer, 132 F.3d at 507
(explaining that the “attorney-client privilege is a two-way
70 UNITED STATES V. CHRISTENSEN
street”).18 The purpose of the attorney-client privilege is to
“encourage full and frank communication between attorneys
and their clients and thereby promote broader public interests
in the observance of law and administration of justice.”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Clients must be able to consult their lawyers candidly, and the
lawyers in turn must be able to provide candid legal advice.
Chen, 99 F.3d at 1499–1501.
A communication from the attorney to the client that does
not contain legal advice may be protected if it “directly or
indirectly reveal[s] communications of a confidential nature
by the client to the attorney.” In re Fischel, 557 F.2d 209, 212
(9th Cir. 1977) (holding that attorney-client privilege did not
protect attorney’s summaries of client’s business
transactions). Further, a communication from the attorney to
a third party acting as his agent “for the purpose of advising
and defending his clients” also may be protected if it reveals
confidential client communications. United States v. Judson,
322 F.2d 460, 462 (9th Cir. 1963); see also United States v.
Jacobs, 322 F. Supp. 1299, 1303 (C.D. Cal. 1971); Paul R.
Rice, Attorney-Client Privilege in the United States § 3:3
(2014) (explaining that “courts have extended the privilege to
18
The attorney-client privilege has eight elements:
“(1) When legal advice of any kind is sought (2) from
a professional legal adviser in his or her capacity as
such, (3) the communications relating to that purpose,
(4) made in confidence (5) by the client, (6) are, at the
client’s instance, permanently protected (7) from
disclosure by the client or by the legal adviser
(8) unless the protection be waived.”
United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002).
UNITED STATES V. CHRISTENSEN 71
confidential communications . . . from the attorney to the
agent, and from the agent to the attorney (provided that the
communications not from the client reveal prior confidences
of the client)”). The government does not dispute that
communications between a lawyer and a private investigator
retained by that lawyer to assist the lawyer’s representation
of a client may be covered by the privilege.
“The claim of privilege must be made and sustained on a
question-by-question or document-by-document basis; a
blanket claim of privilege is unacceptable. The scope of the
privilege should be ‘strictly confined within the narrowest
possible limits.’” United States v. Lawless, 709 F.2d 485, 487
(9th Cir. 1983) (quoting 8 Wigmore, Evidence § 2291). An
entire document or set of documents may be privileged when
it contains privileged portions that are “so inextricably
intertwined with the rest of the text that they cannot be
separated.” United States v. Chevron Corp., 1996 WL
264769, *5 (N.D. Cal. Mar. 13,1996) (citing Resolution Trust
Corp. v. Diamond, 773 F. Supp. 597, 601 (S.D.N.Y. 1991)).
In contrast, “[i]f the nonprivileged portions of a
communication are distinct and severable, and their
disclosure would not effectively reveal the substance of the
privileged legal portions, the court must designate which
portions of the communication are protected and therefore
may be excised or redacted (blocked out) prior to disclosure.”
Rice, Attorney-Client Privilege § 11:21.
Based on our review of the recording transcripts, we agree
with the district court’s assessment that “[n]o more than a few
statements in the approximately six hours of tape recordings
even arguably reveal what might be confidential information
from or concerning Kerkorian.” Christensen’s argument to
the contrary is remarkably unspecific. Christensen contends
72 UNITED STATES V. CHRISTENSEN
that two examples cited by the district court did, in fact,
reflect confidential client communications: the terms that
client Kerkorian would be willing to offer or accept to resolve
the litigation and the fact that Kerkorian was putting his faith
in the mediator. He also asserts, in a footnote, that “[t]he
Recordings contain other statements by Christensen that
reference privileged communications from his client,
including statements about Kerkorian’s litigation objections,
his desires to identify Kira’s biological father, and other
references to the ongoing litigation.” That assertion is
accompanied by a citation to nine pages from the transcripts
of the recordings.
That claim is overbroad. The district court questioned, for
example, whether the terms that Kerkorian was willing to
offer were actually confidential, noting that those terms might
have been communicated by that time to Bonder’s counsel.
Christensen has not argued to the contrary to us. Aside from
that example, it is not nearly enough simply to contend, as
Christensen has, that discussions between Pellicano and
Christensen included “references to the ongoing litigation.”
References to the litigation would not necessarily entail the
revelation of information confidential to Kerkorian. Indeed,
from our review, most such references in the recordings did
not.
More importantly, the bulk of the discussion was simply
not about Kerkorian. The district court described the
recorded communications, referring to Bonder by her married
name, Bonder Kerkorian:
The communications focus on two main
topics. The first is Bonder Kerkorian herself.
For the most part, Pellicano conveys to
UNITED STATES V. CHRISTENSEN 73
Christensen the content and tone of
communications between Bonder Kerkorian
and others, including attorneys, friends, and
the mediator. Pellicano expresses his own
personal feelings concerning Bonder
Kerkorian and her lawyers, and provides his
own thoughts and advice to Christensen on
how Christensen should handle various
aspects of the litigation. This subject matter is
permeated with the “fruits” of the
conversations overheard by Pellicano –
apparently through illegal wiretapping.
The second, related topic is the true
parentage of Kira Kerkorian. The majority of
this discussion focuses on [a named person].
While much of this discussion incorporates
the content of Bonder Kerkorian’s telephone
conversations (Pellicano repeats that Bonder
Kerkorian stated [the named person] is a
“candidate” for Kira’s father, but she later
told the mediator he is the father, etc.), a
substantial portion also documents Pellicano’s
apparent efforts to act as a “go-between” to
negotiate a deal between [the named person]
and Kerkorian.
Christensen did not contest this description. That discussion
did not involve confidential disclosures made by Kerkorian
to Christensen. There is no attorney-client privilege in favor
of Kerkorian over any of that discussion.
The transcripts of the recordings totaled approximately
370 pages. Our review indicates that less than 10 percent of
74 UNITED STATES V. CHRISTENSEN
those pages contained information that may have been
confidential to Kerkorian. Christensen has not shown that the
potentially privileged portions of the recordings were
“inextricably intertwined” with the remainder of the
recordings such that they could not be separated, and it does
not appear to us that they were. See Chevron, 1996 WL
264769 at *5. Those potentially privileged pages could have
been separated from the nonprivileged pages without
indirectly revealing client confidences or removing necessary
context from the nonprivileged pages.
Even disregarding the possibility that the crime-fraud
exception applied to negate the privilege, any error in
producing and admitting those portions was harmless. See
United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir.
1991) (“A nonconstitutional evidentiary error will be reversed
for an abuse of discretion only if the court’s ruling more
likely than not affected the verdict.”). Christensen and
Pellicano repeatedly and frequently discussed their illegal
wiretapping of Bonder throughout the nonprivileged portions
of the recordings. That was the evidence that was
incriminating, and it was not protected by any privilege.
In sum, the vast majority of the Pellicano-Christensen
recordings were not privileged, the remaining portions could
have been severed, and any error in admitting the potentially
privileged portions was harmless. The district court correctly
concluded the attorney-client privilege did not apply.
6. Work product protection
Neither Christensen nor Pellicano has presented a
separate argument on appeal that the district court should
have withheld the recordings or denied their admission into
UNITED STATES V. CHRISTENSEN 75
evidence based on the work product doctrine. Christensen’s
briefs referred to the attorney work product doctrine only to
support his argument that he had standing to object to the
seizure of the recordings.19 Pellicano’s briefs made no
reference to the doctrine whatsoever. They have, therefore,
waived the issue on appeal. See Miller v. Fairchild Indus.,
Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of
Appeals will not ordinarily consider matters on appeal that
are not specifically and distinctly argued in appellant’s
opening brief.”).
Even if defendants’ vague references to the doctrine were
deemed sufficient to raise the issue, we agree with the district
court that the work product doctrine did not apply here.
“The work product doctrine, codified in Federal Rule of
Civil Procedure 26(b)(3), protects from discovery documents
and tangible things prepared by a party or his representative
in anticipation of litigation.” In re Grand Jury Subpoena
(Torf), 357 F.3d 900, 906 (9th Cir. 2004) (citation and
internal quotation marks omitted). It requires documents to
have “two characteristics: (1) they must be prepared in
anticipation of litigation or for trial, and (2) they must be
prepared by or for another party or by or for that other party’s
representative.” Id. at 907 (citation and internal quotation
marks omitted). “At its core, the work-product doctrine
shelters the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his
19
In particular, Christensen argued that the attorney work product
doctrine confirmed that he personally had a legitimate expectation of
privacy in the recordings. We do not reach that issue of standing, for we
reject the challenges to the seizure on the merits. The issue is discussed
in the separately filed memorandum disposition, at 8–9.
76 UNITED STATES V. CHRISTENSEN
client’s case.” United States v. Nobles, 422 U.S. 225, 238
(1975). The privilege under the doctrine is not absolute.
Where it facially applies, it may be overridden if the party
that seeks the otherwise protected materials “establish[es]
adequate reasons to justify production.” Hickman v. Taylor,
329 U.S. 495, 512 (1947); see Fed. R. Civ. P. 26(b)(3)(A)(ii).
“[T]he purpose of the work product privilege is to protect
the integrity of the adversary process.” Parrott v. Wilson,
707 F.2d 1262, 1271 (11th Cir. 1983); see also Admiral Ins.
Co. v. U.S. Dist. Ct., Dist. of Az., 881 F.2d 1486, 1494 (9th
Cir. 1989) (“The conditional protections afforded by the
work-product rule prevent exploitation of a party’s efforts in
preparing for litigation.”). Not surprisingly, it does not apply
to foster a distortion of the adversary process by protecting
illegal actions by an attorney. Because its purpose “is to
protect the integrity of the adversary process[,] . . . it would
be improper to allow an attorney to exploit the privilege for
ends that are antithetical to that process.” Parrott, 707 F.2d
at 1271 (holding an attorney’s unethical conduct in secretly
recording conversations with witnesses vitiated the work
product protection as to those recordings) (citing Moody v.
I.R.S., 654 F.2d 795, 800 (D.C. Cir. 1981)); see also In re
Doe, 662 F.2d 1073, 1078 (4th Cir. 1981) (“No court
construing [the work product] rule . . . has held that an
attorney committing a crime could, by invoking the work
product doctrine, insulate himself from criminal prosecution
for abusing the system he is sworn to protect.”). Indeed, as
some of the above precedents indicate, conduct by an attorney
that is merely unethical, as opposed to illegal, may be enough
to vitiate the work product doctrine. Parrott, 707 F.2d at
1271–72; Moody, 654 F.2d at 800 (“[A]t least in some
circumstances, a lawyer’s unprofessional behavior may
vitiate the work product privilege.”).
