RIco Motion Number 2

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 1 of 1057
Nos. 08-50531, 08-50570, 09-50115, 09-50125, 09-50128,

09-50159, 10-50434, 10-50462, 10-50464 & 10-50472
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY CHRISTENSEN et al.,
Defendants-Appellants.
GOVERNMENTS CONSOLIDATED ANSWERING BRIEF
APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
ANDR BIROTTE JR.
United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
KEVIN M. LALLY
JOSHUA A. KLEIN
Assistant United States Attorneys
1200 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-2434
Facsimile: (213) 894-0141
Attorneys for Plaintiff-Appellee
UNITED STATES OF AMERICA
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES
. . . . . . . . . . . . . . . . . . . . xxv
I.
. . . . . . . . . . . . . . . . . . . . . 1
II.
ISSUES PRESENTED
STATEMENT OF THE CASE
. . . . . . . . . . . . . . . . . . 5
A.
NATURE OF THE CASE, COURSE OF THE PROCEEDINGS,

AND DISPOSITION IN THE DISTRICT COURT . . . . . . . . 5
B.
JURISDICTION, TIMELINESS, AND BAIL STATUS . . . . .
10
III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . .
12
A.
THE FIRST TRIAL . . . . . . . . . . . . . . . . . .
12
1.
RICO/Computer Information Counts . . . . . . .
13
a.
Anthony Pellicano . . . . . . . . . . . .
13
b.
Mark Arneson
14
c.
2.
3.
. . . . . . . . . . . . . .
(1)
The Governments Case
. . . . . . .
14
(2)
Arnesons Testimony and Crossexamination . . . . . . . . . . . .
26
Rayford Turner
. . . . . . . . . . . . .
40
Wiretapping Counts . . . . . . . . . . . . . .
44
a.
Anthony Pellicano . . . . . . . . . . . .
44
b.
Rayford Turner
. . . . . . . . . . . . .
52
c.
Kevin Kachikian . . . . . . . . . . . . .
56
d.
Abner Nicherie
. . . . . . . . . . . . .
64
The Pellicano Enterprise in Action -A Case Study . . . . . . . . . . . . . . . . .
65
TABLE OF CONTENTS (Continued)

PAGE
B.
THE SECOND TRIAL
68
1.
Implementation of the Wiretap
. . . . . . . .
70
2.
Intercepted Communications Relating

to the Simon Mediation . . . . . . . . . . . .
85
Termination of the Wiretap . . . . . . . . . .
95
3.
IV.
. . . . . . . . . . . . . . . . .
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 105
A.
PELLICANOS AND CHRISTENSENS CHALLENGES

TO THE SEARCH WARRANTS FAIL . . . . . . . . . . . . 105
1.
Factual Background . . . . . . . . . . . . . . 107

a.
Warrants and Searches . . . . . . . . . . 108

(1)
The November 2002 Warrant

and Search . . . . . . . . . . . . . 108
(2)
The January 2003 Warrant . . . . . . 109
(3)
The July 2003 Warrant
. . . . . . . 111
b.
The District Court and This Court

Uphold the November 2002 Warrant
in Pellicanos 2002 Case . . . . . . . . 114
c.
The District Courts Rejection of

Defendants Challenges to the
November 2002 Warrant in This Case
. . . 120
d.
The District Courts Rejection of

DefendantsSpecificity and
Overbreadth Challenges to the
July 2003 Warrant . . . . . . . . . . . . 127
e.
Pellicanos State-Court Conviction

for Threatening Busch . . . . . . . . . . 130
ii

PAGE
2.
Defendants Challenges to the November 2002

Warrant and Search Are Barred by Lack of
Standing and by Collateral Estoppel . . . . . 130
a.
Christensen Has No Standing to Protest

the Search of Pellicanos Office . . . . 131
(1)
Standard of Review . . . . . . . . . 131
(2)
Christensens Appeal Should Be Denied

Under Caymen and Wardlow Because He
Failed To Meet His Burden . . . . . 132
(3)
Christensen Cannot Turn His Ethical

Duties Toward Kerkorian Into a
Shield for His Misconduct at PIA . . 134
b.
Pellicano Cannot Relitigate the Validity

of the November 2002 Search and Warrant,
After Losing His Prior Appeal . . . . . . 144
c.
Evaluated on the Merits, the

November 2002 Warrant and Search
Were Constitutional . . . . . . . . . . . 151
(1)
The Supreme Courts Later Scheidler

Decision Does Not Affect the Agents
Earlier Good-Faith Reliance on the
Magistrates Probable Cause
Finding . . . . . . . . . . . . . . 152
(a)
Standard of Review
(b)
The Agents Were

Entitled to Rely
on the Magistrates
Probable Cause Finding
Under Leon . . . . . . . . . . 152
iii
. . . . . . 152

PAGE
(i)
As Multiple Court Have

Found, the Law on the Hobbs
Acts Obtaining Element
Was Unclear Before
Scheidler . . . . . . . . 154
(ii) Christensens Contrary

Arguments Are Meritless
. 162
(iii)Any Error in the Warrant

Was Harmless . . . . . . . 163
(2)
The District Court Properly Denied

Defendants Request for a Franks
Hearing . . . . . . . . . . . . . . 165
(a)
Standard for Franks Hearing

and Standard of Review on
Appeal . . . . . . . . . . . . 165
(b)
None of Defendants Complaints

Establishes Intentional or
Reckless Dishonesty, and None
Was Material to Probable
Cause . . . . . . . . . . . . . 167
(i)
The District Court Did Not

Clearly Err in Its
Determination that the
Challenged Statement Would
Not Have Altered Probable
Cause . . . . . . . . . . 167
(ii) The District Court Did Not

Clearly Err in Finding that
Ornellas Did Not
Intentionally or Recklessly
Mislead the Magistrate . . 175
(iii)Defendants Claims of
Misstatements and
Omissions Are Not
Substantiated . . . . . . 178
iv

PAGE
d.
B.
The July 2003 Warrant Was Neither

Overboard Nor Unparticular . . . . . . . 185
(1)
The Warrants Structure Defined and

Narrowed the Scope of Seizable
Items . . . . . . . . . . . . . . . 187
(2)
The Warrant Was Sufficiently

Particular . . . . . . . . . . . . . 189
(3)
The Warrant Was Not Overbroad
(4)
Even If the Warrants Were Overbroad

or Insufficiently Particular,
Suppression Is Improper Because the
Agents Relied on the Magistrates
Judgment in Good Faith and Because
Any Overbreadth Was Harmless . . . . 198
(5)
Any Overbreadth Was Harmless . . . . 205
. . . 193
THE COURT NEITHER CLEARLY ERRED IN DECLINING

TO SUPPRESS PELLICANOS RECORDINGS OF HIS
CONVERSATIONS WITH CHRISTENSEN NOR ABUSED ITS
DISCRETION IN DENYING AN EVIDENTIARY HEARING
ON THE ISSUE . . . . . . . . . . . . . . . . . . . 208
1.
Standard of Review
2.
The Court Properly Placed the Burden

on Christensen to Establish Pellicanos
Purpose by a Preponderance of the
Evidence . . . . . . . . . . . . . . . . 211
3.
This Courts Rejection of Christensens

Record-Keeping Theory in McTiernan
Requires Affirmance Here . . . . . . . . 214
4.
McTiernan Also Requires Rejection of

Christensens Evidentiary Hearing
Request . . . . . . . . . . . . . . . . . 216
. . . . . . . . . . . 210
C.
PAGE
THE DISTRICT COURT CORRECTLY FOUND
CHRISTENSENS RECORDED CONVERSATIONS WITH
PELLICANO TO BE UNPRIVILEGED . . . . . . . . . . . 217
1.
2.
3.

a.
The Governments Original Motion
. . . . 219
b.
Court Orders and Litigation . . . . . . . 227
Christensen Failed His Burden To Claim Privilege

with Specificity . . . . . . . . . . . . . . . 237
a.
Christensens Blanket Assertion of

Privilege Was Insufficient Under Ninth
Circuit Law . . . . . . . . . . . . . . . 237
b.
Christensen Failed to Establish the

Elements of the Attorney-Client
Privilege . . . . . . . . . . . . . . . . 239
c.
Christensen Failed To Establish the

Elements of the Work-Product Privilege
and Did Not Defeat the Governments
Overwhelming Need for the Material . . . 246
The Trial Courts Ultimate Zolin Process

Correctly Found that the Crime-Fraud Exception
Applied . . . . . . . . . . . . . . . . . . . 253
a.
Standard of Review
b.
The Trial Courts Step One Ruling Correctly

Found, Based on Facts Separate from the
Contested Communications, that the CrimeFraud Exception Could Apply . . . . . . . 256
c.
The District Court, After Reviewing the

Recordings In Camera, Correctly Found that
the Crime-Fraud Exception Applied, Since
the Calls Were Replete with Evidence that
Christensen Had Hired Pellicano to Commit
Illegal Wiretapping . . . . . . . . . . . 264
vi
. . . . . . . . . . . 254

PAGE
d.
D.
The District Courts Earlier Ruling Did

Not Irrevocably Taint Its Later Rulings
Applying the Correct Zolin Analysis . . . 277
NO BASIS EXISTS FOR DISMISSING THE INDICTMENT . . . 286

1.
Standard of Review . . . . . . . . . . . . . . 288
2.
An Indictment May Be Dismissed for Outrageous

Government Conduct Only If the Defendant
Establishes Conduct So Grossly Shocking and So
Outrageous as to Violate the Universal Sense of
Justice . . . . . . . . . . . . . . . . . . . 289
3.
A Defendants Burden to Establish Entitlement

to Dismissal Under a Courts Supervisory
Powers Is Almost Equally as Stringent . . . . 293
4.
Pellicanos Withdrawn Massiah Claim Failed to

Establish Misconduct -- Much Less Grave
Misconduct Warranting Dismissal . . . . . . . 295
5.
a.
Pellicanos Massiah Claim Is Waived . . . 297
b.
Even if Not Waived, Pellicanos Massiah

Claim Is Meritless . . . . . . . . . . . 299
(1)
The Alleged Massiah Violation
. . . 299
(2)
Pellicanos Withdrawn Massiah Claim

Is Meritless . . . . . . . . . . . . 302
Pellicano Has Not and Cannot Establish That the

Indictment Should Be Dismissed Based upon SA
Ornellas Having Once Provided Arneson with a
Legitimate Lead Regarding Possible Drug Dealing
in Arnesons LAPD Division
. . . . . . . . . 309
a.
The Alleged Misconduct
b.
Pellicano Waived this Claim . . . . . . . 312
vii
. . . . . . . . . 309

PAGE
c.
6.
E.
F.
Pellicanos Claim Has No Basis in Fact

or Law . . . . . . . . . . . . . . . . . 312
Pellicano Has Not and Cannot Show That He Was

the Subject of Vindictive Prosecution . . . . 316
a.
. . . . . . . . . 316
b.
Pellicano Waived this Claim . . . . . . . 317
c.
Pellicanos Vindictive Prosecution Claim

Has No Basis in Fact or Law . . . . . . . 318
7.
Pellicano Has Not Shown and Cannot Show That the

Indictment Should Be Dismissed Due to Alleged
Brady Violations . . . . . . . . . . . . . . . 327
8.
There Is No Basis to Dismiss the Indictment on

Cumulative Error
. . . . . . . . . . . . . . 328
THE DISTRICT COURT DID NOT ERR IN DECLINING TO

DISMISS THE IDENTITY THEFT COUNTS BECAUSE MEANS OF
IDENTIFICATION IS STATUTORILY DEFINED TO INCLUDE
NAMES AND TELEPHONE NUMBERS
. . . . . . . . . . . 329
1.
Standard of Review
. . . . . . . . . . . 330
2.
The Plain Statutory Language Defines

Means of Identification to Include
Both Names and Telephone Numbers . . . . 330
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

DENYING DEFENDANTS MOTION FOR SEVERANCE . . . . . 336
. . . . . . . . . . . 337
1.
Standard of Review
2.
The District Court Did Not Abuse Its

Discretion in Denying Severance and
Holding a Joint Trial . . . . . . . . . . 337
viii

PAGE
G.
THE RACKETEERING ACTS ALLEGING THE GIVING AND

RECEIVING OF BRIBES IN VIOLATION OF CALIFORNIA
PENAL CODE 67 AND 68 WERE TIMELY . . . . . . . . 343
1.
Standard of Review
2.
Bribery as Charged in the Indictments
3.
The Fifth Superseding Indictment, Which

Included Racketeering Acts 70-89, Was Timely . 353
4.
H.
. . . . . . . . . . . . . 345
. . . . 346
a.
The Applicable Statute of Limitations . . 353
b.
The Fifth Superseding Indictment Was

Brought Within 18 U.S.C. 3288s
Six-Month Savings Period . . . . . . . . 354
c.
The Fifth Superseding Indictments

Inclusion of Racketeering Acts 70-89
Also Was Timely Under the Relation
Back Doctrine
. . . . . . . . . . . . . 360
The Jurys Verdict Moots the Statute of

Limitations Claim . . . . . . . . . . . . . . 369
THE TRIAL EVIDENCE WAS SUFFICIENT TO SUPPORT

EACH COUNT OF CONVICTION . . . . . . . . . . . . . 372
1.
2.
The Evidence Was Sufficient to Establish the

Enterprise Element for the RICO and RICO
Conspiracy Charges . . . . . . . . . . . . . . 374
a.
Title 18, United States Code,

Section 1962(c) . . . . . . . . . . . . . 374
(1)
b.
The Enterprise Element . . . . . . . 375
Title 18, United States Code,

Section 1962(d) . . . . . . . . . . . . . 379
ix

PAGE
c.
3.
4.
The Enterprise as Proved
. . . . . . . . 381
The Evidence Was Sufficient to Support the

Jurys Findings that Pellicano Paid, and
Arneson Accepted, the Ten Bribes Set Forth in
Racketeering Acts 70-89 in Violation of Penal
Code 67 and 68 . . . . . . . . . . . . . . 404
a.
California Law Governs the Sufficiency

Determination . . . . . . . . . . . . . . 407
b.
Penal Code 67 and 68 . . . . . . . . . 407
c.
The Statutory and Professional

Restrictions Designed to Protect the
Confidentiality of Information
Maintained in Law Enforcement Databases . 412
(1)
The Statutory Framework
(2)
Lapd-imposed Restrictions
. . . . . . 412
. . . . . 417
d.
The Trial Evidence
. . . . . . . . . . . 420
e.

Jurys Findings as to Racketeering
Acts 70-79 . . . . . . . . . . . . . . . 429
f.

Jurys Findings as to Raketeering
Acts 80-89 . . . . . . . . . . . . . . . 442
The Jurys Findings as to the Racketeering Acts

and Substantive Counts That Alleged Honest
Services Fraud Should Be Affirmed . . . . . . 459
a.

Jurys 1346 Findings . . . . . . . . . 459
(1)
Skilling Does Not Alter the

Sufficiency Determination . . . . . 462

PAGE
(2)
b.
5.
Arnesons Conduct Constitutes

Bribery Within 1346s Scope PostSkilling . . . . . . . . . . . . . . 464
The Jury Instructions Do Not Affect the

Validity of the Jurys 1346 Findings . 481
(1)
Standard of Review . . . . . . . . . 483
(2)
Pellicanos and Arnesons Substantial

Rights Were Not Affected Because the
Skilling Error Was Not Prejudicial . 484
(a)
Skilling Instructional Error
. 485
(b)
The Jurys Bribery Findings

Establish the Harmlessness of
The Skilling Error . . . . . . 487
(c)
The Record Further Establishes

the Lack of Prejudice from the
Skilling Error . . . . . . . . 488
(d)
Arneson Waived Any Claim to a

Good Faith Instruction, Which
Was Unwarranted Anyway . . . . 496
The RICO Counts Should Stand Even If Some of

the Predicate Acts Are Insufficient . . . . . 502
a.
Standard of Review
b.
The Requisite Pattern of Racketeering

Exists . . . . . . . . . . . . . . . . . 503
c.
. . . . . . . . . . . 502
(1)
Substantive RICO charge
(2)
RICO conspiracy
. . . . . . 503
. . . . . . . . . . 504
Defendants Have Failed To Show Spillover

Prejudice From Any Dismissed Racketeering
Acts . . . . . . . . . . . . . . . . . . 506
xi

PAGE
I.
THE RICO AND RICO CONSPIRACY COUNTS WERE NOT

CONSTRUCTIVELY AMENDED OR SUBJECT TO A
FATAL VARIANCE . . . . . . . . . . . . . . . . . . 509
1.
The RICO and RICO Conspiracy Charges . . . . . 509
2.
Jury Instructions
3.
4.
5.
J.
. . . . . . . . . . . . . . 512
a.
The Claim Is Waived . . . . . . . . . . . 518
b.
If Not Waived, the Claim Is Reviewed for

Plain Error Only . . . . . . . . . . . . 519
The Instruction Did Not Constructively Amend the

Indictment and Was Not Plain Error . . . . . . 519
a.
There Was No Plain or Obvious Error
. . 520
b.
Defendants Have Not Shown an Effect

on Substantial Rights
. . . . . . . . . 525
Defendants Claim of a Fatal Variance

in Closing Does Not Withstand Plain Error
Review . . . . . . . . . . . . . . . . . . . . 526
THE DISTRICT COURT DID NOT ABUSE ITS BROAD DISCRETION

OR COMMIT PLAIN ERROR IN ADMITTING THE TESTIMONY
CHALLENGED ON APPEAL, MOST OF WHICH WAS INTRODUCED
WITHOUT OBJECTION FROM ANY DEFENDANT . . . . . . . 530
1.
2.
Applicable Law . . . . . . . . . . . . . . . . 532
3.
The Flawed Premise on Which Defendants

Claim Rests . . . . . . . . . . . . . . . . . 536
4.
Claims of Prejudice Based on

Misrepresentations of the Record . . . . . . . 543
xii

PAGE
5.
a.
The Purported Appeal to the Jury to Right

the Wrongs of Past Acquittals . . . . . . 543
b.
Alleged Exploitation of Mafia Themes
Search Materials . . . . . . . . . . . . . . . 549

a.
6.
7.
. . 548
The District Court Did Not Plainly

Abuse Its Discretion in Admitting
Select Photographs from the
November 2002 Search of PIA . . . . . . . 549
(1)
Photograph and Summary Testimony

Regarding the Explosives Found
During the Execution of the
November 21, 2002, Search Warrant
at PIA . . . . . . . . . . . . . . . 549
(2)
Photo Depicting Items From

Pellicanos Office Drawer . . . . . 553
The Enterprises Use Of Threats
. . . . . . . 555
a.
Threats Against Jude Green
. . . . . . . 557
b.
Anita Busch Threat
c.
Patrick Theohar (Heidi Gregg) . . . . . . 560
d.
George Mueller Threat.
e.
Linda Doucett Threat
f.
Keith Carradine Threat
g.
Virtue Threats and Related

Testrimony . . . . . . . . . . . . . . . 567
Standard Client Matters

a.
. . . . . . . . . . . 559
. . . . . . . . . 561
. . . . . . . . . . 564
. . . . . . . . . 565
. . . . . . . . . . . 572
Taylor Thompson/Pamela Miller . . . . . . 572
xiii

PAGE
8.
b.
Sarit Shafrir/Nicherie
c.
PIAs Investigation of Timea Zsibrita . . 577
Matters Resolved by Curative

Instructions . . . . . . . . . . . . . . . . . 579
a.
9.
. . . . . . . . . 573
Sender/Russo
. . . . . . . . . . . . . . 579
Prosecutions Where Arneson Adverse

to Law Enforcement
. . . . . . . . . . . . . 582
. . . . . . . 582
a.
PIA Retention by Kami Hoss
b.
PIA Retention bv John Gordon Jones
. . . 589
(1)

Err in Not Sua Sponte Excluding DDA
Kerlins Testimony Based on Her Status
as A State Prosecutor . . . . . . . 589
(2)

Err by Not, Sua Sponte, Striking
Specific Portions of Kerlins
Testimony to Which Defendants Did
Not Object . . . . . . . . . . . . . 590
(3)

Err in Not, Sua Sponte, Striking
Kerlins Testimony Regarding Whether
PIAs Involvement Impacted the Jones
Case . . . . . . . . . . . . . . . . 591
(4)

Discretion By Not Excluding the
Victims of the Charged RICO and RICO
Conspiracy Offenses from Testifying
at Trial . . . . . . . . . . . . . . 593
(5)

Err in Not Sua Sponte Striking
Testimony Regarding the Nature of
the Litigation Proceedings Involving
Jones . . . . . . . . . . . . . . . 596
xiv

PAGE
(6)

Err by Not, Sua Sponte, Striking
Testimony and Argument That Jones
Was Acquitted in the State Court
Criminal Proceedings . . . . . . . . 597
(7)

Err by Permitting Two Witnesses To
Testify under the Heading of
Jane Doe . . . . . . . . . . . . . . 598
K.
THE DISTRICT COURT EXERCISED APPROPRIATE DISCRETION IN

DENYING PELLICANOS REQUEST FOR JENCKS MATERIAL FOR A
DEFENSE WITNESS . . . . . . . . . . . . . . . . . . . . 599
L.
PELLICANOS COMPLAINT THAT HE RECEIVED INADEQUATE NOTICE

ABOUT OTHER-ACTS EVIDENCE IS WITHOUT MERIT . . . . . . . 607
M.
THE DISTRICT COURT ABUSED NO DISCRETION IN REJECTING

ARNESONS BASELESS CLAIMS OF PROSECUTORIAL MISCONDUCT OR
IN DENYING HIS REPEATED AND UNTIMELY MISTRIAL MOTIONS . 617
1.
Standards of Review
2.
The Questioning of Detective Lim Regarding

Arnesons Retirement Was Not a Comment on His
Constitutional Right to Silence . . . . . . . 619
3.
The Governments Brief Questioning of Arneson

Regarding a Prior Internal Affairs
Investigation Did Not Use Any of His
Compelled Statements Against Him . . . . . . . 625
4.
The Governments Failure to Produce Arnesons

Recorded Statement, Which It Knew Was Already
in His Counsels Possession, Did Not Violate
Rule 16 . . . . . . . . . . . . . . . . . . . 629
5.
The Governments Questioning of Arneson

Regarding a Fraudulent Bankruptcy Petition
Was Wholly Proper and Did Not Involve Any
Rule 16 Violation . . . . . . . . . . . . . . 633
xv
. . . . . . . . . . . . . 618

PAGE
N.
O.
a.
The Bankruptcy Questioning
. . . . . . . 633
b.
The Government Had a Good-faith Basis to

Cross-examine Arneson Regarding His
Knowledge of the Bankruptcy Filing . . . 639
c.
The Government Did Not Violate Rule 16 by

Failing to Disclose Documents Used Solely
for Impeachment . . . . . . . . . . . . . 642
6.
The Single Word Accidentally Overheard by a

Single Juror Did Not Constitute Prosecutorial
Vouching . . . . . . . . . . . . . . . . . . . 645
7.
Even If Arneson Has Demonstrated Any Acts of

Misconduct, Such Acts Were Harmless in Light
of the Overwhelming Evidence of
Arnesons Guilt . . . . . . . . . . . . . . . 648
THE GOVERNMENTS CLOSING ARGUMENT WAS

PROPER AND CERTAINLY NOT PLAINLY IMPROPER . . . . . 649
1.
2.
The Government Did Not Improperly Malign

Arnesons Counsel or Express Personal Opinions
of Arnesons Credibility . . . . . . . . . . . 650
3.
The Government Did Not Improperly Argue Other

Acts Evidence or Vouch For Its Witnesses . . 657
THE EVIDENCE WAS SUFFICIENT TO SUPPORT NICHERIES

CONVICTION OF AIDING AND ABETTING THE INTERCEPTION
OF WIRE COMMUNICATIONS . . . . . . . . . . . . . . 661
1.
Standard or Review . . . . . . . . . . . . . . 661
2.
Nicherie Waived His Statute of Limitations

Argument By Failing to Raise It in His Rule 29
Motion for Judgment of Acquittal . . . . . . . 662
3.
The Evidence Was Sufficient To

Support Nicheries Conviction . . . . . . . . 664
xvi

PAGE
P.
THE COURTS JURY INSTRUCTIONS WERE NOT ERRONEOUS,

AND ANY ERROR WAS HARMLESS . . . . . . . . . . . . 667
1.
2.
There Was No Plain Error in the District

Courts Pre-Nosal Instruction on the Computer
Fraud Count . . . . . . . . . . . . . . . . . 668
3.
a.
Factual Background
b.
Any Errors Were Invited and Waived by

Defendants . . . . . . . . . . . . . . . 675
c.
The District Court Did Not Plainly Err by

Using Congress Definition of Exceeds
Authorized Access . . . . . . . . . . . 676
d.
Even If the Computer Fraud Instruction

Were Erroneous, That Would Not Require
Reversal of Turners Other Convictions
. . . . . . . . . . . 669
. 698
(1)
Background . . . . . . . . . . . . . 698
(2)
Any Error Was Invited and Waived . . 701
(3)
The CPC 502 Instructions Were Not

Plainly Erroneous . . . . . . . . . 702
Kachikians Challenges to the Wiretapping

Instructions Fail . . . . . . . . . . . . . . 716
a.
Trial Evidence
b.
The Statute and Jury Instructions . . . . 722
c.
The District Court Committed No Error In

Refusing Kachikians Flawed
Instruction . . . . . . . . . . . . . . . 725
(1)
. . . . . . . . . . . . . 716
The District Court Correctly Refused

Kachikians Legally Erroneous
Instruction . . . . . . . . . . . . 725
xvii

PAGE
(2)
Kachikians Other Arguments on Mens

Rea Are Reviewed for Plain Error,
and Fail . . . . . . . . . . . . . . 731
4.
The District Court Did Not Commit Plain Error

by Failing to Instruct the Jury That Reviewing
Intercepted Communications After the Period of
Interception Has Been Completed Does Not
Constitute Aiding and Abetting of the
Interception . . . . . . . . . . . . . . . . . 751
Q.
R.

DENYING A NEW TRIAL BASED ON ALLEGATIONS OF JUROR
MISCONDUCT OR IN DECLINING TO HOLD AN EVIDENTIARY
HEARING ON THOSE ALLEGATIONS . . . . . . . . . . . 753
1.
2.
Several of Defendants Challenges to the Jurys

Conduct and Deliberations Are Prohibited by
Federal Rule of Evidence 606(b) . . . . . . . 755
3.
The District Court Did Not Abuse its

Discretion in Finding That the Remaining
Claims of Extrinsic Evidence Did Not Warrant
a New Trial . . . . . . . . . . . . . . . . . 759
4.

Discretion in Denying an Evidentiary Hearing . 763

ADMITTING WIRETAPPING-RELATED EVIDENCE IN THE
CHRISTENSEN-PELLICANO WIRETAPPING TRIAL . . . . . . 766
1.
2.
Factual Summary
3.
The District Courts Evidentiary Rulings Did

Not Constitute an Abuse of Discretion . . . . 773
. . . . . . . . . . . . . . . 768
xviii

PAGE
a.
The Evidence Was Admissible to Rebut

Christensens Trial Defenses . . . . . . 773
b.
The Evidence Was Inextricably

Intertwined with Direct Evidence
Of the Wiretapping Conspiracy . . . . . . 777
c.
The Evidence Would Be Admissible

Under Rule 404(b) . . . . . . . . . . . . 783
d.
The Evidence Was Admissible

Under Rule 403 . . . . . . . . . . . . . 785
e.
Any Error in Admitting this

Evidence Was Harmless . . . . . . . . . . 789
S.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

IN NOT GRANTING CHRISTENSENS MOTION FOR
SEVERANCE . . . . . . . . . . . . . . . . . . . . . 792
T.
THE GOVERNMENT DID NOT ENGAGE IN MISCONDUCT AT THE

SECOND TRIAL BY POINTING OUT IN REBUTTAL ARGUMENT
DEFENDANT CHRISTENSENS FAILURE TO PRESENT EVIDENCE
THAT HE HAD PROMISED IN HIS OPENING STATEMENT . . . 794
U.
1.
2.
The Governments Argument Was Wholly Proper and

Based on the Evidence Introduced (and Not
Introduced) at Trial . . . . . . . . . . . . . 795

DISMISSING A JUROR DURING DELIBERATIONS AFTER MAKING A
FACTUAL FINDING THAT THE JUROR HAD REPEATEDLY
LIED TO THE COURT . . . . . . . . . . . . . . . . . 799
1.
2.
3.
The Submitted Juror Declarations Were Barred by

Federal Rule of Evidence 606(b) . . . . . . . 807
xix

PAGE
V.
4.

Discretion in Conducting Carefully Circumscribed
Questioning of Jurors in Response to the Jury
Notes . . . . . . . . . . . . . . . . . . . . 811
5.
The District Courts Finding That Juror #7 Had

Lied to the Court Was Not Clearly Erroneous, and
the Courts Dismissal of the Juror Was Not an
Abuse of Discretion . . . . . . . . . . . . . 814
a.
The District Courts Finding That

Juror #7 Lied to the Court Is Not Clearly
Erroneous . . . . . . . . . . . . . . . . 815
b.
The District Courts Finding That

Juror #7 Was Unwilling to And Would Not
Follow the Law Is Not Clearly
Erroneous . . . . . . . . . . . . . . . . 819
THE DISTRICT COURT DID NOT ERR IN FINDING THAT NO

BRADY VIOLATION RESULTED FROM THE GOVERNMENTS
BELATED PRODUCTION OF A PORTION OF A WITNESS
PRESENTENCE REPORT . . . . . . . . . . . . . . . . 821
1.
2.

a.
b.
3.
Wrights Trial Testimony
. . . . . . . . 822
(1)
First Trial
(2)
Second Trial . . . . . . . . . . . . 825
. . . . . . . . . . . . 822
Wrights Presentence Report . . . . . . . 827
The District Court Did Not Err in Finding No

Brady Violation in Connection With the
Disclosure of Teresa Wrights Alleged
Statement to the Probation Officer . . . . . . 828
xx

PAGE
4.
W.
Defendants Claim That the Government Failed

to Disclose Wrights Employment Was Not
Properly Preserved in the District Court
and is Not Properly Raised In This Appeal . . 835
PELLICANOS, ARNESONS, TURNERS, AND CHRISTENSENS

SENTENCES SHOULD BE AFFIRMED . . . . . . . . . . . 837
1.
Standards of Review
2.
Pellicanos In-Guidelines Sentence Should Be

Affirmed Because It Was Procedurally Sound and
Substantively Reasonable . . . . . . . . . . . 841
a.
. . . . . . . . . . . . . 837
USSG 3B1.1s four-level role enhancement

properly applied to Pellicanos RICO
convictions . . . . . . . . . . . . . . . 842
i.
The court correctly

interpreted Application
Note 1 to USSG 2E1.1
and applied 3B1.1
based on Pellicanos
role in the enterprise . . . . . . . 842
ii.
The court did not clearly

err in applying
3B1.1(a)s four-level
role enhancement to
Pellicanos RICO
calculations
. . . . . . . . . . . 845
b.
The court did not clearly err in applying

USSG 3C1.1s two-level obstruction
enhancement to Pellicanos RICO and
wiretapping convictions . . . . . . . . . 851
c.
The court abused no discretion in applying

USSG 3B1.3s two-level special skill
enhancement to Pellicanos wiretapping
convictions . . . . . . . . . . . . . . . 862
xxi

PAGE
d.
The court did not commit plain procedural

error by failing to consider how the
3553(a) factors applied to Pellicano . . 867
e.
Any procedural error was not prejudicial
f.
The District Courts Within-Guidelines

Sentence Was Substantively Reasonable . . 872
g.
h.
3.
868
(1)
Pellicanos sentence is not

unreasonable because it did not
include a downward variance to
account for his 2003 explosives
convictions . . . . . . . . . . . . 873
(2)

unreasonable because the court
exercised its discretion to
reject the USPOs facially
incomplete sentence
recommendation . . . . . . . . . . . 878
(3)

unreasonable because the court
declined to vary downward based
on purported sentencing
disparities . . . . . . . . . . . . 883
(4)
Pellicanos within-guidelines
sentence was reasonable . . . . . . 887
This Court Need Not Remand for

Resentencing Even If It Vacates
Counts of Conviction Other than
the RICO and Wiretapping Counts
. . . . 890
No Basis Exists for Reassigning

Any Resentencing to a Different
Judge
. . . . . . . . . . . . . . . . . 892
Arnesons Sentence Should Be Affirmed

Because It Was Substantively Reasonable
xxii
. . . 899

PAGE
a.
The Presentence Report and the

Parties Sentencing Recommendations . . . 901
b.
The District Courts Sentencing

Determination . . . . . . . . . . . . . . 905
c.
The sentence imposed by the district

court was substantively reasonable . . . 913
i.
4.
5.
There is no unwarranted
sentencing disparity . . . . . . . . 913
Turners Sentence Should Be Affirmed

Because It Was Procedurally Sound and
Substantively Reasonable . . . . . . . . . . . 919
a.
Turners Claims of Procedural Error

Are Properly Evaluated for
Substantive Reasonableness . . . . . . . 920
b.
Turners Sentence Was Reasonable
. . . . 922
Christensens Sentence Should Be

Affirmed Because It Was Procedurally
Sound and Substantively Reasonable . . . . . . 928
a.
USSG 3B1.1(c)S Two-level Role Enhancement

Properly Applied to Christensens Wiretapping
Convictions . . . . . . . . . . . . . . . 929
b.
USSG 3B1.3s Two-level

Enhancement for Occupying a
Position of Trust Properly
Applied . . . . . . . . . . . . . . . . . 934
c.
USSG 2H3.1s Three-level

Enhancement for Seeking Financial
Gain Properly Applied . . . . . . . . . . 937
d.
The District Court Had Discretion to Vary

Upward . . . . . . . . . . . . . . . . . 938
xxiii

PAGE
e.
X.
IV.
Christensens 36-month Sentence Was

Substantively Reasonable . . . . . . . . 939
THE COURTS FORFEITURE ORDER WAS PROPER . . . . . . 946

1.
2.
Defendants Were Not Entitled to

Have a Jury Determine the Amount
of the Money Judgment . . . . . . . . . . . . 946
3.
Preponderance of the Evidence Is

the Proper Standard for Forfeiture
Determinations . . . . . . . . . . . . . . . . 951
4.
The Forfeiture Money Judgments Were

Properly Ordered Joint and Several . . . . . . 952
5.
The District Courts Calculation of

the Money Judgment Was Proper . . . . . . . . 955
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 960
xxiv
TABLE OF AUTHORITIES
FEDERAL CASES
PAGE(S)
Ackermann v. United States,

340 U.S. 193 . . . . . . . . . . . . . . . . . . . . . . 147
Admiral Insurance Co. v. U.S. District Court,
881 F.2d 1486 (9th Cir. 1989) . . . . . . . . . . . . . 142
Admiral Insurance Co. v. U.S. District Court,
881 F.2d 1486 (9th Cir. 1989) . . . . . . . . . . . . . 250
Agency Holding Corp. v. Malley-Duff,
483 U.S. 143 (1987) . . . . . . . . . . . . . . . . . . 353
Aguilar v. Texas,
378 U.S. 108 (1964)
. . . . . . . . . . . . . . . . . . 170
Alderman v. United States,

