United States v. Christensen, 070816 FED9, 08-50531

Docket Nº:08-50531, 08-50570, 09-50115, 09-50125, 09-50128, 09-50159, 10-50434, 10-50462, 10-50464, 10-50472
Opinion Judge:CLIFTON, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRY CHRISTENSEN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY PELLICANO, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK ARNESON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAYFORD EARL TURNER, AKA Seal B, ...
Attorney: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...
Judge Panel:Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Dana L. Christensen, Chief District Judge. CHRISTENSEN, Chief District Judge, concurring in part and dissenting in part:
Case Date:July 08, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TERRY CHRISTENSEN, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANTHONY PELLICANO, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARK ARNESON, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RAYFORD EARL TURNER, AKA Seal B, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ABNER NICHERIE, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KEVIN KACHIKIAN, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RAYFORD EARL TURNER, AKA Seal B, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARK ARNESON, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANTHONY PELLICANO, AKA Seal A, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TERRY CHRISTENSEN, Defendant-Appellant.

Nos. 08-50531, 08-50570, 09-50115, 09-50125, 09-50128, 09-50159, 10-50434, 10-50462, 10-50464, 10-50472

United States Court of Appeals, Ninth Circuit

July 8, 2016

Argued and Submitted November 4, 2013-Pasadena, California

Amended July 8, 2016

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding D.C. Nos. 2:05-cr-01046-DSF-8, 2:05-cr-01046-DSF-1, 2:05-cr-01046-DSF-7, 2:05-cr-01046- DSF-2, 2:05-cr-01046- DSF-6, 2:05-cr-01046- DSF-3

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.

Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Dana L. Christensen, Chief District Judge. [*]

ORDER AND AMENDED OPINION

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 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. 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 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.

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" 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...

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