UNITED STATES V. CHRISTENSEN 77
Here, the recordings reflected Christensen’s illegal
attempt to obtain intimate personal information about an
opponent in litigation as part of his preparation for trial. The
Supreme Court has recognized that the work product
protection was necessary to avoid such “unfairness and sharp
practices . . . in the giving of legal advice and in the
preparation of cases for trial.” Hickman, 329 U.S. at 511. “It
would indeed be perverse . . . to allow a lawyer to claim an
evidentiary privilege to prevent disclosure of work product
generated by those very activities the privilege was meant to
prevent.” Moody, 654 F.2d at 800. The work product doctrine
did not apply here. The district court did not err by making
the recordings available to the prosecutors or admitting them
into evidence at trial.20
G. Juror 7’s dismissal
Shortly after deliberations began in the second trial,
involving defendants Christensen and Pellicano, the court
received a series of handwritten notes from members of the
jury complaining about one particular juror, identified as
Juror 7, and suggesting that he was unwilling to follow the
law because he disagreed with it. After inquiring into the
matter, the court found that the juror in question would not
follow the law and, in addition, that the juror had lied to the
court. Based on those two independent grounds, the court
dismissed the juror in question, seated an alternate, and
20
We assume Kerkorian was not involved in, or aware of, Christensen
and Pellicano’s criminal conduct. The illegal nature of Christensen’s
actions, therefore, does not vitiate Kerkorian’s interest in non-disclosure
of Christensen’s work product. Kerkorian has not shown, however, that
the disclosure of work product in the recordings “traumatize[d] the
adversary process more than the underlying legal misbehavior.” Moody,
654 F.2d at 801; Parrott, 707 F.2d at 1271–72.
78 UNITED STATES V. CHRISTENSEN
instructed the jury to begin its deliberations over again. The
reconstituted jury reached verdicts finding Christensen and
Pellicano guilty. Those defendants argue that the dismissal
of Juror 7 was improper and that the court improperly denied
their subsequent motion for a new trial based on the dismissal
of the juror.
We review for abuse of discretion both the dismissal of a
juror after deliberations have commenced and the denial of a
motion for a new trial based on such a dismissal. United
States v. Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007);
United States v. King, 660 F.3d 1073, 1076 (9th Cir. 2011).
The district court’s factual findings relating to the issue of
juror misconduct are reviewed for clear error. Vartanian,
476 F.3d at 1098. “The decision to excuse a juror is
committed to the district court’s discretion and we must
affirm unless we are left with the definite and firm conviction
that the court committed a clear error of judgment in reaching
its conclusion after weighing the relevant factors.” United
States v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998) (quoting
United States v. Egbuniwe, 969 F.2d 757, 761 (9th Cir. 1992)
(internal quotation marks omitted)).
We conclude that the district court’s findings regarding
Juror 7’s untruthfulness and unwillingness to follow the law
were not clearly erroneous. Those findings provided cause
for dismissing the juror. Neither the dismissal of Juror 7 nor
the denial of defendants’ motion for a new trial was an abuse
of discretion.
A court may dismiss a juror during deliberations for good
cause. Fed. R. Crim. P. 23(b)(3). Each of the two
independent grounds cited by the district court in this case for
UNITED STATES V. CHRISTENSEN 79
discharging Juror 7—that he was not willing to follow the
law, and that he had lied to the court—may justify the
discharge of a juror.
A juror’s intentional disregard of the law, often in the
form of juror nullification, can constitute good cause for
dismissal of the juror. See Merced v. McGrath, 426 F.3d
1076, 1080 (9th Cir. 2005) (noting that “trial courts have the
duty to forestall or prevent such conduct” by, inter alia,
dismissal of an offending juror (quoting United States v.
Thomas, 116 F.3d 606, 616 (2d Cir. 1997))). A juror engages
in nullification by refusing to return a guilty verdict “in the
teeth of both law and facts,” id. at 1079 (quoting Horning v.
Dist. of Columbia, 254 U.S. 135, 138 (1920)), or by voting to
acquit a criminal defendant “even when the government has
proven its case beyond a reasonable doubt,” United States v.
Powell, 955 F.2d 1206, 1212–13 (9th Cir. 1992); see also
United States v. Simpson, 460 F.2d 515, 519 (9th Cir. 1972)
(rejecting the argument that juries should be given more
freedom to grant acquittals against the law, also known as
“conscience verdicts”). Though we recognize the
phenomenon, we also recognize that juror nullification is
a violation of a juror’s sworn duty to follow
the law as instructed by the court—trial courts
have the duty to forestall or prevent such
conduct, whether by firm instruction or
admonition or, where it does not interfere with
guaranteed rights or the need to protect the
secrecy of jury deliberations, . . . by dismissal
of an offending juror from the venire or the
jury.
80 UNITED STATES V. CHRISTENSEN
Merced, 426 F.3d at 1079–80 (alteration in original) (quoting
Thomas, 116 F.3d at 616).
In contrast, it is not permissible to discharge a juror based
on his views regarding the sufficiency of the evidence.
United States v. Symington, 195 F.3d 1080, 1085 (9th Cir.
1999). Removal in such a case violates a defendant’s Sixth
Amendment right to a unanimous verdict from an impartial
jury. Id.
In Symington, after five days of deliberation in a criminal
financial fraud trial, the jury sent the judge a note
complaining about a juror who would not participate in
deliberations. Id. at 1082–83. The judge wrote back to the
jurors reminding them of their duty to deliberate. A few days
later the jury sent another, more detailed note explaining why
“the majority of the jurors sincerely feel that the juror in
question cannot properly participate in the discussion.” Id. at
1083. After discussing the matter with counsel for both sides,
the judge separately questioned each member of the jury to
determine the nature of the problem. The other jurors stated
that Juror Cotey, a woman apparently in her mid-70’s, was
confused and unfocused during deliberations, and that she
“just seem[ed] to have her mind set.” Id. at 1084. When the
judge questioned Cotey, she stated that “she was willing to
discuss elements of the case with the other jurors, but that she
became intimidated when everyone talked at once and
demanded that she justify her views as soon as she stated
them.” Id. She also “noted that the other jurors’ frustration
with her might be because ‘I can’t agree with the majority all
the time . . . . And I’m still researching and looking for more
in the case.’” Id. The judge decided to dismiss Cotey because
she was “either unwilling or unable to deliberate with her
colleagues.” Id.
UNITED STATES V. CHRISTENSEN 81
We reversed, holding that “if the record evidence
discloses any reasonable possibility that the impetus for a
juror’s dismissal stems from the juror’s views on the merits
of the case, the court must not dismiss the juror.” Id. at 1087
(emphasis in original). In other words, the available evidence
must be “sufficient to leave one firmly convinced that the
impetus for a juror’s dismissal is unrelated to [his or her]
position on the merits.” Id. at 1087 n.5. After reviewing the
record, we concluded that, in light of the limited evidence
available, “the district court could not have been ‘firmly
convinced’ that the impetus for Cotey’s dismissal was
unrelated to her position on the merits of the case.” Id. at
1088 n.7. Because “[t]he statements of some jurors indicated
that their frustration with Cotey may have derived more from
their disagreement with her on the merits of the case, or at
least from their dissatisfaction with her defense of her views,”
dismissal in that case was improper. Id. at 1084.
It may be difficult to determine whether a juror’s alleged
unwillingness to deliberate stems from his views on the
merits or his views on the law. “[A] court may not delve
deeply into a juror’s motivations because it may not intrude
on the secrecy of the jury’s deliberations.” Id. at 1086
(alteration in original) (quoting United States v. Brown,
823 F.2d 591, 596 (D.C. Cir. 1987)). This creates “special
challenges” for the trial judge attempting to determine
whether a problem between or among deliberating jurors
stems from disagreement on the merits of the case. Id.
We “generally defer to the district court’s good cause
determinations” because “the district court is in the best
position to evaluate the jury’s ability to deliberate.”
Vartanian, 476 F.3d at 1098 (alteration and quotation marks
omitted) (quoting Beard, 161 F.3d at 1194); see also United
82 UNITED STATES V. CHRISTENSEN
States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006) (“[W]e
emphasize that a district court, based on its unique
perspective at the scene, is in a far superior position than this
Court to appropriately consider allegations of juror
misconduct, both during trial and during deliberations.”).
Lying to the court about matters related to potential bias
may also constitute good cause for dismissal of a juror. See
Vartanian, 476 F.3d at 1098–99. In Vartanian, one juror was
observed on multiple occasions speaking to the defendant’s
family and counsel. This fact was brought to the attention of
the court during deliberations via a note from the jury
foreperson. Id. at 1096. When questioned about her contacts,
the juror assured the court that they were minimal, but
interviews with other jurors revealed that the contacts were
much more extensive. The judge found that the juror in
question had “not been forthcoming and entirely truthful with
the court and had entirely minimized her contacts.” Id. at
1097 (internal quotation marks and alteration omitted).
Ultimately, the court concluded that it was “unwilling to trust
[the juror] to be a fair and impartial juror and dismissed her
from service.” Id. (internal quotation marks omitted). On
appeal, we concluded that “the impetus for the jurors’
complaints about [the juror in question] was not her
willingness to deliberate, but her misconduct outside of the
jury deliberation room.” Id. at 1098. We affirmed the
conviction, noting in particular that “the record amply
supports the district court’s findings that [the juror] was
‘untruthful with the court’ and ‘untrustworthy.’” Id. at 1099.
We afford “special deference” to a trial court’s adverse
credibility finding because the determination of credibility is
“largely one of demeanor.” Patton v. Yount, 467 U.S. 1025,
1038 (1984). This deference need not be tempered by the
UNITED STATES V. CHRISTENSEN 83
concerns raised in Symington about the inappropriateness of
intruding into deliberations because the evaluation of
credibility will not usually require that kind of inquiry. When
the concern involves the possibility that a juror has lied to the
court, the district court will not always suffer from the same
lack of investigative power that limits the court’s ability to
inquire into problems among deliberating jurors. Symington,
195 F.3d at 1086.
With these legal principles and the standard of review in
mind, we turn to the facts of this case. The concern over
Juror 7 developed very quickly. Just over an hour after
deliberations began, the first note emerged from the jury
room. It came from Juror 9:
Jury Stan #7 dosen’t agree with the law, about
wire tapping. “Understands what the law is
but dosen’t agree.” States “witness never tell
the truth.” States “if its ok the government to
wire tap + not get caught, then its ok for
him.”21
At the bottom was a request for help signed by Juror 1, the
foreperson: “We are unable to move forward[;] we need
assistance.” A separate piece of paper signed by Juror 3 and
sent concurrently stated:
Wire Tap
If its OK for the government to do it and not
get caught.
21
The notes are quoted verbatim, including spelling and grammatical
errors.