394 U.S. 165 (1969) . . . . . . . . . . . . . . . . . . 137
Alexander v. United States,
509 U.S. 544 (1993) . . . . . . . . . . . . . . . . . . 956
Allen v. McCurry,
449 U.S. 90 (1980) . . . . . . . . . . . . . . . . . . . 144
Andresen v. Maryland,
427 U.S. 463 (1976)
. . . . . . . . . . . . . . . . . . 204
Ashe v. Swenson,
397 U.S. 436 (1970)
. . . . . . . . . . . . . . . . . . 144
Ayers v. City of Richmond,

895 F.2d 1267 (9th Cir. 1990)
. . . . . . . . . . . . . 144
Bailey v. Rae,
339 F.3d 1107 (9th Cir. 2003)
. . . . . . . . . . . . . 829
Barber v. Thomas,
130 S. Ct. 2499 (2010) . . . . . . . . . . . . . . . . . 739
Barrera-Moreno,
951 F.2d at 1092 . . . . . . . . . . . . . . . . . . . . 329
xxv
TABLE OF AUTHORITIES (Continued)

FEDERAL CASES
PAGE(S)
Beir v. City of Lewiston,

354 F.3d 1058 (9th Cir. 2004)
. . . . . . . . . . . . . 162
Bell Aerospace Serv., Inc. v. U.S. Aero Serv., Inc.,

690 F. Supp. 2d 1267 (M.D. Ala. 2010) . . . . . . . . . 679
Benn v. Lambert,
283 F.3d 1040 (9th Cir. 2002)
. . . . . . . . . . . . . 829
Benson v. Hightower,
633 F.2d 869 (9th Cir. 1980) . . . . . . . . . . . . . . 162
Berghuis v. Thompkins,
130 S. Ct. 2250 (2010) . . . . . . . . . . . . . . . . . 622
Black & Decker (US), Inc. v. Smith,
568 F. Supp. 2d 929 (E.D. Tenn. 2008)
Bordenkircher v. Hayes,
434 U.S. 357 (1977)
. . . . . . . . . 679
. . . . . . . . . . . . . . . . . . 318
Boss v. Pierce,
263 F.3d 734 (7th Cir. 2001) . . . . . . . . . . . . . . 829
Boyd v. San Francisco,
576 F.3d 938 (9th Cir. 2009) . . . . . . . . . . . . . . 536
Boyle v. United States,
556 U.S. 938 (2009), . . . . . . . . . . . . . . . .
passim
Brady v. Maryland,
373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . 821
Brennan v. United States,
867 F.2d 111 (2d Cir. 1989)
. . . . . . . . . . . . . . 503
Briceno v. Scribner,
555 F.3d 1069 (9th Cir. 2009)
. . . . . . . . . . . . . 707
Brigham City v. Stuart,

547 U.S. 398 (2006)
. . . . . . . . . . . . . . . . . . 125
CIR v. Bosch's Estate,

387 U.S. 456 (1967)
. . . . . . . . . . . . . . . . . . 706
xxvi

FEDERAL CASES
PAGE(S)
Caldera v. Northrop Worldwide Aircraft Services, Inc.,

192 F.3d 962 (Fed.Cir. 1999) . . . . . . . . . . . . . . 150
Caliendo v. Warden of California Men's Colony,
365 F.3d 691 (9th Cir.2004) . . . . . . . . . . . . . . 761
California Banker's Association v. Shultz,
416 U.S. 21 (1974) . . . . . . . . . . . . . . . . . . . 432
California v. Greenwood,
486 U.S. 35 (1988) . . . . . . . . . . . . . . . . . . . 137
Campanale v. Harris,
724 F.2d 276 (2d Cir. 1983)
. . . . . . . . . . . . . . 625
Center Art Galleries-Hawaii v. United States,

875 F.2d 747 (9th Cir. 1989) . . . . . . . . . . . . . . 203
Chan v. Wodnicki,
123 F.3d 1005 (7th Cir. 1997)
Chavez-Miranda,
306 F.3d at 979
. . . . . . . . . . . . . 620
. . . . . . . . . . . . . . . . . . . . 166
Clark v. Bear Stearns & Co.,

966 F.2d 1318 (9th Cir. 1992)
. . . . . . . . . . . . . 146
Clements v. Airport Authority of Washoe County,

69 F.3d 321 (9th Cir.1995) . . . . . . . . . . . . . . 149
Coleman v. Singletary,
30 F.3d 1420 (11th Cir. 1994)
. . . . . . . . . . . . . 746
Comprehensive Drug Testing,

621 F.3d at 1178 (Kozinski, C.J., concurring)
Conn v. Gabbert,
526 U.S. 286 (1999)
. .
147, 198
. . . . . . . . . . . . . . . . . . 139
Contrast Uniformed Sanitation Men,

392 U.S. at 284 . . . . . . . . . . . . . . . . . . . . 621
Couch v. United States,
409 U.S. 322 (1973)
. . . . . . . . . . . . . . . . . . 142
xxvii

FEDERAL CASES
PAGE(S)
Craigslist v. Naturemarket, Inc.,

694 F. Supp. 2d 1039 (N.D. Cal. 2010)
Damron v. Herzog,
67 F.3d 211 (9th Cir. 1995)
. . . . . . . . . 708
. . . . . . . . . . . . . . 935
Davis v. United States,

131 S. Ct. 2419 (2011) . . . . . . . . . . . . . . . . . 160
DeMassa v. Nunez,
770 F.2d 1505 (9th Cir. 1985)
Devenpeck v. Alford,
543 U.S. 146 (2004)
. . . . . . . . . . . . . 139
. . . . . . . . . . . . . . . . . . 163
Dimidowich v. Bell & Howell,

803 F.2d 1473 (9th Cir. 1986)
. . . . . . . . . . . . . 707
Dixon v. United States,

548 U.S. 1 (2006) . . . . . . . . . . . . . . . .
Doyle v. Ohio,
426 U.S. 610 (1976)
710, 727
. . . . . . . . . . . . . . . . . . 625
Dyer v. Calderon,
151 F.3d 970 (9th Cir. 1998) . . . . . . . . . . . . . . 762
United States v.Edwards,
154 F.3d at 924 . . . . . . . . . . . . . . . . . . . . 590
Ewing v. California,
538 U.S. 11 (2003) . . . . . . . . . . . . . . . . . . . 713
FTC v. TRW, Inc.,
628 F.2d 207 (D.C. Cir. 1980)
. . . . . . . . . . . . . 241
Facebook, Inc. v. ConnectU LLC,

489 F. Supp. 2d 1087 (N.D. Cal. 2007)
Febres v. Challenger,
214 F.3d 57 (1st Cir. 2000)
. . . . . . . . . 708
. . . . . . . . . . . . . . 729
xxviii

FEDERAL CASES
PAGE(S)
Fleischauer v. Feltner,
879 F.2d 1290 (6th Cir. 1989)
Fowle v. United States,
410 F.2d 48 (9th Cir. 1969)
. . . . . . . . . . . . . 953
. . . . . . . . . . . . . . 624
Franks v. Delaware,
438 U.S. 154 (1978)
. . . . . . . . . . . . . . . .
Gardner v. Broderick,
392 U.S. 273 (1968)
. . . . . . . . . . . . . . . . . . 620
Garrity v. New Jersey,

385 U.S. 493 (1967)
. . . . . . . . . . . . . . . . . . 619
Giglio v. United States,

405 U.S. 150 (1972)
. . . . . . . . . . . . . . . . . . 821
passim
Green v. Hall,
8 F.3d 695 . . . . . . . . . . . . . . . . . . . . . . . 186
Green v. White,
232 F.3d 671 (9th Cir. 2000) . . . . . . . . . . . . . . 763
Greene v. United States,
454 F.2d at 784-87 . . . . . . . . . . . . . . . . . . . 291
Griffin v. United States,
502 U.S. 46 (1991) . . . . . . . . . . . . . . . . . . . 716
Groh v. Ramirez,
540 U.S. 551 (2004)
. . . . . . . . . . . . . . . . . . 202
Hagan v. Caspari,
50 F.3d 542 (8th Cir. 1995)
. . . . . . . . . . . . . . 707
Hard v. Burlington Northern R.R. Co.,

870 F.2d 1454 (9th Cir. 1989) . . . . . . . . . .
xxix
757, 764

FEDERAL CASES
Harris v. New York,
401 U.S. 222 (1971)
PAGE(S)
. . . . . . . . . . . . . . . . . . 643
Hedgepeth v. Pulido,
555 U.S. 57 (2008) . . . . . . . . . . . . . . . . . . . 485
Henderson v. Kibbe,
431 U.S. 145 (1977)
. . . . . . . . . . . . . . .
683, 698
Henderson v. United States,

U.S. -- 2013 WL 610203 (Feb. 20, 2013) . . . . . .
520, 679
Herring v. United States,

555 U.S. 135 (2009) . . . . . . . . . . . . . . . . . . 153
555 U.S. 135 (2009) . . . . . . . . . . . . . . . . . . 160
Hickman v. Taylor,
329 U.S. 495 (1947)
. . . . . . . . . . . . . . . . . . 246
Holmgren v. State Farm Mutual Automobile Insurance Co.,

976 F.2d 573(9th Cir. 1992) . . . . . . . . . . .
Horton v. California,
496 U.S. 128 (1990)
246, 251
. . . . . . . . . . . . . . . . . . 191
Howard v. Daggett,
526 F.2d 1388 (9th Cir. 1975)
. . . . . . . . . . . . . 525
Huddleston v. United States ,

485 U.S. 681 (1988) . . . . . . . . . . . . . . . . . . 534
Huddleston v. United States,
485 U.S. 681 (1988) . . . . . . . . . . . . . . . . . . 612
Husain v. Olympic Airways,
316 F.3d 829 (9th Cir. 2002) . . . . . . . . . . . . . . 174
xxx

FEDERAL CASES
PAGE(S)
Iannelli v. United States,

420 U.S. 770 (1975) . . . . . . . . . . . . . . . . . . 351
Illinois v. Gates,
462 U.S. 213 (1983)
. . . . . . . . . . . . . . . . . . 170
International Airport Ctrs., LLC v. Citrin,

440 F.3d 418 (7th Cir. 2006) . . . . . . . . . . . . . . 692
Jackson v. Virginia,
443 U.S. 307 (1979)
. . . . . . . . . . . . . . . .
passim
James v. Borg,
24 F.3d 20 (9th Cir. 1994) . . . . . . . . . . . . . . . 136
Jeffries v. Wood,
114 F.3d 1484 (9th Cir. 1997)
Jencks v. United States,
353 U.S. 657 (1957)
. . . . . . . . . . . . . 762
. . . . . . . . . . . . . . . . . . 601
Jenkins v. Anderson,
447 U.S. 231 (1980) 624
Johnson v. United States,
520 U.S. 461 (1997) . . . . . . . . . . . . . . . .
KRL v. Estate of Moore,
512 F.3d 1184 (9th Cir. 2008)
passim
. . . . . . . . . . . . . 202
Kastigar v. United States,

406 U.S. 441 (1972) . . . . . . . . . . . . . . . . . . 628
Kowalski v. Tesmer,
543 U.S. 125 (2004)
. . . . . . . . . . . . . . . . . . 139
Kuhlmann v. Wilson,
477 U.S. 436 (1986)
. . . . . . . . . . . . . . . . . . 295
Kushner Promotions v. King,

533 U.S. 158 (2001) . . . . . . . . . . . . . . . . . . 396
Kyles v. Whitley,
514 U.S. 419 (1995)
. . . . . . . . . . . . . . .
xxxi
829, 835

FEDERAL CASES
PAGE(S)
LVRC Holdings LLC v. Brekka,

581 F.3d 1127 (9th Cir.
2009) . . . . . . . . . .
668, 679
LaLonde v. County of Riverside,

204 F.3d 947 (9th Cir. 2000) . . . . . . . . . . . . . . 612
Leocal v. Ashcroft,
543 U.S. 1 (2004)
. . . . . . . . . . . . . . . . . . . 684
Libertad v. Welch,
53 F.3d 428 (1st Cir. 1995)
. . . . . . . . . . . . . . 155
Liparota v. United States,

471 U.S. 419 (1985) (cited at KOB 15-16) . . . . . . . . 738
Liteky v. United States,
510 U.S. 540 (1994)
. . . . . . . . . . . . . 228, 284, 285
Lockett v. Ericson,
656 F.3d 892 (9th Cir. 2011) . . . . . . . . . . . . . . 146
Lombardi v. City of El Cajon,
117 F.3d 1117 (9th Cir. 1997)
. . . . . . . . . .
Lombardi v. El Cajon,
117 F.3d 1117 (9th Cir. 1997)
. . . . . . . . . . . . . 146
Lowe v. SEC,
472 U.S. 181 (1985)
166, 183
. . . . . . . . . . . . . . . . . . 684
Lowry v. Barnhart,
329 F.3d 1019 (9th Cir. 2003)
. . . . . . . . . . . . . 139
Lyng v. Northwest Indian Cemetery Protective Association,

485 U.S. 439 (1988) . . . . . . . . . . . . . . . . . . 151
Malley v. Briggs,
475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . 199
FEDERAL CASES
PAGE(S)
xxxii
Malouche v. JH Management Co.,

Inc., 839 F.2d 1024 (4th Cir. 1988)
. . . . . . . . . . 735
Massey v. Wheeler,
21 F.3d 1030 (7th Cir. 2000) . . . . . . . . . . . . . . 139
Massiah v. United States,
377 U.S. 201 (1964) . . . . . . . . . . . . . . . . . . 295
Mattox v. United States,
146 U.S. 140 (1892)
. . . . . . . . . . . . . . . . . . 761
Maynard v. Cartwright,
486 U.S. 356 (1988)
. . . . . . . . . . . . . . . . . . 335
McCleskey v. Kemp,
481 U.S. 279 (1986)
. . . . . . . . . . . . . . . . . . 319
McDaniel v. Brown,
130 S. Ct. 665 (2010)
McDonald v. Pless,
238 U.S. 264 (1915)
. . . . . . . . . . . . . . . . . 373
. . . . . . . . . . . . . . . . . . 756
McNally v. United States,

483 U.S. 350 (1987) . . . . . . . . . . . . . . . . . . 463
Meredith v. Gavin,
446 F.2d 794 (8th Cir. 1971) . . . . . . . . . . . . . . 209
Mills v. Graves,
930 F.2d 729 (9th Cir. 1991) . . . . . . . . . . . . . . 174
Miranda B. v. Kitzhaber,
328 F.3d 1181 (9th Cir. 2003)
. . . . . . . . . . . . . 159
Moody v. IRS,
654 F.2d 795 (D.C. Cir. 1981)
. . . . . . . . . .
Morales v. TWA, Inc.,

504 U.S. 374 (1992)
246, 274
. . . . . . . . . . . . . . . . . . 741

FEDERAL CASES
PAGE(S)
xxxiii
Neder v. United States,

527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . 484
Nix v. Williams,
467 U.S. 431 (1984)
. . . . . . . . . . . . . . . . . . 165
Noel v. Hall,
568 F.3d 743 (9th Cir. 2009) . . . . . . . . . . .
666, 751
Northeast Women's Ctr. v. McMonagle,

868 F.2d 1342 (3d Cir. 1989) . . . . . . . . . . . . . . 155
Nunes v. Ramirez-Palmer,
485 F.3d 441 (9th Cir. 2007)(same) . . . . . . . . . . . 319
Nunez-Rios,
622 F.2d at 1098 . . . . . . . . . . . . . . . . . . . . 299
Odom v. Microsoft Corporation,
486 F.3d 541 (9th Cir. 2007) . . . . . . . . . . . .
Olano v. United States,
507 U.S. 725 (1993) . . . . . . . . . . . . . . .
passim
484, 688
Olson v. Morris,
188 F.3d 1083 (9th Cir. 1999)
. . . . . . . . . . . . . 147
Ortiz v. Van Auken,

887 F.2d 1366 (9th Cir. 1989)
. . . . . . . . . . . . . 161
Paradis v. Arave,
130 F.3d 385 (9th Cir. 1997) . . . . . . . . . . . . . . 829
Parks v. United States,
355 F.2d 167 (5th Cir. 1965) . . . . . . . . . . . . . . 470
Parrott v. Wilson,
707 F.2d 1262 (11th Cir. 1983) . . . . . . . . . .
252, 271
Patton v. Yount,
467 U.S. 1025 (1984) . . . . . . . . . . . . . . . . . . 818
Pepper v. United States,
131 S. Ct. 1229 (2011) . . . . . . . . . . . . . . . . . 883
FEDERAL CASES
PAGE(S)
xxxiv
Pest
Committee v. Miller,
626 F.3d 1097 (9th Cir. 2010)
. . . . . . . . . . . . . 334
Pinkerton v. United States,

328 U.S. 640 (1946) . . . . . . . . . . . . . . . . . . 380
Puckett v. United States,
129 S. Ct. 1423 (2009) . . . . . . . . . . . . . .
520, 688
Quintana-Torres,
235 F.3d at 1199 . . . . . . . . . . . . . . . . . . . . 664
Rakas v. United States,
439 U.S. 128 . . . . . . . . . . . . . . . . . . . . . . 131
Rawlings v. Kentucky,
448 U.S. 98 (1980) . . . . . . . . . . . . . . . .
138, 142
Reporters Committee,
489 U.S. at 765
415, 414
. . . . . . . . . . . . . . . . .
Restrepo-Rua,
815 F.2d at 1329 . . . . . . . . . . . . . . . . . . . . 298
Reyn's Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741 (9th Cir. 2006) . . . . . . . . . . . . . . 109
Richardson v. Marsh,
481 U.S. 200 (1987) 338
Richey v. United States Internal Revenue Svc.,
9 F.3d 1407 (9th Cir.1993) . . . . . . . . . . . . . . . 339
Ristaino v. Ross,
424 U.S. 589 (1976)
. . . . . . . . . . . . . . . . . . 818
Rita v. United States,

551 U.S. 338 (2008)
. . . . . . . . . . . . . . . . . . 888
Rochin v. California,
342 U.S. 165 (1952)
. . . . . . . . . . . . . . . . . . 290
Rosales-Lopez v. United States,

451 U.S. 182 (1981) (cited at POB 41)
xxxv
. . . . . . . . . 616

FEDERAL CASES
PAGE(S)
Roth v. Reyes,
567 F.3d 1077 (9th Cir. 2009)
. . . . . . . . . . . . . 741
Salinas v. United States,

552 U.S. 52 (1997) . . . . . . . . . . . . . . . .
Sanchez v. Mukasey,
521 F.3d 1106 (9th Cir. 2008)
379, 953
. . . . . . . . . . . . . 158
Schall v. Martin,
467 U.S. 253 (1984)
. . . . . . . . . . . . . . . . . . 333
Scheidler v. NOW, Inc.,

537 U.S. 393 (2003)
. . . . . . . . . . . . . . . .
passim
Sears, Roebuck & Co.,

785 F.2d at 778-79 . . . . . . . . . . . . . . . . .
passim
Sessoms v. Runnels,
691 F.3d 1054 (9th Cir. 2012)
. . . . . . . . . . . . . 622
Shorter v. United States,

412 F.2d 428 (9th Cir. 1969) . . . . . . . . . . . . . . 574
Shushan v. United States,
117 F.2d 110 (5th Cir. 1941) . . . . . . . . . . . . . . 465
Skilling v. United States,
130 S. Ct. 2896 (2010) . . . . . . . . . . . . . . .
passim
Smith v. Maryland,
442 U.S. 735 (1979)
passim
. . . . . . . . . . . . . . . .
Spinner Corp. v. Princeville Development Corp.,

849 F.2d 388 (9th Cir.1988) . . . . . . . . . . . . . . 707
Spivey v. Zant,
683 F.2d 881 (5th Cir. 1982) . . . . . . . . . . . . . . 141
Steele v. United States,
267 U.S. 505 (1925)
. . . . . . . . . . . . . . . . . . 145
Stirone v. United States,

361 U.S. 212 (1960) . . . . . . . . . . . . . . . . . . 525
xxxvi

FEDERAL CASES
Tanner v. United States,
483 U.S. 107 (1987)
PAGE(S)
. . . . . . . . . . . . . . .
756, 758
Taylor v. Kincheloe,
920 F.2d 599 (9th Cir. 1990) . . . . . . . . . . . . . . 830
Theofel v. Farey-Jones,
359 F.3d 1066 (9th Cir. 2004)
. . . . . . . . . . . . . 958
Towery v. Ryan,
673 F.3d 933 (9th Cir. 2012) . . . . . . . . . . . . . . 944
Uniformed Sanitation Men Association v. Commissioner of
Sanitation,
392 U.S. 280 (1968) . . . . . . . . . . . . . . . . . . 620
United States ex rel. LaCorte v. SmithKline Beecham Clinical
Laboratories,Inc.,
149 F.3d 227 (3d Cir.) . . . . . . . . . . . . . . . . . 669
United States ex rel. Powell v. Pennsylvania,
294 F. Supp. 849 (E.D. Pa.1968) . . . . . . . . . . . . 623
United States Ramos-Paulino,
488 F.3d 459 (1st Cir. 2007) . . . . . . . . . . . . . . 933
United States v. 40,955.00 in U.S. Currency,
554 F.3d 752 (9th Cir. 2009) . . . . . . . . . . . . . . 131
United States v. Abell,
271 F.3d 1286 (11th Cir. 2001) . . . . . . . . . . . . . 380
United States v. Acker,
52 F.3d 509 (4th Cir. 1995)
. . . . . . . . . . . . . . 810
United States v. Adamson,

291 F.3d 606 (9th Cir. 2002) . . . . . . . . . . . . . . 520
United States v. Adjani,
452 F.3d 1140 (9th Cir. 2006)
. . . . . . . . . . . . . 187
United States v. Agurs,

427 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . 829
xxxvii

FEDERAL CASES
PAGE(S)
United States v. Aleynikov,

737 F. Supp. 2d 173 (S.D.N.Y. 2010)
United States v. Ali,
620 F.3d 1062 (9th Cir. 2010)
. . . . . . . . . . 679
. . . . . . . . . . . . . 838
United States v. Amlani,

111 F.3d 705 (9th Cir. 1997) . . . . . . . . . . . . . . 822
United States v. Amodeo,
71 F.3d 1044 (2d Cir. 1995)
. . . . . . . . . . . . . . 242
United States v. Anderson,

201 F.3d 1145 (9th Cir. 2000)
. . . . . . . . . . . . . 687

782 F.2d 908 (11th Cir. 1986) . . . . . . . . . . . . . 958
United States v. Arena,
180 F.3d 380 (2d Cir. 1999)
. . . . . . . . . . . . . . 155
United States v. Armstrong,

517 U.S. 456 (1996) . . . . . . . . . . . . . . . . . . 643
United States v. Arnett,
327 F.3d 845 (9th Cir. 2003) . . . . . . . . . . . . . . 144
United States v. Atcheson,
94 F.3d 1237 (9th Cir. 1996) . . . . . . . . . . . . . . 339
United States v. Autery,
555 F.3d 864 (9th Cir. 2009) . . . . . . . . . . . . . . 840
United States v. Awad,
551 F.3d 930 (9th Cir. 2009) . . . . . . . . . . . . . . 490
United States v. Bae,
250 F.3d 774 (D.C. Cir. 2001)
. . . . . . . . . . . . . 693
United States v. Baez,

349 F.3d 90 (2d Cir. 2003) . . . . . . . . . . . . . . . 611
United States v. Bagley,
473 U.S. 667 (1985)
. . . . . . . . . . . . . . . . . . 829
xxxviii

FEDERAL CASES
PAGE(S)
United States v. Bagnariol,

665 F.2d 877 (9th Cir. 1981) . . . . . . . . . . . . . . 756
United States v. Bahel,
662 F.3d 610 (2d Cir. 2011)
. . . . . . . . . . . . . . 463
United States v. Bailleaux,

685 F.2d 1105 (9th Cir. 1982)
. . . . . . . . . . .
United States v. Baldrich,

471 F.3d 1110 (9th Cir. 2006)
. . . . . . . . . . . . . 879
United States v. Baldwin,

987 F.2d 1432 (9th Cir. 1993)
. . . . . . . . . . . . . 648
passim
United States v. Barajas-Montiel,

185 F.3d 947 (9th Cir. 1999) . . . . . . . . . . . . . . 688
United States v. Barrera-Moreno,
951 F.2d 1089 (9th Cir. 1991)
. . . . . . . . . . . . . 292
United States v. Barrett,

703 F.2d 1076 (9th Cir. 1982)
. . . . . . . . . . . . . 759
United States v. Baskes,

442 F. Supp. 322 (N.D. Ill. 1977)
United States v. Bast,
495 F.2d 138 (D.C. Cir. 1974)
. . . . . . . . . . . 139
. . . . . . . . . . . . . 742
United States v. Bauer,

132 F.3d 504 (9th Cir. 1997) . . . . . . . . . . . . . . 255
United States v. Bear,
439 F.3d 565 (9th Cir. 2006) . . . . . . . . . . . . . . 688
United States v. Beard,
161 F.3d 1190 (9th Cir. 1998)
. . . . . . . . . . . . . 800
United States v. Beckman,

298 F.3d 788 (9th Cir. 2002) . . . . . . . . . . . . . . 613
United States v. Begay,
673 F.3d 1038 (9th Cir. 2011)
xxxix
. . . . . . . . . . .
passim

FEDERAL CASES
PAGE(S)
United States v. Bennett,

363 F.3d 947 (9th Cir. 2004) . . . . . . . . . . . . . . 891
United States v. Bidrsall,
233 U.S. 223 (1914) . . . . . . . . . . . . . . . . . . 472
United States v. Bilzerian,
926 F.2d 1285 (2d Cir. 1991) . . . . . . . . . . . . . . 576
United States v. Bingham,
653 F.3d 983 (9th Cir. 2011) . . . . . . . . . . . . .
521
United States v. Birges,

723 F.2d 666 (9th Cir. 1984) . . . . . . . . . . . . . . 652
United States v. Biro,
143 F.3d 1421 (11th Cir. 1998) . . . . . . . . . . . . . 743
United States v. Black,
625 F.3d 386 (7th Cir. 2010) . . . . . . . . . . . . . . 486
767 F.2d 1334 (9th Cir. 1985)
. . . . . . . . . . . . . 781

767 F.2d 1334 (9th Cir. 1985)
. . . . . . . . . . . . . 641
United States v. Blixt,

548 F.3d 882 (9th Cir. 2008) . . . . . . . . . 547, 731, 745
United States v. Bonanno,
467 F.2d 14 (9th Cir.
1972) . . . . . . . . . . . . . . 541
United States v. Boone,

458 F.3d 321 (3d Cir. 2006)
United States v. Boone,
951 F.2d 1526 (9th Cir. 1991)
. . . . . . . . . . . . . . 811
. . . . . . . . . . . . . 785
United States v. Booth,

309 F.3d 566 (9th Cir. 2002) . . . . . . . . . . . . . . 846
United States v. Boren,
278 F.3d 911 (9th Cir. 2002) . . . . . . . . . . . . . . 432
xl

FEDERAL CASES
PAGE(S)
United States v. Borneo, Inc.,

971 F.2d 244 (9th Cir. 1992) . . . . . . . . . . . . . . 109
United States v. Bowie,
232 F.3d 923 (D.C. Cir. 2000)
United States v. Boyd,
86 F.3d 719 (7th Cir. 1996)
. . . . . . . . . . . . . 614
. . . . . . . . . . . . . . 691
United States v. Bradley,

644 F.3d 1213 (11th Cir. 2011) . . . . . . . . . . . . . 203
United States v. Brobst,
558 F.3d 982 (9th Cir. 2009) . . . . . . . . . . . . . . 187
United States v. Brooks,
508 F.3d 1205 (9th Cir. 2007)
. . . . . . . . . . . . . 660
United States v. Brown,

327 F.3d 867 (9th Cir. 2003) . . . . . . . . . 152, 631, 650
United States v. Browne,
505 F.3d 1229 (11th Cir. 2007) . . . . . . . . . . . . . 953
United States v. Buckland,
289 F.3d 558 (9th Cir. 2002) . . . . . . . . . . . . . . 687
United States v. Budziak,
697 F.3d 1105 (9th Cir. 2012)
. . . . . . . . . . . . . 676
United States v. Burnes,

816 F.2d 1354 (9th Cir. 1987)
. . . . . . . . . . . . . 124
United States v. Busher,

817 F.2d 1409 (9th Cir. 1987)
. . . . . . . . . . . . . 953
United States v. Bushyhead,

270 F.3d 905 (9th Cir. 2001) . . . . . . . . . . . . . . 618
United States v. Bussell,
483 F.3d 639 (9th Cir. 2005) . . . . . . . . . . . . . . 754
United States v. Cabrera,
201 F.3d 1243 (9th Cir. 2000)
xli
. . . . . . . . . . . . . 609

FEDERAL CASES
PAGE(S)
United States v. Cagnina,

697 F.2d 915 (11th Cir. 1983)
. . . . . . . . . . . . . 377
United States v. Campa,

529 F.3d 980 (11th Cir. 2008)
. . . . . . . . . . . . . 863
United States v. Candoli,

870 F.2d 496 (9th Cir. 1989) . . . . . . . . . . . . . . 381
United States v. Caporale,
806 F.2d 1487 (11th Cir. 1986) . . . . . . . . . . . . . 953
United States v. Carona,
660 F.3d 360 (9th Cir. 2011) . . . . . . . . . . . . . . 332
United States v. Carrasco,
537 F.2d 372 (9th Cir. 1976) . . . . . . . . . . . . . . 607
United States v. Carrozza,
4 F.3d 70 (1st Cir. 1993)
. . . . . . . . . . . . . . . 903
United States v. Carter,

560 F.3d 1107 (9th Cir. 2009)
. . . . . . . . . . . . . 885
United States v. Carty,

520 F.3d 984 (9th Cir. 2008) . . . . . . . . . . . . . . 837
United States v. Casas,
425 F.3d 23 (1st Cir. 2005)
. . . . . . . . . . . . . . 669
United States v. Casey,

444 F.3d 1071 (9th Cir. 2006)
United States v. Cassiere,
4 F.3d 1006 (1st Cir. 1993)
. . . . . . . . . . . . . 948
. . . . . . . . . . . . . . 210
United States v. Castillo,

181 F.3d 1129 (9th Cir. 1999)
. . . . . . . . . . . . . 635
United States v. Castro,

89 F.3d 1443 (11th Cir. 1996)
. . . . . . . . . .
397, 528
United States v. Catabran,

836 F.2d 453 (9th Cir. 1988) . . . . . . . . . . . . . . 783
xlii

FEDERAL CASES
PAGE(S)
United States v. Cauble,

706 F.2d 1322 (5th Cir. 1983)
. . . . . . . . . . . . . 951
United States v. Caymen,

404 F.3d 1196 (9th Cir. 2005)
. . . . . . . . . . . . . 133
United States v. Chapman,

528 F.3d 1215 (9th Cir. 2008)
. . . . . . . . . . . . . 372
United States v. Charles,

581 F.3d 927 (9th Cir. 2009) . . . . . . . . . . . . . . 616
United States v. Charnay,
537 F.2d 341 (9th Cir. 1976) . . . . . . . . . . . . . . 355
United States v. Chase,
503 F.2d 571 (9th Cir. 1974) . . . . . . . . . . . . . . 449
United States v. Chavez-Miranda,
306 F.3d 973 (9th Cir. 2002) . . . . . . . . . . . . . . 165
United States v. Chen,
99 F.3d 1495 (9th
Cir. 1996)
. . . . . . . . . . . . . 228
United States v. Chu Kong Yin,

935 F.2d 990 (9th Cir. 1991) . . . . . . . . . . . . . . 781
United States v. Citro,
842 F.2d 1149 (9th Cir. 1988)
. . . . . . . . . . . . . 292
United States v. Clawson,

104 F.3d 250 (9th Cir. 1996) . . . . . . . . . . . . . . 355
United States v. Clemente,
22 F.3d 477 (2d Cir. 1994) . . . . . . . . . . . . . . . 657
United States v. Colkley,
899 F.2d 297 (4th Cir. 1990) . . . . . . . . . . . . . . 166
United States v. Collins,
90 F.3d 1420 (9th Cir. 1996) . . . . . . . . . . .
575, 857
United States v. Comprehensive Drug Testing,

621 F.3d 1162 (9th Cir.2010) . . . . . . . . . . . . . . 145
xliii

FEDERAL CASES
PAGE(S)
United States v. Concepcion,

983 F.2d 369 (2d Cir. 1992)
. . . . . . . . . . . . . . 612
United States v. Connolly,

341 F.3d 16 (1st Cir. 2003)
. . . . . . . . . . .
United States v. Connor,

583 F.3d 1011 (7th Cir. 2009)
403, 508
. . . . . . . . . . . . . 614
United States v. Coon,

187 F.3d 888 (8th Cir. 1999) . . . . . . . . . . . . . . 843
United States v. Coonan,
938 F.2d 1553 (2d Cir. 1991) . . . . . . . . . . . . . . 503
United States v. Cordova-Barajas,
360 F.3d 1037 (9th Cir. 2004)
. . . . . . . . . . . . . 860
United States v. Cormier,

220 F.3d 1103 (9th Cir. 2000)
. . . . . . . . . . . . . 136
United States v. Corrado,

227 F.3d 543 (6th Cir. 2000) . . . . . . . . . . . . . . 953
United States v. Cotton,
535 U.S. 625 (2002) 689
United States v. Crawford,
372 F.3d 1048 (9th Cir. 2004)
. . . . . . . . . . . . . 186
United States v. Crespo de Llano,

838 F.2d 1006 (9th Cir. 1987)
. . . . . . . . . . . . . 792
United States v. Cruz,

554 F.3d 840 (9th Cir. 2009) . . . . . . . . . . .
683, 689
United States v. Culbert,

435 U.S. 371 (1978) . . . . . . . . . . . . . . . . . . 156
United States v. Curtin,
489 F.3d 935 (9th Cir. 2007) . . . . . . . . . . .
United States v. Czubinski,
106 F.3d 1069 (1st Cir. 1997)
xliv
533, 783
. . . . . . . . . . . . . 692

FEDERAL CASES
PAGE(S)
United States v. Dale,

991 F.2d 819 (D.C. Cir. 1993)
. . . . . . . . . . . . . 210
United States v. Damico,

99 F.3d 1431 (7th Cir. 1996) . . . . . . . . . . . . . . 843
United States v. Danielson,
325 F.3d 1054 (9th Cir. 2003)
. . . . . . . . . . . . . 618
United States v. Davis,

617 F.2d 677 (D.C. Cir. 1979)
. . . . . . . . . . .
United States v. de Cruz,

82 F.3d 856 (9th Cir. 1996)
passim
. . . . . . . . . . . . . . 618
United States v. DeFries,

129 F.3d 1293 (D.C. Cir. 1997) . . . . . . . . . . . . . 952
United States v. de la Jara,
973 F.2d 746 (9th Cir. 1992) . . . . . . . . . . . . . . 228
United States v. DeMasi,
40 F.3d 1306 (1st Cir. 1994) . . . . . . . . . . . . . . 339
United States v. Decoud,
456 F.3d 996 (9th Cir. 2006) . . . . . . . . . . . . . . 808
United States v. Delano,
55 F.3d 720 (2d. 1995) . . . . . . . . . . . . . . . . . 506
United States v. Dewey,
599 F.3d 1010 (9th Cir. 2010)
. . . . . . . . 886, 887, 916
United States v. Dipentino,

