United States v. Christensen

828 F.3d 763

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.

No. 08-50531

No. 08-50570

No. 09-50115

No. 09-50125

No. 09-50128

No. 09-50159

No. 10-50434

No. 10-50462

No. 10-50464

No. 10-50472

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2013—Pasadena, California

Filed August 25, 2015

Amended July 8, 2016

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.^**

Partial Concurrence and Partial Dissent by Chief District Judge 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” 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, 121 S.Ct. 1753, 149 L.Ed.2d 787, 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, 121 S.Ct. 1753 (Rehnquist, C.J., dissenting).

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).

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.

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, 121 S.Ct. 1753. 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, 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 .

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 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...