84 UNITED STATES V. CHRISTENSEN
Then it’s should be OK for him. Stan #7.
In response, the court brought the jury back into the
courtroom and reread the following instruction:
It is your duty to find the facts from all the
evidence in the case. To those facts you will
apply the law as I give it to you. You must
follow the law as I give it to you, whether you
agree with it or not.
Later that day, the court received another note from Juror
9. It recited some of Juror 7’s responses to questions from
other jurors. For example:
Q: “What evidence do you need?”
A: “I want Ray Turner here + to say he wire
tapped.”
[. . .]
Q: “Do you believe [wiretapping] is illegal?”
A: “In the law we don’t have to pay federal
taxes, just state taxes.”
The bottom portion of the note, signed by Juror 1, explicitly
requested an alternate juror because Juror 7 “will not talk
about evidence or the law;” “will not participate in
deliberations;” and is “ANTI-government.” The final note
was unsigned and quoted Juror 7 calling the case “a joke”
because “no one died” and announcing, “I don’t treat this
case seriously.”
UNITED STATES V. CHRISTENSEN 85
The court and counsel discussed the question of whether
statements attributed to Juror 7 indicated his views on the
merits or his views on the validity of the law. The court
indicated an intent to question a selection of jurors
individually.22 The next morning, after receiving briefing
from the parties on the issue, it correctly decided to do so.23
See Bell v. Uribe, 748 F.3d 857, 867 (9th Cir. 2014) (“The
remedy for allegations of juror misconduct is a prompt
hearing in which the trial court determines the circumstances
of what transpired, the impact on the jurors, and whether or
not the misconduct was prejudicial.”); see also Boone,
458 F.3d at 329 (“[W]here . . . credible allegations of jury
nullification . . . arise[] during deliberations, a district court
may, within its sound discretion, investigate the allegations
through juror questioning or other appropriate means.”).
22
The court said: “I know there is at least one Ninth Circuit case on the
approach the Court should take. I don’t believe that I merely excuse a
juror because one or two jurors contend that he is refusing to deliberate.
I do believe there is now a colloquy that is required of either [Juror 7] or
[Juror 7] plus others. . . . The inquiry will relate to whether he is willing
to follow the law and whether he is willing to deliberate.”
23
The court explained: “I have read the emails that were sent last night,
two from the Government and one from the defense, and I have read the
cases that were cited by both sides, and I have also read a number of other
cases along the same lines. . . . I’ve concluded that the information
contained in the notes requires me, or at the very least, permits me to
question one or more jurors, and I have determined that that’s the course
I should take.”
86 UNITED STATES V. CHRISTENSEN
Juror 7 was the first to be examined.24 He denied
24
THE COURT: Okay. I have a couple of notes from the
jury. I assume that you know that?
THE JUROR: Actually, no, I don’t.
THE COURT: Did you write me a note?
THE JUROR: No.
THE COURT: Okay. I have a note from — apparently
from a juror that suggests that you have said, “If it’s
okay for the Government to do it and not get caught,
then it should be okay for him.” And at the same time
I got a note with a little bit different language
suggesting that you said, “If it’s okay for the
Government to wiretap and not get caught, then it’s
okay for him.” Did you say those things or something
like those things?
[. . .]
THE JUROR: Well, I didn’t say if the Government can
wiretap, then he can, whoever “he” referred to. He
wrote that note probably based on anger and emotions
towards me.
THE COURT: Toward you?
THE JUROR: Yes. He was angry because I disagreed
with the majority of the jurors.
[. . .]
THE COURT: Okay. Did you say that you don’t agree
with the law about wiretapping?
THE JUROR: No, I didn’t say that. I said that I cannot
agree to judge my decision on circumstantial evidence.
UNITED STATES V. CHRISTENSEN 87
knowledge of the notes from other jurors and disavowed the
statements attributed to him regarding both wiretapping and
tax laws. Juror 7 suggested that the juror who wrote one of
the notes was angry because Juror 7 disagreed with the
majority of jurors and because he “c[ould not] agree to judge
[his] decision on circumstantial evidence.”
The court then questioned five other jurors who all
confirmed that the statements in the notes, including “it
should be okay for him” to wiretap, and “we don’t have to
pay federal taxes,” were “more or less what [Juror 7] said.”
Juror 1, the foreperson, was “not 100 percent sure [of what
was said] because everybody in the room talks at the same
time,” but recalled hearing Juror 7 say something about not
having to pay federal taxes and confirmed that Juror 7 had
said “if it’s okay for the government to wiretap and not get
caught, then it’s okay for him.” Juror 9 told the court that she
[. . .]
THE COURT: Okay. And after the jury went back to
deliberate, I received another note, and that note
suggests that perhaps someone said to you, “If you
knew someone was wiretapping and the law said it was
illegal, do you believe it’s illegal?” And that your
response was, “In the law we don’t have to pay federal
taxes, just state taxes.” Did you say something like
that?
THE JUROR: I don’t recall that. At all. That doesn’t
make sense to me. I couldn’t answer to specific
questions of wiretapping with the federal taxes.
THE COURT: So you didn’t —
THE JUROR: I didn’t say anything about taxes.
88 UNITED STATES V. CHRISTENSEN
wrote down Juror 7’s statements contemporaneously as he
made them; Juror 3 also wrote down Juror 7’s statements.
Juror 2 told the court that “the words weren’t exactly [as
written in the notes],” but that was “the substance” of Juror
7’s statements. “[H]e said if the federal government can do
it and not be found guilty, then a private citizen shouldn’t be.
That’s what it was.” Juror 11 likewise confirmed that Juror
7 had expressed doubt about both wiretapping and federal tax
law.
After hearing from the parties, the court found there was
just cause to dismiss Juror 7. The court found that “Juror No.
7 is not willing to follow the law and will not follow the law
in this case.” That finding was “based on the statements that
[were] in the notes and that the [other] jurors confirmed.”
The court also found that “Juror No. 7 has lied to the Court,”
citing that as “an independent ground[] for excusing him.”
In the process, the court specifically found “that the five
other jurors are credible and that Juror No. 7 is not.” The
court also found that Juror 7 had lied by omission during voir
dire when he did not speak up in response to either the
question by the court as to whether any juror had “any
feelings about the particular charges against the defendants,”
or the question by Pellicano as to whether any of the jurors
had “any knowledge of [wiretapping laws] or . . . any
opinions on [them].”
The district court was aware of the standard set out in
Symington. The court concluded that the impetus for
dismissal stemmed not from Juror 7’s views on the merits of
the case but from his views on the law. In issuing the ruling,
the judge stated, “I don’t believe there is a reasonable
possibility that even the impetus for the jurors[’] notes or
UNITED STATES V. CHRISTENSEN 89
their request for an alternate stems from Juror No. 7’s views
on the merits.”
Because the court “‘may not intrude on the secrecy of the
jury’s deliberations,’” Symington, 195 F.3d at 1086 (quoting
Brown, 823 F.2d at 596), the court’s inquiry was necessarily
constrained. The court rightly instructed each juror
questioned not to volunteer information beyond what the
court asked and not to discuss the content of deliberations or
any juror’s views on the merits. Indeed, when questioning
the jurors, the court repeatedly had to cut them off mid-
sentence to prevent them from running afoul of this
instruction. Nevertheless, because the court was able to
confirm from five separate jurors that Juror 7 had made
statements expressing disagreement with the wiretapping
laws, its inquiry was “sufficient to leave one firmly convinced
that the impetus for [Juror 7’s] dismissal is unrelated to [his]
position on the merits.” Id. at 1087 n.5.
We acknowledge that the court’s finding regarding Juror
7’s unwillingness to follow the law is arguably in conflict
with Juror 7’s statement during questioning that he disagreed
with the other jurors because he “cannot agree to judge [his]
decision on circumstantial evidence.” Yet Juror 7 also denied
having made statements about the validity of wiretapping and
federal tax laws, whereas every one of the other five jurors
questioned confirmed that he had in words or substance.
Based on this discrepancy, the district court concluded that
Juror 7 was not credible. That finding was not clearly
erroneous. See Vartanian, 476 F.3d at 1098.
Under these circumstances, it appears to us highly
unlikely that the other jurors were motivated by Juror 7’s
disagreement with their views on the merits. The first notes
90 UNITED STATES V. CHRISTENSEN
appeared little more than an hour after deliberations began.
That is very early in the process, especially after a
complicated and lengthy trial. By contrast, in Symington, the
first note came after five days of deliberations. 195 F.3d at
1083; see also Brown, 823 F.2d at 592, 594 (holding that the
district court’s dismissal of a juror after five weeks of
deliberations violated the defendant’s right to a unanimous
jury, because the record evidence suggested the juror found
the evidence insufficient for a conviction). The longer period
of time in Symington is consistent with a juror attempting to
engage in deliberations on the merits but unable to convince
his or her cohort. In contrast, one hour is unlikely to have
been enough time for the jurors to have ascertained such a
difference in their views on the evidence.
Furthermore, unlike in Symington, there is not
“considerable evidence to suggest that the other jurors’
frustrations with [Juror 7] derived primarily from the fact that
[he] held a position opposite to theirs on the merits of the
case.” Symington, 195 F.3d at 1088. Juror 7 made it clear
from the beginning of deliberations that he did not agree with
the wiretapping laws. All of the concerns expressed by the
other jurors related to Juror 7’s views on the law, not the
evidence.25 Cf. id. at 1084 (observing that other jurors’
25
The dissenting opinion, below at 122–123, expresses the view that
there was a reasonable possibility that the other jurors ganged up on Juror
7 because he was a holdout based on his view of the evidence. It asserts
that no statements by other jurors refute that proposition and points
specifically to a statement by Juror 1 on “how their views on the evidence
differed prior to being cut off by the court.” Actually, the juror cut
himself off, and the comment that he attributed to Juror 7 was not about
evidence at all: “He stated that if the federal government charges
someone, they’re innocent.” Not surprisingly, Juror 1 went on to say that
the comment “floored everybody in the room.” That does not at all
UNITED STATES V. CHRISTENSEN 91
testimony suggested that they viewed the dismissed juror “as
an obstacle to reaching a verdict”). The only reference to
Juror 7’s view of the evidence was his own statement during
questioning about the inadequacy of circumstantial evidence,
but, as stated above, in light of the contradictory testimony of
five other jurors, the court validly discounted Juror 7’s
credibility. Furthermore, just as in Vartanian, the existence
of such a passing reference does not necessarily evoke the
concerns cited in Symington or preclude discharge of the juror
for good cause. See Vartanian, 476 F.3d at 1099 (observing
that a passing reference to the dismissed juror’s view that the
defendant was innocent did not evoke the concern raised in
Symington because the basis for the juror’s dismissal was her
misconduct, not her views on the merits of the case).