242 F.3d 1090 (9th Cir. 2001)
. . . . . . . . . . . . . 525
United States v. Disston,

612 F.2d 1035 (7th Cir. 1980)
. . . . . . . . . . . . . 644
United States v. Dixon,

201 F.3d 1223 (9th Cir. 2000)
. . . . . . . . . . . . . 668
United States v. Doe,

125 F.3d 1249 (9th Cir. 1997)
. . . . . . . . . .
xlv
294, 339

FEDERAL CASES
PAGE(S)
United States v. Dominguez Benitez,

542 U.S. 74 (2004) . . . . . . . . . . . . . . . . . . . 575
United States v. Dorais,
241 F.3d 1124 (9th Cir. 2001)
. . . . . . . . . . . . . 132
United States v. Dorsey,

677 F.3d 944 (9th Cir. 2012) . . . . . . . . . . . . . . 612
United States v. Drew,
259 F.R.D. 449 (C.D. Cal. 2009)
United States v. Driggers,
559 F.3d 1021 (9th Cir. 2009)
. . . . . . . . . . . . 679
. . . . . . . . . . . . . 519
United States v. Dula,

989 F.2d 772 (5th Cir. 1993) . . . . . . . . . . . . . . 797
United States v. Duncan,
712 F. Supp. 124 (S.D. Ohio 1988)
United States v. Duran,
59 F.3d 938 (9th Cir. 1995)
. . . . . . . . . . . 602
. . . . . . . . . . . . . . 730
United States v. Easter,

66 F.3d 1018 (9th Cir. 1996) . . . . . . . . . . . . . . 530
United States v. Edwards,
154 F.3d 915 (9th Cir. 1998) . . . . . . . . . . . . . . 590
303 F.3d 606 (5th Cir. 2002) . . . . . . . . . . . . . . 952
595 F.3d 1004 (9th Cir. 2010)
. . . . . . . . . . . . . 839
United States v. Egbuniwe,

969 F.2d 757 (9th Cir. 1992) . . . . . . . . . . . . . . 813
United States v. Elias,
269 F.3d 1003 (9th Cir. 2001)
. . . . . . . . . . . . . 732
United States v. Elliott,

571 F.2d 880 (5th Cir. 1978) . . . . . . . . . . . . . . 378
xlvi

FEDERAL CASES
PAGE(S)
United States v. Ellis,

641 F.3d 411 (9th Cir. 2011) . . . . . . . . . . .
921, 939
United States v. Endicott,

803 F.2d 506 (9th Cir. 1986) . . . . . . . . . . . . . . 822
United States v. Erickson,
75 F.3d 470 (9th Cir. 1996)
. . . . . . . . . . . . . . 615
United States v. Eufrasio,

935 F.2d 553 (3d Cir. 1991)
. . . . . . . . . . . . . . 377
United States v. Evans-Martinez,

611 F.3d 635 (9th Cir. 2010) . . . . . . . . . . . . . . 891
United States v. Evers,
669 F.3d 645 (6th Cir. 2012) . . . . . . . . . . . . . . 186
United States v. Fannin,
817 F.2d 1379 (9th Cir. 1987)
. . . . . . . . . . . . . 191
United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004)
. . . 166, 290, 375, 503, 657
United States v. Fiander,

547 F.3d 1036 (9th Cir. 2008)
. . . . . . . . . . . . . 751
United States v. Figueroa-Lopez,

125 F.3d 1241 (9th Cir. 1997)
. . . . . . . . . .
xlvii
632, 645

FEDERAL CASES
PAGE(S)
United States v. Fitch,

659 F.3d 788 (9th Cir. 2011) . . . . . . . . . . . . . . 861
United States v. Fleming,
215 F.3d 930 (9th Cir. 2000) . . . . . . . . . . . . . . 590
United States v. Flores,
753 F.2d 1499 (9th Cir. 1985)
. . . . . . . . . . . . . 737
United States v. Florez,

447 F.3d 145 (7th Cir. 2006) . . . . . . . . . . . . . . 751
United States v. Foppe,
993 F.2d 1444 (9th Cir. 1993)
. . . . . . . . . . . . . 747
United States v. Foreman,

926 F.2d 792 (9th Cir. 1990) . . . . . . . . . . . . . . 936
United States v. Fortna,
796 F.2d 724 (5th Cir. 1986) . . . . . . . . . . . . . . 139
United States v. Fowler,
535 F.3d 408 (6th Cir. 2008) . . . . . . . . . . . . . . 166
United States v. Franklin,
321 F.3d 1231 (9th Cir. 2003)
. . . . . . . . . . . . . 668
United States v. Franklin,

837 F. Supp. 916 (N.D. Ill. 1993)
. . . . . . . . . . . 935
United States v. Frederick,

78 F.3d 1370 (9th Cir. 1996) . . . . . . . . . . . . . . 655
United States v. Frederick,
182 F.3d 496 (7th Cir. 1999) . . . . . . . . . . . . . . 255
United States v. Freeman,
6 F.3d 586 (9th Cir. 1993) . . . . . . . . . . . . . . . 458
United States v. Frega,
179 F.3d 793 (9th Cir. 1999) . . . . . . . . . . . . . . 843
United States v. Freitas,
856 F.2d 1425 (9th Cir. 1988)
xlviii
. . . . . . . . . . . . . 161

FEDERAL CASES
PAGE(S)
United States v. Fruchter,

411 F.3d 377 (2d Cir. 2005)
. . . . . . . . . . . . . . 952
United States v. Fuchs,

218 F.3d 957 (9th Cir. 2000) . . . . . . . . . . . . . . 610
United States v. Gaines,
563 F.2d 1352 (9th Cir. 1977)
. . . . . . . . . . . . . 338
United States v. Gamboa-Cardenas,

508 F.3d 491 (9th Cir. 2007) . . . . . . . . . . .
United States v. Ganoe,
538 F.3d 1117 (9th Cir. 2008)
330, 727
. . . . . . . . . . . . . 535
United States v. Gardner,

611 F.2d 770 (9th Cir. 1980) . . . . . . . . . . . . . . 213
United States v. Garro,
517 F.3d 1163 (9th Cir. 2008)
. . . . . . . . . . . . . 861
United States v. Garza-Juarez,

992 F.2d 896 (9th Cir. 1993) . . . . . . . . . . . . . . 293
United States v. Gaskins,
849 F.2d 454 (9th Cir. 1988) . . . . . . . . . . . . . . 748
United States v. Gee,
695 F.2d 1165 (9th Cir. 1983)
. . . . . . . . . . . . . 630
United States v. Genova,

333 F.3d 750 (7th Cir. 2003) . . . . . . . . . . . . . . 959
United States v. George,
420 F.3d 991 (9th Cir. 2005) . . . . . . . . . . . . . . 725
United States v. Giberson,
527 F.3d 882 (9th Cir. 2008) . . . . . . . . . . . . . . 198
United States v. Gigante,
982 F. Supp. 140 (E.D.N.Y. 1997) . . . . . . . . . . . . 371
United States v. Gilmore,
599 F.3d 160 (2010) . . . . . . . . . . . . . . . . . . 919
xlix

FEDERAL CASES
PAGE(S)
United States v. Ginsberg,

773 F.2d 798 (7th Cir. 1985) . . . . . . . . . . . . . . 950
United States v. Giordano,
442 F.3d 30 (2d Cir. 2006) . . . . . . . . . . . . . . . 284
United States v. Gleason,
616 F.2d 2 (2d Cir. 1979)
. . . . . . . . . . . . . . . 642
United States v. Gleason,

616 F.2d 2 (2d Cir. 1979) . . . . . . . . . . . . . . . 644
United States v. Goble,
512 F.2d 458 (6th Cir. 1975) . . . . . . . . . . . . . . 339
United States v. Goldman,
447 F.3d 1094 (8th Cir. 2006)
. . . . . . . . . . . . . 934
United States v. Gomez-Norena,

908 F.2d 497 (9th Cir. 1990) . . . . . . . . . . . . . . 519
United States v. Gomez-Soto,
723 F.2d 649 (9th Cir. 1984) . . . . . . . . . . . . . . 194
United States v. Gonzales,
520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . . 958
United States v. Gonzalez-Rincon,
36 F.3d 859 (9th Cir. 1974) . . . . . . . . . . . . . . 642
United States v. Gordon-Nikkar,
518 F.2d 972 (5th Cir. 1975) . . . . . . . . . . . . . . 270
United States v. Govan,
152 F.3d 1088 (9th Cir. 1998)
. . . . . . . . . . . . . 846
United States v. Gracidas-Ulibarry,

231 F.3d 1188 (9th Cir. 2000) . . . . . . . . . . . . . 668
United States v. Graf,
610 F.3d 1148 (9th Cir. 2010)
. . . . . . . . . .
United States v. Gray,

876 F.2d 1411 (9th Cir. 1989)
. . . . . . . . . . . . . 239
372, 662

FEDERAL CASES
United States v. Green,
350 U.S. 415 (1956)
PAGE(S)
. . . . . . . . . . . . . . . . . . 155
United States v. Green,

648 F.2d 587 (9th Cir. 1981) . . . . . . . . . . . . . . 784
United States v. Griffin,
660 F.2d 996 (4th Cir. 1992) . . . . . . . . . . . . . . 377
United States v. Griffth,
85 F.3d 284 (7th Cir. 1996)
. . . . . . . . . . . . . . 467
United States v. Gurolla,

333 F.3d 944 (9th Cir. 2003) . . . . . . . . . . . . . . 288
United States v. Hammons,
558 F.3d 1100 (9th Cir. 2009)
. . . . . . . . . . . . . 839
United States v. Hankey,

203 F.3d 1160 (9th Cir. 2000)
. . . . . . . . . . . . . 530
United States v. Harrington,

114 F.3d 517 (5th Cir. 1997) . . . . . . . . . . . . . . 934
United States v. Harris,
185 F.3d 999 (9th Cir. 1999) . . . . . . . . . . . . . . 679
United States v. Harris,
932 F.2d 1529 (5th Cir. 1991)
. . . . . . . . . . . . . 669
United States v. Harvill,

501 F.2d 295 (9th Cir. 1974) . . . . . . . . . . . . . . 747
United States v. Hasting,
461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . 293
United States v. Hay,
231 F.3d 630 (9th Cir. 2000) . . . . . . . . . . . . . . 187
United States v. Hayes,
794 F.2d 1348 (9th Cir. 1986)
United States v. Haynes,
398 F.2d 980 (2d Cir. 1968)
li
. . . . . . . . . . . . . 189
. . . . . . . . . . . . . . 810

FEDERAL CASES
PAGE(S)
United States v. Hemmingson,

157 F.3d 347 (5th Cir. 1998) . . . . . . . . . . . . . . 934
United States v. Henry,
447 U.S. 264 (1980)
. . . . . . . . . . . . . . . . . . 295
United States v. Heredia,

483 F.3d 913 (9th Cir. 2007) . . . . . . . . . . . . . . 677
United States v. Heredia,
483 F.3d 913 (9th Cir. 2007) . . . . . . . . . . . . . . 730
United States v. Hernandez,
952 F.2d 1110 (9th Cir. 1991)
. . . . . . . . . . . . . 338
United States v. Hernandez-Escarsega,

886 F.2d 1560 (9th Cir. 1989) . . . . .
191, 757, 765, 809
United States v. Hernandez-Herrera,

273 F.3d 1213 (9th Cir. 2001) . . . . . . . . . . . . . 320
United States v. Hernandez-Muniz,
170 F.3d 1007 (10th Cir. 1999) . . . . . . . . . . . . . 630
United States v. Hernandez-Ramirez,
254 F.3d 841 (9th Cir. 2001) . . . . . . . . . . . . . . 860
United States v. Hernandez-Vega,
235 F.3d 705 (9th Cir. 2000) . . . . . . . . . . . . . . 536
United States v. Hicks,
217 F.3d 1038 (9th Cir. 2000)
. . . . . . . . . .
United States v. Hieng,

679 F.3d 1131 (9th Cir. 2012)
. . . . . . . . . . . . . 610
United States v. Higuera-Llamos,

574 F.3d 1206 (9th Cir. 2009)
. . . . . . . . . .
680, 725
530, 921
United States v. Hill,

459 F.3d 966 (9th Cir. 2006) . . . . . . . . . . . . . . 190
United States v. Hinkson,
585 F.3d 1247 (9th Cir. 2009)
lii
. . . . . . . . 307, 531, 211

FEDERAL CASES
PAGE(S)
United States v. Hoac,

990 F.2d 1099 (9th Cir. 1993)
. . . . . . . . . . . . . 932
United States v. Hoelker,

765 F.2d 1422 (9th Cir. 1985)
. . . . . . . . . .
United States v. Holzman,

871 F.2d 1496 (9th Cir. 1989)
. . . . . . . . . . . . . 191
United States v. Hugs,

109 F.3d 1375 (9th Cir. 1997)
. . . . . . . . . . . . . 293
119, 156
United States v. Hugs,

384 F.3d 762 (9th Cir. 2004) . . . . . . . . . . . . . . 527
United States v. Hunt,
505 F.2d 931 (5th Cir. 1974) . . . . . . . . . . . . . . 135
United States v. Hurley,
63 F.3d 1 (1st Cir.
1995) . . . . . . . . . . . . . . . 954
United States v. Isabel,

945 F.2d 1193 (1st Cir. 1991)
. . . . . . . . . . . . . 669
United States v. Issacs,

708 F.2d 1365 (9th Cir. 1983)
. . . . . . . . . . . . . 134
United States v. Italiano,

894 F.2d 1280 (11th Cir. 1990) . . . . . . . . . . . . . 357
United States v. Ivezaj,
568 F.3d 88 (2d Cir. 2009) . . . . . . . . . . . . . . . 843
United States v. Jabara,
644 F.2d 574 (6th Cir. 1981) . . . . . . . . . . . . . . 186
United States v. Jacobs,
855 F.2d 652 (9th Cir. 1988) . . . . . . . . . . . . . . 289
United States v. Jawara,
474 F.3d 565 (9th Cir. 2007) . . . . . . . . . . . . . . 532
United States v. Jefferson,
674 F.3d 332 (4th Cir. 2012) . . . . . . . . . . . . . . 474
liii

FEDERAL CASES
PAGE(S)
United States v. Jenkins,

633 F.3d 788 (9th Cir. 2011) . . . . . . . . . . . . . . 345
United States v. Jennen,
596 F.3d 594 (9th Cir. 2010) . . . . . . . . . . . . . . 152
United States v. Jimenez,
300 F.3d 1166 (9th Cir. 2002)
. . . . . . . . . . . . . 853
United States v. John,

597 F.3d 263 (5th Cir. 2010) . . . . . . . . . . . . . . 693
United States v. Johnson,
297 F.3d 845 (9th Cir. 2002) . . . . . . . . . . . . . . 337
United States v. Jones,
713 F.2d 1316 (9th Cir. 1983)
United States v. Kearns,
5 F.3d 1251 (9th Cir. 1993)
. . . . . . . . . . . . . 318
. . . . . . . . . . . . . . 328
United States v. Kearns,

61 F.3d 1422 (9th Cir. 1995) . . . . . . . . . . . . . . 773
United States v. Keiser,
57 F.3d 847 (9th Cir. 1995)
United States v. Kelm,
827 F.2d 1319 (9th Cir. 1987)
. . . . . . . . . . . . . . 728
. . . . . . . . . . . . . 810
United States v. Kent,

649 F.3d 906 (9th Cir. 2011) . . . . . . . . . . . . . . 320
United States v. Kerr,
981 F.2d 1050 (9th Cir. 1992)
. . . . . . . . . . . . . 655
United States v. Keys,

133 F.3d 1282 (9th Cir. 1998)
. . . . . . . . . .
United States v. Kimbrew,

406 F.3d 1149 (9th Cir. 2005)
. . . . . . . . . . . . . 863
689, 736
United States v. Kincaid-Chauncey,

556 F.3d 923 (9th Cir. 2009) . . . . . . . . . . . . . . 436
liv

FEDERAL CASES
PAGE(S)
United States v. Klee,

494 F.2d 394 (9th Cir. 1974) . . . . . . . . . . . . . . 764
United States v. Klinger,
128 F.3d 705 (9th Cir. 1997) . . . . . . . . . . . . . . 677
United States v. Kohring,
637 F.3d 895 (9th Cir. 2011) . . . . . . . . . . . . . . 294
United States v. Kovel,
296 F.2d 918 (2d Cir. 1961)
. . . . . . . . . . . . . . 241
United States v. Kow,

58 F.3d 423 (9th Cir. 1995)
. . . . . . . . . . . . . . 202
United States v. Krupa,

658 F.3d 1174 (9th Cir. 2011)
. . . . . . . . . . . . . 152
United States v. Kubick,

205 F.3d 1117 (9th Cir. 1999)
. . . . . . . . . . . . . 846
United States v. Kyllo,

37 F.3d 526 (9th Cir. 1994)
. . . . . . . . . . . . . . 175
United States v. Labonte,

520 U.S. 751 (1997) . . . . . . . . . . . . . . .
884, 915
United States v. Lacy,

119 F.3d 742 (9th Cir. 1997) . . . . . . . . . . . . . . 688
United States v. Lai,
944 F.2d 1434 (9th Cir. 1991)
. . . . . . . . . . . . . 612
United States v. Lam,

271 F. Supp. 2d 1182 (N.D. Cal. 2003)
. . . . . . . . . 215
United States v. Lanci,

669 F.2d 391 (6th Cir. 1982) . . . . . . . . . . . . . . 470
United States v. Lande,
968 F.2d 907 (9th Cir. 1992) . . . . . . . . . . . . . . 742
United States v. Laurenti,
611 F.3d 520 (9th Cir. 2010) . . . . . . . . . . . . . . 499
lv

FEDERAL CASES
PAGE(S)
United States v. Laurienti,

611 F.3d 530 (9th Cir. 2010) . . . . . . . . . . .
518, 701
United States v. Laurins,

857 F.2d 529 (9th Cir. 1988) . . . . . . . . . . .
261, 653
United States v. Lazarenko,

564 F.3d 1026 (9th Cir. 2009)
502, 890
. . . . . . . . . .
United States v. Ledee,

549 F.2d 990 (5th Cir. 1977) . . . . . . . . . . . . . . 616
United States v. Leon,
468 U.S. 897 (1984)
. . . . . . . . . . . . . . . . . . 153
United States v. Leung,

351 F. Supp. 2d 992 (C.D. Cal. 2005) . . . . . . . . . . 301
United States v. Leyva,
282 F.3d 623 (9th Cir. 2002) . . . . . . . . . . . . . . 469
United States v. Liang,
362 F.3d 1200 (9th Cir. 2004)
United States v. Libby,
429 F. Supp. 2d 1 (D.D.C. 2006)
. . . . . . . . . . . . . 862
. . . . . . . . . . . . 643
United States v. Libretti,

516 U.S. 29 (1995) . . . . . . . . . . . . . . . . . . . 948
United States v. Ligenfelter,
997 F.2d 632 (9th Cir. 1993) . . . . . . . . . . . . . . 131
United States v. Lindsey,
634 F.3d 541 (9th Cir. 2011) . . . . . . . . . . . . . . 449
United States v. Lo,
231 F.3d 471 (9th Cir. 2000) . . . . . . . . . . . . . . 346
United States v. Logan,
250 F.3d 350 (6th Cir. 2001) . . . . . . . . . . . . . . 758
United States v. Lombard,
853 F. Supp. 543 (D. Me. 1993) . . . . . . . . . . . . . 145
lvi

FEDERAL CASES
PAGE(S)
United States v. Lopez-Alvarez,

970 F.2d 583 (9th Cir. 1992) . . . . . . . . . . .
657, 730
United States v. Lovett,

811 F.2d 979 (7th Cir. 1987) . . . . . . . . . . . . . . 465
United States v. Luk,
859 F.2d 667 (9th Cir. 1988) . . . . . . . . . . . . . . 186
United States v. Macklin,
535 F.2d 191 (2d Cir. 1976)
. . . . . . . . . . . . . . 355
United States v. Marashi,

913 F.2d 724 (9th Cir. 1990) . . . . . . . . . . .
259, 830
United States v. Marcial-Santiago,

447 F.3d 715 (9th Cir. 2006) . . . . . . . . . . . . . . 883
United States v. Marcus,
130 S. Ct. 2159 (2010) . . . . . . . . . . . . . . . . . 334
United States v. Mares-Molina,
913 F.2d 770 (9th Cir. 1990) . . . . . . . . . . . . . . 933
United States v. Marino,
277 F.3d 11 (1st Cir. 2002)
. . . . . . . . . . . . . . 376
United States v. Mariscal,

939 F.2d 884 (9th Cir. 1991) . . . . . . . . . . . . . . 337
United States v. Martin,
278 F.3d 988 (9th Cir. 2002) . . . . . . . . . . . . . . 237
United States v. Matera,
489 F.3d 115 (2d Cir. 2007)
. . . . . . . . . . .
United States v. Mausali,

590 F.3d 1077 (9th Cir. 2010)
365, 535
. . . . . . . . . . . . . 288
United States v. Mayans,

17 F.3d 1174 (9th Cir. 1994) . . . . . . . . . . . . . . 783
United States v. Mazurie,
419 U.S. 544 (1975) . . . . . . . . . . . . . . . . . . 334
lvii

FEDERAL CASES
PAGE(S)
United States v. McFall,

558 F.3d 951 (9th Cir. 2009) . . . . . . . . . . .
158, 159
United States v. McGuire,

608 F.2d 1028 (5th Cir. 1979)
. . . . . . . . . . . . . 339
United States v. McHan,

101 F.3d 1027 (4th Cir. 1996)
. . . . . . . . . . . . . 954
United States v. McIntyre,

582 F.2d 1221 (9th Cir. 1978)
. . . . . . . . . . . . . 734
United States v. McKoy,

771 F.2d 1207 (9th Cir. 1985)
. . . . . . . . . .
655, 783
United States v. McManaman,

673 F.3d 841 (8th Cir. 2012) . . . . . . . . . . . . . . 145
United States v. McNair,
439 F. Supp. 103 (E.D. Pa. 1977) . . . . . . . . . . . . 145
United States v. McNeal,
77 F.3d 938 (7th Cir. 1996)
. . . . . . . . . . . . . . 678
United States v. McTiernan,

695 F.3d 882 (9th Cir. 2012) . . . . . . . . . . . . . . 210
United States v. Meek,
366 F.3d 705 (9th Cir. 2004) . . . . . . . . . . . . . . 166
United States v. Mende,
43 F.3d 1298 (9th Cir. 1995) . . . . . . . . . . .
342, 533
United States v. Mendonsa,

989 F.2d 366 (9th Cir. 1993) . . . . . . . . . . . . . . 161
United States v. Mendoza,
438 F.3d 792 (7th Cir. 2006) . . . . . . . . . . . . . . 132
United States v. Mendoza,
464 U.S. 154 (1984) . . . . . . . . . . . . . . . . . . 163
United States v. Michaelian,
803 F.2d 1042 (9th Cir. 1986)
lviii
. . . . . . . . . .
162, 192

FEDERAL CASES
PAGE(S)
United States v. Mikos,

539 F.3d 706 (7th Cir. 2008) . . . . . . . . . . . . . . 623
United States v. Miller,
116 F.3d 641 (2d Cir. 1997)
. . . . . . . . . . . . . . 540

425 U.S. 435 . . . . . . . . . . . . . . . . . . . . . . 137
471 U.S. 130 (2001)
. . . . . . . . . . . . . . . . . . 521
United States v. Mitchell,

624 F.3d 1023 (9th Cir. 2010)
. . . . . . . . . . . . . 939
United States v. Mohamed,

459 F.3d 979 (9th Cir. 2006) . . . . . . . . . . . . . . 920
United States v. Mohsen,
587 F.3d 1028 (9th Cir. 2009)
. . . . . . . . . . . . . 519
United States v. Molina,

934 F.2d 1440 (9th Cir. 1991)
. . . . . . . . . . . . . 652
United States v. Moncini,

882 F.2d 401 (9th Cir. 1989) . . . . . . . . . . . . . . 738
United States v. Monsanto,
491 U.S. 600 (1989) . . . . . . . . . . . . . . . . . . 958
United States v. Montgomery,
384 F.3d 1050 (9th Cir. 2004)
. . . . . . . . . . . . . 732
United States v. Montoya,

45 F.3d 1286 (9th Cir. 1995) . . . . . . . . . . . . . . 290
United States v. Moore,
525 F.3d 1033 (11th Cir. 2008) . . . . . . . . . . . . . 473
United States v. Moreland,
622 F.3d 1147 (9th Cir. 2010)
United States v. Morris,
928 F.2d 504 (2d Cir. 1991)
lix
. . . . . . . . . . . . . 653
. . . . . . . . . . . . . . 678

FEDERAL CASES
PAGE(S)
United States v. Morrison,

449 U.S. 361 (1981) . . . . . . . . . . . . . . . . . . 329
United States v. Morrow,
914 F.2d 608 (4th Cir. 1990) . . . . . . . . . . . . . . 381
United States v. Mullins,
922 F.2d 1472 (9th Cir. 1993)
. . . . . . . . . . . . . 847
United States v. Munoz-Camarena,

631 F.3d 1028 (9th Cir. 2011)
. . . . . . . . . . . . . 871
United States v. Murillo,

288 F.3d 1126 (9th Cir. 2002)
. . . . . . . . . . . . . 298
United States v. Murphy,

516 F.3d 1117 (9th Cir. 2008)
. . . . . . . . . . . . . 252
United States v. Musacchio,

968 F.2d 782 (9th Cir. 1991) . . . . . . . . . . . . . . 697
United States v. Nader,
542 F.3d 713 (9th Cir. 2008) . . . . . . . . . . . . . . 333
United States v. Najjar,
300 F.3d 466 (4th Cir. 2002) . . . . . . . . . . . . . . 952
United States v. Navarro,
408 F.3d 1184 (9th Cir. 2004)
. . . . . . . . . . . . . 547
United States v. Navarro-Garcia,

926 F.2d 818 (9th Cir. 1991) . . . . . . . . . . . . . . 764
United States v. Necoechea,
986 F.2d 1273 (9th Cir. 1993)
. . . . . . . . . . . . . 648
United States v. Nevils,

598 F.3d 1158 (9th Cir. 2010)
. . . . . . . . . .
United States v. Newman,

659 F.3d 1235 (9th Cir. 2011)
. . . . . . . . . . . . . 946
372, 662
United States v. Nguyen,

255 F.3d 1355 (11th Cir. 2001) . . . . . . . . . . . . . 843
lx

FEDERAL CASES
PAGE(S)
United States v. Nichols,

464 F.3d 1117 (9th Cir. 2006)
United States v. Nixon,
418 U.S. 683 (1974)
. . . . . . . . . . . . . . . . . . 319
United States v. Nobari,

574 F.3d 1065 (9th Cir. 2009)
United States v. Nobles,
422 U.S. 225 (1975)
. . . . . . . . . . . . . 149
. . . . . . . . . . . . . 287
. . . . . . . . . . . . . . . . . . 246
United States v. Norton,

867 F.2d 1354 (11th Cir. 1989) . . . . . . . . . . . . . 807
United States v. Nosal,
642 F.3d 781 (9th Cir. 2011) . . . . . . . . . . . . . . 694
United States v. Nosal,
676 F.3d 854 (9th Cir. 2012) . . . . . . . . . . .
669, 679
United States v. Noushar,

78 F.3d 1442 (9th Cir. 1996) . . . . . . . . . . . . . . 320
United States v. Noushfar,
78 F.3d 1442 (9th Cir. 1996) . . . . . . . . . . . . . . 203
United States v. Nunez-Rios,
622 F.2d 1093 (2d Cir. 1980) . . . . . . . . . . . . . . 288
United States v. Olano,
62 F.3d 1180 (9th Cir. 1995) . . . . . . . . . . . . . . 764
United States v. Olano,
507 U.S. 725 (1993)
. . . . . . . . . . . . . . . . . . 334
United States v. One 56-Foot Yacht,

702 F.2d 1276 (9th Cir. 1983) . . . . . . . . . . . . . 169
United States v. Ortiz,
362 F.3d 1274 (9th Cir. 2004)
. . . . . . . . . . . . . 845
United States v. Pacheco,

912 F.2d 297 (9th Cir. 1990) . . . . . . . . . . . . . . 360
lxi

FEDERAL CASES
PAGE(S)
United States v. Padilla,

508 U.S. 77 (1993) . . . . . . . . . . . . . . . .
132, 138
United States v. Panaro,

241 F.3d 1104 (9th Cir. 2001)
. . . . . . . . . . . . . 158
United States v. Panaro,

266 F.3d 939 (9th Cir. 2001) . . . . . . . . . . .
119, 157
United States v. Parker,

549 F.3d 5 (1st Cir. 2008) . . . . . . . . . . . . . . . 207
United States v. Patterson,
819 F.2d 1495 (9th Cir. 1987)
. . . . . . . . . . . . . 339
United States v. Paul,

561 F.3d 970 (9th Cir. 2009) . . . . . . . . . . . . . . 893
United States v. Pearson,
274 F.3d 1225 (9th Cir. 2001)
. . . . . . . . . .
710, 727
United States v. Pelisamen,

641 F.3d 399 (9th Cir. 2011) . . . . . . . . . . . . . . 373
United States v. Pelullo,
14 F.3d 881 (3d Cir. 1994) . . . . . . . . . . . . . . . 951
United States v. Pemberton,
853 F.2d 730 (9th Cir. 1988) . . . . . . . . . . . . . . 748
United States v. Pena,
897 F.2d 1075 (11th Cir. 1990) . . . . . . . . . . . . . 746
United States v. Perez,
116 F.3d 840 (9th Cir. 1997) . . . . . . . . . . .
499, 676
United States v. Perholtz,

842 F.2d 343 (D.C. Cir. 1988)
. . . . . . . . . . . . . 522
United States v. Perlaza,

439 F.3d 1149 (9th Cir. 2006)
. . . . . . . . . . . . . 615
lxii

FEDERAL CASES
PAGE(S)
United States v. Persico,

832 F.2d 705 (2d Cir. 1987)
. . . . . . . . . . . . . . 353
United States v. Peterson,

98 F.3d 502 (9th Cir. 1996)
. . . . . . . . . . . . . . 862
United States v. Petri,

---, F.3d -- 2013 WL 485232 (9th Cir. Feb. 8, 2013)
. . 602
United States v. Phillips,

540 F.2d 319 (8th Cir. 1976) . . . . . . . . . . . . . . 211
United States v. Pimentel,
654 F.2d 538 (9th Cir. 1981) . . . . . . . . . . . . . . 756
United States v. Pineda-Doval,
692 F.3d 942 (9th Cir. 2012) . . . . . . . . . . .
211, 838
United States v. Pitner,

307 F.3d 1178 (9th Cir. 2002)
. . . . . . . . . . . . . 337
United States v. Pizzichiello,

272 F.3d 1232 (9th Cir. 2002)
. . . . . . . . . . . . . 855
United States v. Polizzi,

801 F.2d 1543 (9th Cir. 1986)
. . . . . . . . . . . . . 338
United States v. Porcelli,

865 F.2d 1352 (2d Cir. 1989) . . . . . . . . . . . . . . 958
United States v. Prantil,
764 F.2d 548 (9th Cir. 1985) . . . . . . . . . . . . . . 650
United States v. Quintana-Torres,
235 F.3d 1197 (9th Cir. 2000)
. . . . . . . . . .
372, 662
United States v. Ramos-Paulino,

488 F.3d 459 (1st Cir. 2007) . . . . . . . . . . . . . . 849
United States v. Rastelli,
870 F.2d 822 (2d Cir. 1989)
. . . . . . . . . . . . . . 377
United States v. Reese,

2 F.3d 870 (9th Cir. 1993) . . . . . . . . . . . . . . . 866
lxiii

FEDERAL CASES
PAGE(S)
United States v. Reivich,

793 F.2d 957 (8th Cir. 1986) . . . . . . . . . . . . . . 166
United States v. Reporters Committee For Freedom of the Press,
489 U.S. 749 (1989) . . . . . . . . . . . . . . . . . . 413
United States v. Ressam,
679 F.3d 1069 (9th Cir. 2012)
. . . . . . . . . . . . . 840
United States v. Restrepo,

930 F.2d 705 (9th Cir. 1991) . . . . . . . . . . . . . . 287
United States v. Restrepo-Rua,
815 F.2d 1327 (9th Cir. 1987)
. . . . . . . . . . . . . 210
United States v. Rewald,

889 F.2d 836 (9th Cir. 1989) . . . . . . . . . . . . . . 148
United States v. Reyes,
577 F.3d 1069 (9th Cir. 2009)
. . . . . . . . . . . . . 798
United States v. Reyes,

660 F.3d 454 (9th Cir. 2011) . . . . . . . . . . . . . . 677
United States v. Reyes-Bosque,
596 F.3d 1017 (9th Cir. 2010)
. . . . . . . . . . . . . 132
United States v. Reynolds,

345 U.S. 1 (1953) . . . . . . . . . . . . . . . . . . . 283
United States v. Ringgold,
571 F.3d 948 (9th Cir. 2009) . . . . . . . . . . . . . . 884
United States v. Rivera-Gomez,
634 F.3d 507 (9th Cir. 2011) . . . . . . . . . . . . . . 877
United States v. Rizk,
660 F.3d 1125 (9th Cir. 2011)
United States v. Roberts,
660 F.3d 149 (2d Cir. 2011)
. . . . . . . . . .
532, 541
. . . . . . . . . . . . . . 952
United States v. Rodrigues,

678 F.3d 693 (9th Cir. 2012) . . . . . . . . . . . . . . 481
lxiv

FEDERAL CASES
PAGE(S)
United States v. Rodriguez,

360 F.3d 949 (9th Cir. 2004) . . . . . . . . . . . . . . 330
628 F.3d 1258 (11th Cir. 2010) . . . . . . . . . . . . . 694
630 F.3d 39 (9th Cir. 2010)
. . . . . . . . . . . . . . 919
United States v. Rogers,

722 F.2d 557 (9th Cir. 1983) . . . . . . . . . . . . . . 628
United States v. Rohrer,
708 F.2d 429 (9th Cir. 1983) . . . . . . . . . . . . . . 757
United States v. Romero-Avila,
210 F.3d 1017 (9th Cir. 2000)
United States v. Rose,
20 F.3d 367 (9th Cir. 1994)
. . . . . . . . . . . . . 764
. . . . . . . . . . . . . . 846
United States v. Rosenberger,

