United States v. Christensen, Nos. 08–50531

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CLIFTON, Circuit Judge
• Citation: 801 F.3d 970
• Parties: 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.
• Decision Date: 25 August 2015
• Docket Number: 10–50462,10–50434,08–50570,09–50159,09–50128,09–50125,10–50464,10–50472.,09–50115,Nos. 08–50531

801 F.3d 970

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.

Argued and Submitted Nov. 4, 2013.
Filed Aug. 25, 2015.

801 F.3d 980

Seth M. Hufstedler (argued), Dan Marmalefsky (argued), and Benjamin J. Fox, Morrison & Foerster LLP, Los Angeles, CA, for Defendant–Appellant Terry Christensen.

Steven F. Gruel (argued), San Francisco, CA, for Defendant–Appellant Anthony Pellicano.

Chad S. Hummel (argued) and Emil Petrossian, Manatt, Phelps & Phillips LLP, Becky Walker James, Los Angeles, CA, for Defendant–Appellant Mark Arneson.

Karen L. Landau (argued), Oakland, CA, for Defendant–Appellant Rayford Lee Turner.

Katherine Kimball Windsor (argued), Pasadena, CA, for Defendant–Appellant Abner Nicherie.

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, CA, 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.

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 and 2:05–cr–01046–DSF–3.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and DANA L. CHRISTENSEN, Chief District Judge.^*

Opinion by Judge CLIFTON ; Partial Concurrence and Partial Dissent by Chief District Judge 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.

801 F.3d 981

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 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 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.

801 F.3d 982

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 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, bribery, identity theft, and obstruction of justice.” The predicate acts included bribery,...