In addition, we note that at least one other juror expressed
regret as to what happened. Juror 3 stated that Juror 7’s
comments made her feel “uncomfortable.” When the court
asked whether Juror 3 had heard Juror 7’s comment regarding
taxes, Juror No. 3 answered, “Unfortunately, yes.” That did
not sound like a juror who was looking for a way to get rid of
a holdout.
The situation presented here was thus significantly
different from the one found problematic in Symington. Like
the district court, we think it unlikely that Juror 7 was a lone
holdout, ganged up on by other jurors who did not agree with
or understand his views on the sufficiency of the evidence.
suggest that the differences had to do with differing views of the evidence.
The problem with Juror 7 identified by the other jurors was that he was not
willing to follow the law.
92 UNITED STATES V. CHRISTENSEN
The dissenting opinion concludes that the district court
erred by failing to ask Juror 7 point-blank whether he was
willing to follow the law. According to the dissent, below at
118, the question of “whether he could follow the law as
instructed by the court” was “the most appropriate question”
that should have been asked. The dissent repeats that
proposition multiple times, see below at 119 & 120–121,
culminating with the assertion, at 123 that the failure to ask
that question before dismissing Juror 7 based on a lack of
credibility was an “obvious error” that “alone is worthy of
reversal.”
We have previously held, however, that “[a] juror’s
assurance that he or she can render a fair and impartial verdict
is not dispositive.” Egbuniwe, 969 F.2d at 762 (citing Murphy
v. Florida, 421 U.S. 794, 800 (1975)). Rather, the proper
response to allegations of juror misconduct is a “prompt
hearing in which the trial court determines the circumstances
of what transpired.” Bell, 748 F.3d at 867. The law does not
require a district court to accept as true whatever it might be
told by someone whose conduct has been called into question.
A criminal defendant is presumed innocent, but the
prosecutor is permitted to prove the contrary. If a juror can
be discharged for misconduct, it makes no sense to let that
juror’s statements that “I did not say that” and “I can follow
the law” serve as an automatic free pass, if other evidence
supports findings to the contrary. Such a limitation on the
district court’s freedom to question jurors would be flatly
inconsistent with its affirmative “duty” to “forestall or
prevent [jury nullification].” Merced, 426 F.3d at 1080
(citation and internal quotation marks omitted).
The possibility that Juror 7 might have responded by
saying that he would apply the law as instructed is not enough
UNITED STATES V. CHRISTENSEN 93
to require the district court to leave him on the jury if the
court has otherwise made findings that would constitute good
cause for his removal. The “‘determination of impartiality,
in which demeanor plays such an important part, is
particularly within the province of the trial judge.’”
Egbuniwe, 969 F.2d at 762 (quoting Ristaino v. Ross,
424 U.S. 589, 595 (1976)). For this reason, the judge “is
required to make an independent assessment.” Id. The
district court was not required to take Juror 7’s word for it.
An independent assessment is what the district court made
in this case. It compared Juror 7’s version of events with
descriptions by five other jurors and determined that Juror 7
was not willing to follow the law. At the same time, the court
noted the fact that Juror 7 had lied to the court was an
independent ground for excusing him.
The grounds for dismissal cited by the district court were
appropriate and permissible. As described above, at 78,
81–83, those findings are reviewed for clear error, and we
“generally defer” to these determinations of good cause. The
dissent does not contest the standard of review but does not
apply it either. For example, it complains, below at 122, that
our majority opinion “fails to point to any solid evidence in
the record demonstrating that Juror 7 was engaging in
nullification.” That approach to reviewing the district court’s
finding has it backwards. To set the finding aside, we have
to be persuaded that the finding by the district court that Juror
7 was “not willing to follow the law and will not follow the
law in this case” was clearly erroneous. See Egbuniwe,
969 F.2d at 761. As described above, at 83–89, the five
jurors the district court questioned and found credible
reported statements that Juror 7 had made expressing
disagreement with the wiretapping law as a matter of
94 UNITED STATES V. CHRISTENSEN
principle. They also reported that Juror 7 had stated, in
response to a question about whether he believed the
wiretapping law was valid, that “in the law, we don’t have to
pay federal taxes, just state taxes.” The district court
reasonably concluded that Juror 7 made this statement to
suggest that the Defendants in this case did not have to
comply with the wiretapping laws. The court’s finding that
Juror 7 would not follow the law was thus not clearly
erroneous.
Neither was the finding by the district court that Juror 7
had “lied to the court.” The dissenting opinion, below at
123–124, characterizes that finding as “clear error,” but not
because it concludes that Juror 7’s responses to the court’s
inquiry were truthful. Rather, the dissent takes the position
that “even an intentionally dishonest answer” does not matter
unless it “bespeak[s] a lack of impartiality,” citing Dyer v.
Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc), and
noting that the district court cited that decision in denying a
motion for new trial.26 The dissent contends, below at 124,
26
The district court did cite to and quote from Dyer, but in connection
with a different argument involving an entirely different claim of juror
misconduct: a claim based on the alleged failure of one juror to admit that
potentially prejudicial comments by a prosecutor had been overheard. That
issue is discussed and Defendants’ argument rejected in the memorandum
disposition filed together with this opinion, at 27–29. We note, moreover,
that our decision in Dyer was that bias should be attributed to a juror who
had answered in the negative to the usual questions during voir dire as to
whether any relatives or close friends had ever been the victim of crime
or accused of any offense other than traffic cases. It was later discovered
that her brother had previously been shot and killed, but not until after she
sat as a juror in a murder trial and joined a verdict that convicted the
defendant and sentenced him to death. Our court granted habeas relief,
concluding that the juror’s lies during voir dire warranted an inference of
UNITED STATES V. CHRISTENSEN 95
that “even assuming Juror 7 lied about the federal tax
statement, rather than failing to recall saying it as he stated
during the questioning by the court, this falsehood does not
necessarily bespeak a lack of impartiality.”
Here, however, Juror 7’s statements about taxes were
made in response to questions about whether he believed
wiretapping laws were valid. Credible testimony from
multiple jurors also confirmed that Juror 7 stated that “[i]f it’s
okay for the government to wiretap and not get caught, then
it’s okay for him.” Yet Juror 7 failed to mention his views
about the wiretapping laws even though he was pointedly
asked about them during voir dire.27 Although
Dyer concerned potential juror bias, not nullification, just as
in that case, Juror 7’s lies were material and spoke squarely
to the fundamental question of his willingness to follow the
law and discharge his duty as a juror. Dismissal on this basis
was thus proper.
The district court’s factual findings were not clearly
erroneous, and they supported its conclusion that there was no
reasonable possibility that the impetus for dismissal stemmed
implied bias. Dyer, 151 F.3d at 981. The point of Dyer was not that a
juror’s lies should be disregarded.
27
During voir dire, the district court specifically asked: “Will anyone
have any difficulty following my instructions and applying the law to this
case whether you approve or disapprove of the law as I state it to you?”
and “Other than what you have heard already, do you have any feelings
about the particular charges against these defendants that would make it
difficult for you to be a fair and impartial juror in the case?” Defendant
Pellicano asked: “Have any of you formed any opinion about the term
‘wiretapping’ from reading the newspapers and the government’s new. . .
legislation regarding wiretapping? Anybody have any knowledge of that
or have any opinions on it?”
96 UNITED STATES V. CHRISTENSEN
from Juror 7’s views on the merits of the case. Accordingly,
the dismissal of Juror 7 does not give reason to set aside the
convictions from the second trial or to require a new trial on
those charges.
After Juror 7 was dismissed, the jury returned guilty
verdicts. Christensen subsequently moved for a new trial.
The motion was accompanied by declarations from several
jurors regarding what happened in the jury room prior to
Juror 7’s dismissal. The lower court correctly held that the
juror declarations were barred from consideration by Federal
Rule of Evidence 606(b), which prohibits a juror from
testifying about statements made during deliberations.
Defendants argue that Rule 606(b) does not apply because
they were inquiring into the juror dismissal rather than the
validity of the verdict, but that distinction was rejected in
United States v. Decoud, 456 F.3d 996, 1018–19 (9th Cir.
2006).
The court then denied the motion. It found that Juror 7’s
statements, as quoted in the notes, “suggest[ed] a bias on his
part against the federal government.” The court noted the
“numerous discrepancies between Juror No. 7’s testimony
and that of the other jurors” and reiterated its finding that
Juror 7 “lied during the Court’s examination and most likely
during voir dire with regard to issues that were relevant to his
bias in the case.” It added: “The submitted juror
declarations—even if they were not barred by Federal Rule
of Evidence 606(b), which they are—do not undermine the
Court’s previous findings as to the credibility of the jurors
questioned and the conclusions as to Juror No. 7’s veracity
and willingness to follow the law.” We agree.
UNITED STATES V. CHRISTENSEN 97
H. Sentencing
We review de novo the district court’s interpretation of
the Sentencing Guidelines. United States v. Rivera, 527 F.3d
891, 908 (9th Cir. 2008). The court’s application of the
Guidelines to the facts is reviewed for an abuse of discretion.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). Factual findings are reviewed for clear error. United
States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010). A
sentence may be set aside if substantively unreasonable or if
procedurally erroneous in a way that is not harmless. Carty,
520 F.3d at 993; United States v. Acosta-Chavez, 727 F.3d
903, 909 (9th Cir. 2013). Procedural error includes failing to
calculate or calculating incorrectly the proper Guidelines
range, failing to consider the factors outlined in 18 U.S.C.
§ 3553(a), choosing a sentence based on clearly erroneous
facts, or failing to explain the sentence selected. Carty,
520 F.3d at 993.
1. Christensen
Christensen was convicted of conspiracy and interception
of wire communications in violation of 18 U.S.C. § 371 and
18 U.S.C. § 2511(1)(a). The district court sentenced him to
36 months of imprisonment for each of the two counts, to be
served concurrently. That sentence was within the range of
30–37 months suggested by the advisory Sentencing
Guidelines, based upon the district court’s determination that
the total offense level was 19 and the criminal history
category was I. The offense level calculation included a
three-level upward departure, under U.S.S.G. § 5K2.0(a)(2)
(2001), for factors which the district court concluded were not
otherwise adequately accounted for in the Sentencing
Guidelines. Without those additional three levels, the total
98 UNITED STATES V. CHRISTENSEN
offense level based solely on the Guidelines would have been
16, with a corresponding range of 21 to 27 months for a
criminal history level of I. The court arrived at the offense
level of 16 from a base offense level of 9 by adding 2 levels
pursuant to U.S.S.G. § 3B1.1(c) for Christensen’s supervisory
role, 3 levels pursuant to § 2H3.1(b) for pursuing economic
gain, and 2 levels pursuant to § 3B1.3 for abuse of a position
of public or private trust.