872 F.2d 240 (8th Cir. 1989) . . . . . . . . . . . . . . 145
United States v. Rosenthal,
454 F.3d 943 (9th Cir. 2006) . . . . . . . . . . . . . . 762
United States v. Rousseau,
257 F.3d 925 (9th Cir. 2001) . . . . . . . . . . . . . . 793
United States v. Rrapi,
175 F.3d 742 (9th Cir. 1999) . . . . . . . . . . . . . . 768
United States v. Rude,
88 F.3d 1538 . . . . . . . . . . . . . . . . . . . . . . 653
United States v. Ruehle,
583 F.3d 600 (9th Cir. 2009) . . . . . . . . . . . . . . 237
United States v. Ruggiero,
928 F.2d 1289 (2d Cir. 1991) . . . . . . . . . . . . . . 818
United States v. Russell,
411 U.S. 423 (1973) . . . . . . . . . . . . . . . . . . 289
lxv

FEDERAL CASES
PAGE(S)
United States v. Ryan,

548 F.2d 782 (9th Cir. 1976) . . . . . . . . . . . . . . 289
United States v. SDI Future Health, Inc.,
568 F.3d 684 (9th Cir. 2009) . . . . . . . . . . .
187, 197
United States v. Sablan,

92 F.3d 865 (9th Cir. 1996)
. . . . . . . . . . . . . . 692
United States v. Sacco,

563 F.2d 552 (2d Cir. 1977)
. . . . . . . . . . . . . . 340
United States v. Sadolsky,

234 F.3d 938 (6th Cir. 2000) . . . . . . . . . . . . . . 693
United States v. Saechao,
418 F.3d 1073 (9th Cir. 2005)
. . . . . . . . . . . . . 621
United States v. Salazar-Mojica,

634 F.3d 1070 (9th Cir. 2011)
. . . . . . . . . . . . . 713
United States v. Salcido,

506 F.3d 729 (9th Cir. 2007) . . . . . . . . . . . . . . 781
United States v. Salcido-Corrales,
249 F.3d 1151 (9th Cir. 2001)
. . . . . . . . . . . . . 847
United States v. Salinas,

522 U.S. 52 (1997) . . . . . . . . . . . . . . . . . . . 398
United States v. Salmonese,
352 F.3d 608 (2d Cir. 2003)
. . . . . . . . . . . . . . 353
United States v. Salvucci,

448 U.S. 83 (1980) . . . . . . . . . . . . . . . . . . . 138
United States v. Santoni,
585 F.2d 667 (4th Cir. 1978) . . . . . . . . . . . . . . 155
United States v. Santos,
553 U.S. 507 (2008) . . . . . . . . . . . . . . . . . . 956
United States v. Sarkisian,
197 F.3d 966 (9th Cir. 1999) . . . . . . . . . . .
lxvi
135, 618

FEDERAL CASES
PAGE(S)
United States v. Sarno,

73 F.3d 1470 (9th Cir. 1995) . . . . . . . . . . .
484, 653
United States v. Scala,

231 F.3d 492 (9th Cir. 2000) . . . . . . . . . . . . . . 857
United States v. Schmick,
904 F.2d 936 (5th Cir. 1990) . . . . . . . . . . . . . . 361
United States v. Schmidt,
947 F.2d 362 (9th Cir. 1991) . . . . . . . . . . . . . . 199
United States v. Scialabba,
282 F.3d 475 (7th Cir. 2002) . . . . . . . . . . . . . . 959
United States v. Scott,
642 F.3d 791 (9th Cir. 2011) . . . . . . . . . . . . . . 749
United States v. Sears, Roebuck & Co.,
785 F.2d 777 (9th Cir. 1986) . . . . . . . . . . . . . . 360
United States v. Segal,
495 F.3d 826 (7th Cir. 2007) . . . . . . . . . . . . . . 958
United States v. Segall,
833 F.2d 144 (9th Cir. 1987) . . . . . . . . . . . . . . 576
United States v. Shaffer,
789 F.2d 682 (9th Cir. 1986) . . . . . . . . . . . . . . 800
United States v. Shipsey,
363 F.3d 962 (9th Cir. 2004) . . . . . . . . . 355, 496, 497
United States v. Silva,
247 F.3d 1051 (9th Cir. 2001)
. . . . . . . . . . . . . 134
United States v. Simmons,

154 F.3d 765 (8th Cir. 1998) . . . . . . . . . . . . . . 953
United States v. Simpson,
813 F.2d 1462 (9th Cir. 1987)
. . . . . . . . . . . . . 290
United States v. Sine,

493 F.3d 1021 (9th Cir. 2007)
. . . . . . . . . . . . . 532
lxvii

FEDERAL CASES
PAGE(S)
United States v. Singleton,

987 F.2d 1444 (9th Cir. 1993)
. . . . . . . . . . . . . 134
United States v. Sitton,

968 F.2d 947 (9th Cir. 1992) . . . . . . . . . . . . . . 338
United States v. Skilling,
638 F.3d 480 (5th Cir. 2011) . . . . . . . . . . . . . . 485
United States v. Skillman,
442 F.2d 542 (8th Cir. 1971) . . . . . . . . . . . . . . 642
United States v. Smith,
424 F.3d 992 (9th Cir. 2005) . . . . . . . . . . . . . . 203
424 F.3d 992 (9th Cir. 2005) . . . . . . . . . . . . . . 755
924 F.2d 889 (9th Cir. 1991) . . . . . . . . . . . . . . 290
United States v. Smith-Baltiher,
424 F.3d 913 (9th Cir. 2005) . . . . . . . . . . . . . . 147
United States v. Soliman,
813 F.2d 277 (9th Cir. 1987) . . . . . . . . . . .
United States v. Somsamouth,
352 F.3d 1271 (9th Cir. 2003)
612, 657
. . . . . . . . . . . . . 678
United States v. Spilotro,

680 F.2d 612 (9th Cir. 1982) . . . . . . . . . . . . . . 951
United States v. Spilotro,
800 F.2d 959 (9th Cir. 1986) . . . . . . . . . . .
128, 186
United States v. Springfield,

829 F.2d 860 (9th Cir. 1987) . . . . . . . . . . . . . . 758
United States v. Stapleton,
293 F.3d 1111 (9th Cir. 2002)
. . . . . . . . . . . . . 668
United States v. Staves,

383 F.3d 977 (9th Cir. 2004) . . . . . . . . . . . . . . 166
lxviii

FEDERAL CASES
PAGE(S)
United States v. Stevenson,

396 F.3d 538 (4th Cir. 2005) . . . . . . . . . . . . . . 186
United States v. Still,
857 F.2d 671 (9th Cir. 1988) . . . . . . . . . . . . . . 681
United States v. Stinson,
647 F.3d 1196 (9th Cir. 2011)
. . . . . . . . . . . . . 288
United States v. Strifler,

851 F.2d 1197 (9th Cir. 1988)
. . . . . . . . . . . . . 172
United States v. Stringer,

535 F.3d 929 (9th Cir. 2008) . . . . . . . . . . . . . . 307
United States v. Stubbs,
873 F.2d 210 (9th Cir. 1989) . . . . . . . . . . . . . . 202
United States v. Sun-Diamond Growers,
526 U.S. 398 (1999) . . . . . . . . . . . . . . . . . . 472
United States v. Sutcliffe,
505 F.3d 944 (9th Cir. 2007) . . . . . . . . . . . . . . 704
United States v. Sykes,
648 F.3d 1140 (9th Cir. 2011)
. . . . . . . . . . . . . 939
United States v. Symington,

195 F.3d 1080 (9th Cir. 1999)
. . . . . . . . . . . . . 814
United States v. Tafoya-Montelongo,

659 F.3d 738 (9th Cir. 2011) . . . . . . . . . . . . . . 532
United States v. Talao,
222 F.3d 1133 (9th Cir. 2000)
. . . . . . . . . . . . . 275
United States v. Tallman,

952 F.2d 164 (8th Cir. 1991) . . . . . . . . . . . . . . 807
United States v. Tam,
240 F.3d 797 (9th Cir. 2001) . . . . . . . . . . . . . . 650
United States v. Tamura,
694 F.2d 591 (9th Cir. 1982) . . . . . . . . . . . . . . 590
lxix

FEDERAL CASES
PAGE(S)
United States v. Tawab,

984 F.2d 1533 (9th Cir. 1993)
. . . . . . . . . . . . . 358
United States v. Tedder,

403 F.3d 836 (7th Cir. 2005) . . . . . . . . . . . . . . 950
United States v. Teel,
691 F.3d 578 (5th Cir. 2012) . . . . . . . . . . . . . . 465
United States v. Tekle,
329 F.3d 1108 (9th Cir. 2003)
. . . . . . . . . . . . . 829
United States v. Tham,

960 F.2d 1391 (9th Cir. 1991)
. . . . . . . . . . . . . 746
United States v. Throckmorton,

87 F.3d 1069 (9th Cir. 1996) . . . . . . . . . . . . . . 337
United States v. Tille,
729 F.2d 615 (9th Cir. 1984) . . . . . . . . . . .
376, 505
United States v. Tirouda,

394 F.3d 683 (9th Cir. 2005) . . . . . . . . . . . . . . 678
United States v. Tisor,
96 F.3d 370 (9th Cir. 1996)
. . . . . . . . . . . . . . 532
United States v. Tocco,

306 F.3d 279 (6th Cir. 2002) . . . . . . . . . . . . . . 903
United States v. Toro-Barboza,
673 F.3d 1136 (9th Cir. 2012)
. . . . . . . . . . . . . 558
United States v. Torres-Flores,

502 F.3d 885 (9th Cir,. 2007)
. . . . . . . . . . . . . 740
United States v. Towne,

997 F.2d 537 (9th Cir. 1993) . . . . . . . . . . . . . . 189
United States v. Towne,
998 F.2d 537 (9th Cir. 1993) . . . . . . . . . . . . . . 199
United States v. Townsend,
987 F.2d 927 (2d Cir. 1993)
lxx
. . . . . . . . . . . . . . 733

FEDERAL CASES
PAGE(S)
United States v. Townsley,

843 F.2d 1070 (8th Cir. 1988)
. . . . . . . . . . . . . 270
United States v. Tracy,

12 F.3d 1186 (2d Cir. 1993)
. . . . . . . . . . . . . . 340
United States v. Trainor,

477 F.3d 24 (1st Cir. 2007)
. . . . . . . . . . . . . . 502
United States v. Treadwell,

593 F.3d 990 (9th Cir. 2010) . . . . . . . . . . . . . . 838
United States v. Trice,
245 F.3d 1041 (8th Cir. 2001)
. . . . . . . . . . . . . 934
United States v. Truglio,

731 F.2d 1123 (4th Cir. 1984)
. . . . . . . . . . . . . 211
United States v. Tucker,

8 F.3d 673 (9th Cir. 1993) . . . . . . . . . . . . . . . 294
United States v. Turkette,
452 U.S. 576 (1981) . . . . . . . . . . . . . 375, 407, 611
United States v. Turman,
122 F.3d 1167 (9th Cir. 1997)
. . . . . . . . . . . . . 678
United States v. Turrietta,

696 F.3d 972 (10th Cir. 2012)
. . . . . . . . . . . . . 688
United States v. Unruh,

855 F.2d 1363 (9th Cir. 1987)
. . . . . . . . . .
342, 509
United States v. Vaccaro,

816 F.2d 443 (9th Cir. 1987),
. . . . . . . . . .
338, 612
United States v. Valencia,

24 F.3d 1106 (9th Cir. 1994) . . . . . . . . . . . . . . 165
United States v. Valencia-Barragan,
608 F.3d 1103 (9th Cir. 2010) . . . . . . . . . . . . . 839
United States v. Van Alstyne,
584 F.3d 803 (9th Cir. 2009) . . . . . . . . . . . . . . 959
lxxi

FEDERAL CASES
PAGE(S)
United States v. Varela,

993 F.2d 686 (9th Cir. 1993) . . . . . . . . . . .
932, 933
United States v. Vartanian,

476 F.3d 1095 (9th Cir. 2007)
. . . . . . . . . . . . . 800
United States v. Vasquez,

597 F.2d 192 (9th Cir. 1979) . . . . . . . . . . . . . . 755
United States v. Vasquez-Landaver,
527 F.3d 798 (9th Cir. 2008) . . . . . . . . . . . . . . 887
United States v. Vebeliunas,
76 F.3d 1283 (2d Cir. 1996)
. . . . . . . . . . . . . . 503
United States v. Vest,

639 F. Supp. 899 (D. Mass. 1986),
aff'd 813 F.2d 477 (1st Cir. 1987) . . . . . . . . . . . 215
United States v. Veteto,
701 F.2d 136 (11th Cir. 1983)
. . . . . . . . . . . . . 340
United States v. Vielguth,

502 F.2d 1257 (9th Cir. 1974)
. . . . . . . . . . . . . 213
United States v. Vincent,

758 F.2d 379 (9th Cir. 1985) . . . . . . . . . . . . . . 484
United States v. Vizcarra-Martinez,
66 F.3d 1006 (9th Cir. 1995) . . . . . . . . . . . . . . 777
United States v. Vo,
413 F.2d 1010 (9th Cir. 2005)
. . . . . . . . . . . . . 783
United States v. Vonn,

535 U.S. 55 (2002) . . . . . . . . . . . . . . . . . . . 869
United States v. W.R. Grace,
504 F.3d 745 (9th Cir. 2007) . . . . . . . . . . . . . . 346
United States v. W.R. Grace,
526 F.3d 499 (9th Cir. 2008) . . . . . . . . . . . . . . 294
lxxii

FEDERAL CASES
PAGE(S)
United States v. Waknine,

543 F.3d 546 (9th Cir. 2008) . . . . . . . . . . . . . . 839
United States v. Wardlow,
951 F.2d 1115 (9th Cir. 1991)
United States v. Warren,
25 F.3d 890 (9th Cir. 1994)
. . . . . . . . . . . . . 133
. . . . . . . . . . . . . . 730
United States v. Washington,

797 F.2d 1461 (9th Cir. 1986)
. . . . . . . . . . . . . 192
United States v. Weatherspoon,

410 F.3d 1142 (9th Cir. 2005)
. . . . . . . . . . . . . 654
United States v. Webster,

162 F.3d 308 (5th Cir. 1998) . . . . . . . . . . . . . . 815
United States v. Weiner,
578 F.2d 757 (9th Cir. 1978) . . . . . . . . . . . . . . 757
United States v. Weissman,
899 F.2d 1111 (11th Cir. 1990) . . . . . . . . . . . . . 524
United States v. White,
401 U.S. 745 (1971)
. . . . . . . . . . . . . . . . . . 137
United States v. White Horse,

316 F.3d 769 (8th Cir. 2003) . . . . . . . . . . . . . . 632
United States v. Whitehead,
532 F.3d 991 (9th Cir. 2008) . . . . . . . . . . . . . . 840
United States v. Whitfield,
590 F.3d 325 (5th Cir. 2009) . . . . . . . . . . . . . . 465
United States v. Wilbur,
674 F.3d 1160 (9th Cir. 2012)
. . . . . . . . . . . . . 521
United States v. Wiley,

794 F.2d 514 (9th Cir. 1986) . . . . . . . . . . . . . . 291
United States v. Wilkes,
662 F.3d 524 (9th Cir. 2011) . . . . . . . . . . . . . . 481
lxxiii

FEDERAL CASES
PAGE(S)
United States v. Williams,

504 U.S. 36 (1992) . . . . . . . . . . . . . . . . . . . 676
693 F.3d 1067 (9th Cir. 2012)
. . . . . . . . . . . . . 866

791 F.2d 1383 (9th Cir. 1986)
. . . . . . . . . . . . . 292

989 F.2d 1061 (9th Cir. 1993)
. . . . . . . . . . . . . 648

990 F.2d 507 (9th Cir. 1993) . . . . . . . . . . . . . . 697
United States v. Wilsey,
458 F.2d 11 (9th Cir. 1972)
. . . . . . . . . . . . . . 355
United States v. Wong,

40 F.3d 1347 (2d Cir. 1994)
. . . . . . . . . . . . . . 348
United States v. Wong,

334 F.3d 831 (9th Cir. 2003) . . . . . . . . . . . . . . 191
United States v. Working,
224 F.3d 1093 (9th Cir. 2000)
. . . . . . . . . . . . . 169
United States v. Wright,

625 F.3d 583 (9th Cir. 2010) . . . . . . . . . . .
United States v. Wyatt,
408 F.3d 1257 (9th Cir. 2005)
334, 649
. . . . . . . . . . . . . 714
United States v. Yeager,

210 F.3d 1315 (11th Cir. 2000) . . . . . . . . . . . . . 843
United States v. Young,
470 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . 617
United States v. Younger,
398 F.3d 1179 (9th Cir. 2005)
. . . . . . . . . . . . . 648
United States v. Zambito,

315 F.2d 266 (9th Cir. 1963) . . . . . . . . . . . . . . 815
lxxiv

FEDERAL CASES
PAGE(S)
United States v. Zanabria,

74 F.3d 590 (5th Cir. 1996)
. . . . . . . . . . . . . . 797
United States v. Zemek,

634 F.2d 1159 (9th Cir. 1980)
. . . . . . . . . .
119, 156
United States v. Zichetello,

208 F.3d 72 (2d Cir. 2000) . . . . . . . . . . . . . . . 381
United States v. Ziesman,
409 F.3d 941 (8th Cir. 2005) . . . . . . . . . . . . . . 797
United States v. Zolin,
491 U.S. 554 (1989)
. . . . . . . . . . . . . . . .
passim
Valdes v. United States,

475 F.3d 1319 (D.C. Cir. 2007) . . . . . . . . . . .
passim
Villafuerte v. Stewart,
111 F.3d 616 (9th Cir. 1997) . . . . . . . . . . . . . . 683
Walton v. Wild Goose Mining & Trading Co.,
123 F. 209 (9th Cir. 1903) . . . . . . . . . . . . . . . 754
Western Radio Services Corp. v. Qwest Corp.,
678 F.3d 970 (9th Cir. 2012) . . . . . . . . . . .
242, 608
Wiley v. Doory,
14 F.3d 993 (4th Cir. 1994)
. . . . . . . . . . . . . . 620
Williams v. Poulos,
11 F.3d 271 (1st Cir. 1993)
. . . . . . . . . . . . . . 734
Zamani v. Carnes,
491 F.3d 990 (9th Cir. 2007) . . . . . . . . . . . . . . 837
STATE CASES
ATPAC v. Aptitude Solutions, Inc.,
2010 WL 1779901 (E.D. Cal. Apr. 29, 2010)
. . . . . . . 679
Chrisman v. Los Angeles,

65 Cal. Rptr. 3d 701 (Cal. Ct. App. 2007)
. . . . . . . 705
lxxv

STATE CASES
PAGE(S)
Commonwealth v. Cabrera,
874 N.E.2d 654 (Mass. 2007)
. . . . . . . . . . . . . . 145
Gilbert v. Sunnyvale,
. . . . . . . 709
Han v. Futurewei Technology, Inc.,

2011 WL 5118748 (S.D. Cal. 2011) . . . . . . . . . . . . 708
Hobbs v. Municipal Court,
284 Cal. Rptr. 655 (Cal. Ct. App. 1991),
overruled on other grounds,
People v. Tillis, 956 P.2d 409 (Cal. 1998) . . . . . . . 142
John F. Matull & Associate, Inc. v. Cloutier,
240 Cal. Rptr. 211 (Cal. Ct. App. 1987) . . . . . . . . 141
Kallen v. Delug,
203 Cal. Rptr. 879 (Cal. Ct. App. 1984)
. . . . . . . . 141
Lasky, Haas, Cohler & Munter v. Superior Court,

218 Cal. Rptr. 205 (1985) . . . . . . . . . . . . . . . 141
People v. Lips,
211 P.2d at 24 . . . . . . . . . . . . . . . . . . .
passim
Lybarger v. City of Los Angeles,

40 Cal. 3d 822 (1985) . . . . . . . . . . . . . . . . . 621
Lynn v. Gateway Unified Sch. District,
2011 WL 6260362 (E.D. Cal. 2011) . . . . . . . . . . . . 708
Mahru v. Superior Court,
. . . . . . . . 709
McGlothen v. DMV,
. . . . . . . . 706
People v. Anderson,
216 P. 401 (Cal. Ct. App. 1923)
People v. Brigham,
163 P.2d 891 (Cal. Ct. App. 1945)
lxxvi
. . . . . . . . . . . . 448
. . . . . . . . . . . 409

STATE CASES
People v. Diedrich,
31 Cal. 3d 263 (1982)
PAGE(S)
. . . . . . . . . . . . . . . . . 451
People v. Finklestein,
220 P.2d 934 (Cal. Ct. App. 1950)
. . . . . . . . . . . 409
People v. Gaio,
97 Cal. Rptr. 2d 392 (Ct. App. 2000) . . . . . . . . . . 410
People v. Hallner,
277 P.2d 393 (Cal. 1954) . . . . . . . . . . . . . . . . 408
People v. Keyes,
284 P. 1096 (Ct. App. 1930)
. . . . . . . . . . . . . . 351
People v. Laiwala,
2012 WL 3834895 (Cal. Ct. App. Sept. 5, 2012)
. . . . . 710
People v. Lips,
211 P. 22 (Cal. Ct. App. 1922) . . . . . . . . . . .
passim
People v. Markham,
30 P. 620 (Cal. 1883)
passim
. . . . . . . . . . . . . . .
People v. Matthews,
268 P.2d 31 (Cal. Ct. App. 1954) . . . . . . . . . . . . 408
People v. Megladdery,
106 P.2d 84 (Cal. Ct. App. 1940) . . . . . . . . . . . . 411
People v. Oliveira,
2006 WL 775645 (Cal Ct. App. Mar. 28, 2006)
People v. Pacheco,
69 Cal. Rptr. 822 (Ct. App. 1968)
. . . . . . 709
. . . . . . . . . . . 408
People v. Strohl,
129 Cal. Rptr. 224 (Ct. App. 1976) . . . . . . . . . . . 451
People v. Vogel,
. . . . . . . 145
People v. Williams,
163 P.2d 692 (Cal. 1945) . . . . . . . . . . . . . . . . 713
lxxvii

STATE CASES
PAGE(S)
State v. McCrory,
87 P.3d 275 (Haw. 2004)
. . . . . . . . . . . . . . . . 625
FEDERAL STATUTES
18 U.S.C. 2(a)
. . . . . . . . . . . . . . . . . . . . . . 752
18 U.S.C. 201(a)(3) . . . . . . . . . . . . . . . . . . . . 471

18 U.S.C. 201(b)(1)(A)
. . . . . . . . . . . . . . . . . . 470
18 U.S.C. 201(b)(1)(A)
. . . . . . . . . . . . . . . . . . 472
18 U.S.C. 201(c)
. . . . . . . . . . . . . . . . . . . . . 471
18 U.S.C. 542 . . . . . . . . . . . . . . . . . . . . . . . 362

18 U.S.C. 542 . . . . . . . . . . . . . . . . . . . . . . . 361
18 U.S.C. 578 . . . . . . . . . . . . . . . . . . . . . . . 355
18 U.S.C. 842(n)(1) . . . . . . . . . . . . . . . . . . . . 317
18 U.S.C. 982(b)(2) . . . . . . . . . . . . . . . . . . . . 955
18 U.S.C. 1001
. . . . . . . . . . . . . . . . . . . . . . 361
18 U.S.C. 1001(a) . . . . . . . . . . . . . . . . . . . . . 362

18 U.S.C. 1001(a)(2)
. . . . . . . . . . . . . . . . . . . . 8
18 U.S.C. 1028(a)(7)
. . . . . . . . . . . . .
18 U.S.C. 1028(d)(7)
. . . . . . . . . . . . . . . .
7, 8, 329, 698
331, 332
18 U.S.C. 1029(e)(11) . . . . . . . . . . . . . . . . . . . 331

18 U.S.C. 1030
18 U.S.C.
. . . . . . . . . . . . . . . . . . . . . . 699
1030(a)(2)(B),(B)(i) . . . . . . . . . . . . .
18 U.S.C. 1030(a)(4)
. . . . . . . . . . . . .
lxxviii
7, 8
7, 8, 668, 672

FEDERAL STATUTES
PAGE(S)
18 U.S.C. 1030(e)(6)
18 U.S.C. 1346
. . . . . . . . . . . . . . . . . . . . .
18 U.S.C. 1512(c)(1)
18 U.S.C. 1951
. . . . . . . . . . . . . . . . . . . . 684
7, 8
. . . . . . . . . . . . . . . . . . . 861
. . . . . . . . . . . . . . . . . . . . . . 108
18 U.S.C. 1956(a)(1)
. . . . . . . . . . . . . . . .
957, 959
18 U.S.C. 1961(4) . . . . . . . . . . . . . . . . . .
375, 513
18 U.S.C. 1961(5) . . . . . . . . . . . . . . . . . .
348, 369
18 U.S.C. 1962
. . . . . . . . . . . . . . . . . . . . . . 699
18 U.S.C. 1962(c) . . . . . . . . . . . . . . . . . . . .
7, 8
18 U.S.C. 1962(d) . . . . . . . . . . . . . . . . . . 7, 8, 699

18 U.S.C. 1963
. . . . . . . . . . . . . . . . . . . . . . 946
18 U.S.C. 2510(5)(a)(ii)
18 U.S.C. 2511(1)(a)
. . . . . . . . . . . . . . . . . 740
. . . . . . . . . . . . . . . 8, 739, 751
18 U.S.C. 2511(1)(a), (d) . . . . . . . . . . . . . . . .
8, 9
18 U.S.C. 2511(a) . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 2512(1)(b)
. . . . . . . . . . . . . . . . . .
8, 9
18 U.S.C. 2515
. . . . . . . . . . . . . . . . . . . . . . 208
18 U.S.C. 2(a)
. . . . . . . . . . . . . . . . . . . . . . 752
18 U.S.C. 3231
. . . . . . . . . . . . . . . . . . . . . .
10
18 U.S.C. 3282(a) . . . . . . . . . . . . . . . . . . . . . 661

18 U.S.C. 3288
. . . . . . . . . . . . . .
18 U.S.C. 3289
. . . . . . . . . . . . . . . . . . . . . . 354
lxxix
344, 345, 352, 354

FEDERAL STATUTES
PAGE(S)
18 U.S.C. 3500
. . . . . . . . . . . . . . . . . . . . . . 600
18 U.S.C. 3500(b) . . . . . . . . . . . . . . . . . . . . . 601

18 U.S.C. 3504(a)(1)
. . . . . . . . . . . . . . . .
213, 214
18 U.S.C. 3553(b) . . . . . . . . . . . . . . . . . . . . . 938

18 U.S.C. 3661
. . . . . . . . . . . . . . . . . . . . . . 943
18 U.S.C. 371 . . . . . . . . . . . . . . . . . .
18 U.S.C. 3742(a)
7, 8, 9, 108
. . . . . . . . . . . . . . . . . . . .
10
21 U.S.C. 851 . . . . . . . . . . . . . . . . . . . . . . . 320

26 U.S.C. 5861(d) . . . . . . . . . . . . . . . . . . . . . 317
28 C.F.R. 20.21(f)
. . . . . . . . . . . . . . . . . . . . 415
28 C.F.R. 20.33(a)(1) . . . . . . . . . . . . . . . . . . . 695

28 C.F.R. 20.33(b) & (d) . . . . . . . . . . . . . . . . . 415
28 C.F.R. 20.33(b)
. . . . . . . . . . . . . . . . . . . . 695
28 C.F.R. 20.33(d)
. . . . . . . . . . . . . . . . . . . . 695
28 C.F.R. 20.38 . . . . . . . . . . . . . . . . . . . . . . 695

28 U.S.C. 534 . . . . . . . . . . . . . . . . . . . .
412, 415
28 U.S.C. 534(a)(4) . . . . . . . . . . . . . . . . . . . . 695

28 U.S.C. 534(b)
. . . . . . . . . . . . . . . . . . . . . 414
28 U.S.C. 534(b)
. . . . . . . . . . . . . . . . . . . . . 415
28 U.S.C. 1291
. . . . . . . . . . . . . . . . . . . . . .
10
28 U.S.C. 2074(a) . . . . . . . . . . . . . . . . . . . . . 947

42 U.S.C. 3716(a)(1)(B) . . . . . . . . . . . . . . . . . . 714
lxxx

FEDERAL RULES
Fed. R. App. P. 4(b)
PAGE(S)
. . . . . . . . . . . . . . . .
10, 11, 12
Fed. R. App. P. 28(I) . . . . . . . . . . . . . . . . . . . . 669

Fed. R. Civ. P. 52(a)
. . . . . . . . . . . . . . . . . . . 186
Fed. R. Crim. P. 12(b)(3) . . . . . . . . . . . . . . . . . . 432

Fed. R. Crim. P. 16(a)(1)(E)(ii)
. . . . . . . . . . . . . . 643
Fed. R. Crim. P. 26.2 . . . . . . . . . . . . . . . . . . . . 600

Fed. R. Crim. P. 26.2 . . . . . . . . . . . . . . . . . . . . 601
Fed. R. Crim. P. 26.2(a)
. . . . . . . . . . . . . . . . . . 601
. . . . . . . . . . . . . . . . . . 604
. . . . . . . . . . . . . . . . . . 606
. . . . . . . . . . . . . . . . . . 607
Fed. R. Crim. P. 26(a)
. . . . . . . . . . . . . . . . . . . 601
Fed. R. Crim. P. 30 . . . . . . . . . . . . . . . . . . . . . 745

Fed. R. Crim. P. 30(a)
. . . . . . . . . . . . . . . . . . . 745
Fed. R. Crim. P. 30(b)
. . . . . . . . . . . . . . . . . . . 745
Fed. R. Crim. P. 32(c)(A)(ii) . . . . . . . . . . . . . . . . 879

Fed. R. Crim. P. 52(b)
. . . . . . . . . . . . . . . . . . . 334
Fed. R. Evid. 103 . . . . . . . . . . . . . . . . . . . . . . 609

Fed. R. Evid. 104(a)
. . . . . . . . . . . . . . . . . . . . 260
Fed. R. Evid. 104(b)
. . . . . . . . . . . . . . . . . . . . 641
Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . .
lxxxi
533, 782

FEDERAL RULES
PAGE(S)
Fed. R. Evid. 402 . . . . . . . . . . . . . . . . . . . . . . 532

Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . 533
. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 755
. . . . . . . . . . . . . . . . . . . . 807
. . . . . . . . . . . . . . . . . . . . 809
Fed. R. Evid. 803(1), 801(d)(2)(B)
611, 783
. . . . . . . . . . . . . 261
Fed. R. Evid. 1101(d)(1)
. . . . . . . . . . . . . . . . . . 260
Fed. R. Evid. 1101(d)(3)
. . . . . . . . . . . . . . . . . . 260
H.R. Rep. 99-647, at 48 (1986)
. . . . . . . . . . . . . . . 737
H.R. Rep. No. 98-894, at 21 (1984)
. . . . . . . . . . . . . 693
STATE STATUTES
Cal. Bus. & Prof. Code 6001.1 . . . . . . . . . . . . . . . 935
Cal. Bus. & Prof. Code 6106 . . . . . . . . . . . . . . . . 249
Cal. Civ. Proc. Code 2018.030 . . . . . . . . . . . . . . . 142
Cal. Code Regs. tit. 11, 703(b) . . . . . . . . . . . . . . 696
Cal. Code Regs. tit. 11, 703(b) . . . . . . . . . . . . . . 696
Cal. Gov't Code 15153 . . . . . . . . . . . . . . . . . . . 695
Cal. Gov't Code 15153 . . . . . . . . . . . . . . . . . . . 696
Cal. Penal Code 422 . . . . . . . . . . . . . . . . . . . . 164
Cal. Penal Code 594 . . . . . . . . . . . . . . . . . . . . 164
lxxxii

STATE STATUTES
PAGE(S)
Cal. Penal Code 502(b)(1) . . . . . . . . . . . . . . . . . 703

Cal. Penal Code 502 (2011)
. . . . . . . . . . . . . . . . 712
Cal. Penal Code 1105(b) . . . . . . . . . . . . . . . . . . 696

Cal. Penal Code 11105(b)
. . . . . . . . . . . . . . . . . 695
Cal. Veh. Code 1808.45
. . . . . . . . . . . . . . . . . . 682
Cal. Veh. Code 1808.45
. . . . . . . . . . . . . . . . . . 697
lxxxiii
Nos. 08-50531, 08-50570, 09-50115, 09-50125, 09-50128,

09-50159, 10-50434, 10-50462, 10-50464 & 10-50472
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY CHRISTENSEN et al.,
Defendants-Appellants.
GOVERNMENTS CONSOLIDATED ANSWERING BRIEF
I
ISSUES PRESENTED
A.
Whether Pellicanos and Christensens probable cause,
particularity, overbreadth, and Franks challenges to the November

2002 and July 2003 search warrants (1) are barred by collateral
estoppel as to Pellicano and by Christensens lack of standing,
or (2) if not so barred, were properly rejected by the district
court on their merits.
B.
Whether the district court (1) clearly erred in
determining that Christensen failed to show by a preponderance of

the evidence that Pellicano recorded their telephone
conversations for a criminal or tortious purpose, as required
for suppression under Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, or (2) abused its discretion in denying

an evidentiary hearing on the issue.
C.
Whether the district court correctly found
Christensens recorded conversations with Pellicano to be

unprivileged.
D.
Whether the district court should have dismissed the
indictment under either the outrageous government conduct

doctrine or pursuant to its supervisory powers.
E.
Whether the district court properly denied Turners
motion to dismiss the identity theft charges, where his claim

that names and telephone numbers did not constitute means of
identification was contrary to the plain language of the
identity theft statute.
F.
Whether the district court abused its discretion in
denying defendants requests for severance and multiple trials on

the same charges.
G.
Whether the racketeering acts alleging the giving and
receiving of bribes in violation of California Penal Code 67

and 68 were timely.
H.
Whether the evidence was sufficient to sustain
Pellicanos, Arnesons, and Turners convictions.

I.
Whether the RICO and RICO conspiracy counts were
constructively amended or subject to a fatal variance.
J.
admitting testimony under Federal Rule of Evidence 403, and

whether the introduction of evidence to which there was no
objection constituted plain error.
K.
denying Pellicanos request for Jencks material for a defense

witness.
L.
Whether the government gave Pellicano adequate notice
of other-acts evidence.
M.
rejecting Arnesons untimely and unsupported claims of

prosecutorial misconduct, and whether any such alleged misconduct
had any probability of materially influencing the verdicts.
N.
Whether unobjected-to statements in the governments
closing argument constituted plain error.

O.
Whether the evidence was sufficient to support
Nicheries aiding and abetting conviction.

P.
Whether the district courts jury instructions
correctly stated the applicable law, and whether any claimed

error in the instructions was harmless.
Q.
denying a new trial and declining to hold a post-verdict

evidentiary hearing on alleged jury misconduct, where much of the
evidence presented by defendants was inadmissible and the
remaining evidence showed no misconduct or no possibility of the

verdicts having been affected.
R.
admitting wiretapping-related evidence in the ChristensenPellicano wiretapping trial.

S.
denying Christensens motion for severance.

T.
Whether the government engaged in misconduct at the
second trial by pointing out in rebuttal argument defendant

Christensens failure to present evidence that he had promised in
his opening statement.
U.
dismissing a juror during deliberations after making a factual

finding that the juror had repeatedly lied to the court.
V.
Whether the district court erred in denying defendants
motion for a new trial based on the governments belated

production of an alleged statement in a witness presentence
report, where the Probation Officer acknowledged that the witness
did not in fact make the statement and the statement related to a
collateral issue.
W.
Whether defendants sentences were procedurally sound
and substantively reasonable.

X.
Whether Arnesons and Turners joint and several
$2,008,250 personal money judgment of forfeiture was proper.
II
STATEMENT OF THE CASE
A.
NATURE OF THE CASE, COURSE OF THE PROCEEDINGS, AND

DISPOSITION IN THE DISTRICT COURT
Defendant-appellants Terry Christensen, Anthony Pellicano,
Mark Arneson, Rayford Earl Turner, Abner Nicherie, and Kevin

Kachikian (collectively, defendants) appeal their convictions
and sentences imposed by the district court, the Honorable Dale
S. Fischer, following their convictions at trial of various
counts stemming from their involvement in a widespread and
longstanding criminal enterprise that, among other things,
actively and corruptly subverted the judicial process through the
illegal accessing and distribution of confidential database
information and the wiretapping of privileged attorney-client
communications.
A federal grand jury in the Central District of California
returned a 111-count fifth superseding indictment (the
indictment) against defendants on December 6, 2007.1
1
(JER 923-
Pellicano, Turner, Kachikian, and Nicherie were charged

in the initial and first superseding indictments, which were
filed under seal on October 26, 2005 and January 4, 2006,
respectively. (CR 1, 15; JER 535-39, GER 1-8). Arneson was
added as a defendant in the second superseding indictment,
returned on February 1, 2006 (CR 38; GER 9-68), and Christensen
was first named as a defendant in the third superseding
indictment, returned on February 15, 2006 (CR 119; GER 69-136).
The fourth superseding indictment, which omitted two defendants
who had pleaded guilty and added new racketeering acts to the
RICO counts and new overt acts to the conspiracy counts, was
(continued...)
5
86).2
On February 19, 2008, the district court granted
Christensens motion to sever his trial on counts 106 and 107 of

the indictment, which charged Christensen and Pellicano with
conspiracy and the wiretapping of Lisa Bonder Kerkorian, from the
trial of his co-defendants on the remaining counts of the
indictment.
(CR 1177; JER 1138-41).
In response to a subsequent
motion by Arneson, Turner, Kachikian and Nicherie (CR 1196),

which was unopposed by Pellicano and by the government (CR 1227;
2/28/08 RT 89-91), the court severed counts 106 and 107 in their
entirety, leaving them to be tried jointly against Pellicano and
Christensen following the conclusion of the first trial against
Pellicano, Arneson, Turner, Kachikian and Nicherie.
(CR 1237;
JER 1353-54).
(...continued)
returned on February 14, 2007.
(CR 508; GER 137-203).
CR refers to the Clerks Record and is followed by the

applicable document control number. RT refers to the
Reporters Transcript of the criminal proceedings and is preceded
by the applicable date and A.M. or P.M. to designate the
morning or afternoon session. JOB refers to Appellants Joint
Opening Brief, individual opening briefs are referred to by the
first letter of the defendants last name followed by OB (for
example, AOB refers to Arnesons opening brief), individual
defendants supplemental excerpts of record are similarly
referenced (for example, AER for Arnesons excerpts of record),
as are their PSRs (for example, APSR for Arnesons PSR). GEX
refers to the Governments Trial Exhibits, GER to the
Governments Excerpts of Record, GSER to the Governments
Sealed Excerpts of Record, and GERT to the Governments
Excerpts of Reporters Transcripts. All transcript, brief and
excerpt references are followed by applicable page references.
All PSR references are followed by applicable paragraph
references.
6
The trial on all but the two severed counts (the first
trial) began on March 5, 2006.
Near the end of its case-in-
chief at the first trial, the government dismissed, without

objection, a number of counts, racketeering acts and overt acts
due to witness availability and evidentiary issues and to
simplify the case for argument and deliberation.
RT 4-6; GERT 5064-66).
(4/10/08 (A.M.)
The government prepared and filed a
redacted fifth superseding indictment that renumbered the

remaining counts and became the operative indictment for purposes
of the jury verdicts in the first trial.3
(CR 1439; JER 3955-
4003; 4/10/08(A.M.) RT 6-8; GERT 5066-68).

On May 15, 2008, the jury returned its verdicts.
Pellicano
was convicted of RICO, in violation of 18 U.S.C. 1962(c) (count

1); RICO conspiracy, in violation of 18 U.S.C. 1962(d) (count
2); honest services wire fraud, in violation of 18 U.S.C.
1343, 1346 (counts 3-19, 47-48); unauthorized computer access
of United States agency information, in violation of 18 U.S.C.
1030(a)(2)(B), (c)(2)(B)(i) (counts 20-36, 49); identity
theft, in violation of 18 U.S.C. 1028(a)(7) (counts 37-41, 5154, 59-62); computer fraud, in violation of 18 U.S.C.
1030(a)(4) (counts 42-46, 55-58, 63-66); conspiracy to
intercept and use wire communications, in violation of 18 U.S.C.
Except as otherwise specified herein, all references to

counts tried in the first trial will use the count numbers in the
redacted indictment.
7
371 (count 67); interception of wire communications, in

violation of 18 U.S.C. 2511(1)(a), (d) (counts 68-76); and
possession of a wiretapping device, in violation of 18 U.S.C.
2512(1)(b) (count 77).
The jury found Pellicano not guilty on
one count of unauthorized computer access of United States agency

information (count 50).
(CR 1607; GSER 109-29).
Arneson was convicted of RICO, in violation of 18 U.S.C.

1962(c) (count 1); RICO conspiracy, in violation of 18 U.S.C.
1962(d) (count 2); honest services wire fraud, in violation of
18 U.S.C. 1343, 1346 (counts 3-19); unauthorized computer
access of United States agency information, in violation of 18
U.S.C. 1030(a)(2)(B), (c)(2)(B)(i) (counts 20-36); identity
theft, in violation of 18 U.S.C. 1028(a)(7) (counts 37-41); and
computer fraud, in violation of 18 U.S.C. 1030(a)(4) (counts
42-46).
(CR 1608; GSER 130-43).
Turner was convicted of RICO, in violation of 18 U.S.C.

1962(c) (count 1); RICO conspiracy, in violation of 18 U.S.C.
1962(d) (count 2); identity theft, in violation of 18 U.S.C.
1028(a)(7) (counts 59-62); computer fraud, in violation of 18
U.S.C. 1030(a)(4) (counts 63-66); conspiracy to intercept and
use wire communications, in violation of 18 U.S.C. 371 (count
67); interception of wire communications, in violation of 18
U.S.C. 2511(1)(a), (d) (counts 68, 72, 73, 75, 76); and false
statements, in violation of 18 U.S.C. 1001(a)(2) (count 78).
The jury found Turner not guilty on four counts of interception

of wire communications (counts 69-71, 74).
(CR 1609; GSER 144-
50).
Kachikian was convicted of conspiracy to intercept and use
wire communications, in violation of 18 U.S.C. 371 (count 67),
and possession of a wiretapping device, in violation of 18 U.S.C.
2512(1)(b) (count 77).
The jury found Kachikian not guilty on
nine counts of interception of wire communications (counts 6876).
(CR 1610).
Nicherie was convicted of aiding and abetting the
interception of wire communications, in violation of 18 U.S.C.

2511(a), (d), 2.
(CR 1611; GSER 151).
The trial of Pellicano and Christensen on the two severed

counts (the second trial) began on July 16, 2008.
On August
29, 2008, the jury returned verdicts finding both defendants

guilty of conspiracy to intercept and use wire communications, in
violation of 18 U.S.C. 371 (count 106), and interception of
wire communications, in violation of 18 U.S.C. 2511(1)(a), (d)
(count 107).
On November 24, 2008, the district court sentenced
Christensen to 36 months imprisonment.
(CR 2012).
On December
15, 2008, the district court sentenced Pellicano to 180 months

imprisonment.
(CR 2048).
On March 3, 2009, the district court
sentenced Arneson and Turner to 121 months imprisonment and
Nicherie to 21 months imprisonment.
(CR 2179, 2180, 2182).
On
March 9, 2009, the district court sentenced Kachikian to 27

months imprisonment.
(CR 2201; JER 4928-31).
All defendants
were sentenced to three years of supervised release and

applicable special assessments.
In addition, the court imposed
an order of RICO forfeiture against Pellicano, Arneson and

Turner, jointly and severally, in the amount of $2,008,250, which
the court found represented only a small portion of the proceeds
of racketeering activity acquired by the enterprise.
(CR 2044;
JER 4780-92).
B.
JURISDICTION, TIMELINESS, AND BAIL STATUS

The district court had jurisdiction under 18 U.S.C. 3231.
This court has jurisdiction under 18 U.S.C. 3742(a) and 28

U.S.C. 1291.
Christensen was sentenced on November 24, 2008.
(CR 2012).
The judgment and commitment order was entered on November 25,

2008.
(CR 2013; JER 4567-70).
of appeal on December 4, 2008.
Christensen filed a timely notice

(CR 2020; JER 4602).
See Fed. R.
App. P. 4(b).
Pellicano was sentenced on December 15, 2008.
(CR 2048).
The judgment and commitment order was entered on December 22,

2008.
(CR 2049; JER 4793-96).
of appeal on December 22, 2008.
Pellicano filed a timely notice

(CR 2050; JER 4797).
R. App. P. 4(b).
10
See Fed.
Arneson was sentenced on March 3, 2009.
(CR 2180).
The
judgment and commitment order was entered on March 4, 2009.

2181; JER 8461(I)-8467).
on March 6, 2009.
(CR
Arneson filed a timely notice of appeal
(CR 2186).
See Fed. R. App. P. 4(b).
Turner was sentenced on March 3, 2009.
(CR 2182).
The

2183; JER 4868-72).
March 12, 2009.
(CR
Turner filed a timely notice of appeal on
(CR 2200; JER 4932).
Nicherie was sentenced on March 3, 2009.
(CR 2179).
The

2184; JER 4873-76).
March 13, 2009.
(CR
Nicherie filed a timely notice of appeal on
(CR 2208; JER 4933-34).
See Fed. R. App. P.
4(b).
Kachikian was sentenced on March 9, 2009.
(CR 2201).
The

2201; JER 4928-31).
March 18, 2009.
(CR
Kachikian filed a timely notice of appeal on
(CR 2223; JER 4934).
On September 10, 2010, the district court denied Turners

second motion for new trial, in which Pellicano, Arneson and
Christensen had joined.
(CR 2473; JER 5345-47).
Turner filed a
timely notice of appeal from this order on September 14, 2010 (CR
2475; JER 5348); Christensen filed a timely notice of appeal on
September 15, 2010 (CR 2480); Arneson filed a timely notice of
appeal on September 23, 2010 (CR 2481); and Pellicano filed a
11
timely notice of appeal on September 24, 2010 (CR 2485).
See
Fed. R. App. P. 4(b).

Pellicano and Turner are currently in federal custody
serving the sentences imposed in this case.
Nicherie has served
the custodial portion of his sentence and is now on supervised

release.
Christensen, Arneson, and Kachikian remain on bond
pending appeal.
III
STATEMENT OF FACTS
A.
THE FIRST TRIAL

The indictment, as argued to the jury in the first trial,
consisted principally of two related groups of counts, both

involving the obtaining of information through illegal means.
(4/29/08 (A.M.) RT 86; GERT 7614).
The first group, counts 1
through 66, charged Pellicano, Arneson and Turner with obtaining

information from protected law enforcement and telephone company
databases, which formed the basis for the racketeering acts
underlying the RICO counts (which also included acts of bribery
under state law) as well as separate counts of honest services
wire fraud, unauthorized computer access of United States agency
information, identity theft, and computer access fraud.4
4
The
Two of the databases regularly accessed by Arneson on

Pellicanos behalf were the National Crime Information Center
(NCIC), which is owned and operated by the FBI and is located
in Clarksburg, West Virginia, and the California Department of
(continued...)
12
second group, counts 67 through 77, charged Pellicano, Turner,

Kachikian and Nicherie with acts relating to the obtaining of
information through illegal wiretapping.5
Although there was
substantial factual and evidentiary overlap between the two

groups of counts (as many of the investigative matters and
victims were common to both sets of offenses), this statement of
facts will follow the same conceptual framework.
1.
RICO/Computer Information Counts

a.
Anthony Pellicano
Pellicano was the owner and president of the Pellicano

Investigative Agency (PIA), located at 9200 Sunset Boulevard,
Suite 322, Los Angeles, California.
(3/7/08 (P.M.) RT 111;
3/18/08 (P.M.) RT 10; GERT 940, 2148).
Pellicano charged clients
a standard non-refundable retainer fee of $25,000 to take on a
(...continued)
Motor Vehicles database, which is located in Sacramento,
California. (4/8/08 (P.M.) RT 70-73; 4/9/08(A.M.) RT 49-50; GERT
4738-41, 4858-59). Thus, a sampling of Arnesons queries of the
NCIC database was charged in the indictment as both honest
services wire fraud (which requires an interstate transmission)
and unauthorized computer access of United States agency
information; a sampling of his intrastate queries of the
California DMV database -- and of Turners directed queries of
the SBC customer database -- was charged as both identity theft
and computer access fraud. The wire fraud and identity theft
charges, along with 10 charged acts of state law bribery, formed
the predicate racketeering acts for the RICO count.
5
Count 78, the final count of the indictment, straddled

both sets of counts, as it charged Turner with making false
statements to the FBI in denying (1) having ever made proprietary
telephone company information available to Pellicano and (2)
having ever assisted Pellicano in wiretapping telephones.
13
case, and his fees often escalated into the hundreds of thousands
of dollars.
(3/20/08 (P.M.) RT 47-48, 72-73; 3/25/08 (A.M.) RT
117-19; 4/1/08 (A.M.) RT 146; 4/4/08 (A.M.) RT 58-59, 93-94; GERT

2669-70, 2694-95, 2824-26, 3637, 4362-63, 4397-98).
Pellicano
was able to command such high fees, in part, because he had wellplaced sources within local police departments and telephone
companies who provided him with confidential information from
computer databases.
(4/8/08 (P.M.) RT 5-7; GERT 4673-75).
His
relationships with his two primary illegal sources, Arneson and

Turner, which formed the basis for the association-in-fact
enterprise charged in the indictment, are discussed below.6
b.
Mark Arneson
(1)
The Governments Case
Sergeant Mark Arneson was a 29-year sworn officer with the

Los Angeles Police Department (LAPD).
(3/14/08 (A.M.) RT 83;
4/11/08 (A.M.) RT 74; GERT 1885, 5352).
During the relevant
period of the indictment, Arneson was assigned to the vice unit
Another of Pellicanos law enforcement sources was Craig

Stevens, who was an officer with the Beverly Hills Police
Department for over 23 years before pleading guilty in this case
to seven felony counts of honest services wire fraud, computer
fraud, and false statements. (4/8/08 (A.M.) RT 27-28, 44-45, 48;
GERT 4567-68, 4584-85, 4588). Stevens testified that he provided
Pellicano with DMV and criminal history information from
restricted law enforcement databases and that Pellicano paid him
in cash for the information. (4/8/08 (A.M.) RT 29-32, 35-37, 46,
56; GERT 4569-72, 4575-77, 4586, 4596). One longtime PIA
employee testified that Pellicano obtained approximately 20% of
his law enforcement information from Stevens and the remaining
80% from Arneson. (3/18/08 (P.M.) RT 23, 57; GERT 2161, 2195).
14
of the LAPD Pacific Division as an assistant watch commander.

(3/14/08 (A.M.) RT 67, 72; 4/11/08 (P.M.) 18-19; GERT 1869, 1874,
5434-35).
At least as far back as 1996, Arneson provided confidential
information from law enforcement databases to Pellicano on a
routine basis. (3/18/08 (P.M.) RT 39-40, 55-56; GERT 2177-78,
2193-94).
As a matter of practice, Arneson provided criminal
history and DMV information whenever Pellicano requested it,

which was ordinarily at the beginning of an investigation.
(3/13/08 (P.M.) RT 33; 3/18/08 (P.M.) RT 43; 3/28/08 (P.M.) RT
101; GERT 1680, 2181, 3438).
A couple of times each day,
Pellicano would instruct his employees to page Arneson, using a

prearranged code, and provide him with information such as names,
addresses, dates of birth, and license plate numbers of
individuals related to PIA investigations.
(3/7/08 (P.M.) RT
144; 3/18/08 (P.M.) RT 21-23, 40-44; 3/28/08 (P.M.) RT 95; GERT

973, 2159-61, 2178-82, 3432).
When Arneson called back, he would
either provide the requested information by telephone or send it

to PIA by fax.
(3/7/08 (P.M.) RT 145-46; GERT 974-75).
Faxes
from Arneson with DMV and criminal history information came in to

the PIA office every day, sometimes several times a day, over the
course of years.
(3/7/08 (P.M.) RT 143, 148-49; 3/28/08 (P.M.)
RT 96; 4/3/08 (A.M.) RT 58-59; GERT 972, 977-78, 3433, 4030-31).

Arneson also brought DMV and criminal history reports and DMV
15
photos into the PIA office in person.
(3/7/08 (P.M.) 149-50;
3/18/08 (P.M.) RT 47; 4/3/08(A.M.) RT 59-60; GERT 978-79, 2185,

4031-32).
Arneson never asked why the information was needed or
whether the request had any relation to an LAPD matter; instead,

he provided the information with no questions asked.
(3/18/08
(P.M.) RT 44-45; 3/19/08(A.M.) RT 65-66; GERT 2182-83; 2333-34).

When the information from Arneson was received, Pellicanos
employees would reformat it into the PIA computer system to
delete any references to Arnesons name; the original faxes would
then be shredded, per Pellicanos instructions.
(3/7/08 (P.M.)
RT 143-44, 146; 3/18/08 (P.M.) RT 24-29; 3/28/08 (P.M.) RT 97-98;

GERT 972-73, 975, 2162-67, 3434-35).
Pellicano also used a
paper-cutter to remove the fax transmission line with Arnesons

name.
(4/3/08 (A.M.) RT 59; GERT 4031).
Arneson instructed at
least one PIA employee to be careful with the faxes because they
had his name on them, and she assured him that they were being
regularly shredded.7
(3/11/08 (P.M.) RT 51-52; GERT 1162-63).
PIA employees were also tasked with digitally modifying the

background of DMV photographs provided by Arneson to conceal
their source.
(3/7/08 (P.M.) RT 150; 4/3/08 (A.M.) RT 60-61;
GERT 979, 4032-33).
PIA employees were also under standing
Notwithstanding these precautions, some faxes bearing

Arnesons name still ended up in the PIA case files. (3/7/08
(P.M.) RT 146-47; 3/28/08 (P.M.) RT 99-101; 4/9/08 (A.M.) RT 36;
4/18/08 RT 81; Exh. 176, 207; GERT 975-76, 3436-38, 4845, 6082,
GEX 790-99, 841-53).
16
instructions not to document calls from Arneson in the office

phone log.
(3/7/08 (P.M.) RT 142; 3/18/08 (P.M.) RT 36; 3/28/08
(P.M.) RT 95-96; GERT 971, 2174, 3432-33).

Arneson was paid handsomely for the information he provided,
receiving monthly $2500 checks from Pellicano in addition to
substantial cash payments.8
(3/7/08 (P.M.) RT 152; 3/18/08
(P.M.) RT 57-58; GERT 981, 2195-96).
Although Arneson on very
rare occasions conducted surveillance for Pellicano or provided

security for PIA clients (4/3/08 (A.M.) RT 56-58, 73; GERT 402830, 4045), he received the monthly checks regardless of whether
he had done any work other than provide DMV and criminal history
information.
(3/18/08 (P.M.) RT 80-81; 3/19/08 (A.M.) RT 75;
GERT 2218-19, 2343).
Indeed, providing DMV and criminal history
information represented the vast majority of the work that

Arneson did for Pellicano.
(3/19/08 (A.M.) RT 76; GERT 2344).
The PIA bookkeeper responsible for issuing Arnesons monthly

checks testified that the checks were in fact payment for DMV and
criminal history information.
40).
(4/4/08 (P.M.) RT 8-10; GERT 4438-
During a proffer session with the FBI, Arneson admitted
that at least part of the monthly $2500 sum was in payment for
confidential information that he provided to Pellicano.
RT 73; 6075).
(4/18/08
The monthly checks were supplemented by large
At trial, the government introduced checks written from

Pellicano to Arneson totaling over $190,000 from 1997 through
2002. (Exh. 400, 902; GEX 2113-91, 2966-68).
17
untraceable and untaxable cash payments:
numerous PIA employees
observed Pellicano stuffing envelopes with wads of $100 bills

before Arneson came to the office and witnessed Pellicano handing
the envelopes to Arneson and/or Arneson leaving the office with
the envelopes.
(3/7/08 (P.M.) RT 112, 152-53; 3/11/08 (P.M.) RT
31-32; 3/18/08 (P.M.) RT 9-10, 58-60; 3/19/08 (A.M.) RT 76-77;

4/3/08 (A.M.) RT 18-19, 61-62; GERT 941, 981-82, 1142-43, 214748, 2196-98, 2344-45, 3990-91, 4033-34).
At trial, the jury heard recordings, recovered from
Pellicanos computer, of telephone conversations between
Pellicano and Arneson.9
In one recording, Pellicano asked
Arneson to run a drivers license; Arneson agreed, saying that he

was not at work but was going by work.
2778-79).
(3/25/08 (A.M.) RT 22-23;
Arneson ran the license plate the same day.
(A.M.) RT 32-33; GERT 2788-89).
(3/25/08
In another recorded
conversation, Arneson provided Pellicano with residence and

criminal history information on an individual and stated that he
was going to try to tap into FBI records to obtain more
information.
(4/2/08 (P.M.) RT 34-35; GERT 3935-36).
The government also introduced lengthy computer audits of

Arnesons database inquiries - inquiries performed using
As discussed further below, Pellicano recorded his own

telephone calls to a computer in his office on a regular basis.
(3/11/08 (A.M.) RT 20-21; 3/18/08 (P.M.) RT 87-88; GERT 1008-09,
2225-26).
18
Arnesons unique LAPD serial number and password - for 1999,

2000, 2001, 2002, and early 2003.
(3/14/08 (A.M.) RT 33-39;
4/8/08 (P.M.) RT 82; Exh. 300-04; GERT 1835-41, 4750, GEX 8712028).
The printouts identified the date and time of each query,
the computer terminal from which the query was made, the users
unique serial number (all queries on the audits bore Arnesons
number), and the particular law enforcement database(s)
accessed.10
(3/14/08 (A.M.) RT 39-44; 4/8/08 (P.M.) RT 83-90;
Exh. 305; GERT 1841-46, 4751-58, GEX 2028-33).
From those
audits, investigators were able to identify 345 Pellicano-related

targets on whom Arneson performed a total of over 2,500
individual computer database inquiries.
(4/18/08 RT 32, 78, 226-
27, 254; GERT 6034, 6080, 6204-05, 6232).
Those numbers
unquestionably understate the frequency and scope of Arnesons

conduct, as LAPD Internal Affairs could only provide an audit of
Arnesons computer database inquiries dating back to 1999, and
the FBI could not identify every Pellicano investigation, target,
or witness even within that limited time frame.
(3/14/08 (A.M.)
RT 32-33; 4/18/08 RT 79; GERT 1834-35, 6081).
10
The audits did not include the information provided in

response to the queries; however, LAPD Internal Affairs Detective
Helen Lim testified that detailed informational reports are sent
to the querying officer in response to each request. (3/14/08
(A.M.) RT 44-47, 51-52, 100-02; 3/14/08 (P.M.) RT 12-13; GERT
1846-49, 1853-54, 1902-04, 1945-46).
19
At trial, numerous witnesses tied to Pellicanos

investigations many of whom had been opposing parties to
Pellicano clients in civil litigation or witnesses against
Pellicano clients in criminal matters reviewed the audits and
identified page after page of Arnesons computer inquiries on
themselves, as well as on their spouses, parents, children,
siblings, in-laws, friends, boyfriends, ex-boyfriends,
boyfriends parents, neighbors, roommates, employees,
accountants, clients, witnesses, and lawyers, none of whom had
had any interaction with the LAPD Pacific Division during the
relevant time frame or had given Arneson permission to obtain
their private information or to provide it to Pellicano.11
Criminal history and DMV information obtained from these
inquiries showed up in PIA investigative reports recovered from
Pellicanos computers.12
11
See 3/6/08(P.M.) RT 43-46; 3/13/08(A.M.) RT 26-33;

3/13/08(P.M.) RT 117-33; 3/19/08(A.M.) RT 104-09); 3/19/08(P.M.)
RT 6-12, 15-19, 22, 26-30, 84-89, 117-18; 3/20/08(A.M.) RT 9-14,
58-68; 3/20/08(P.M.) RT 92-98; 3/25/08(A.M.) RT 14-17;
3/25/08(P.M.) RT 60-65; 3/27/08(P.M.) RT 127; 3/28/08(A.M.) RT
74-76; 3/28/08(P.M.) RT 9-19, 63-65, 67; 4/1/08(P.M.) RT 99-103;
4/2/08(P.M.) RT 77-79; 4/3/08(P.M.) RT 49-50, 168-70;
4/4/08(A.M.) RT 16-17, 29-35, 40-41, 82-85, 96-98; 4/8/08(A.M.)
RT 116-18; 4/9/08(A.M.) RT 100-03; 4/9/08(P.M.) RT 88-93;
4/10/08(P.M.) RT 58-61; GERT 619-22, 1552-59, 1764-80, 2372-2377,
2396-2402, 2405-09, 2412, 2416-20, 2474-79, 2507-08, 2524-29,
2573-83, 2714-20, 2896-2901, JER 2002, 2107-08, GERT 3346-56,
3400-02, 3404, 3738-42, 4170-71, 4289-91, 4320-21, 4333-39, 434445, 4386-89, 4400-02, 4656-58, 4909-12, 5019-24, 5208-11.
12
See 3/13/08 (P.M.) RT 134-38 (Kerlin); 3/18/08 (P.M.) RT

(continued...)
20
Although Arneson claimed at trial that he had established a

firm ground rule against providing Pellicano with any
information dealing with an active law enforcement or LAPD case
(4/11/08 (A.M.) RT 84; GERT 5362), he in fact secretly worked for
(and, through Pellicano, was paid by) numerous criminal
defendants in pending cases even while being paid by the people
of Los Angeles to investigate crime and assist the District
Attorneys Office with prosecutions.
For example, Pellicano
client John Gordon Jones was charged by the Los Angeles County
District Attorneys Office with the sexual assault of nine
victims, identified in the criminal case (and at trial in this
matter) as Jane Does #1-9.
1751-52, 1756).
(3/13/08 (P.M.) RT 104-05, 109; GERT
Although Arneson had nothing to do with the
12
(...continued)
32-25 (Exh. 111, 126; GEX 354-62, 519-26); 3/19/08 (A.M.) RT 11015 (Exh. 601, 624; GEX 2593-2618, 2821); 3/19/08 (P.M.) RT 9-11
(Exh. 602; GEX 2619-23); 3/19/08 (P.M.) RT 20-22 (Exh. 603; GEX
2624-25); 3/19/08 (P.M.) RT 89-92 (Exh. 625; GEX 2822-31);
3/20/08 (A.M.) RT 68-69 (Exh. 126; GEX 519-26); 3/25/08 (P.M.) RT
86 (Exh. 117; GEX 419); 3/26/08 (P.M.) RT 58-60, 65-67 (Exh. 161;
GEX 733-41); 3/28/08 (P.M.) RT 65-66 (Exh. 318); 4/1/08 (P.M.) RT
104-06 (Exh. 122; GEX 495-507); 4/2/08 (P.M.) RT 79-82 (Exh. 16869; GEX 764-71); 4/3/08 (P.M.) RT 51-52 (Exh. 137-38; GEX 58388); 4/4/08 (A.M.) RT 17-18 (Exh. 114; GEX 382-85); 4/4/08 (A.M.)
RT 36-40 (Exh. 139-46; GEX 589-610); 4/4/08 (A.M.) RT 85-86 (Exh.
147; GEX 611-12); 4/4/08 (A.M.) RT 98-103 (Exh. 148-53, 163; GEX
613-26, 743-47); 4/8/08 (A.M.) RT 118-21 (Exh. 115, 613; GEX 386415, 2650-2700); 4/9/08 (A.M.) RT 36 (Exh. 175, 176, 192; GEX
786-99, 817-21); 4/9/08 (A.M.) RT 103-06 (Exh. 163, 166-67; GEX
743-47, 759-63); 4/9/08 (P.M.) RT 94-97 (Exh. 163; GEX 743-47);
4/10/08 (P.M.) RT 61-62 (Exh. 131; GEX 562); GERT 1781-85, 23992401, 2378-83, 2410-12, 2479-82, 2583-84, 2922, 3402-03, 3743-45,
3941-44, 4172-73, 4321-22, 4340-44, 4345-46, 4402-07, 4658-61,
4845, 4912-15, 5025-28, 5211-12.
21
case, he conducted numerous database inquiries on seven of the

Jane Does, as well as their friends and relatives, and numerous
corroborating witnesses.
81).
(3/13/08 (P.M.) RT 114-34; GERT 1761-
The subjects of those inquiries became targets of
residential break-ins, threats from Pellicano regarding

outstanding traffic warrants, and other harassment apparently
aimed at derailing the criminal case and discouraging the named
victims from testifying.
62).
(3/13/08 (P.M.) RT 113-15; GERT 1760-
Information obtained from Arnesons inquiries was also used
to seek to influence the District Attorneys filing decision and

to cross-examine a prosecution witness at trial.13
(3/13/08
(P.M.) RT 110-12; 3/19/08 (P.M.) RT 13-14; GERT 1757-59, 240304).
Jones was found not guilty.
(3/13/08 (P.M.) RT 112; ; GERT
1759).
The Jones case was not the only criminal prosecution that
Arneson sought to sabotage.
Two years later, Arneson conducted
inquiries on a 17-year-old woman who was the complaining victim

in a criminal sexual assault case against Pellicano client George
Kalta, as well as on her parents, her boyfriend, and her
employer.
(4/3/08 (P.M.) RT 45-46, 168-70; 4/4/08 (A.M.) RT 28-
13
In addition, documents obtained from the Jones defense

file revealed that Pellicano had been tasked by the defense
attorneys with gathering compromising information and photographs
on the prosecutor in order to take [her] out. (3/12/08 (A.M.)
RT 13-14, 33-36; Exh. 605; GERT 1286-87, 1306-07, GEX 2627-29).
22
35; GERT 4166-67, 4289-90, 4332-39).
At around the same time,
Arneson conducted DMV and criminal history inquiries on a number

of prosecution witnesses in a homicide case brought by the Los
Angeles County District Attorneys Office against Pellicano
client Kami Hoss.
(4/2/08 (A.M.) RT 113-14; GERT 4085-86).
In a
recorded conversation played at trial, Arneson provided Pellicano

with criminal history and DMV information regarding Sandra
Rodriguez, the named victim in that case:
that recording made
abundantly clear that Arneson knew what the case was about, as he
referred to Rodriguez to whom Hoss was accused of having
provided controlled substances before her fatal fall from an
upper floor of a hotel as the victim and opined that her DUI
conviction was pretty consistent.14
(4/10/08 (P.M.) RT 47, 70-
78; Exh. 36; GERT 5197, 5220-28, GEX 12-18).

In 2002, Pellicano represented defendant Mark Cohn in a
criminal fraud case filed in United States District Court in
Baltimore.
(4/8/08 (P.M.) RT 125-26; GERT 4793-94).
Over the
course of two days shortly before the trial was to begin in that
case, Arneson conducted 200 separate database inquiries on the
co-defendants and victims identified in that federal indictment.
14
At the end of that recording, Pellicano provided Arneson

with names and license plate numbers of three prosecution
witnesses, all of whom became subjects of Arnesons computer
database inquiries later the same day. (4/10/08 (P.M.) RT 59-61,
75-78; GERT 5209-11, 5225-28).
23
(4/9/08 (A.M.) RT 35-37, 43-44, 47-49; 5/1/08 (Sess. 2) RT 88;

Exh. 303; GERT 4844-46, 4852-53, 4856-58, 8077, GEX 1647-1994).
Pellicano then called Cohn and provided him criminal history
information on the individuals Arneson had run, telling Cohn that
he was not supposed to have the records, that he could not let
anyone know he was accessing the information, and that the
information had been extremely expensive.
(4/9/08 (A.M.) RT
16-35, 37-42; GERT 4825-44, 4846-51).

Apart from criminal cases, Arneson also conducted hundreds
or thousands of inquiries from his LAPD computer during on-duty
hours in connection with parties and witnesses to Pellicanorelated civil litigation and other disputes that had nothing
whatsoever to do with the LAPD.
GERT 1071-72).
(See 3/11/08 (A.M.) RT 83-84;
For example, in separate lawsuits brought against
Pellicano client Brad Grey by actor/comedian Garry Shandling and

screenwriter Vincent Bo Zenga, Arneson conducted extensive
inquiries on individuals who were being deposed by Greys
attorneys, including a search for information about one witness
on the morning of her deposition.
(3/14/08 (A.M.) RT 56-59;
3/19/08 (A.M.) RT 85-88; 3/20/08 (A.M.) RT 62-64; GERT 1858-61,

2353-56, 2577-79).
In the Shandling matter, James Nielsen, a
private investigator retained by Shandlings lawyers to interview

a witness, left his business card in the witness door:
24
that was
all that was needed for Arneson to conduct a series of law

enforcement database inquiries shortly thereafter on Nielsen, his
wife, his daughter, and his business partner.
6-15; GERT 2521-30).
(3/20/08 (A.M.) RT
In a recorded telephone conversation
pertaining to another civil case, Pellicano provided his client

with information obtained minutes before by Arneson regarding a
witness who was about to testify adversely to the client in a
child-custody dispute, for the purpose of discrediting the
witness in her deposition.
(4/4/08 (A.M.) RT 78-85; GERT 4382-
89).
As a concrete example of how Arnesons information was used
to corrupt and obstruct justice, Pellicano managed to serve a
clients lawsuit on Aaron Russo outside a Beverly Hills salon
after he learned from an illegal wiretap of Russo that Russo was
going to the salon for a haircut.
(3/11/08 (A.M.) RT 94-96;
3/13/08 (A.M.) RT 80-82; 4/1/08 (A.M.) RT 119, 126-28; GERT 108284, 1606-08, 3610, 3617-19).
Patrick Theohar and Alex Green,
hairdressers at the salon, subsequently filed declarations

stating that the service had not been effected.
RT 58; Exh. 610; GERT 3815, GEX 2634-35).
(4/2/08 (A.M.)
When Pellicano found
out about the declarations, he called the salon owner and

demanded that Theohar and Green recant their testimony.
(A.M.) RT 50-55; GERT 3807-12).
(4/2/08
On the same day, Arneson ran a
25
series of records checks on the two hairdressers.

RT 59-61; GERT 3816-18).
(4/2/08 (A.M.)
The next day, several LAPD officers
were sent to Theohars home to arrest him on an old probation

violation warrant.
(4/1/08 (P.M.) RT 69-70; 4/2/08 (A.M.) RT 56,
61-62; GERT 6708-09, 3813, 3818-19).
When Theohar, who was not
home at the time, learned from his counsel (who had been in touch
with Pellicano) that the LAPD action was related to his
declaration, he submitted new declarations recanting his prior
adverse testimony.
(4/2/08 (A.M.) RT 63-64, 77-83; Exh. 611;
GERT 3834-40, GEX 2636-38).