Christensen challenges his sentence as procedurally
erroneous, contending the total offense level should be lower
because the adjustments made by the court in calculating the
total offense level and the three-level upward departure were
improper. He also challenges his sentence as substantively
unreasonable. We affirm.
a. Supervisory role
Christensen raises objections to three elements of the
district court’s calculation of the offense level under the
Sentencing Guidelines. One objection is to a two-level
upward adjustment on the ground that Christensen occupied
a supervisory role over Pellicano.
Under U.S.S.G. § 3B1.1(c), an upward adjustment is
appropriate “[i]f the defendant was an organizer, leader,
manager, or supervisor” of criminal activity. The district
court found that Christensen “was responsible for Mr.
Pellicano’s conduct, and as indicated in the recorded phone
calls, supervised him throughout the retention.”
The district court’s factual finding was not clearly
erroneous. The finding was not “(1) illogical, (2) implausible,
or (3) without support in inferences that may be drawn from
UNITED STATES V. CHRISTENSEN 99
the facts in the record.” Pineda-Doval, 692 F.3d at 944
(explaining the clear error standard). Even though Pellicano
had been engaged in illegal racketeering activities long before
Christensen hired him, that does not mean he could not have
been led or supervised by someone else while engaging in
further illegal activity. It was Christensen who directed
Pellicano to wiretap Lisa Bonder’s phone line, a wiretap that
required the coordinated efforts of five or more people to
implement, and it was Christensen who, the district court
found, “gave Mr. Pellicano his assignments and told Mr.
Pellicano when to cease his activities.” That was enough to
make him a “leader” or “supervisor” of the criminal activity.
b. Economic gain
Christensen challenges the court’s application of a three-
level economic gain enhancement under § 2H3.1. The factual
finding related to that adjustment was not clearly erroneous,
and the court’s application of it was not an abuse of
discretion.
Under § 2H3.1(b), a three-level upward adjustment is
appropriate if “the purpose of the offense was to obtain . . .
economic gain.” The district court found that “the purpose of
the offense was to obtain a tactical advantage in litigation
which is an indirect economic gain.” Christensen contends
that he hired Pellicano merely to assist in identifying the
biological father of Bonder’s daughter, and that Kerkorian
never sought to modify his child support obligation or
otherwise obtain financial gain through his litigation with
Bonder. Whether or not the wiretapping provided immediate
economic gain to Kerkorian, however, is not dispositive.
Christensen was motivated by his own economic gain. As the
district court observed, “[i]t’s always to an attorney’s
100 UNITED STATES V. CHRISTENSEN
economic benefit to keep a client happy.” That was a logical
interpretation of the purpose of the wiretap, and the court’s
finding was not clearly erroneous.
c. Abuse of a position of trust
Christensen also argues that the court incorrectly applied
a two-level upward adjustment under § 3B1.3 of the
Sentencing Guidelines for abuse of a position of trust. Under
§ 3B1.3, that enhancement should apply “[i]f the defendant
abused a position of public or private trust, or used a special
skill, in a manner that significantly facilitated the commission
or concealment of the offense.”
The district court applied the enhancement, finding that
“Christensen abused a position of public trust which
significantly contributed to the commission or concealment
of the offense.” The court noted that Christensen did not hold
“the traditional position of trust” with regard to the victims of
the wiretapping, but concluded that “[i]n a real sense, the
legal community and the justice system are victims of this
crime.” It elaborated:
[O]ur entire justice system is based on the
theory that attorneys can be trusted to act
ethically in representing their clients.
Attorneys are officers of the Court and expect
to be respected and to have their
representations accepted as true. Attorneys
also trust each other or at least they are
supposed to be able to trust each other not to
engage in illegal or unethical conduct. It is
hard to imagine how our system could work at
all if these fundamental principles weren’t
UNITED STATES V. CHRISTENSEN 101
honored by members of the Bar who swore to
uphold them.
Christensen was an attorney. That position was a position
of trust. The application notes to § 3B1.3 explicitly state that
lawyers have a “special skill” as that term is used in the
section and include among the illustrations of an abuse of
trust the example of an embezzlement of a client’s funds by
an attorney serving as a guardian.
Christensen argues, however, that he did not use his
position as an attorney to commit or conceal the crime, as
required to apply the enhancement. He also argues that to
qualify for this enhancement the relationship of trust that was
violated must be between the defendant and the victim and
that he did not occupy a position of trust in relation to Lisa
Bonder, the victim of the wiretapping scheme. According to
Christensen, the court applied the enhancement simply
because he was an attorney, which is insufficient to support
the adjustment under § 3B1.3.
As a practical matter, this argument is more theoretical
than real. The district court noted that a close question was
raised by the application of an enhancement under § 3B1.3 to
the facts of this case and that it found no cases directly on
point. It went on to state explicitly, however, that if, based on
the facts here, § 3B1.3 did not support a two-level adjustment
in calculating the offense level, the court would have imposed
the same sentence by applying an upward variance in an
equivalent amount:
Even if these circumstances do not fit within
the letter of Section 3B1.3, they certainly fit
within its spirit, and if a departure under that
102 UNITED STATES V. CHRISTENSEN
section were not appropriate, then a variance
would be. An attorney who abuses his
position in this manner and to the degree that
Mr. Christensen did here is certainly more
culpable and deserving of a greater sentence
than one who has no such position to
abuse. . . . [H]ad I not imposed the
enhancement for abuse of trust and a three
level upward departure, I would have
concluded for similar reasons that an upward
variance in an equivalent amount should be
imposed.
We conclude, in any event, that the court’s application of
the enhancement under these circumstances was appropriate.
The district court recognized that the enhancement
applied, by its terms, only if the abuse of trust (or use of
special skill) “significantly facilitated the commission or
concealment of the offense.” The court found that
“Christensen’s position as an attorney contributed in a
significant way to the commission or concealment of the
offenses.” That finding was not clearly erroneous.
The motivation to wiretap Bonder was directly related to
Christensen’s representation of Kerkorian in his child support
dispute with Bonder. Christensen directed Pellicano based on
what Christensen knew as Kerkorian’s attorney in that
dispute. Payment to Pellicano’s firm initially came from
Christensen’s firm. Christensen’s status as Kerkorian’s
attorney and the commission of the offenses for which he was
convicted—one count of conspiracy to intercept and use wire
communications and one count of interception of wire
communications—were not coincidental. It seems likely that
UNITED STATES V. CHRISTENSEN 103
the wiretapping of Bonder would not have occurred but for
Christensen’s involvement as the attorney for Kerkorian, and
it is almost certainly the case that the conspiracy to intercept
that included Christensen would not have happened
otherwise.
As for the scope of the § 3B1.3 enhancement, we disagree
with Christensen’s contention that it should apply only if the
position of trust that was violated ran between the defendant
and the victim of the wiretapping. That view is too
constrained. The relevant provision of the Guidelines refers
specifically to abuse of “public or private trust,” suggesting
a concern for more than the individual interests of a specific
client or beneficiary. See U.S.S.G. § 3B1.3. The public
interest may be considered. Similarly, § 3B1.3 applies when
the defendant has “used a special skill,” without regard to
whether the victim was the defendant’s client.
The upward adjustment has been applied to attorney
defendants in circumstances where the victim, defined
narrowly, was not the defendant’s client. In United States v.
Kubick, 205 F.3d 1117 (9th Cir. 1999), for example, we
affirmed the application of the § 3B1.3 enhancement to an
attorney defendant who had assisted his client in bankruptcy
fraud. That his client was not the victim did not prevent the
enhancement from being applied. Id. at 1125.
In United States v. Goldman, 447 F.3d 1094 (8th Cir.
2006), in an opinion written by Judge Diane Murphy, a
former chair of the Sentencing Commission, the § 3B1.3
enhancement was applied to an attorney who participated in
a scheme to help his client fraudulently obtain a loan.
Goldman’s client was not the victim of the scheme, yet
application of the adjustment was affirmed. The court
104 UNITED STATES V. CHRISTENSEN
reasoned: “A defendant acting in his capacity as an attorney
occupies a position of public trust. Use of knowledge gained
as an attorney to commit a crime subjects a defendant to an
enhancement for abuse of a position of public trust under
U.S.S.G. § 3B1.3.” Id. at 1096 (internal citation omitted). In
Goldman, the victim might narrowly have been identified as
the bank that was the target of the scheme, but the court took
a broader view, and properly so, citing the defendant’s false
testimony to the bankruptcy court as an illustration of his
abuse of a position of public trust. See id.
Similarly, in United States v. Fitzhugh, 78 F.3d 1326 (8th
Cir. 1996), the Eighth Circuit upheld the application of the
two-level enhancement to an attorney defendant involved in
a conspiracy to defraud the Small Business Administration,
even though his client was not the victim. Id. at 1332. The
court noted the defendant’s “status as an attorney ‘shrouded
the [transactions] with a presumption of regularity, and thus
contributed significantly to facilitating the commission of the
fraud,’ and his offense ‘harmed the legal system he was
sworn to uphold.’” Id. at 1331–32 (quotations and alterations
in original). The concern expressed by the district court for
Christensen’s abuse of his obligation, as an officer of the
court, to the legal system itself is consistent with Goldman
and Fitzhugh and with our understanding of § 3B1.3.
To be sure, the fact that a defendant is also an attorney
would not by itself justify application of the enhancement. A
lawyer who robbed a bank on the side would likely not
qualify under § 3B1.3, because the guidelines require that the
position of trust be abused or the special skills be used “in a
manner that significantly facilitated the commission or
concealment of the offense.” But if that requirement is met,
the enhancement may apply. As we have concluded that the
UNITED STATES V. CHRISTENSEN 105
district court’s finding to that effect was not clearly
erroneous, we affirm its application of the enhancement in
calculating Christensen’s offense level under the Sentencing
Guidelines.
d. Harm not accounted for in the sentencing
guidelines
Christensen contends that the court abused its discretion
in imposing a three-level upward departure for substantial
harm not accounted for under the Guidelines. Imposing such
a departure, the district court explained:
There is no question that the base offense
level does not begin to account for the scope
of this particular crime, the invasion of the
attorney-client privilege, and the direct and
collateral damage to the justice system, as
well as the massive invasion of privacy it
represents. The Court finds a three level
upward departure is appropriate.
The court specifically cited Christensen’s “knowing and
deliberate efforts to obtain information protected by the
attorney-client privilege” and the “number of people who had
their privacy invaded.” The Sentencing Guidelines
themselves authorize such a departure, as the district court
noted. U.S.S.G. § 5K2.0(a)(2) (2001).
In imposing the upward departure, the court relied on an
application note appearing in the 2007 Guidelines Manual.