LAPD to arrest Theohar.
(2)
No further attempts were made by the
(4/2/08 (A.M.) RT 65; GERT 3822).
Arnesons Testimony and Cross-examination
Arneson took the stand at trial and, with the confidence and
skill of a professional law enforcement witness, wove a
preposterous tale that was unsupported by a single witness or
document and that although he continues to present it as his
statement of facts on appeal (JOB 14-18) -- was thoroughly
decimated and exposed on cross-examination and by other evidence
introduced at trial.
Indeed, at Arnesons sentencing, the
district court made a finding that Arneson had lied almost from
the moment he took the stand and throughout his testimony.
(3/3/09 RT 27; JER 4903).
26
In summary, Arneson testified that he had actually conducted

computer inquiries for Pellicano in the service of the citizens
of Los Angeles, as Pellicano was a valuable source of law
enforcement tips that Arneson used in his capacity as a vice
officer.
(4/11/08 (A.M.) 76, 120-23; 4/11/08 (P.M.) RT 72; 5354,
5398-5401, 5488).
Arneson claimed that although he recognized,
in hindsight, that he had crossed the line, he had believed at

the time he provided Pellicano with information from law
enforcement databases that he was doing so for the good of a
greater cause.
(4/11/08 (A.M.) RT 75; 4/11/08 (P.M.) RT 76;
GERT 5353, 5492).
Arneson attempted to cast doubt on the
Internal Affairs audit by claiming that at least some of the

inquiries on the audit were not conducted by him and could only
be explained by another person having gotten hold of his serial
number and password.
(4/11/08 (A.M.) RT 102-03; GERT 5380-81).
Arneson also claimed that he never received any money in exchange

for the inquiries he did for Pellicano, that Pellicano never paid
him in cash, and that the $2,500 monthly checks he received from
Pellicano were for legitimate security, bodyguard, surveillance,
and civil case analysis services he provided to Pellicano as
well as for being on call 24 hours a day to discuss with
Pellicano all issues other than the furnishing of law enforcement
information.
(4/11/08 (A.M.) RT 81-83, 88-96, 108, 118-20;
27
4/11/08 (P.M.) RT 24-38; GERT 5359-61, 5366-74, 5386, 5396-98,

5440-54).
Arnesons cross-examination thoroughly demolished his
credibility, and he was ultimately forced to concede the falsity
of several of his claims.
For example, on direct examination,
Arneson sought to cast doubt on whether he had conducted the

computer database queries that appeared on the LAPD audits by
claiming that he had been 30,000 feet in the air coming back
from Mexico when a query of his wifes license plate was made.
(4/11/08 (A.M.) RT 102; GERT 5380).
Arneson testified that the
only explanation for this purported anomaly was that someone else
had obtained his serial number and password.15
(4/11/08 (A.M.)
RT 103; 4/11/08 (P.M.) RT 128; GERT 5381, 5544).
When informed
on cross-examination of immigration records showing that, on the

date in question, Arnesons plane had landed and he had cleared
Customs in Los Angeles two-and-a-half hours before the inquiry in
question had been conducted, Arneson coolly responded that his
15
Earlier in the trial, Arnesons counsel had laid the

groundwork for this claim by questioning an Internal Affairs
detective on whether she had checked if runs shown on the audits
were done while Arneson was out of the country and whether anyone
else using Arnesons serial number and password would show up on
the audits. (3/14/08 (A.M.) RT 88-89, 93-94; GERT 1890-91, 189596).
28
earlier sworn testimony had been facetious.16
(4/16/08 (A.M.)
RT 38-42; GERT 5599-5603).

Arneson was elsewhere in his two-day cross-examination
forced to admit that he had, in his preferred euphemistic words,
misrepresented facts and told falsehoods and mistruths.
(4/11/08 (A.M.) RT 130-31; 4/11/08 (P.M.) RT 100; 4/16/08 (A.M.)
RT 101; GERT 5408-09, 5516, 5662).
Separate and apart from those
areas of inquiry that Arneson now challenges on appeal, the

cross-examination and other evidence introduce at trial
established the following:
!
Shortly after Arnesons name had been found in
Pellicanos address book pursuant to a search warrant in November

2002 and before he had been notified that he was the subject of
a criminal investigation (and been given more than five years to
plan a defense) Arneson wrote a letter to his superior officer,
LAPD Lieutenant Donald Hooper, in which he stated that Pellicano
at no time provided insight on any case involving criminal
activity and that [n]o criminal cases or issues involving law
enforcement were reviewed or discussed.17
(4/11/08 (P.M.) RT
16
Arneson admitted that he had no evidence to suggest

that any of the computer inquiries with which he was charged in
the indictment were conducted by somebody else. (4/11/08 (P.M.)
RT 127; GERT 5543).
17
Although Arneson contended that these statements in his

letter to Lieutenant Hooper were false and that the letter
(continued...)
29
81-83, 88-89; GERT 5497-98, 5504-05).
Arneson told Lieutenant
Hooper in the same letter that he had had only sporadic contact
with Pellicano as necessary to use him as a consultant and that
Pellicano had his contact information in his book solely for the
purpose of facilitating pickup and delivery of audio tapes for
forensic analysis (4/11/08 (P.M.) RT 83; 4/16/08 (P.M.) RT 30-31;
GERT 5499, 5733-34);18
!
During the seven years that Pellicano was allegedly a
source of law enforcement tips that led to a number of

significant convictions, Arneson never documented in any LAPD
17
(...continued)
contained a series of lies (4/11/08 (P.M.) RT 82-84, 92;
4/16/08 (A.M.) RT 100-01; 4/16/08 (P.M.) RT 28-29; GERT 54985500, 5508, 5661-62, 5731-32), it was the governments position
that the letter to Lieutenant Hooper was truthful and that
Arnesons contrary trial testimony about Pellicano being a
valuable law-enforcement source was the fabrication. (4/29/08
(A.M.) RT 108-09, 113, 115; GERT 7636-37, 7641, 7643). Arneson
admitted that he concealed from Lieutanant Hooper the fact that
Pellicano contacted him for computer information because he did
not want Hooper to know about it. (4/16/08 (P.M.) RT 31; GERT
5734).
18
Arneson claimed that he brought LAPD audiotapes to

Pellicano for free analysis, enhancement, or duplication on well
over 50 occasions. (4/11/08 (A.M.) RT 79, 135-36; GERT 5357,
5413-14). Pellicanos assistant and executive assistant, who
worked for Pellicano for a combined seven years, both testified
that they never saw Arneson bringing in tapes to Pellicano.
(3/7/08 (P.M.) RT 111; 3/11/08 (P.M.) RT 27-28, 70; 3/18/08
(P.M.) RT 9; 3/19/08 (A.M.) RT 95-96; GERT 940, 1138-39, 1181,
2147, 2363-64). Wayne Reynolds, who managed Pellicanos audio
forensic lab for five years, recalled a single occasion on which
Arneson had brought in an LAPD videotape for enhancement.
(4/3/08 (A.M.) RT 18-19, 67-68; GERT 3990-91, 4039-40).
30
report or memo a single piece of information that he had

supposedly received from Pellicano and never told any of his
supervisors, partners, or squad members that Pellicano was a
source: Arneson therefore acknowledged that all the jury could
rely on about Pellicano having been a source was Arnesons word
(4/11/08 (P.M.) RT 85, 87-88; 4/16/08 (A.M.) RT 102-04; GERT
5501, 5503-04, 5663-64);19
!
Directly contrary to his trial testimony, Arneson told
the FBI in a July 2003 proffer session that no LAPD cases were
ever initiated based on information provided by Pellicano and
that no information attributable to Pellicano ever appeared in
any LAPD affidavit (4/11/08 (P.M.) RT 85-87; 4/16/08 (A.M.) 104;
4/18/08 RT 84; GERT 5501-03, 5664, 6086);
!
Directly contrary to his trial testimony, Arneson
admitted having told the FBI in the same proffer session that he
had conducted computer runs for Pellicano unrelated to any
identifiable law enforcement purpose (4/16/08 (A.M.) RT 46-47;
GERT 5607-08);
!
Directly contrary to his trial testimony, Arneson told
the FBI in the same proffer session that at least some of the
19
Officer Karena Rowan, whom Arneson called as a defense

witness, testified that she has always understood from her
training that the consistent policy of the Vice Division is to
require documentation of all sources of information in a log or
report and that she was trained by Arneson. (4/18/08 RT 192,
201-02; GERT 6170, 6178-79).
31
monthly $2,500 payments he received from Pellicano were in

exchange for the confidential information he provided to
Pellicano and that he had never performed any bodyguard services
for Pellicano (4/18/08 RT 72-74; GERT 6074-76);
!
Arneson admitted lying to the FBI (or, in his preferred
wording, telling a mistruth) when he claimed in the same

proffer session that he could not recall ever coming into the
LAPD on a day off to do business for Pellicano (4/11/08 (P.M.) RT
100; GERT 5516);
!
Arneson further admitted lying in the proffer session
when he said that he had made a total of between 50 and 100

inquiries for Pellicano over the course of their multi-year
relationship (4/11/08 (P.M.) RT 103; GERT 5519);20
!
Although Arneson told a detailed story on direct
examination to justify his computer inquiries on hairdresser

Patrick Theohar, he admitted having told the FBI in the proffer
session five years earlier that he did not recognize Theohars
name, did not remember making any database inquiries on that
name, and could recall nothing about Theohars arrest (4/11/08
(P.M.) RT 44-45; 4/16/08 (A.M.) RT 58; GERT 5747-48, 5619);
!
Although Arneson claimed on direct never to have known
the identity of Pellicanos clients or why Pellicano wanted

20
In fact, Arneson conducted more than 100 inquiries for

Pellicano in a single day. (5/1/08 (Sess. 2) RT 88; GERT 8077).
32
particular names run, he modified this testimony on cross to

admit having known the clients identities in the three instances
that he was caught on tape discussing them (and, of course, in no
other instances), and admitted having knowingly provided
Pellicano with criminal history information on individuals whom
he knew to be the victim and state witnesses in the Kami Hoss
homicide case in which Pellicano was working for the defendant
(4/11/08 (A.M.) RT 84, 116; 4/11/08 (P.M.) RT 104-11; 4/16/08
(A.M.) 32; GERT 5362, 5394, 5520-27, 5593);
!
Arneson was on duty at the time he conducted the
inquiries in the Hoss and Cohn criminal cases, was not being paid
by the citizens of Los Angeles to conduct such inquiries during
his duty hours, and falsely accounted for the hours spent on
those inquiries with the entry administrative duties on his
Sergeants Daily Reports (4/11/08 (P.M.) RT 111-13, 122-29; GERT
5527-29, 5538-45);
!
Arneson similarly falsified other Sergeants Daily
Reports, reporting that hours spent conducting database inquiries

for Pellicano was actually spent in legitimate vice
investigations, Alcohol & Beverage Control enforcement, meetings,
and administrative duties (4/16/08 (A.M.) RT 42-46, 48-57, 95-96;
GERT 5603-07, 5609-18, 5656-57);22
22
Arneson admitted that he never made any entry on his

(continued...)
33
Arneson admitted that he knew, at the time he conducted
his computer inquiries for Pellicano, that each such inquiry was
both a violation of LAPD policy and a crime (4/11/08 (P.M.) RT
124-25; 4/16/08 (P.M.) RT 69-73; GERT 5540-41, 5772-76);
!
Arneson had previously provided information for a
search warrant claiming that he had verified with an individuals

mother that that individual lived at a particular address, when
in fact that individual had died two months earlier (4/16/08
(A.M.) RT 16-18; GERT 5577-79);23
!
Although Arneson told a detailed story on direct
examination about how he had learned that Pellicano had duped him
into running inquiries on the alleged rape victims in the John
Gordon Jones case,24 he made no mention of that story in his July
22
(...continued)
daily reports about conducting DMV or criminal history inquiries
for Pellicano because he knew he was not supposed to be
conducting those inquiries. (4/11/08 (P.M.) RT 130; GERT 5546).
23
Arneson denied that his claim of having verified the

address and his testimony to the same effect at the civil rights
trial brought by the deceased individuals mother were false.
(4/16/08 (A.M.) RT 21; GERT 5582). The district court precluded
the government from questioning Arneson about the finding made by
the presiding district judge in that trial that Arnesons
testimony was completely fabricated. (4/16/08 (A.M.) RT 19-20;
GERT 5580-81).
24
Arneson claimed to have learned only after he had

provided information on the Jane Does that they were named
victims in an LAPD criminal matter. According to Arneson, he was
irritated by this discovery, reminded Pellicano of his ground
rule that he would not provide information on an LAPD case, and
(continued...)
34
2003 proffer session and told the FBI only that he was probably
the source of those inquiries (4/16/08 (A.M.) RT 22-24; GERT
5583-84);
!
Despite having testified on direct examination about
how he supposedly learned that he had been tricked into crossing

the line by providing information on named victims in a criminal
case, Arneson admitted that he knowingly continued to cross the
line when he later ran inquiries on a sexual assault victim and
her family members in the Kalta case, on the homicide victim in
the Hoss case, and on the numerous fraud victims in the Cohn case
(4/16/08 (A.M.) RT 24-27, 29; GERT 5585-88, 5590);
!
Although Arneson had claimed on direct examination that
a document recovered from Pellicanos computers showed that the

database inquiries on Anita Busch were conducted on May 29, 2002
(which did not correspond to any inquiries shown on his audit),
24
(...continued)
demanded that Pellicano get rid of the information. (4/11/08
(A.M.) RT 108-11; GERT 5386-89). By this story, Arneson sought
to provide an explanation for an incident, to which several of
Pellicanos employees had testified, in which Pellicano directed
his employees during the Jones case to remove from the files and
shred anything with Arnesons name on it. Unfortunately for
Arneson, however, the employees had consistently testified that
the shredding extended not just to the Jones file but to all case
files that had information with Arnesons name, and that it came
about as a result of Pellicanos heated telephone call with the
District Attorney and his resulting concern that the office was
going to be searched. (3/18/08 (P.M.) RT 49-51; 3/19/08 (A.M.)
RT 61-64; 3/28/08 (P.M.) RT 103-04; 4/1/08 (A.M.) RT 43-44;
4/3/08 (A.M.) RT 62-64; GERT 2187-89, 2329-32, 3440-01, 3534-35,
4034-36).
35
he conceded on cross-examination that the document actually

showed that the Busch inquiries were conducted on May 16, 2002,
which directly matched inquiries shown on the audit (4/11/08
(P.M.) RT 39; 4/16/08 (A.M.) RT 77-86; GERT 5455, 5638-47);
!
In advance of the July 2003 proffer session, Arneson
(through his attorneys) had told the government that his

explanation for running inquiries on Anita Busch was that he had
obtained her name through running her license plate; after
learning from the government that the audit showed no run of
Buschs license plate, Arneson had changed his story to claim
that he had never run Buschs license plate and instead ran her
name because he saw her frequenting two restaurants associated
with a gambling investigation; and after hearing Buschs trial
testimony that she had never been at those restaurants during
that time frame, Arneson had changed his story again to testify
that it was very possible he had done the inquiry for Pellicano
(4/9/08 (A.M.) RT 103; 4/16/08 (A.M.) RT 86-94, 96-100; GERT
4912, 5647-54, 5656-60);
!
Although Arneson had testified on direct examination
that one of Pellicanos significant law enforcement contributions

was attempting to lure fugitive Jan (aka Leo) Portocarrero back
to the United States from Peru, the government played a recorded
telephone conversation in which Pellicano expressly advised
36
Portocarrero (who was in fact his client) to remain out of the

country (4/11/08 (P.M.) RT 46-49; 4/16/08 (A.M.) RT 104-09, 118;
GERT 5462-65, 5665-70, 5679);23
!
During the same recorded conversation, Pellicano told
Portocarrero that he needed an additional $100,000 to pay someone

to get into government databases and find out who the rats are
and passed on to Portocarrero information about LAPDs and FBIs
23
The testimony regarding Portocarrero led to one of

Arnesons most transparent lies. A brief recess occurred in the
middle of Arnesons direct examination just as Arneson was
explaining how Pellicano purportedly had provided him with
information to assist with the capture and prosecution of
Portocarrero and others. (4/11/08 (P.M.) RT 46-63; GERT 5462-79).
Apparently, this testimony irked Pellicano, who often boasted
about his connections to Italian organized crime and made clear
in numerous recordings his contempt for rats and stool
pigeons. (3/18/08 (A.M.) RT 55-56; 3/26/08 (A.M.) RT 27-29)
4/2/08 (A.M.) RT 52; 4/4/08 (P.M.) RT 86-87; 4/16/08 (A.M.) RT
117, 121-22; 4/16/08 (P.M.) RT 9; GERT 2075-76, 3004-06, 3809,
4516-17, 5678, 5682-83, 5712). Immediately following the recess,
Arnesons counsel emphatically sought to clear up a
misperception by eliciting from Arneson that Portocarrero was
not an Italian name, that Pellicano had a rule that he would
never tell Arneson anything about people with Italian names, and
that Pellicano never acted as an informant or a source with
respect to any Italian-based organized crime. (4/11/08 (P.M.)
RT 65-67; GERT 5481-83). Arneson returned to this theme on
redirect, again stressing that Pellicano never provided
information on Italian surnames and that Pellicano was not a
rat. (4/16/08 (P.M.) RT 93; GERT 5796). Arneson testified to
these facts despite previously having testified (and told the
FBI) that Pellicano had provided him with source information
regarding Paul Rusconi (the son-in-law of a Pellicano client) to
assist an alleged, albeit completely uncorroborated, vice
investigation, and that Pellicano had also provided Arneson with
source information on Paolo Rossi and Lenny Passafaro, whom
Arneson had identified as known Italian organized crime
associates. (4/11/08 (P.M.) RT 43-44, 60-63; 4/18/08 RT 231-33,
240-41; GERT 5459-60, 5476-79, 6209-11).
37
criminal investigation of him, including the identity of a

possible rat that had been the subject of Arnesons inquiries
the previous day (4/16/08 (A.M.) RT 112-24, 127-33; GERT 5673-85,
5688-94);
!
that he provided an original seized zip drive containing all of

the evidence against Portocarrero to Pellicano for forensic
imaging, the jury heard Pellicano tell Portocarrero that he was
gonna get a copy of all the stuff that they seized . . . all the
stuff thats in the computers (4/11/08 (P.M.) RT 46-48; 4/16/08
(P.M.) RT 134-39; GERT 5462-64, 5837-42);
!
Arneson admitted having disclosed to Pellicano the
existence of an undercover operation against Portocarrero and the

identities of the undercover officers involved (4/16/08 (P.M.) RT
103-05; GERT 5806-08);24
24
As part of his defense case, Arneson called as

character witnesses three LAPD officers whom he had supervised,
including two of the undercover officers in the Portocarrero
investigation. The undercover officers both testified that they
were unaware of Arneson passing on information about their
undercover operation to Portocarreros investigator Pellicano and
that such conduct would have put their safety in danger.
(4/18/08 RT 181-82, 200; GERT 6159-60, 6178). In addition, all
three of Arnesons witnesses testified that Arneson never said
anything to them about Pellicano being a source and that they
were not aware of a single vice investigation that involved any
information provided by Pellicano. (4/18/08 RT 182-84, 203-07,
220-22; GERT 6160-62, 6181-85, 6198-6200).
38
In connection with an organized crime investigation in
which Arneson had worked with and shared information with the
FBI, the jury heard Pellicano tell one of the targets of that
investigation in a recorded conversation that the case had
already gone to the DA, the FBI, that he needed $25,000 that
was not going in his own pocket, and that he had an insurance
policy so that anytime your names come up, they tell me, and I
can warn you (4/16/08 (A.M.) RT 140-41; 4/16/08 (P.M.) RT 4-10;
GERT 5701-02, 5707-13);
!
that the $2500 monthly checks from Pellicano were used to pay
off-duty officers with whom he subcontracted for residential
security or bodyguarding services at $25/hour, the government
introduced on cross-examination additional checks from Pellicano
to Arneson, separate and apart from the monthly $2500 retainer
checks, that represented itemized payment for specified numbers
of hours on the same security jobs that Arneson had claimed were
the subjects of the $2500 checks (4/11/08 (A.M.) RT 93-95, 11920; 4/16/08 (P.M.) RT 14-20; GERT 5371-73, 5397-98, 5717-23);
!
Although Arneson claimed that his legitimate services
to Pellicano were provided through his business Mark

Enterprises, although he acknowledged that that business
required him to prepare payroll, pay taxes, and issue 1099s for
39
his employees, and although he claimed to have maintained records

showing what work he and others did on what dates and how much
they were paid, Arneson admitted having no records to verify any
work done for Pellicano in exchange for any of the checks paid to
him (4/11/08 (A.M.) RT 81-82; 4/16/08 (P.M.) RT 20-21, 25-26;
GERT 5359-60, 5723-24, 5728-29);
!
With respect to the 10 specific $2500 checks that were
charged as acts of state-law bribery in the RICO count of the

indictment, Arneson admitted that he could not identify any
legitimate work that he did in exchange for any of those payments
(4/16/08 (P.M.) RT 24-27; GERT 5727-30); and
!
that he believed he was obtaining information for Pellicano for

the greater good of the citizens of Los Angeles, he admitted on
cross-examination that he had not believed at the time that his
actions were for the benefit of those citizens whose private
information he was obtaining and passing on to Pellicano (4/16/08
(P.M.) RT 73-75; GERT 5776-78);
In sentencing Arneson, the experienced district judge who
presided over the trial stated that as much testimony as I have
seen from the stand, Mr. Arneson really took me aback in the
nature and scope of his perjurious testimony.
JER 4903).
40
(3/3/09 RT 27;
c.
Rayford Turner
Ray Turner was a field technician for SBC for over 20

years.25
(3/27/08 (P.M.) RT 58, 132; 4/2/08 (P.M.) RT 42).
Prior to his retirement in December 2001, he was assigned to

SBCs Beverly Hills Central Office, which supplied phone service
to Pellicanos office.
(3/27/08 (A.M.) RT 58, 60, 82).
Pellicano frequently instructed his employees to page

Turner, using a prearranged code.
(3/7/08 (P.M.) RT 141).
After
Turner called back and spoke to Pellicano, he would fax or handdeliver SBC information including telephone records and
handwritten lists of names, addresses and telephone numbers to
the PIA office, where Pellicano would have his employees reformat
the information into PIA computers.
(3/7/08 (P.M.) RT 112-13,
140-42); 3/12/08 (P.M.) RT 36-38, 60; 3/18/08 (P.M.) RT 37-38,

66; 3/19/08 (A.M.) RT 58; 3/28/08 (P.M.) RT 84-85; 4/8/08 (P.M.)
RT 17).
Turners furnishing of telephone company information to
Pellicano occurred on a regular and consistent basis, at least

several times a week, going back at least as far as 1996.
(3/7/08 (P.M.) RT 139-40; 3/18/08 (P.M.) RT 61, 77; 3/28/08
(P.M.) RT 79-80, 82-83; 4/8/08 (P.M.) RT 14-15.
25
As with Arneson,
SBC was formerly known as Pacific Bell and later merged

with AT&T; the names were sometimes used interchangeably at the
trials in this case. (3/28/08 (A.M.) RT 47). Because the
company operated as SBC at the time of the underlying events, the
government will use that designation herein.
41
PIA employees were under standing instructions not to enter calls

from Turner in the office phone log.
(3/7/08 (P.M.) RT 142;
3/18/08 (P.M.) RT 36; 3/28/08 (P.M.) RT 95-96).
Also like
Arneson, Turner was well paid by Pellicano (in both checks and
large amounts of untraceable cash) for the information he
provided.
(3/7/08 (P.M.) RT 153; 3/13/08 (P.M.) RT 72-73;
3/18/08 (P.M.) RT 76; 3/19/08 (A.M.) RT 76-77; 4/8/08 (P.M.) RT

11-12, 59).
Investigation identified two SBC employees, Teresa Wright
and Michele Malkin, who admitted to providing Turner with
information from confidential SBC databases, including the
Billing Operations Support System (BOSS).26
38, 88).
(3/27/08 (P.M.) RT
Wright, who was terminated from her 23-year employment
with SBC for her unauthorized use of computer databases, pleaded

guilty to a charge of computer fraud and cooperated with the
government.
22).
(3/27/08 (P.M.) RT 129, 146-47; 3/28/08 (A.M.) RT
Wright testified that on hundreds of occasions both before
and after his retirement, Turner asked her to provide him with
subscriber names, telephone numbers, addresses, and toll records,
26
BOSS contains customers names, addresses, telephone

numbers, social security numbers, credit information, and current
and archived toll records. (3/27/08 (A.M.) RT 50-51; 3/27/08
(P.M.) RT 132). Employees log into that system with a unique
user identification code and password and are required upon
exiting the system to enter a code reflecting their reason for
accessing a customers account, thereby allowing SBC to audit
access to the BOSS database. (3/27/08 (A.M.) RT 52-53).
42
and that the requests did not relate to any legitimate work
orders or SBC business.
(3/27/08 (P.M.) RT 132-35).
On each
occasion, Wright provided Turner with the information he

requested.
(3/27/08 (P.M.) RT 135-37).
Wright entered the code
ERR (for Error) or CHK (for Check) to disguise her reason for
accessing the BOSS accounts and testified that each inquiry for
which these codes appeared was performed at Turners request.
(3/27/08 (P.M.) RT 103, 108-17, 138-46; 3/28/08 (A.M.) RT 55-56).
Turner paid Wright in checks and cash for the information she
provided to him.
(3/28/08 (A.M.) RT 13-21; Exh. (I) 403, 905).
Customer information corresponding to Wrights inquiries ended up

in the PIA computers.
(3/20/08 (A.M.) RT 69-70; Exh. (I) 127).
Malkin, who worked as an SBC maintenance administrator for

approximately 20 years and who, like Wright, was terminated from
SBC for improperly providing account information to Turner
without a legitimate business purpose, testified that Turner
called her repeatedly both before and after his retirement from
SBC to request customer and cable pair information (which, as
explained below, can be used to implement illegal wiretaps) and
that she provided the information to him.27
27
(3/27/08 (P.M.) RT
Lopes testified that there is no legitimate reason that

a non-phone company employee or a retired phone company employee
would need access to cable pair information. (3/27/08 (A.M.) RT
78-79). Because the LMOS database that Malkin used to obtain
cable pair and other information does not leave any record of
(continued...)
43
38; 4/2/08 (P.M.) RT 37-38, 44-45, 49-50).
Turner did not pay
Malkin for the information, which she provided out of friendship.

(4/2/08 (P.M.) RT 46).
After Turners December 2001 retirement,
he never called Malkin for any purpose other than to request

customer and cable pair information.
(4/2/08 (P.M.) RT 63-64).
As part of her cooperation with the FBI, Wright made a

series of consensually recorded telephone calls to Turner.
In
the first call, Turner suggested that Wright falsely tell the FBI
that the checks he gave her were for her mother.29
(A.M.) RT 25-27).
(3/28/08
In other recorded calls that were introduced
at trial, Turner: (1) told Wright that he had not told her about
the Pellicano investigation because he had not believed it would
get to her and had thought she was safe; (2) asked Wright if
the FBI had looked up the date she accessed the Anita Busch
account, which Turner recalled as close to two years ago; (3)
told Wright he remembered her telling him that she had to enter a
reason for accessing an account; and (4) told Wright that he knew
27
(...continued)
employee access, SBC was unable to audit the subjects and dates
of Malkins unauthorized inquiries. (3/27/08 (A.M.) 53-56;
4/2/08 (P.M.) RT 38-39).
29
Although the recording device malfunctioned during this

first call, Wright was asked to write down her notes of the
conversation before she learned that the call had not been
recorded. (3/28/08 (A.M.) RT 25).
44
that if he had still been working at SBC, he wouldve been

fired, too, no doubt about it.30
2.
(3/28/08 (A.M.) RT 28-33).
Wiretapping Counts
a.
Anthony Pellicano
In addition to illegally obtaining information through paid

sources in police departments and telephone companies, Pellicano
conducted his investigations of individuals through illegally
wiretapping their telephones.
(3/18/08 (P.M.) RT 38-39).
Pellicanos wiretapping activities were systemic and unrelenting;

in 2001, he assured one client to whom he offered his wiretapping
services that he had been doing this for thirty years and never
had a problem.
(3/6/08 (P.M.) RT 53).
Pellicano told clients
that he used contacts within the phone company to conduct his

wiretaps.31
(4/3/08 (P.M.) RT 163. 167).
30
Turner also explained to Wright in one of their

recorded conversations how wiretaps could be conducted by direct
connection from the SBC frame to the FBIs office. (3/28/08
(A.M.) RT 34-36). As discussed below, the evidence indicated
that Turner implemented wiretaps for Pellicano in the same
manner.
31
SBC Asset Protection Manager David Lopes, who had been

with the company for 34 years (3/27/08 (A.M.) 47-48), explained
that dial tones are generated at electronic switches within SBC
central offices, each of which serves a particular geographic
area. A pair of numbered copper wires for each individual
telephone line (a cable pair) connects to a main frame within
the central office. From the frame, the wires group into cables
that travel underground until they resurface at B-boxes on
street corners, where they split back into individual cable pairs
that are attached to pairs of screws within the boxes.
From the
(continued...)
45
Much of the wiretapping was conducted in the locked PIA war

room, where multiple computers running the Telesleuth
wiretapping program created by Kachikian and connected to phone
lines through custom interface boxes designed by Kachikian were
intercepting five or more telephone lines at a time, all within
the (310) area code shared by PIA.32
(3/7/08 (P.M.) RT 128-32,
135; 3/11/08 (A.M.) RT 32-33, 93; 3/25/08 (P.M.) RT 111, 113-15,

122-23; 4/3/08 (A.M.) RT 22-28; 4/23/08 (P.M.) RT 26-27).
Every
day, Pellicano would take removable hard drives from the

31
(...continued)
B-box, the wires run underground or up and across telephone poles
until they reach the location where the physical phone is
located. (3/27/08 (A.M.) 69-77). Without the access to SBC
databases that Turner provided, there would be no way to identify
the particular cable pair on the frame or in a B-box that
corresponds to a particular telephone line. (3/27/08 (A.M.) RT
72-73, 76). Moreover, one or more SBC employees were needed to
access the central office frames and field B-boxes in order to
implement the illegal wiretaps. (3/27/08 (A.M.) RT 82-84).
32
SBC employees use jumper wires or half-taps to

duplicate dial tone from one line to another. (3/27/08 (A.M.) RT
80-82). Lopes testified that an SBC employee with access to a
central offices frame could install a jumper wire or half tap
that would duplicate the dial tone for a particular phone line
and jump it to any other line on the frame, thereby creating an
unknown extension to that line on which all conversations could
be monitored. (3/27/08 (A.M.) RT 82-83). Moreover, when
accompanying the FBI on its January 2003 search of PIA, Lopes
found two extra vacant pairs of wires that connected from the
Beverly Hills central office to the PIA offices. (3/27/08 (A.M.)
RT 93-96; 3/27/08 (P.M.) RT 20, 101-02, 104-05). Lopes testified
that a person with access to cable pair information and the
Beverly Hills frame could run a jumper from any line serviced by
that central office to either of those vacant pairs, thereby
creating an unknown extension to the targeted line within the PIA
offices. (3/27/08 (A.M.) RT 96).
46
computers running the Telesleuth program in the war room and

listen to them in his office.
(P.M.) RT 14-16).
(4/3/08 (A.M.) RT 39-41; 4/3/08
In the words of his longtime assistant and
office manager Tarita Virtue, Pellicano was the only private

investigator I have ever known who never left his office.33
(3/11/08 (P.M.) RT 48).
When Pellicano needed to wiretap a phone outside of the West
Hollywood/Beverly Hills service area, he would rent a location
and place a computer there to record the intercepted calls.34
(3/7/08 (P.M.) RT 131-33).
Each time that Pellicano sent his
investigator into the field to conduct videotaped surveillance of

the residences of investigative targets, he also had her
33
None of the computers in the war room was searched or

seized in the initial November 2002 search of PIA, based on
agents belief that they did not fall within the scope of the
limited warrant. (3/6/08 (P.M.) RT 72-73; 3/7/08 (P.M.) RT 116).
When agents returned in January 2003 with a new warrant to search
for evidence of illegal wiretapping, the computers that had been
left in the war room at the end of the November search were no
longer present. (3/7/08 (A.M.) RT 53-58). However, searching
agents did find in Pellicanos office a proprietary SBC document
identifying the central office and frame for every telephone
number in the Southern California area. (3/27/08 (A.M.) RT 97101; Exh. (I) 509). Lopes testified that there was no legitimate
reason for a private investigator to have this information.
(3/27/08 (A.M.) RT 101).
34
Lopes testified that a person who wanted to conduct an

illegal wiretap of a phone serviced by another central office
could find a location serviced by the same B-box as the victims
phone line and, with access to cable pair information identifying
the wires within that B-box, use a jumper wire or half tap to
duplicate the dial tone to another line in the neighborhood and
listen in on all phone conversations. (3/27/08 (A.M.) RT 84).
47
photograph the telephone junction boxes and look for rentable

apartments in the area.
(3/7/08 (P.M.) RT 133-34; 4/2/08 (A.M.)
RT 99-105).
Pellicano tasked his assistant and office manager Tarita
Virtue with listening to and summarizing or transcribing the
wiretapped telephone conversations of PIA investigative targets.
(3/7/08 (P.M.) RT 112, 120-21).
Virtue used Kachikians
Telesleuth Player software to review, highlight and organize

those calls, as well as to convert touch tone sounds into numbers
of bank account and credit card information.35
121-24, 127-28).
(3/7/08 (P.M.) RT
The wiretap recordings had multiple levels of
password protection:
most of Pellicanos Telesleuth passwords
had in common the use of the word omerta the organized crime
code of silence.
(3/7/08 (P.M.) RT 124-25; 4/4/08 (P.M.) RT 86-
87).
Virtue identified a number of PIA investigative matters in
which she had reviewed intercepted telephone conversations, which
sometimes numbered in the thousands for a single matter.
(3/11/08 (A.M.) RT 24, 3/11/08 (A.M.) RT 28-30, 3/11/08 (A.M.) RT
60-61, 3/11/08 (A.M.) RT 87-88, 3/11/08 (A.M.) RT 92-94).
35
The
Several other PIA employees testified that they too had

listened to and transcribed wiretapped telephone calls of PIA
investigative targets at Pellicanos direction. (3/18/08 (P.M.)
RT 74-75, 82, 89-99, 3/28/08 (P.M.) RT 89-90, 4/8/08 (P.M.) RT
24-26.
48
government introduced documents, prepared by Virtue and recovered

from PIA computers pursuant to search warrants, that contained
detailed summaries of the private telephone conversations
including privileged attorney-client conversations relating to
ongoing litigation against PIA clients of some of Pellicanos
wiretapping victims.
122.
(3/11/08 (A.M.) RT 26-28, 35-59, 62-83, 97-
Witnesses testified that those summaries accurately
reflected the contents of their private telephone conversations.

(3/20/08 (A.M.) RT 71-91, 3/25/08 (A.M.) RT 41-50, 3/25/08 (P.M.)
RT 57-59, 75-86, 3/28/08 (P.M.) RT 22-23, 4/1/08 (P.M.) RT 7180).
Numerous former PIA clients testified that Pellicano
conducted (or offered to conduct) illegal wiretaps on their
behalf and that he played for them intercepted telephone calls of
their litigative opponents or other investigative targets.
(3/6/08 (P.M.) RT 58; 3/20/08 (P.M.) RT 55-65; 3/25/08 (A.M.) RT
107-09, 111-17; 3/27/08 RT 125-27; 3/28/08 RT 65-69; 4/1/08
(A.M.) RT 61-63, 68, 85-86, 105, 123-26; 4/2/08 (P.M.) RT 117-19,
127; 4/3/08 (P.M.) RT 46-47, 59-60, 137-38, 143-44, 166-67;
4/4/08 (A.M.) RT 63-65.
The government also played recordings,
recovered from Pellicanos computers, in which Pellicano

expressly offered his wiretapping services and discussed with his
clients information - including the contents of privileged
49
attorney-client communications - that he had obtained from

illegal wiretaps he was conducting on their behalf.36
(3/6/08
(P.M.) RT 50-54; 3/25/08 (A.M.) RT 50-81; 4/1/08 (A.M.) RT 63-67,

69-71, 75-78; 4/1/08 (P.M.) RT 8-10, 22; 4/2/08 (P.M.) RT 121-27;
4/10/08 (A.M.) RT 139-59, 4/10/08 (P.M.) RT 4-31.
As with the
written summaries, victims of the wiretaps confirmed that the

information Pellicano communicated to his clients in those
recordings accurately reflected the contents of their private
telephone conversations.
(3/25/08 (A.M.) RT 81-82; 3/28/08
(P.M.) RT 67-68; 4/10/08 (P.M.) RT 4-31).

In many cases, Pellicanos illegal wiretaps were used to
influence the outcome of litigation.
For example, former
Pellicano client Robert Pfeifer, who pleaded guilty to aiding and

abetting an illegal wiretap, testified that he hired Pellicano to
wiretap his ex-girlfriend Erin Finn in order to discredit her and
pressure her into recanting harmful deposition testimony that she
36
One actual wiretap recording was introduced at trial:

a recording recovered from Pellicanos office that contained what
was identified as a private, intercepted telephone conversation
between Lisa Gores and Tom Gores, the wife and brother of
Pellicano client Alec Gores, who had hired Pellicano to
investigate their relationship. (4/1/08 (P.M.) RT 110-12; 4/8/08
(A.M.) RT 19-20). Other recordings were not recovered, likely
because Pellicanos standard practice was to wipe and reuse the
removable hard drives containing intercepted conversations
(3/13/08 (P.M.) RT 7-8) and/or because Pellicano had a two-month
opportunity to clean house between the execution of the limited
November 2002 search warrant and the January 2003 wiretapping
warrant (3/6/08 (P.M.) RT 72-73; 3/7/08 (A.M.) RT 53-58; 3/7/08
(P.M.) RT 116).
50
had given in connection with Pfeifers lawsuit against his former

employer.
(3/25/08 (A.M.) RT 95-96, 105-09).
Pellicano
successfully induced Finn to recant her truthful testimony, which

led to a fraudulently obtained settlement.
(3/25/08 (A.M.) RT
119-21; 3/25/08 (P.M.) RT 68-71; 3/28/08 (A.M.) RT 115-16).

Similarly, Kissandra Cohen, who was suing Pellicano client
Ed Masry for sexual harassment and wrongful termination,
testified that the interception of her confidential telephone
conversations about changing her counsel led to her being
bombarded with motions and depositions at a time when she was
unrepresented and unable to respond, which affected her resolve
to continue with the case.
(3/28/08 (P.M.) RT 26-30).
Cohen
further testified that she was asked in her deposition about

people and events that could only have been identified from
interception of her private telephone calls (3/28/08 (P.M.) RT
30-37) and that intercepted conversations with her attorney about
a potential favorable witness resulted in the witness being
represented by the opposing side and unavailable to be
interviewed (3/28/08 (P.M.) RT 37-38).
Further examples of Pellicanos corruption of the judicial
process abounded at trial.
In connection with a lawsuit filed by
Sylvester Stallone against his business manager (and PIA client)

Kenneth Starr, Pellicano provided Starr with the contents of
51
Stallones privileged telephone conversations with his lawyer including what witnesses they planned to depose, what witnesses
they were trying to locate, what Stallones witnesses would
testify to, the substance of declarations they were preparing,
the difficulties they were having in locating certain documents,
whom they were seeking to use to assist them with the lawsuit,
the lawyers fee arrangement, and the Achilles heel that
Pellicano had found but would be unable to use - for the express
purpose of avoiding any surprises in Starrs deposition.
(4/10/08 (A.M.) 139-59; 4/10/08 (P.M.) RT 4-31).
In connection
with screenwriter Zengas lawsuit against PIA client Brad Grey,

Virtue listened to and relayed to Pellicano for use in the
lawsuit approximately 50 telephone conversations between Zenga
and his attorney regarding their litigation strategy, perceived
vulnerabilities, intended witnesses, planned lines of questioning
at depositions, and settlement position.
(3/11/08 (A.M.) RT 62-
73, 81-83).
b.
Rayford Turner
According to several former PIA employees, Turner was the

person who implemented the illegal wiretaps for Pellicano.
(3/7/08 (P.M.) RT 140; 3/13/08 (P.M.) RT 96; 3/18/08 (P.M.) RT
37-78; 4/25/08 (A.M.) RT 95).
Employees observed Turner and
Pellicano at the computers in the war room, where many of the
52
illegal wiretaps were conducted.
(3/19/08 (A.M.) RT 33; 3/28/08
(P.M.) RT 80-82, 142; 4/8/08 (P.M.) RT 20-21).
At other times
when Turner came to the PIA office, he and Pellicano would go to

the phone wiring room in the hallway that contained the phone
lines for the building (and contained the vacant pairs linking
the Beverly Hills central office to the PIA suite).
(3/18/08
(P.M.) RT 63-64; 3/27/08 (A.M.) RT 93-96; 3/27/08 (P.M.) RT 20,

101-05; 3/28/08 (P.M.) RT 125).
Pellicano and Turner were
overheard talking about the phone closet and expressing concern

that someone had been in it.
(3/28/08 (P.M.) RT 85).
On one
occasion, when an employee told Pellicano that someone had been

in the phone closet, Pellicano immediately called Turner and
Turner came to the office.37
(3/28/08 (P.M.) RT 85-86, 127-29).
Pellicano rented an apartment in Pasadena for the sole

purpose of setting up a wiretap of real estate developer Robert
37
Turner called as a defense witness his friend Alphonse

Arnold, who testified that he had assisted Turner in doing
telephone work at the PIA offices and had observed Turner
sweeping those offices for wiretaps. (4/22/08 (P.M.) RT 46-49).
When interviewed nine months earlier, however, Arnold had told
the FBI that he had no idea what type of work Turner did for
Pellicano and had no association with Pellicano other than having
once picked Turner up there. (4/25/08 (P.M.) RT 26-28). Former
PIA employees testified that they never saw Turner repairing
phone jacks or lines within the office or sweeping the office for
bugs, and that when the PIA phone system needed repair, Pellicano
called in an outside company to do the work. (3/13/08 (P.M.) RT
38-39, 97, 99-101; 3/18/08 (P.M.) RT 64).
53
Maguire in connection with his divorce from PIA client Susan

Maguire.
(3/18/08 (P.M.) RT 67-71; 3/19/08 (A.M.) RT 77-78;
3/20/08 (P.M.) RT 63).
On one occasion, Pellicano brought his
executive assistant Lily LeMasters to the apartment to check the

computer that he had set up there.
(3/18/08 (P.M.) RT 72).
Pellicano then called Turner and instructed him to come to the

apartment, for which Turner already had the address.
(P.M.) RT 73).
(3/18/08
LeMasters had previously heard Pellicano making
arrangements with Turner for Turner to come to the Pasadena

wiretapping apartment.
(3/19/08 (A.M.) RT 79).
At the end of
the Maguire wiretap, Pellicano took his employee Wayne Reynolds

to the Pasadena apartment and retrieved a computer and Telesleuth
interface box.
(4/3/08 (A.M.) RT 44-46, 49-50).
After leaving
the apartment, Pellicano called Turner from the car and said,
You know that girl you have up for me?
take her down?
Can you go ahead and
(4/3/08 (A.M.) RT 47-48).
Pellicano used
similar coded language with Turner on other occasions to refer to

wiretaps.
(4/3/08 (A.M.) RT 48-49).
A series of Pellicano-created recordings of his

conversations with Turner was played at trial.
Several of those
recordings suggested that Turner used a female SBC employee

(code-named Fannie Mae) with access to the frame to facilitate
54
the wiretaps.38
(4/3/08 (P.M.) RT 31-44; 4/22/08 (A.M.) RT 25).
In one conversation, Pellicano asked Turner to check if Fannie

Mae could hook up a guy on Franklin Avenue in Hollywood.
(4/3/08 (P.M.) RT 32).
In another recording, Turner said that a
female had left him a message that she probably wont get there
til ten oclock tonight.
Because theres another guy thats
there thats working that her, they dont get along.

get off til ten.
He doesnt
Pellicano replied that he would go out there
and see whats what right away and would page Turner.
(P.M.) RT 41-43).
(4/3/08
In another recording, Pellicano provided
Turner with a telephone number and instructed him to [s]ee if

she can get that on- on- on 5 immediately.
(4/3/08 (P.M.) RT
43-44).
In a recorded telephone conversation dated April 11, 2002,
Pellicano told Turner that he had learned (apparently from
intercepting a telephone conversation of his former employee
Laura Sanchez) that former PIA employee Gaye Lynn Palazzo
documented everything that she did for Anthony and even the
illegal stuff she did with Ray and all the stuff that Ray did for
38
The government believes that Fannie Mae was SBC

facilities technician Joann Wiggan, who was convicted in a
separate trial in November 2009 of false statements to the FBI
and perjury before the grand jury and the district court, all
pertaining to her relationship with Turner. (No. CR 06-109(A)DSF). As discussed below, the government introduced evidence
supporting Wiggans involvement in the wiretapping scheme at the
second trial in this case.
55
Anthony.
(3/13/08 (A.M.) RT 109-12).
Pellicano told Turner
that he was concerned about this and that if any of this is

true, we gotta do something about this immediately.
(A.M.) RT 113).
Pellicano said that he was relying on Turners
assurance that Palazzo would never rat us out.

RT 114).
on us.
(3/13/08
(3/13/08 (A.M.)
Turner replied, I, I really doubt that she would rat
She, she always told me that she would never mess with
you cause shes, was you know, she was always afraid of you.
(3/13/08 (A.M.) RT 114).
Turner also assured Pellicano that he
had never told [Sanchez] what I did.
(3/13/08 (A.M.) RT 115).
Pellicano directed Turner to feel it out and find out whether

Palazzo was talking.
(3/13/08 (A.M.) RT 115).
Pellicano
concluded this conversation by telling Turner, I got some other

things for Fannie.
c.
(3/13/08 (A.M.) RT 116).
Kevin Kachikian
Beginning in 1995, Kachikian, a software programmer, worked

for Pellicano developing and updating the Telesleuth software
used to capture and encrypt wiretapped telephone calls.
(3/7/08
(P.M.) RT 128; 4/23/08 (P.M.) RT 23; 4/24/08 (P.M.) RT 4).

Kachikian also designed the interface boxes that connected the
targeted telephone lines to computers running his Telesleuth
program, converted the telephone signal into recordable audio,
and detected when the target telephone was on-hook and off-hook
56
so the wiretapping could take place unattended.
(3/25/08 (P.M.)
RT 111, 113-15, 122-23; 4/23/08 (P.M.) RT 26-27).
Kachikian
wrote a separate program, Telesleuth Player, that was required to

decrypt and play back the heavily encrypted audio files recorded
with Telesleuth.39
(3/25/08 (P.M.) RT 116, 119-21).
Kachikians defense at trial centered on his testimony that

he had believed that Pellicano was developing Telesleuth as a
legitimate tool to market to law enforcement agencies and had had
no knowledge that Pellicano was in fact engaged in wiretapping.
(4/23/08 (A.M.) RT 37, 47).
That contention was refuted by the
features of the Telesleuth program that Kachikian created, which

were thoroughly inconsistent with legitimate law enforcement use
but wholly consistent with its use as an illegal wiretapping
tool.
Jeffrey Edwards, a software engineer and former FBI special
agent who analyzed the source code for Telesleuth and its
required playback companion Telesleuth Player, identified several
self-defense mechanisms built into the programs.
(A.M.) RT 52).
(3/26/08
One such mechanism, referred to in Kachikians
source code as the code wipe feature, erased all recorded audio
39
Kachikian created a modified version of Telesleuth,

Telesleuth Jr., that Pellicano used to record his own telephone
calls. (4/24/08 (A.M.) RT 48; 4/24/08 (P.M.) RT 26-27).
Kachikian also wrote apparently legitimate programs for Pellicano
to use in his forensic work, including Forensic Audio Sleuth and
Forensic Image Sleuth. (4/23/08 (A.M.) RT 78).
57
files and the Telesleuth program itself and overwrote them

with random data (thereby making the deleted data permanently
unrecoverable) if a user made a series of incorrect key presses
or mouse clicks within a certain time, such as might be done by a
forensic examiner trying to figure out how the Telesleuth program
worked.
(3/26/08 (A.M.) RT 52-57, 65).
The code wipe feature
was also triggered if the computer was prematurely shut down by

pulling out the plug, as FBI agents are trained to do during
execution of search warrants.
(3/26/08 (A.M.) RT 57-62).
Thus,
if one of Pellicanos unattended wiretapping computers were to be

found in its offsite location (such as the Pasadena apartment
used for the Maguire wiretap), Kachikians code wipe feature
ensured that any evidence that the computer was ever used for
wiretapping - including the Telesleuth program itself - would be
permanently and irrevocably deleted.40
40
(3/27/08 (A.M.) RT 27).
Kachikians source code allowed the user to choose

whether or not to enable the code wipe feature in a particular
version of Telesleuth; Kachikian named the version with the
feature enabled Field and the version with the feature disabled
In House. (3/26/08 (A.M.) RT 62-64). The very existence of a
Field version was itself inconsistent with law enforcement use:
Edwards testified that court-ordered wiretaps are recorded in a
secure FBI facility by routing the signal from the phone company
directly into the FBI office, not by placing an unattended
computer somewhere offsite to record someones calls. (3/26/08
(A.M.) RT 19-20; 3/27/08 (A.M.) RT 26). Kachikian admitted that
he had not written a code-wipe feature for Forensic Audio
Sleuth or other legitimate software programs that he created for
Pellicano. (4/24/08 (P.M.) RT 59-60).
58
Another self-defense mechanism built into Telesleuth was

designed to detect whether certain forensic tools were being used
to probe or analyze the Telesleuth program and to shut down the
program if such tools were detected.
(3/26/08 (A.M.) RT 66-67).
Telesleuths use of a unique user-created passphrase for each

individual recording, which would render the wiretap evidence
lost and unavailable for use at trial if the particular
monitoring agent quit, transferred, or died before trial, was
also inconsistent with law enforcement use.41
(3/26/08 (A.M.) RT
21-23, 35-36, 42, 52).

Kachikians Telesleuth Player program also contained
features demonstrating its intended use by Pellicano rather than
any legitimate law enforcement agency.
When the program was
launched, the user would see only a blank green screen with the
legend System locked and no prompt for a log-in or password.
(3/26/08 (A.M.) RT 49-50).
The only way to get past the blank
screen would be to hold down three specific keys and type LUCA
41
When asked what would happen if the agent who had a

unique Telesleuth passphrase to access the states wiretapping
evidence forgot the passphrase or was killed in the line of duty,
Kachikian responded, Theyre hosed, basically. (4/24/08 (P.M.)
RT 61-62).
59
- the name of Pellicanos son - within a short time.42
(3/26/08
(A.M.) RT 50-52; 4/25/08 (A.M.) RT 33).

Kachikians defense was also refuted by substantial other
evidence.
Pellicanos assistant Tarita Virtue testified that
when she encountered technical glitches while using Telesleuth

Player to review and summarize wiretapped calls, she demonstrated
the problems to Kachikian, and he corrected them.
RT 135-37; 3/11/08 (P.M.) RT 75-78).
(3/7/08 (P.M.)
Virtue also heard Pellicano
telling Kachikian to fix problems that Pellicano was having

listening to intercepted calls.
(3/7/08 (P.M.) RT 138).
Kachikian was in Virtues office while she was using Telesleuth

Player to listen to wiretapped conversations, and he never
expressed any surprise about the purpose for which she was using
his program.
(3/7/08 (P.M.) RT 137).
Indeed, Virtue discussed
with Kachikian proposed improvements to the program that would

allow Virtue to better present the results of her wiretap reviews
to Pellicano.
(3/7/08 (P.M.) RT 137).
Former PIA employee Wayne Reynolds testified that, after he

and Pellicano retrieved the Telesleuth computer used for the
Robert Maguire wiretap from the Pasadena apartment rented for
42
In one of his more transparent efforts to create the

illusion of Telesleuth as a lawfully intended product, Kachikian
testified that the LUCA password was an acronym for Law
Enforcement Undercover Computer Application. (4/24/08 (A.M.) RT
43).
60
that purpose, Pellicano called Kachikian from the car (prior to

calling Turner with instructions to take down the wiretap) and
discussed operational problems with the Telesleuth software.
(4/3/08 (A.M.) RT 44-47).
Reynolds also heard Kachikian talking
to another employee and expressing surprise that Pellicano had

let the two Jewish brothers (defendant Nicherie and his brother
Daniel, who hired Pellicano to wiretap their business rival) into
the lab to listen to recordings.
(P.M.) RT 24-25).
(4/3/08 (A.M.) RT 41-42; 4/3/08
Other PIA employees observed Kachikian working
on the computers in the PIA war room, where wiretapping was

conducted.43
(3/18/08 (P.M.) RT 84-85; 3/28/08 (P.M.) RT 93-94).
Several PIA employees who worked closely with Pellicano and

Kachikian for years testified that they never once heard either
discuss selling Telesleuth to law enforcement, never saw any
marketing literature for Telesleuth, and never set up any
meetings for Pellicano with law enforcement for the purpose of
selling Telesleuth.
(3/11/08 P.M.) 154; 3/13/08 (P.M.) RT 36-37;
3/18/08 (P.M.) RT 85-86; 4/3/08 (A.M.) RT 66).
One longtime
employee testified that Pellicano had told her that Telesleuth

was for the benefit of PIA; another testified that the suggestion
that Telesleuth had ever been sold or marketed to law enforcement
43
Kachikian admitted having been in the war room, but

claimed never to have seen any of the multiple wiretapping
computers running his Telesleuth software that were described by
myriad eyewitnesses. (4/24/08 (P.M.) RT 27-28).
61
was ridiculous.
86).
(3/7/08 (P.M.) RT 139; 3/18/08 (P.M.) RT 85-
Kachikian himself admitted that during the seven years he
had worked on Telesleuth, he was not aware of a single law

enforcement agency (or anyone else) that had ever purchased or
licensed Telesleuth, and Pellicano never told him that any such
sale had occurred.44
(4/24/08 (P.M.) RT 47-48, 51, 71).
Although Kachikian claimed to have had no idea that

Pellicano was even using the Telesleuth program, the government
introduced a document recovered from PIA computers that provided
instructions for creating versions of Telesleuth for Anthony
and for other users and instructed anyone experiencing problems
to call Kachikian.
(4/24/08 (P.M.) RT 28-29; Exh. (I) 801).
Moreover, although Kachikian listed his legitimate programs

created for Pellicano (Forensic Audio Sleuth and Forensic Image
Sleuth) under the Projects section of his website, which also
included several of his other minor programs for other clients
and a robot he had designed as a child, he never included any
mention whatsoever of Telesleuth (which he had spent seven years
creating) or of having designed a wiretapping system for sale to
law enforcement.
(4/24/08 (P.M.) RT 33-41).
44
Although Kachikian testified at trial about Telesleuth

sales presentations that Pellicano purportedly made to the Orange
County District Attorneys Office and the Ventura County
Sheriffs Department, he had previously told the FBI in 2003 that
he was not aware of any such presentations. (4/24/08 (P.M.) RT
49-50).
62
Kachikian testified that when Pellicano asked him after his

November 2002 arrest to return Telesleuth which Kachikian
supposedly believed at the time to be a totally legitimate
program to Pellicano and to remove it from Kachikians
computer, he immediately assumed that the request was related to
Pellicanos arrest and the federal investigation.
(A.M.) RT 101-02).
(4/24/08
In response to Pellicanos request, Kachikian
deleted all Telesleuth-related files from his computer, destroyed

his backup CD, and wiped the computers hard drive to render the
data permanently unrecoverable; the last step, according to
Kachikians grand jury testimony, was taken out of his own
paranoia.
(4/24/08 (A.M.) RT 54-55, 98-100, 108-11).
In late 2005, Kachikian sent an e-mail to Dirk Bell, the son

of a friend of Pellicanos, declining Bells request for
assistance with the Telesleuth source code and stating I need to
be able to testify that I dont remember much about what was
done.45
(4/24/08 (A.M.) RT 97-98).
In response to another e-
mail from Bell saying that he wanted to get into the Telesleuth
source code to extend its capabilities in advance of trial,
45
When testifying before the grand jury in April 2003,

Kachikian falsely minimized his involvement with and memory of
Telesleuth, claiming not to remember features about which he
testified extensively at trial five years later and stating that
he had not worked on the program in at least two years, when in
fact he had worked on it up to the date of Pellicanos arrest
less than five months earlier. (4/24/08 (A.M.) RT 92-97).
63
Kachikian who supposedly had designed what he believed to be a

wholly legitimate program responded, Well, these walls have
ears.
If you find out that it doesnt do what it is supposed to
do, I would keep that information to yourself.
If you find out
that it does indeed do what it is supposed to do, I would also

keep that information to yourself.46
(4/24/08 (A.M.) RT 116-
17).
d.
Abner Nicherie
In the summer of 2000, Sarit Shafrir was aligned with the

Nicherie brothers in a series of lawsuits against her husband Ami
Shafrir (Shafrir) and was involved in a romantic relationship
with Nicherie.
(4/4/08 (A.M.) RT 112-14).
In August 2000,
Nicherie told her that he and his brother Daniel had hired
Pellicano to wiretap Shafrirs phone lines.47
117-18).
(4/4/08 (A.M.) RT
Nicherie later told Sarit that he was listening to
Shafrirs intercepted telephone conversations at Pellicanos

office and translating them from Hebrew into English.
(4/4/08
46
Kachikian attempted to dissipate the damaging content

of this e-mail by claiming that the exchange was about Forensic
Audio Sleuth (Pellicanos apparently legitimate forensic program)
rather than Telesleuth. (4/24/08 (A.M.) RT 116-17). This
explanation was implausible given that the entire e-mail string
related to Telesleuth and that Forensic Audio Sleuth had
absolutely nothing to do with the charges and trial. (4/24/08
(A.M.) RT 116).
47
Daniel Nicherie pleaded guilty before trial to aiding

and abetting Pellicanos wiretap of Shafrir.
64
(A.M.) RT 123-24; 4/4/08 (P.M.) RT 5).
Sarit dropped Nicherie
off at Pellicanos office for this purpose at least 20 times from

August 2000 to December 2000.
(P.M.) RT 4-6).
(4/4/08 (A.M.) RT 124; 4/4/08
Nicherie often called Sarit from Pellicanos
office and played portions of Shafrirs intercepted conversations

for her over the telephone, including privileged conversations
between Shafrir and his attorneys in which they discussed their
strategies in the ongoing litigation.
(4/4/08 (P.M.) RT 6-10).
Pellicano told his assistant Tarita Virtue that Nicherie and

his brother had hired Pellicano to wiretap one of their
competitors and that they would be coming into the office to
listen to the intercepted conversations, which were in Hebrew.
(3/11/08 (A.M.) RT 86-87; 3/12/08 (A.M.) RT 86-87).
Thereafter,
Virtue saw Nicherie and his brother come into the PIA office
several times a week to listen to the wiretaps.
RT 19, 87-90).
(3/11/08 (A.M.)
Other PIA employees also saw Nicherie in
Pellicanos office and listening to wiretapped conversations in

the war room.
(3/18/08 (P.M.) RT 99-100, 137, 139-40; 3/28/08
(P.M.) RT 91-93).
Pellicano complained to his client Robert
Pfeifer about having to let the Nicherie brothers listen to the

recordings.
(3/25/08 (A.M.) RT 125-26).
In separate interviews with the DEA and FBI in 2004,

Nicherie admitted that he had listened to Shafrirs intercepted
65
telephone conversations and had translated the Hebrew

conversations into English.
3.
(4/4/08 (P.M.) RT 89-93, 117-18).
The Pellicano Enterprise in Action - A Case Study
Although much of the evidence regarding particular Pellicano

investigations was necessarily presented at trial in a fragmented
manner, it fit together to demonstrate a well-coordinated and
ongoing criminal business.
This is particularly true with
respect to the investigation and targeting of newspaper reporter

Anita Busch, the Pellicano-initiated threat against whom led to
the initial PIA search warrant and ultimately to the unraveling
of the Pellicano enterprise.
In April or May 2002, Michael Ovitz enlisted Pellicano to
obtain embarrassing information about reporters Anita Busch and
Bernard Weinraub, who were writing a series of negative articles
about Ovitz in the New York Times.
(4/9/08 (A.M.) RT 61-77).
On
May 15, 2002, Pellicano sent his investigator to conduct

surveillance of Buschs residence and to take photographs of the
B-boxes in her area.
109).
(4/2/08 (A.M.) RT 119-21; 4/9/08 (A.M.)
The following day, May 16, 2002, Arneson conducted a
series of database inquiries on Busch and Weinraub (including

Buschs vehicle information) and requested their DMV
photographs.48
48
(3/14/08 (A.M.) RT 60-66; 3/14/08 (P.M.) 6-10;
At the same time, Arneson conducted database inquiries

(continued...)
66
4/9/08 (A.M.) RT 100-02, 106-07; 4/9/08 (P.M.) RT 92-94; 4/18/08

RT 86-88; Exh. 163, 309).
On the same date, Teresa Wright
accessed the SBC BOSS database on Turners behalf and obtained

information on both of Buschs home telephone lines.
(3/27/08
(A.M.) RT 115-17; 3/27/08 (P.M.) RT 145-46).

On the morning of June 20, 2002, Busch went to her car on
the street outside her home and found the windshield punctured, a
handwritten sign reading STOP facing into the drivers
compartment, and a dead fish and a rose left on the windshield.49
(4/9/08 (A.M.) RT 111-14).
In August 2002, Busch was accosted
and threatened on the street in front in front of her house by

two men in a plateless vehicle, one of whom held his finger to
his lips as if to demand Buschs silence.
20).
(4/9/08 (A.M.) RT 115-
Also during that summer, Buschs computer was hacked and
48
(...continued)
and requested DMV photographs of James Casey (another individual
whom Ovitz had hired Pellicano to investigate) and the parents,
sister-in-law, and minister brother of Pamela Miller (the target
of a Pellicano investigation for another client). (3/14/08
(A.M.) RT 60-66; 3/14/08 (P.M.) RT 6-10; 4/4/08(A.M.) RT 96-98,
101-03; 4/9/08 (A.M.) RT 56-57).
49
In a series of consensually recorded conversations with

a cooperating witness over the ensuing weeks, an individual named
Alex Proctor stated that he had committed the threat against
Busch on behalf of Pellicano. (4/18/08 RT 63-64, 71-72, 242).
In October 2009, Pellicano and Proctor both pleaded no contest in
Los Angeles Superior Court to a charge of perpetrating the
criminal threat against Busch and were sentenced to three years
imprisonment.
67
her hard drive destroyed.
(4/9/08 (A.M.) RT 115-20; 4/9/08(P.M.)
RT 4-6).
Busch first noticed problems with her home telephone line
shortly after Wrights access of her account on Turners behalf.
(4/9/08 (P.M.) RT 7-10).
When she reported the problem to SBC,
the responding service technician determined that there was an

unauthorized half-tap (i.e., an extra pair of wires) connected to
Buschs line on the frame at the central office; there were no
SBC records of the half-tap, such as would have existed if the
half-tap were legitimate.
(3/27/08 (A.M.) RT 117-21; 4/9/08
(P.M.) RT 10-14, 115-21, 124-26; 4/10/08 (A.M.) RT 39-40, 64-66).

The half-tap found on Buschs line permitted the interception of
Buschs telephone calls.
(4/10/08 (A.M.) RT 69-70).
The half-
tap was removed from the subject phone line, but a similar one
was discovered also without any record or authorization on
Buschs second phone line two weeks later.50
(3/27/08 (A.M.) RT
119, 123-25; 4/9/08 (P.M.) RT 14-15; 4/10/08 (A.M.) RT 66, 7074).
50
Governments Exhibit 101, a document recovered from

Pellicanos computer, listed a number of phrases (the majority
containing the word omerta) that Pellicanos assistant Tarita
Virtue identified as his passphrases to access Telesleuth
recordings for various specific wiretaps. (3/7/08 (P.M.) RT 1011, 125-27; Exh. (I) 101). As one of the entries on that
document, the initials AB appeared next to the passphrase
Catholic Girl Reporter (which accurately described Busch).
(3/7/08 (P.M.) RT 127; 4/9/08 (P.M.) RT 77).
68
B.
THE SECOND TRIAL

In March of 2002, Pellicano was retained by
Christensen51 to wiretap Lisa Bonder Kerkorian in connection with

a child support modification lawsuit in which Bonder Kerkorian
sought to have Christensen client Kirk Kerkorians monthly child
support payments for four year old Kira Kerkorian increased from
$50,000 to $320,000.
The litigation, to be charitable, was
bitterly contested with hardball tactics and questionable conduct

the norm.
For example, the litigation included a state bar
referral, a public pronouncement by Kerkorian that he was not

Kira Kerkorians biological father, an admission by Bonder
Kerkorian that she had submitted a DNA sample of Kerkorians
natural born child under Kiras name, the service on Bonder
Kerkorian of DNA testing results showing Steve Bing as the
biological father on Mothers Day weekend, accusations of
neglectful or abusive parenting against each parent, claims of
physical threats, and the interjection of a slew of collateral
issues that the court ultimately deemed irrelevant to the
proceedings.
51
Christensen was assisted in this litigation by Peter

Sheridan of Christensen Glaser and Dennis Wasser and Bruce
Cooperman of Wasser, Cooperman & Carter. Bonder Kerkorian was
represented by Stephen Kolodny, Harlee Gasmer, and Jeff Sturman
of Kolodny & Atneau and Robert Rein of Saphier, Rein and Walden.
69
By Christensens own words, he considered this litigation to

be a war and was determined, once and for all, to so completely
defeat Bonder Kerkorian that she could never again seek money
from Kerkorian.
A central part of this strategy was identifying
the actual biological father of Kira Kerkorian, as this

information could be used to discredit Bonder Kerkorian in the
child support modification proceedings, to obtain financial
contribution from the biological father, and to support either
criminal or civil fraud charges against Bonder Kerkorian.
Through his wiretap, Pellicano attempted to obtain this
information.
While unsuccessful in this task, he did succeed in
intercepting conversation-after-conversation in which Bonder

Kerkorian discussed all aspects of her life with her friends,
family and attorneys.
Notably, this information included real
time information of Bonder Kerkorians litigation position in the

child support matter, which was obtained through the interception
of privileged communications between Bonder Kerkorian and her
attorneys.
It is known from the 34 recovered Pellicano-
Christensen recordings that Pellicano relayed this information to

Christensen, who eagerly accepted it.
1.
Implementation of the Wiretap
On March 15, 2008, Pellicano was recording a telephone call

with client George Kalta, when he switched over to an incoming
70
call from Dennis Wasser.
During the conversation that ensued,
Pellicano, referencing a prior communication between the two,

advised Wasser that he was gonna do that on speculation with
the hope that he would receive payment from Kerkorian at a later
date.
Wasser then informed Pellicano that, while he had
discussed the matter with Christensen, he had not yet had a

chance to address it with Kerkorian, which he expected to do the
following day.
Pellicano then explained to Wasser that his
actions were driven by his profound dislike of Kolodny.
Upon
hearing this, the following conversation ensued:

Wasser:
Yeah. Well, I'll tell you what the angle is.

reported Terry to the state bar.
Pellicano:
Oh, fuck.
Wasser:
And so Terry hates him.
Pellicano:
Well then why doesn't Terry let me go after the

cocksucker?
Wasser:
Well, why don't, you know what you may wanna do?
Why don't you call Terry right now. Tell him that
you and I talked, and that you hate Kolodny so
much, you're gonna go after him on your own and
just wait and see what he says.
Pellicano:
Okay.
Wasser:
His number's five five three three thousand.
Pellicano:
W, wait, wait.
Wasser:
Yeah, and tell him...
Pellicano:
I'll call him right now.
Five five three three thousand.
71
He
Wasser:
...tell him that, that you and I talked, and I

said to you that, um, that you said to me would
like to get that fucking Kolodny, and I said talk
to Terry, he may join you.
Three days later, Pellicano and Christensen engaged in a

telephone conversation that was recorded by Pellicano.52
At the
outset of this conversation, Pellicano and Christensen cautiously

set the parameters under which Pellicano would wiretap Bonder
Kerkorian:
Christensen:
Um, Kirk and I were talking.
Pellicano:
Yes.
Christensen:
And we were thinking about this situation and um,

he's out of it right?
Pellicano:
Of course.
Christensen:
And um, so I, I was thinking about this situation

that if, um, it, its not actually
Pellicano:
You don't have to go any further, I, I, I get what

you're doing.
Christensen:
Yeah. It's not totally a central issue in life,

but it is important.
Pellicano:
Okay.
Christensen:
Whether or not um, um...
Pellicano:
I got it, I got it.
Christensen:
...its artificial insemination
Pellicano:
Yes, I got it.
52
The March 18, 2002, call is the first of the 34

Pellicano-Christensen recordings.
72
Christensen:
Um, so I, I think that it would be worth you know

a reward here.
Pellicano:
Well, itd be just, the con- the conversations are

just between you and I.
Christensen:
Right.
Pellicano:
Period.
Christensen:
Okay.
Pellicano:
Period.
Christensen:
Right.
Pellicano:
Okay.
Christensen:
In fact, one, one of the criteria is that no name

ever surfaces anywhere, cause...
Pellicano:
Ah you have my word on my children.
Christensen:
Alright.
this.
The people related to me don't wanna do
As this conversation continued, Christensen again stressed

the need for their actions to be completely secret so that
nobody, not even his fellow attorneys in the child support
litigation, would ever learn of what they had done:
Pellicano:
Okay so. What I'm saying to you is the

conversations are only between you and I.
Christensen:
Okay.
Pellicano:
And I need to be able to trust you too.
Christensen:
Well UNT
Pellicano:
I'm gon- I'm gonna be feeding you information that

you'd never get in a million years.
73
Christensen:
Let me, let me, um yeah... because I wanna be real

clear with you because um, you and I have known
each other for a long time but as you say, we have
never worked together.
Pellicano:
Yes sir.
Christensen:
So when you say it's only between you and I, I

mean I'm not talking to Dennis or anybody about
this.
Pellicano:
I, I jus- I heard you.
Christensen:
Okay.
Pellicano:
I heard that. And I got that. And by the way,

Dennis doesn't need to know and if Dennis wereif
I were to told Dennis, tell Dennis you know, you
don't know nothing, he would know nothing.
Christensen:
Yeah, no.
that...
Pellicano:
But, I got it.