See U.S.S.G. § 2H3.1, cmt. n.3 (2007). The note stated that,
for cases “in which the offense level determined under this
guideline substantially understates the seriousness of the
106 UNITED STATES V. CHRISTENSEN
offense . . . an upward departure may be warranted.” Id. One
example so identified was a case in which “[t]he offense
caused or risked substantial non-monetary harm (e.g. [. . .] a
substantial invasion of privacy interest) to individuals whose
private or protected information was obtained.” Id.
Under 18 U.S.C. § 3553(b), a district court may depart
upward or downward from the range suggested by the
Guidelines calculations based on aggravating or mitigating
circumstances “not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines.” At
least since United States v. Booker, 543 U.S. 220 (2005),
which made the Sentencing Guidelines advisory rather than
mandatory, the district court’s broader authority to depart
from the Guidelines range has been clear. The ability to
depart is no longer limited to grounds held to have been
inadequately considered in the Guidelines. United States v.
Mitchell, 624 F.3d 1023, 1030 (9th Cir. 2010) (“[S]entencing
judges can reject any Sentencing Guideline, provided that the
sentence imposed is reasonable.”). Indeed, after determining
the advisory sentencing range, district courts are expected to
consider the factors specifically identified in 18 U.S.C.
§ 3553(a) before imposing a sentence and to depart above or
below the Guidelines range if appropriate. See Cunningham
v. California, 549 U.S. 270, 286–87 (2007) (noting
sentencing courts are “obliged” to consider the Guidelines
range as well as sentencing goals enumerated in § 3553(a)).
Although the parties argue at some length about the
appropriateness of the district court’s reliance on an
application note that was not added to the Sentencing
Guidelines until after the crime was committed, we do not
review any such departure for procedural correctness, as we
do upward and downward adjustments in calculating the total
UNITED STATES V. CHRISTENSEN 107
offense level under the Sentencing Guidelines. See United
States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011) (explaining
that decisions to depart from the Guidelines range are not
reviewed for procedural correctness). Instead, we consider
this upward departure as part of our review of a sentence’s
substantive reasonableness. See id.
e. Substantive reasonableness
When reviewing a criminal sentence for substantive
reasonableness, we apply an abuse of discretion standard.
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012)
(en banc). This standard “afford[s] significant deference to
a district court’s sentencing decision,” and “will provide
relief only in rare cases.” Id. at 1086, 1088. “‘[W]e may
reverse if, upon reviewing the record, we have a definite and
firm conviction that the district court committed a clear error
of judgment in the conclusion it reached upon weighing the
relevant factors.’” Id. at 1087 (quoting United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009)).
“The touchstone of ‘reasonableness’ is whether the record
as a whole reflects rational and meaningful consideration of
the factors enumerated in 18 U.S.C. § 3553(a).” Id. at 1089
(citation and internal quotation marks omitted). A district
court’s § 3553(a) determinations are owed significant
deference because “[t]he sentencing judge is in a superior
position to find facts and judge their import’” due to “greater
familiarity with[] the individual case and the individual
defendant before [her].” Gall v. United States, 552 U.S. 38,
51 (2007) (citations and internal quotations marks omitted).
This deference persists “[e]ven if we are certain that we
would have imposed a different sentence had we worn the
district judge’s robe.” United States v. Whitehead, 532 F.3d
108 UNITED STATES V. CHRISTENSEN
991, 993 (9th Cir. 2008) (citing Gall, 552 U.S. at 50); see
also Ressam, 679 F.3d at 1086; Carty, 520 F.3d at 993.
Christensen’s specific objection to the three-level upward
departure for substantial harm not accounted for under the
Guidelines, discussed immediately above, focused on the
district court’s reliance upon an application note to § 2H3.1,
quoted above. That note first appeared in the 2007
Guidelines Manual. U.S.S.G. Manual §2H3.1, n.3 (2007).
There was no such commentary in the 2001 Guidelines
Manual, which applied to Christensen’s offenses. But, as we
noted above, we do not review that departure for procedural
regularity. See Ellis, 641 F.3d at 421.
There is no challenge to the factual findings by the district
court that Christensen’s crimes represented “knowing and
deliberate efforts to obtain information protected by the
attorney-client privilege”and a “massive invasion of privacy.”
Concerns for the attorney-client privilege or for invasion of
privacy were not newly minted at a date after Christensen’s
offenses. The district court did not abuse its discretion or
impose a substantively unreasonable sentence by taking those
factors into account.
Christensen’s broader argument is that the court imposed
a substantively unreasonable sentence because it failed
properly to take into account his mitigating personal history
and good character. See Gall, 552 U.S. at 52 (“It has been
uniform . . . for the sentencing judge to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.”
(citation and internal quotation marks omitted)).
UNITED STATES V. CHRISTENSEN 109
The district court concluded that Christensen’s
background did not justify a downward variance because
Christensen was “not so different from hundreds of partners
in well-respected firms.” The record reflects rational and
meaningful consideration by the court of Christensen’s
§ 3553(a) arguments, as well as a familiarity with the
individual case and the individual defendant before the court.
The court bluntly stated its individualized assessment of
Christensen:
I heard five weeks of testimony, including
hours of absolutely astounding telephone
conversations between Mr. Christensen and
Mr. Pellicano. The manner in which Mr.
Christensen referred to other respected
members of the California Bar and the
complete disdain that he had for them and for
the law was shocking and outrageous. It
shows that there is another side to Mr.
Christensen than the one shown in the letters
I received [from Christensen’s friends and
family].
This is not a case in which we have “a definite and firm
conviction that the district court committed a clear error of
judgment” in the conclusion it reached upon weighing the
relevant factors, Ressam, 679 F.3d at 1086 (quotation marks
omitted), and as such, it is not one of the “rare cases” in
which we conclude that a sentence was substantively
unreasonable. Id. at 1088. Christensen’s sentence is
affirmed.
110 UNITED STATES V. CHRISTENSEN
2. Pellicano, Arneson, and Turner
As discussed above at 35–39, we vacate the computer
fraud and unauthorized computer access convictions of
Pellicano, Arneson, and Turner. Their other convictions
remain in place. Nonetheless, we vacate the sentences
imposed on them for the convictions that are affirmed.
“When a defendant is sentenced on multiple counts and
one of them is later vacated on appeal, the sentencing
package becomes ‘unbundled.’ The district court then has the
authority ‘to put together a new package reflecting its
considered judgment as to the punishment the defendant
deserve[d] for the crimes of which he [wa]s still convicted.’”
United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir.
2000) (quotations and alterations in original); see also United
States v. Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir.
2010).
As the government acknowledges, when we affirm some
counts of conviction and reverse or vacate others, it is our
customary practice to remand for resentencing. See United
States v. Lazarenko, 564 F.3d 1026, 1047 (9th Cir. 2009).
Though we might have the authority to leave the sentences on
the affirmed counts in place, see United States v. Evans-
Martinez, 611 F.3d 635, 645 (9th Cir. 2010), we do not
believe that a departure from our usual practice is appropriate
in this case. Accordingly, we vacate the sentences for these
three defendants and remand to the district court for
resentencing.
We decline to further address the additional challenges
presented by these defendants to the now-vacated sentences,
except to reject Pellicano’s argument that the matter should
UNITED STATES V. CHRISTENSEN 111
be assigned to a different judge for resentencing. Nothing in
the district judge’s comments or actions support that request
or Pellicano’s claim that the judge was predisposed against
him
I. RICO forfeiture
As part of their sentences, Pellicano, Turner, and Arneson
were ordered to forfeit $2,008,250, which represents the
proceeds they obtained from their RICO enterprise. The law
provides that a defendant convicted of a RICO offense “shall
forfeit to the United States . . . any property constituting, or
derived from, any proceeds which the person obtained,
directly or indirectly, from racketeering activity . . . .”
18 U.S.C. § 1963(a)(3).
Defendants argue that they had a right to a jury trial on
the forfeiture amount, that the district court used the incorrect
standard of proof in ordering forfeiture, that the district court
incorrectly calculated the forfeiture amount, and that liability
should not have been joint and several. We disagree with
these arguments and affirm.
We first address the argument that Defendants had the
right to have a jury decide the forfeiture amount. We review
de novo the interpretation of federal forfeiture law. United
States v. Newman, 659 F.3d 1235, 1239 n.2 (9th Cir. 2011).
We have held that there is no constitutional right to have a
jury decide forfeiture. United States v. Phillips, 704 F.3d 754,
769–70 (9th Cir. 2012) (citing Libretti v. United States,
516 U.S. 29, 49 (1995)). Similarly, we concluded that Federal
Rule of Criminal Procedure 32.2 does not require a jury
determination for forfeiture in the form of a personal money
112 UNITED STATES V. CHRISTENSEN
judgment, which is what the government obtained here. Id. at
771.
We next address the standard of proof for RICO
forfeiture. Forfeiture is an aspect of the sentence, not an
element of the underlying crime. Libretti, 516 U.S. at 38–39.
Accordingly, a district court or jury need only find facts
warranting forfeiture by a preponderance of the evidence.
United States v. Shryock, 342 F.3d 948, 991 (9th Cir. 2003)
(concluding that “statutorily-prescribed forfeiture is
constitutional when supported by the preponderance of the
evidence”); see also United States v. Fruchter, 411 F.3d 377,
383 (2d Cir. 2005); United States v. Najjar, 300 F.3d 466,
485–86 (4th Cir. 2002); United States v. DeFries, 129 F.3d
1293, 1312–13 (D.C. Cir. 1997). But see United States v.
Cherry, 330 F.3d 658, 669 n.18 (4th Cir. 2003). Rule 32.2’s
Committee Notes also support the preponderance standard for
forfeiture. Fed. R. Crim. P. 32.2, Committee Notes (2000)
(explaining that “the government must establish the
forfeitability of the property by a preponderance of the
evidence”). We thus conclude that the district court did not
err in using the preponderance of the evidence standard to
compute the forfeiture amount.
Defendants also argue that the district court improperly
calculated the amount to be forfeited. The district court
determined that PIA’s gross receipts, rather than its profits,
constituted the “proceeds” properly subject to forfeiture under
18 U.S.C. § 1963(a)(3). Accordingly, the court ordered
Defendants to forfeit “proved client payments” to Pellicano,
which amounted to $2,008,250. Arneson and Turner argue
that this was error.
UNITED STATES V. CHRISTENSEN 113
Some circuits have held that “proceeds” mean gross
receipts. United States v. Simmons, 154 F.3d 765, 770–71
(8th Cir. 1998); DeFries, 129 F.3d at 1313–14; United States
v. Hurley, 63 F.3d 1, 21 (1st Cir. 1995). Others have held that
“proceeds” refers to net profits. United States v. Genova,
333 F.3d 750, 761 (7th Cir. 2003) (explaining that proceeds
in § 1963(a)(3) means “profits net of the costs of the criminal
business”).
We agree with the view that “proceeds” in the RICO
forfeiture statute refers to gross receipts rather than net
profits. As the Eighth Circuit explained:
The legislative history of the 1984
amendments to RICO states that “the term
‘proceeds’ has been used in lieu of the term
‘profits’ in order to alleviate the unreasonable
burden on the government of proving net
profits. It should not be necessary for the
prosecutor to prove what the defendant’s
overhead expenses were.” . . . These
statements indicate that Congress meant the
word “proceeds” to be read more broadly than
merely “profits.” . . . In addition, Congress
has explicitly directed that RICO “shall be
liberally construed to effectuate its remedial
purposes.” . . . Reading the word “proceeds”
broadly has the benefit of punishing, through
RICO’s forfeiture provisions, all convicted
criminals who receive income from illegal
activity, and not merely those whose criminal
activity turns a profit.
114 UNITED STATES V. CHRISTENSEN
Simmons, 154 F.3d at 770–71 (citations omitted); see also
United States v. Peters, 732 F.3d 93, 99–102 (2d Cir. 2013)
(similarly concluding that the term “proceeds” in 18 U.S.C.
§ 982(a)(2), a criminal forfeiture statute, refers to “receipts”
rather than “profits”).
Arneson and Turner rely heavily on United States v.
Santos, 553 U.S. 507 (2008). Santos interpreted the term
“proceeds” in a money laundering statute.28 The issue was
whether payments to certain people, including lottery winners
and those who helped the defendant run an illegal gambling
enterprise, constituted money laundering. If “proceeds” in the
money laundering statute included gross receipts from the
illegal gambling enterprise, then payments to winners and the
people who helped run the enterprise would constitute money
laundering. If “proceeds” was limited to profits, such
payments would not. A plurality explained that the term
“proceeds” was ambiguous. Id. at 511–14. The rule of lenity
required that the term be construed in favor of the defendant
to mean “profits,” not gross receipts. Id. at 514–15.
28
The full statute, 18 U.S.C. § 1956(a)(1), reads as follows: “Whoever,
knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact involves the proceeds
of specified unlawful activity—(A)(i) with the intent to promote the
carrying on of specified unlawful activity . . . shall be sentenced to a fine
of not more than $500,000 or twice the value of the property involved in
the transaction, whichever is greater, or imprisonment for not more than
twenty years, or both” (emphasis added). After Santos, 18 U.S.C. § 1956
was amended to specifically define “proceeds” as “any property derived
from or obtained or retained . . . through some form of unlawful activity,
including the gross receipts of such activity.” Pub. L. No. 111-21, 123
Stat. 1617 (2009) (codified at 18 U.S.C. § 1956(c)(9)).
UNITED STATES V. CHRISTENSEN 115
Defendants argue that the reasoning of Santos compels
the same interpretation of “proceeds” in § 1963(a)(3). The
issue in Santos was quite different, however. The
interpretation of “proceeds” in Santos affected the scope of
criminal liability for money laundering, not the amount of
forfeiture.
The Second Circuit recently rejected a similar argument
based on Santos in interpreting the term “proceeds” in
18 U.S.C. § 982(a)(2), a statute imposing the forfeiture of
proceeds as part of the sentence for certain offenses. Peters,
732 F.3d at 98–99. Peters held that “proceeds” refers to the
forfeiture of gross receipts in § 982(a)(2). Id. at 101–02. The
court rejected the argument that Santos required otherwise.
Id. at 99–101. Under Marks v. United States, 430 U.S. 188,
193 (1977), Justice Stevens’s concurrence in Santos
controlled because he reached the result on the narrowest
ground, and, unlike the plurality, that concurrence held that
“proceeds” meant “receipts” in other contexts. Santos,
553 U.S. at 525; see also Peters, 732 F.3d at 100. As Peters
elaborated:
[A] key point of agreement among the
plurality and Justice Stevens was the desire to
avoid a “merger problem.”. . . In the context
of the illegal lottery at issue in Santos, the
plurality explained that “[i]f ‘proceeds’ meant
‘receipts,’ nearly every violation of the
illegal-lottery statute would also be a violation
of the money-laundering statute, because
paying a winning bettor is a transaction
involving receipts that the defendant intends
to promote the carrying on of the lottery.”
Santos, 553 U.S. at 515. Justice Stevens . . .
116 UNITED STATES V. CHRISTENSEN
agreed with the plurality that Congress could
not have intended violations of the
money-laundering statute to “merge” in this
way with violations of other statutes. Id. at
528 & n. 7.
By contrast, the criminal forfeiture statute
presents no merger issue. Unlike the
anti-money laundering statute, section
982(a)(2) is a form of punishment rather than
a substantive criminal offense. There is
therefore no risk of what Justice Stevens
called a “practical effect tantamount to double
jeopardy,” id. at 527, when section 982(a)(2)
captures funds essential to the commission of
one of its predicate offenses.
732 F.3d at 100; see also United States v. Van Alstyne,
584 F.3d 803, 814 (9th Cir. 2009) (explaining that “[o]nly the
desire to avoid a ‘merger problem’ united” the plurality and
Justice Stevens in Santos).
Peters’s reasoning is persuasive, and we adopt it. RICO
forfeiture is a form of punishment rather than a substantive
criminal offense. Defining proceeds as gross receipts in this
context presents no merger problem. When § 1963(a)(3)
requires forfeiture of proceeds obtained from racketeering
activity, such forfeiture does not create the problem that the
same conduct will give rise to two different crimes.
Finally, Arneson argues that the extent of the proceeds
from the racketeering activities was not foreseeable to him,
and therefore he should not have been held jointly and
UNITED STATES V. CHRISTENSEN 117
severally liable for the RICO forfeiture. We reject this
argument because it misstates the legal standard.
“So long as the sentencing court finds by a preponderance
of the evidence that the criminal conduct through which the
proceeds were made was foreseeable to the defendant, the
proceeds should form part of the forfeiture judgment.”
Fruchter, 411 F.3d at 384 (emphasis added) (citing United
States v. Edwards, 303 F.3d 606, 644 (5th Cir. 2002)).
Specific proceeds need not be foreseeable. Hence, where a
defendant was “aware of the scope of the racketeering
enterprise, its proceeds were necessarily foreseeable to him.”
Id. As discussed above, at 23–27, the evidence amply
established that Arneson and Turner knew about the essential
nature of the RICO enterprise. Joint and several liability was
therefore appropriate. Simmons, 154 F.3d at 769–70
(“Codefendants are properly held jointly and severally liable
for the proceeds of a RICO enterprise. . . . The government is
not required to prove the specific portion of proceeds for
which each defendant is responsible.”).
The district court did not err in ordering RICO forfeiture
in this case. We affirm on this issue.
IV. Conclusion
The district court handled this challenging case
admirably. Based on developments in the law subsequent to
the trial, we vacate Turner’s conviction for aiding and
abetting computer fraud, Arneson’s convictions for computer
fraud and unauthorized computer access, and Pellicano’s
convictions for aiding and abetting both computer fraud and
unauthorized computer access. Those defendants’ other
convictions are affirmed, but their sentences are vacated.
118 UNITED STATES V. CHRISTENSEN
Their cases are remanded for further proceedings, including
resentencing on the convictions that stand. The convictions
of Christensen and Kachikian are affirmed, and so are the
sentences imposed on them. We vacate Nicherie’s conviction
for aiding and abetting a wire interception, and remand for
further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.
CHRISTENSEN, Chief District Judge, concurring in part and
dissenting in part:
Although I concur in most of the majority opinion, I
dissent from the portion of the majority opinion affirming the
dismissal of Juror 7 in the second trial involving defendants
Christensen and Pellicano. Majority op. at 77–96. The
district court erred by dismissing Juror 7 based on a
determination that Juror 7 was not credible and had lied to the
court on an unrelated issue concerning his views on federal
tax laws.
Shortly after one hour of deliberations following a 21-day
trial, the district court received a confusing note in the
handwriting of at least two, and perhaps three of the jurors,
which led the court into protracted and tangential interviews
of first, Juror 7, followed by interviews of Jurors 1 (the
foreperson), 9, 3, 2, and 11, focused on the issue of whether
Juror 7 had lied to the district court. At no point during the
interview with Juror 7 did the court ask what would have
been the most appropriate question, which was whether he
could follow the law as instructed by the court. I would
UNITED STATES V. CHRISTENSEN 119
reverse because Juror 7’s statements regarding his views on
the evidence demonstrate “a reasonable possibility that the
impetus for [his] dismissal stem[med] from [his] views on the
merits of the case.” United States v. Symington, 195 F.3d
1080, 1087 (9th Cir. 1999). No other juror refuted Juror 7’s
statements that he was simply unpersuaded by the evidence,
and these statements are far more relevant to the proper
inquiry than his purported views on federal tax law.
It is disconcerting to a trial judge to receive a note from
a juror, or jurors, in the course of the jury’s deliberations
following a lengthy trial, other than one advising that the jury
has reached a verdict. A juror note requires the trial judge to
consult with counsel and to craft a narrow and concise
response. When taking the rare act of dismissing a juror, the
trial court must safeguard the secrecy of jury deliberations,
and steadfastly protect against the dismissal of a juror based
on the juror’s doubts about the guilt of a criminal defendant.
It is only when the juror discloses an intent to purposefully
disregard the court’s instructions on the law, or commits
some other recognized form of misconduct, that the juror
must be dismissed. If the evidence in the record supports the
possibility that the juror’s views on the merits of the case are
motivated by doubts regarding the guilt of the defendant,
rather than a clearly manifested intent to disregard and nullify
the law, then that juror must not be dismissed. United States
v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997). To do
otherwise violates a defendant’s Sixth Amendment right to a
unanimous jury verdict. Symington, 195 F.3d at 1085. In this
case, when interviewed by the district court, Juror 7 was
never asked whether he could follow the court’s instructions
on the law or engage in deliberations. And, in fact, during the
course of his interview, Juror 7 indicated that he had concerns
120 UNITED STATES V. CHRISTENSEN
regarding the strength of the government’s case against the
defendants. It was clear error to dismiss Juror 7.
Federal Rule of Criminal Procedure 23(b) provides that a
juror may be dismissed during deliberations for good cause.
“Good cause” includes juror illness, juror misconduct, juror
nullification, an inability to communicate, or an inability to
be fair and impartial, among other reasons. See Symington,
195 F.3d at 1085; Merced v. McGrath, 426 F.3d 1076,
1079–81 (9th Cir. 2005).
When a jury seeks the removal of one juror, the court
faces the difficult task of determining whether the requested
removal stems from a disagreement on the merits of the case.
Symington, 195 F.3d at 1086. The court’s investigative
powers in this circumstance are limited in order to maintain
the secrecy of jury deliberations and avoid jeopardizing “the
integrity of the deliberative process.” Id. The court’s inquiry
must not expose the content of jury deliberations. Id.
Recognizing this dilemma, this Court has held that “if the
record evidence discloses any reasonable possibility that the
impetus for a juror’s dismissal stems from the juror’s views
on the merits of the case, the court must not dismiss the
juror.” Id. The trial judge must either send the jury back to
continue deliberating or declare a mistrial. Id.
In such circumstances, a court’s circumscribed inquiry, as
the district court here concluded, should focus on “whether
[the juror] is willing to follow the law and whether he is
willing to deliberate.” The district court in this case,
however, strayed from this focus during its interviews, which
included interviews of Juror 7 and five other jurors.
Importantly, in interviewing Juror 7, the district court never
asked whether Juror 7 could follow the law or whether he was
UNITED STATES V. CHRISTENSEN 121
willing to deliberate — it only asked for confirmation of the
accusations in the jury notes. Moreover, during the court’s
questioning of Juror 7, he denied making the statements
attributed to him in the jury notes as follows:
C “Well, I didn’t say if the Government can wiretap, then he
can, whoever ‘he’ referred to. He wrote that note
probably based on anger and emotions towards me.”
C “He was angry because I disagreed with the majority of
the jurors.”
C When specifically asked if he said that he did not agree
with wiretapping law, Juror 7 responded “No, I didn’t say
that. I said that I cannot agree to judge my decision on
circumstantial evidence.”
C When asked whether he said the law did not require him
to pay federal taxes, he said “I don’t recall that. At all.
That doesn’t make sense to me. I couldn’t answer to
specific questions of wiretapping with the federal
taxes. . . . I didn’t say anything about taxes.”
At this point, based on Juror 7’s responses to the district
court’s questions and the various notes that precipitated the
questioning, it was apparent that Juror 7 had problems with
the strength of the government’s case against the defendants
and that he “disagreed with the majority of the jurors” about
the merits of the government’s case. Symington is clear that
under such circumstances, the district court should have
instructed Juror 7 to return to the jury room and continue with
deliberations, or else simply declare a mistrial. Symington,
195 F.3d at 1086. Because deliberations were at such an
early stage, where the likelihood for miscommunication
122 UNITED STATES V. CHRISTENSEN
between jurors was at its highest and the opportunity for
consensus building was at its lowest, instructing the jury to
continue with deliberations was the appropriate course, if not
the required one.
The district court should not have proceeded to interview
Jurors 1, 9, 3, 2 and 11. This Court has emphasized that
“juror privacy is a prerequisite of free debate, without which
the decisionmaking process would be crippled.” Id.
Accordingly, this Court has cautioned that a trial judge’s
limited role in investigating alleged juror misconduct “must
not compromise the secrecy of jury deliberations.” Id. The
district court’s interviews here, of five additional jurors,
certainly compromised the secrecy of the jury deliberations.
But, to the extent the district court here felt it was necessary
to inquire of the other jurors, then the focus of that inquiry
should have been extremely narrow and directed to whether
Juror 7 could follow the law and whether he was willing to
deliberate. Instead, the district court’s extensive inquiries of
the five additional jurors focused on whether Juror 7 had
truthfully answered the court’s questions about his alleged
statements regarding the federal tax law during deliberations.
This turned what should have been a narrow investigation
into a sideshow. Moreover, the record makes clear that the
questioned jurors’ answers to the court’s inquiries were
rooted, at least potentially, in their disagreement with Juror 7
about his assessment of the merits of the government’s case.
The majority discusses juror nullification law at length,
but fails to point to any solid evidence in the record
demonstrating that Juror 7 was engaging in nullification. The
district court had every opportunity to ask Juror 7 if he was
willing to follow the law, despite any disagreement with it,
but that did not occur. While a direct question as to whether
UNITED STATES V. CHRISTENSEN 123
a juror is willing to follow the law is not always dispositive,
Murphy v. Florida, 421 U.S. 794, 800 (1975), it is a
necessary starting point before a judge may take the rare step
of dismissing a juror at the bidding of other jurors who
disagree with the subject juror about the merits of the case.
To overcome the jury system’s “crucial assumption,” Parker
v. Randolph, 442 U.S. 62, 73 (1979) (Rehnquist, J.), that a
qualified juror will follow the law, the judge must have some
solid evidence of juror nullification.1 The district court here
failed to ask the most relevant question and thus failed to
obtain any direct evidence of jury nullification. Instead, the
district court determined that Juror 7 would not follow the
law because it determined that he was “not credible”: “Juror
No. 7 is not credible and that is why I reach my conclusion
about his refusal to follow the law.” This Court’s precedent
does not allow for juror dismissal based on a vague finding
about a juror’s general “credibility.” That obvious error alone
is worthy of reversal.
The district court likewise concluded, “Juror No. 7 has
lied to the Court. That is an independent grounds for
excusing him.” This finding also constitutes clear error
because, as the court acknowledged in denying a motion for
a new trial, “even an intentionally dishonest answer [during
voir dire] is not fatal, so long as the falsehood does not
bespeak a lack of impartiality.” Dyer v. Calderon, 151 F.3d
970, 973 (9th Cir. 1998). The majority cites United States v.
Vartanian, 476 F.3d 1095, 1098–99 (9th Cir. 2007) for the
proposition that a district court may properly dismiss a juror
based on its determination that a juror had been untruthful
1
It is important to remember that prior to being selected to serve on the
jury, Juror 7 was subjected to voir dire questioning, the parties’
peremptory challenge, and had survived any challenges for cause.
124 UNITED STATES V. CHRISTENSEN
about his or her potential biases. I do not read Vartanian to
stand for this broad proposition of law. The juror in
Vartanian was properly dismissed for “her misconduct
outside of the jury deliberation room,” including multiple
improper contacts with “members of the defendant’s family,
defense counsel, and apparently even the defendant himself,”
which, when questioned about by the trial judge, she lied
about. Vartanian, 476 F.3d at 1098–99. Dishonesty during
voir dire is only relevant when it “bespeak[s] a lack of
impartiality.” Dyer, 151 F.3d at 973. Here, even assuming
Juror 7 lied about the federal tax statement, rather than failing
to recall saying it as he stated during the questioning by the
court, this falsehood does not necessarily bespeak a lack of
impartiality. His view on federal tax law is not indicative of
whether he would follow the wiretapping law as instructed by
the court, nor does it indicate that Juror 7 was anti-
government.
Even considering the court’s conclusion that Juror 7 was
not credible, the record supports a reasonable possibility that
Juror 7 was a holdout ganged up on by his fellow jurors who
disagreed with his views regarding the sufficiency of the
evidence. When the court asked Juror 7 whether he made the
statements attributed to him by the jury notes, he denied
making them, and said that the other jurors were angry with
him because he disagreed with them. He then stated that he
could not base his decision on circumstantial evidence. These
answers raised a reasonable possibility that the impetus for
the other jurors to have him dismissed stemmed from his
views on the merits of the case. No statements from the other
jurors refute Juror 7’s statements. Indeed, the record supports
the assertion. At one point, Juror 1 (the foreperson) began
discussing how his views on the evidence differed with Juror
7’s: “[Juror 7] stated that if the federal government charges
UNITED STATES V. CHRISTENSEN 125
someone, they’re innocent, and he was—won’t accept—I
can’t talk about evidence.” Juror 1 also volunteered “[w]e are
all unanimous on it in there. We have taken a vote . . . .”2
The jury notes similarly indicated that the other jurors
disagreed with Juror 7’s assessment of the merits of the case.
One note specifically alleged that Juror 7 was “ANTI-
government,” and another note indicated that problems
stemmed from Juror 7’s “need” for more evidence. In light
of all of this, the majority’s conclusion that “[a]ll of the
concerns expressed by the other jurors related to the views of
Juror 7 on the law, not the evidence” is not persuasive.
Ultimately, as in Symington, the evidence does not “support
any high degree of certainty as to the underlying motive” for
the jury’s request to dismiss Juror 7, Symington, 195 F.3d at
1088, n.7, but it is under just such uncertain circumstances
that dismissal of a juror is improper.
Contrary to the majority’s assertion, the speed with which
the jury sent out its first note is certainly not clear evidence
that Juror 7 was engaging in nullification. It is just as likely
that Juror 7 was adamantly stating his view that the
government’s evidence was insufficient for a conviction as it
is that he was expressing an unwillingness to follow the law,
or that Juror 7 was simply taken to flights of hyperbole when
encountering hostility to his skepticism about the merits of
the government’s case. Likewise, if we are to engage in
speculation, it is certainly possible that a vocal few were
impatient after a long trial and were trying to force a
conviction without a full discussion of the evidence. As this
Court has pointed out previously, it is not for the judge to
2
This statement was a clear violation of the court’s instruction and
would alone have been a sufficient basis to declare a mistrial. Symington,
195 F.3d at 1085–87.
126 UNITED STATES V. CHRISTENSEN
inquire or speculate what is going on in the jury room. That
is why it was so important for the district court to ask Juror 7
if he was willing to follow the wiretapping law and willing to
engage in deliberations with his fellow jurors.
Without that key information, this Court is forced to make
baseless assumptions founded on things like the length of
deliberations and the fact that the jury convicted once Juror
7 was replaced. I do not believe such conjecture is
appropriate when a simple alternative exists—asking the juror
if he or she will deliberate and follow the law. The district
court’s failure to do so here violated the Defendants’ Sixth
Amendment right to a unanimous and impartial jury. This
right is too important to allow removal of a juror based on
insufficient questioning and baseless assumptions. The worst
thing that could have happened here is that Juror 7 would
have remained steadfast in his view that the government had
failed to prove its case, resulting in a hung jury and mistrial,
a not infrequent result that ensures a defendant’s rights under
the Sixth Amendment.
The district court confronted an unusual and difficult
situation. A couple of vocal and insistent jurors were
obviously unhappy with the concerns that Juror 7 expressed
concerning the government’s case, and set about the effort of
getting him removed from the jury so that their desire to
quickly convict the defendants could be accomplished. The
district court was drawn into this effort, and abused its
discretion in removing Juror 7 for reasons unrelated to his
ability to follow the law or willingness to deliberate. Having
succeeded in getting rid of one juror, the chilling effect on the
deliberations of the remaining jurors would be manifest. For
that reason, I dissent from the majority opinion. The
UNITED STATES V. CHRISTENSEN 127
convictions of defendants Christensen and Pellicano in the
second trial should be reversed and their sentences vacated.