Okay?
He's our friend and all that, but

Listen to me, I'm a Sicilian.
After obtaining Pellicanos word that their actions would

remain forever secret and agreeing to pay Pellicanos standard
$25,000 retainer fee, Christensen then informed Pellicano that he
could receive a $100,000 reward if he succeeded in determining
the true biological father of Kira Kerkorian.
The conversation
concluded with Pellicano advising Christensen that, in addition

to obtaining information identifying Kira Kerkorians biological
father, he would also be providing Christensen with other
information that may help you in this case, to which Christensen
responded I'll take it.
I'm a good sport that way.
74
With an agreement to wiretap Bonder Kerkorian in place,

Pellicano, consistent with his prior promises, began feeding
Christensen with the substance of Bonder Kerkorians
confidential, and often privileged, communications with her
lawyers, family and friends.
For example, on April 18, 2002,
Pellicano relayed to Christensen the privileged communications

that Bonder Kerkorian had with attorney Harlee Gasmer following a
recent court hearing:
Pellicano:
You got another hearing this afternoon.
Christensen:
Yeah. [Judge Edmon] said in her, in her tentative

discussion that um, Lisa's version of a
conversation with me...
Pellicano:
Uh huh.
Christensen:
That she couldn't understand it.

putting it kindly.
Pellicano:
I, I know all of that.
Christensen:
Right.
Pellicano:
I know all of that. And because Harlee described

it to her in detail.
Christensen:
Right. So, oh, Harlee told her that the judge was
questioning her credibility?
Pellicano:
Yes. So, so Lisa kept saying, well she says, then

she thinks I am a liar, right? She thinks I am a
liar? And Harlee goes, no, she didn't say you
were a liar. Cut it out. But she didn't believe
you. (laughter) She didn't believe you but she
didn't call you a liar. (laughter).
Christensen:
Geez.
75
Okay?
Right?
That's
Four days later and three days after Bonder Kerkorians

demurrer and motion to strike were denied in the civil action,
Pellicano advised Christensen at length about the turmoil that
arose between Bonder Kerkorian and her attorneys as a result of
these rulings, as well as other aspects of privileged litigation
strategy that he had learned through the wiretap:
Pellicano:
Under Bonder, Lisa Bonder. Now, there's, there's

tons of things to say to you, to tell you. So let
me try to get to the, the important things. The
important thing is they're filing other motions,
uh, today.
Christensen:
(laughter) What did they think about getting their

ass kicked on Friday (laughter)?
Pellicano:
Oh she's, she's, listen, she, she tried, she tried

t- t- to fire, ah, Kolodny. And Kolodny talked
her back into it. And-and one of the ways he was
able to do that, is he talked Sorrell Trope into
not filing the action with Kreiss.53
Christensen:
Oh, he did?
Pellicano:
Yep. He talked Sorrell into doing it. So

Sorrell's not. And, and you know Kolodny's in
Spain somewhere. Okay?
Christensen:
Alright.
Pellicano:
So, so, he talked to her for about, almost an

hour. And, and she's trying, now, now Rein is
going to, wants to, is going to represent Debra
Simon. And they're, and they're concerned
about...
Christensen:
Oh Rein is going to represent her at the depo?
53
Sorrell Trope represented Michael Kreiss, Bonder

Kerkorians first husband and father to her son Taylor, in child
custody matters.
76
Pellicano:
Yeah. So what you gotta do is you got to get him

excluded somehow, because he is going to be a
witness. And it was Rein who got the test done up
at the laboratory. It was at Rein's request and
he got the results. So there is no privilege.
R- Rein requested the, the tests up at the, at the
ah...you got to be careful with this...
Christensen:
Seattle.
Pellicano:
Yes. You got to be real careful with this.

in how, in how you approach this.
Christensen:
Well, we know from the file that Rein's secretary

sent away for a- forms.
Pellicano:
Well, and, and there's an email. You understand?

Where he communicates with them also. So be very
careful about this, because there's only one way
for me to know this. And, and he's worried about
that and he's, and he's talking, he's having
somebody research the, the, um, ah, attorneyclient privilege. So they've been, they worked on
that all day yesterday.
Christensen:
They did.
Pellicano:
Rein and ah, ah, Harlee Gasner.
Christensen:
Pellicano:
So is Rein going to help ah, KolodnyRein-
Christensen:
-as much as he can?
Pellicano:
Yes. Well, becau- he's helping Lisa. Lisa is you

know, driving him fucking crazy. So Lisa, he's
helping Lisa. But ah, so that they're, they're
researching the, the attorney-client aspect of
this. Now, let me tell you the other thing.
Christensen:
Is Kolodny... you go ahead.
Pellicano:
Here's, here's UNT she, she Kolodny was scared to

death that she was going to fire him.
Christensen:
After Friday?
Now,
Who's they?
77
Pellicano:
Yes. So, UNT so, oh, she, she went to, she went
to fucking pieces, man. You did a great job.
Christensen:
We just kicked-
Pellicano:
UNT.
Christensen:
-their booty.
Okay?
Pellicano:
I wanna tell you something. He fucking hates you,

they both do... This is good because they're
making emotional decisions.
Christensen:
Right, right.
Pellicano:
Let me tell you the, the one thing, that, that's,

that's not emotional, that I, I would have done
myself had I been your opponent.
Is that what
they're going to do, is they're going to try to
get a guardian ad litem appointed for Kira. So
that, that the lawyer is the one that's going to
take this, this, um this guardian ad litem will
take this forward with the court. And that she'll
be out of it. But he also told her that...
Christensen:
And then Lisa will be out of it?
Pellicano:
Yes. But yes. Well, yeah. That's, that's

UNT...and I agree with that. Don't you? That
she'll be out of it but she still won't be out of
it as-as far as the, the civil case is concerned
and she'll still, it'll still be discoverable.
Christensen:
Oh my gosh.
Pellicano:
So, so this is, this is the best that he could do

after a fucking hour of conversation.
Christensen:
Oh my gosh.
Pellicano:
And he's also gonna file protective orders.
Christensen:
But, okay.
It still helps to be a lawyer.
Well, yeah, that, that we knew though.
78
Pellicano:
Yeah well. He's, this is, this is, so their big

plan is filing protective orders and, and ah,
filing and trying to getting to get a guardian ad
litem. Also, he says that they are not...
Christensen:
Not a guardian, you mean like an attorney for her?
Pellicano:
UNT no.
litem.
Christensen:
That's two different things though. Guardian ad

litem, is like a guardian for the child.
Pellicano:
No. Guardian ad litem is an attorney, you got,

ask Dennis about this...guardian ad litem is an
attorney who represents the interests of the
child, in a, in a domestic dispute at any time.
Christensen:
Right, but, but I think...well okay.
Pellicano:
Yeah. I'm, I'm right about this. Ask Dennis and

you'll find out. Now the other, the other thing
is that, oh, Kolodny paid somebody thirty-five
hundred dollars, a professional writer, to finish
up the, the declarations and that's what he's
doing now. Thirty-five hundred dollars.
Christensen:
To finish up what?
that, that-
Pellicano:
The ones...
Christensen:
-confessions that, the UNT confessions they filed

on the 12th? Which ones?
Pellicano:
That's, that's, that's...all of those. Okay?

Thirty-five hundred dollars and she was bitching
and moaning about that. They, the...she's, she's
also, you know, trying to figure out why you
subpoenaed eight people from the lab and you know
and Rein and Kolodny are trying to tell her why.
You know, and, and ah, um, she said, she says what
if I agree to the fifty thousand and just ask him
to...to, to, to, to not satisfy but uh... the thrthe three million dollar loan...uh...the three
million dollars UNT?
An attorney for the child.
79
Guardian ad
You mean, new ones or the ones
Christensen:
Yeah.
Forgive the three million.
Pellicano:
Forgi- that's right. Forgive the three million,

and so Rein says, well what if we can get you
seventy-five thousand a month and forgive the
loan. He says, you shouldn't back down. She was,
she was fucking through Friday, man. She was
through. She was through with everybody. She was
yelling at everybody. You understand?
Christensen:
Yeah.
Pellicano:
She was done. And Kolodny talked her back into it

by saying that he got Kolod- uh, he got Sorrell
not to file.
Christensen:
Mmm hmm.
Pellicano:
So that kind of softened her up.
Christensen:
But she, I, I knew, I knew that she'd be in orbit

after Friday's results.
Pellicano:
Oh God, absolutely, abso- and, and she still

realizes that she's still gonna have to go through
all this scrutiny and that you're gonna keep her
in litigation for two years.
Christensen:
Yeah. And by the way, how does she expect to pay

for the attorney's fees in Santa Monica?
Pellicano:
Uh, she, she thinks that- that he's going to have

to pay some of them. So Rein, Rein tells her,
wait a minute, you know, he says, you know, Kirk
may pay three million and you may have to pay one
million. You know what I mean?
Christensen:
Right.
Pellicano:
In other words, no matter even if Kirk pays the

majority of the fees she is still going to have to
pay (laughter).
Christensen:
He could pay you know...that's right. He could

pay three-fourths and she's still out a million.
80
Pellicano:
So, so, so she's, you know she's claiming that

she's going to be destitute and all this other
shit. Well, anyway...the, the, um...
Christensen:
Who's going to represent her in Santa Monica?
Pellicano:
Well, he, Kolodny is trying to find a civil lawyer

for her.
Christensen:
(laughter) Well, wait a minute.
Pellicano:
I know, I know.
Christensen:
What do you mean a civil lawyer? How, how's she

going to come in- how, hows she gonna do that?
Pellicano:
By the way, they do- they do not want the- the...

Kolodny is scared to death about the, the, the
Santa Monica Court for some reason. Why- why is
he afraid of Santa Monica court?
Christensen:
Well, I don't know. But we smashed him down to

earth pretty good, okay?
Pellicano:
They also said something about the judge had to go

to some, some meeting because some thing with her
son so she couldn't hear things.
Christensen:
Uh, that was yeah, Judge Edmon, the other day.
Pellicano:
Yeah, yeah. I think there's so much...hold on a

second. There is one other point that I wanted to
make with you. Oh, I got the identity of the drug
dealer.
Christensen:
Really?
Pellicano:
I got, I got a-
Christensen:
UNT.
Pellicano:
-photograph of him too. He's got black hair and

blue eyes. Is that a little suggestive to you,
an olive complexion?
81
Christensen:
(laughter) He looks like, he looks like Kira

right?
Pellicano:
Yep.
Christensen:
So you have Joey's last name?
Pellicano:
Yep.
Christensen:
What's Joey's last name?
Pellicano:
Campana.
Christensen:
Oh, come on.
Pellicano:
C-A-M-P-A-N-A.
Christensen:
Really?
Pellicano:
Absolutely.
Christensen:
Campana.
Pellicano:
No, no.
Christensen:
-things over the N or something.
Pellicano:
No, no, no.
Christensen:
So it's not a Spanish name.
Pellicano:
No. Joey Campana.

he's got a record.54
Christensen:
So Kolodny almost got fired again.
Pellicano:
Yeah.
Christensen:
Figures.
(laughter)
With a little, whatever those little-
He's Italian.
54
Campana.
C-A-M-P-A-N-A.
And
Mark Arneson, who has been convicted of forty-six

felonies, including RICO and RICO Conspiracy, for having served
as Pellicanos paid LAPD source of information, conducted
unauthorized federal and state criminal history inquiries of
Joseph Campana on April 16, 2002.
82
Pellicano:
Oh my God. On-
Christensen:
But now Rein is all over this thing, I guess.
Pellicano:
Well, she, she, yes.
Christensen:
Rein's in the middle of it again.
Pellicano:
Rein, Rein is UNT...
Christensen:
Because Id heard that Kolodny with, you know, you

had told me that Kolodny-
Pellicano:
Yeah.
Christensen:
-was just-
Pellicano:
Yes, yeah.
Christensen:
-shoving Rein down the drain.
Pellicano:
Yes, yes.
right.
Christensen:
But Kolodny has made a comeback now.
Pellicano:
Yes. He made a comeback, he

Boy, you could hear the sigh
voice too. And he says, now
center again. Huh? And she
I'm back on center again.
Christensen:
Hmm...
Pellicano:
And then she rips into Rein for, for two hours.
Christensen:
This is uh, we, we seem to be giving them some

rugged weekends.
Pellicano:
Oh yeah. And I'll tell you something, if, you,

you know if we continue to, to, to get this kind
of information with their strategy, we're, we're
really killing them.
That's right.
83
That's right, that's
made a comeback.
of relief in his
I got you back on
says, yeah, okay.
As the conversation continued, Pellicano advised a gleeful

Christensen of the strategy that Kolodny and Bonder Kerkorian had
devised for her upcoming deposition:
Pellicano:
Right. Oh that's, that's what I wanted to remind

you about. He, he said...
Christensen:
Who's he?
Pellicano:
This is Kolodny, saying, telling her that there's,

that, that, that she wants, she does not want the
depo to go forward. He says he wants it to go
forward, because the minute they start talking
about any...you know what he calls these
collateral issues, he is going to stop the
deposition and they're going to walk out.
Christensen:
She does, she doesn't want her depo?
Pellicano:
Yes.
Christensen:
Right?
Pellicano:
Yes- she doesn't want her depo. Which Kolodny

says, we- he wants it to go forward because he
wants, you know, to have, you know, a showing of
clean hands but the minute you start asking her
these questions, he's going to shut it down. He's
going to walk out. So that's what's going to
happen on her depo date.
Christensen:
He's a big shot.
Pellicano:
Huh?
Christensen:
He's a big shot.
Pellicano:
Yeah, right...I know.
Christensen:
He is such an asshole.
Pellicano:
Oh.
Christensen:
It's so much fun beating him Anthony.

84
Later in the conversation, Christensen, who was continuing

his efforts of building a fraud case against Bonder Kerkorian and
was aware from prior discussions with Pellicano that BonderKerkorian had advised Kolodny assistant Nancy Wolff that she knew
from the outset that Kerkorian was not the biological father of
her child, advised Pellicano that he would receive an additional
reward should he obtain useable proof of this fact:
Christensen:
Okay. That's your job. And there is a second job

that will have an equal, equal reward. Okay?
Pellicano:
What's that?
Christensen:
Well, maybe not equal because, but certainly the

reward is on the table. And that is, Kirk did not
know, okay? He was in fact deceived by her.
Okay?
Pellicano:
Yes.
Christensen:
He was not part of some knowing plot that well,

it's not my baby but, you know, go ahead, let's
publicize it and itll let me look good to the
world.
Okay?
Pellicano:
He doesn't give a fuck.
Christensen:
That's a fucking lie.
Pellicano:
Yeah well, why, why would he give a shit?
Christensen:
Right.
Pellicano:
Absolutely.
Christensen:
-but you can't use it, because she already told

Nancy Wolff he didn't know.
Pellicano:
That's right.
It's fucking bullshit.
And you already have proof of that-
85
Christensen:
2.
Okay, but you can't use that. So I want to be

really clear, Anthony. To give you a second path
here to glory, which is I also want to know...I
also want usable proof that he did not know. That
she was in fact deceiving him.
Intercepted Communications Relating to the Simon

Mediation
Over the next several days, Pellicano and Christensen

engaged in a series of recorded conversations, during which time
they discussed discord between Bonder Kerkorian and her attorneys
over the adverse rulings in the civil case and Bonder Kerkorians
intention to proceed without Kolodny55 in a mediation that was to
be conducted by mediator Debra Simon.56
Throughout these
conversations, Christensen and Pellicano again openly discuss the

information being obtained from the wiretap.
For example, in a
conversation that took place on April 26, 2002, Christensen,

after informing Pellicano that he did not file a fraud count
against Bonder Kerkorian earlier that day, was advised by
Pellicano that he had yet to attempt to learn any new information
that day.
In response, Christensen stated Oh, I see, youve
been waiting to see if you had a fraud count to talk about or, to
listen about.
In a separate conversation later that same day,
Christensen probed Pellicano about rumors that Kolodny had
55
At the time, Kolodny was in Spain.
56
In 2002, Simon resided in Florida. She arrived in Los

Angeles to conduct the mediation on April 27, 2002.
86
threatened to resign as Bonder Kerkorians attorney, to which

Pellicano responded Well, he didnt say that to her directly.
You know, at least I havent . . .
In yet another call later
that same day, Pellicano became distressed when he learned that

Christensen already was aware of the information that he was
going to provide about Bonder Kerkorian proceeding to the
mediation without Kolodny.
After being reassured by Christensen
that confirmation of known information is also helpful, Pellicano

ended the conversation by stating Okay, let me call you back
after I hear some more.
On the morning of April 27, 2008 (prior to Simons arrival
in California), Pellicano advised Christensen that Kolodny was
attempting to intercede in the mediation by advising BonderKerkorian not to proceed without counsel:
Pellicano:
Jesus, [Lisa] tells one person one thing,

completely reverses herself when she talks to the
other person.
Christensen:
Really?
Pellicano:
Oh my God, it's horrible.
Christensen:
Like what's, what's an example?
Pellicano:
Well, in other words, she'll, she'll tell ah, ah,

that you know, she'll side with ah, Debra and
Kolodny's a piece of shit, and all that, and then
she'll get on the phone and say that, you know,
that she told Debra that she would never do
anything without Kolodny's per-permission.
Christensen:
Right, so she87
Pellicano:
Out and out, out and out bold ass no question

about it, fucking lying.
Christensen:
Like two complete, like to Debra she says forget

Kolodny he's an ass, he's terrible.
Pellicano:
Right, right.
Christensen:
And then to Kolodny's people he says, she says...
Pellicano:
Kol-Kolodny came, Kolodny comes in.
Christensen:
Has Kolodny arrived now?
Pellicano:
Yes, Kolodny comes...
Christensen:
Right.
Pellicano:
And by the way, she's out shopping right now with

Nancy Wolff. Remember what I told you what
happens?
Christensen:
Right.
Pellicano:
Okay, so, you know, so now Nancy's got her raced

again and they're out shopping right now in
Beverly Hills. So the, the point is, you can't
write this man. So, so Kolodny calls and says, I,
you know, I, I thought Id better come back, I
heard that something was going on, you know what I
mean?
Christensen:
Mmm hmm.
Pellicano:
And then, and then, you know, she talks to him and
then she says, first thing out of her mouth,
almost, is, will you come with me tomorrow?
Christensen:
So she asked him to come.
Pellicano:
Yes.
Christensen:
Right, okay.
Pellicano:
After, after telling everybody else88
Well they, they called him.
Christensen:
Right.
Pellicano:
-that she didn't want him there and tell-
Christensen:
Right.
Pellicano:
-and she, I mean Debra, you know, she called, she

called Debra and Debra says, you gotta stop
calling me. I wanna be there.
Christensen:
Right.
Later in the conversation, Christensen specifically asked

Pellicano what he had learned about Bonder Kerkorians settlement
strategy and the potential impact of Kolodnys return from Spain
on the possibility of settlement:
Christensen:
Now are they talking about what they now want out
of this?
Pellicano:
Oh yeah.
Christensen:
They're probably ah...
Pellicano:
Mass, massive detail.
Christensen:
And they're probably up like in, you know, plenty

big numbers and all kinds of bullshit.
Pellicano:
Yep. Absolutely. And, and ah, absolutely. And

all kinds of restrictions and she can move and she
can, you know, she can get married and, you know
and you know, Kirk says that, you know, that ah,
ah, that ah, you know, why should he pay her all
this money if she's gonna be married to another
man and...
Christensen:
Right.
Pellicano:
All, all of these things.
Christensen:
Right.
89
Pellicano:
So-
Christensen:
What kind of money are they talking about now?
Pellicano:
I think she'd take a hundred and twenty five grand

now.
Christensen:
The same old one twenty five?
Pellicano:
Yeah.
Christensen:
Well, screw her.
Pellicano:
I got it. I got it.
Christensen:
Right, and the right to move, right?
Pellicano:
But, but, what, what I'm saying to you is that

everything was fine up until nine o'clock this
morning.
Christensen:
Yeah, yeah.
Pellicano:
Now, now Deb- Debra's gonna come in and she's

gonna get fucking, you know, you know, sideswiped.
Christensen:
She sure is.
Pellicano:
Well, it's ah... I gotta tell you something, papal. If I, if I wasn't in tune with everything
that's going on, I would have said that this was
planned, but it wasn't.
Christensen:
Ah, yeah.
Pellicano:
If Kolodny, if Kolodny didn't call her...
Christensen:
If you were looking at it from way outside right?
Right.
I understand.
Oh is she gonna be caught off guard.
You know I mean...
Further along in the conversation Pellicano, after noting

that Bonder Kerkorian was approaching the mediation with whiskey
strength, cited Bonder Kerkorian as stating: Okay, he wants to
90
see Kira and he wants me to stay in town," and further stated

this is her exact words by the way, how much money is he
willing to pay me to get that? That's her exact words by the
way.
In a follow-up call later that day, Pellicano informed
Christensen that he would be checking to see whether Simon was
truthfully relaying Kerkorians settlement position to Bonder
Kerkorian:
Pellicano:
You think she told the truth?
Christensen:
Well I know that she, what choice does she have

but to tell the truth about what Kirk would be
willing to do, right? So-
Pellicano:
I'm not so sure but go ahead.

out for sure.
Christensen:
Yeah you will.
Pellicano:
Oh without any question.
I, I'm gonna find
So...
Christensen then informed Pellicano that much of the

discussion of the last day focused on Steve Bings status as the
biological father of Kira Kerkorian.
Aware that Bing also was a
Pellicano client, Christensen expressly warned Pellicano about

what he was likely to hear when he listened to the days
wiretapped conversations:
Christensen:
So there is, I mean, I, I don't know, well now, I

don't know whether you wanna, how comfortable you
will stay in this process because ah, there is
talk about Steve Bing. As I told you, Lisa
apparently, according to Debra, told Kolodny that
91
Steve Bing is the father. Kolodny then gets all

geared up about how well, ah you know, maybe Steve
Bing should put up, you know, thirty million bucks
or something. So there's talk about pursuing
Steve Bing. So, I don't know whether you're
comfortable, I mean, no one's asking you to do
anything or take sides but I don't know whether
you're comfortable reporting on all this.
* * * *
Christensen:
All I'm telling you is what you're gonna find.

Okay? That's what you're gonna find. Discussions
about Steve Bing. And I'm only giving you a heads
up because I think that's a, you know, I think
that's a respectable thing on my part to say-
Pellicano:
Of course it is.
Christensen:
-you know, to give you a heads up, there's gonna

be talk about Bing, about going after Bing and
he's your client and your friend, so...
Toward the end of this conversation, Pellicano asked

Christensen what settlement agreement was presented during the
course of the mediation:
Pellicano:
Oh UNT well the thing is. To settle with Kirk,

she continues to get fifty grand and she, if she
pays him back the three million.
Christensen:
Well yeah.
Pellicano:
Well, well, well. What is the, what's the finI'm gonna hear it for myself but what's the final
deal?
Christensen:
Well I don't know.

the three million.
I don't know what happened on
The following day (April 28, 2002), Pellicano and

Christensen had another conversation, during which time
92
Christensen advised Pellicano that the biological father would be

expected to make a financial contribution to Kira Kerkorian,
which led to the following exchange:
Pellicano:
-then what I heard is the truth then.
Christensen:
What did you hear?
Pellicano:
I heard that, that she said that Kirk said that

he's going to squeeze Bing to, to get as much
money as he can from Bing and that that that he'll
pay the fifty and he'll squeeze the rest of the
money from Bing.
Christensen:
We're not squeezing any money, if Lisa UNT-
Pellicano:
I'm telling you what's....I'm telling you what was

said. I'm not telling you-
Christensen:
Right.
Pellicano:
-what the truth is.
Christensen:
Right.
Pellicano:
This has been...I'm gonna tell-
Christensen:
UNT.
Pellicano:
-you something this makes me absolutely sick to my

stomach because you know what she tells Kolodny?
Christensen:
What?
Pellicano:
She doesn't say to Kolodny, he's the biological

father, she said there's another candidate for the
biological father. That's the word she uses.
There's another candidate and his name is Steve
Bing and you might have heard of him. And Kolodny
says no, I don't, she says, she says he's
embroiled in another lawsuit like this with
Elizabeth Hurley. Now UNT you gave her even
further whiskey strength by telling her that you
know whatever the, the amount of money you get
93
from, from Kirk, he's going to squeeze Steve Bing

for the rest so you're still going to get the
three hundred twenty thousand dollars a month.
And, and, and she lies and she says Steve Bing was
afraid that his name was gonna get in the papers
so he went to, so he went to uh, uh to Kirk. See
this woman just lies her motherfucking ass off.
Christensen:
She told Kolodny that?
Pellicano:
That's exactly what she said.

Nancy Wolff that.
Christensen:
Such lies.
Pellicano:
She didn't say, she didn't say to Kolodny the, he

is the biological father, she said there's another
candidate.
Christensen:
Great.
And she also told
Later in the conversation, Pellicano, yet again, vividly

relayed to Christensen another conversation between Bonder
Kerkorian and Kolodny before noting that he had recently
intercepted calls to which Kerkorian was a party.57
Christensen:
Alright so we know that about her that everything

is a scheme okay? And we know that Kolodny is the
greediest piece of garbage that ever lived.
Pellicano:
Well, you want to know something? He wasn't

tonight.
As a matter of fact, he acted almost
bored.
Christensen:
How do you mean?
57
The mediation took place at the individual residences

of Bonder Kerkorian and Kerkorian, with Simon shuttling between
the two homes. Prior to traveling from one home to the next,
Simon would call to advise the other party that she had concluded
a negotiating session and was on her way.
94
Pellicano:
Cause he said, "okay then we'll go into court

tomorrow." He was bored. He was bored with the
whole thing. I swear to you on my children the
fucking guy was absolutely fucking bored.
Christensen:
Well, why not? He had already you know, screwed

up everything beyond-
Pellicano:
Yeah, and and he knew that this-
Christensen:
-um repair.
Pellicano:
-he knew this was going nowhere.
Christensen:
Right, right so he creates a situation that goes

nowhere.
Pellicano:
Well, he didn't create the situation that goes

nowhere...Debra Simon created a situation that
goes nowhere.
Christensen:
Well, yeah, but you know Kolodny.
Pellicano:
And then Debra Simon's lying to fucking Kirk.

the way, I'm hearing both sides you know, I'm
hearing her talk to Kirk, too.
Christensen:
Yeah.
Pellicano:
Now that's not for attribution.

you know, for distribution but-
Christensen:
Yeah.
Pellicano:
I'm hearing both of them. I'm hearing all of it.

The whole nine yards. Then she gets on with
Nancy, she is such a fucking liar. It's just
incredible.
*
Pellicano:
By
I mean, for, for,
[Bings] got, he's got, he can afford to pay this

fucking child support up the ass. If she thought
it was him in the first place, why didn't she go
after him? You're talking about six years now?
95
Six years later? She's gonna go after him? What

are you kidding me? She's just lying. And, and,
and, and, and Debra says that, that and I know
that there's no way that Kirk said this, cause I
heard what he said. You understand, there's no
way he said that he was going to squeeze Steve
Bing.
Christensen:
3.
No, he did not.
Hold on one second.
Termination of the Wiretap
After the wiretap of Bonder Kerkorian had been ongoing for

approximately two months, defendant and Pellicano engaged in a
series of recorded conversations over the six-day period from May
10, 2002 to May 16, 2002, in which they ultimately agreed to
terminate the wiretap.
On May 10, 2002, Pellicano and Christensen had a telephone
conversation in which Pellicano advised Christensen that Bonder
Kerkorian had been talking to her lawyers about the specific
income figures addressed on Kerkorians tax returns but further
noted that I dont have first hand knowledge because she was
with them, you understand?
Upon hearing this information,
Christensen, incensed that confidential information had been

disclosed but aware that he had obtained this information through
illegal methods, stated I dont know how, I dont know how to
bust 'em for it but I, that is totally a violation of ah- Edmon's
most important order.
Later in the conversation, Pellicano,
after referencing how a new call from Kerkorian to Simon once
96
again gave Bonder Kerkorian whiskey strength, informed

Christensen that he wanted to stop doing this as it consumed a
tremendous amount of time and he felt frustrated that Kerkorian,
by continuing to contact Simon, was not taking into proper
account the information that Pellicano had been providing to
Christensen regarding Simons loyalty to Bonder Kerkorian.
In
response, Christensen advised Pellicano that he would address

this issue with Kerkorian.
On May 14, 2002, Christensen and Pellicano had a
conversation in which they discussed the parentage of Kira
Kerkorian, whether they should dirty-up Bonder Kerkorian
through a negative publicity campaign, and the fact that
Pellicano was awaiting an outstanding payment from Christensen.
Towards the end of this conversation, Pellicano again broached
the subject of discontinuing the Bonder Kerkorian wiretap.
Christensen, however, advised Pellicano that the wiretap should
remain on for at least another day so that Christensen could
obtain, for one last time, the privileged communications between
Kolodny and Bonder Kerkorian regarding an in-chambers court
hearing that occurred earlier that day:58
Pellicano:
No. No. Yeah, but you havent given me a decision

yet, pal.
58
An OSC was scheduled to be heard that day on the issue

of custody. While the OSC was taken off calendar, an in chambers
conference with counsel was held.
97
Christensen:
On what?
Decision on what?
Pellicano:
Ah, the, continuation?
Christensen:
(Sigh) You know, I was thinking maybe wed knock

it off for a while and then see what happened when
we came back. Does that make sense? Or does that
not work?
Pellicano:
Ah.
Christensen:
Youre constantly having to do this, dig this and

chase this. You know, I want to let you off the
hook.
Pellicano:
How you gonna do that?
Christensen:
Uh huh.
Pellicano:
That doesnt mean that I have to report to you.

Unless theres something interesting.
Christensen:
Yeah, but I dont want you to have to work this

hard.
Pellicano:
Well what do you, what, youre the boss. Tell me

what you want me to do. Im a, Im a . . .
Christensen:
Well, theres gonna be . . .
Pellicano:
Im a sol - Im a soldier.
me what you want me to do.
Christensen:
I mean today, theyre gonna be, ah, you know,

bitching and moaning about what happened, right?
Pellicano:
(Laughing)
Christensen:
And Kolodny will have lied to her about what went

on.
Pellicano:
Some other fucking catastro -- lie you know?
Christensen:
Yeah, now that, that is, it will be interesting to

see what he told her about what went on in
chambers cause this time I was in there.
98
I either stop or I dont.
I told you that.
Tell
Pellicano:
Okay.
Christensen:
OK?
Pellicano:
Cool, thats really fucking cool.
Christensen:
So, lets thatll be interesting, ah, because

they told her, you know, no way, were screwed.
You know, by the end of the day we have, you know,
she has sole custody of Kira, right? That was
their, what they promised her right?
Pellicano:
Yeah, and they didnt get that.
Christensen:
They didnt even get a hearing.
Pellicano:
They didnt even get nothing.
Christensen:
So, you know, I guess it would be interesting to

know what they told her today.
Pellicano:
Ok.
Christensen:
And then tomorrow, theyll be nothing and ok.

Lets do this. Lets find out what they told her,
what went on today.
Pellicano:
Ok.
Christensen:
Tomorrow, lets plan to do nothing and tomorrow we

will decide if we keep going.
Pellicano:
Ok.
So I know what went on.
Ok.
The two ended the conversation by discussing information

obtained from the wiretap, with Christensen expressing how both
he and Kerkorian were extremely pleased with the results:
Pellicano:
Alright, tell me. Just, just make me feel good.

Tell me that the old man has a smile on his face.
Christensen:
He does, okay?
Pellicano:
Is he happy?
Hes..
99
Christensen:
Hes happy. I mean, come on. Look what, look

whats been done here in the last week UNT great.
Pellicano:
Look, look what weve been doing for him.

Jesus.
Christensen:
Yeah, yeah.
Pellicano:
Hes got, hes got the best fucking outfit he, he

could have.
Christensen:
Our jaws still hanging down. You know, over ah,

stuff, some stuff that doesnt even count. It
still blows your mind. Do you know what I mean?
Pellicano:
Oh sure it does.
Christensen:
Like, I still cant-
Pellicano:
You talking about the Debra stuff?
Christensen:
Yeah. I dont even know why yet.

even figure out why.
Pellicano:
You know, you know.
Christensen:
Except that its fun to do.
Pellicano:
After, after we hung up last night, I, I started

packing up and to go. You know, to, to, to pack
up everything?
Christensen:
Right.
Pellicano:
And I just had to go back and, and, and review

that again. The one before that?
Christensen:
Right.
Pellicano:
There was, there was nothing in that conversation,

there was nothing!
Christensen:
Anthony, theres, it makes no sense.
Pellicano:
Jesus fucking Christ.
100
Okay?
Man,
I cant
Okay?
Christensen:
It makes no sense. Well, I dont even know what

it was, except to ingratiate herself but you
know...
Pellicano:
It, it, it is, it is an absolute co-dependent, you

know, this, this is a, a absolute psychological
phenomena. This is actual, this is no question
co-dependency, double-edged sword.
Christensen:
Yeah.
Pellicano:
She, she cuts in both directions. She cuts

against those that are with her and those that are
with her.
Christensen:
Yeah.
Pellicano:
Do you understand what I mean?
Christensen:
Yeah.
Pellicano:
Everybodys against her but she cuts the two

people that are with her. She lies to both of
them.
Christensen:
God. I mean it was like phenomenal.

phenomenal.
Pellicano:
Did you tell him about that?
Christensen:
Yeah, oh sure.
Pellicano:
He must have got a, he must have pissed his pants

over that.
Christensen:
He just couldnt believe it and, you know, neither

of us. We both were saying what? What?
Just
As previously agreed, Christensen and Pellicano revisited

the issue of discontinuing the wiretap the following day (May 15,
2002):
101
Pellicano:
All right. Now you got one question, last

question to answer, that you said youd do this
afternoon.
Christensen:
Whats that?
Pellicano:
Do I continue or not?
Christensen:
Um, lets um, lets end it, um, Im getting on a

plane tomorrow.
Pellicano:
Good.
Christensen:
Ok?
Pellicano:
Great.
Christensen:
And so is Kirk.
Pellicano:
Its somewhere, where I cant find you, I hope.
Christensen:
Right.
Pellicano:
Ok.
Christensen:
So were done.
end of it.
Pellicano:
Ok.
Christensen:
And even then, dont report to me unless you have

to, until the morning. You know what I mean.
Pellicano:
I wont report to you at all.
Christensen:
No, no, but lets just finish, do today, lets see

what happens today and then tomorrow morning,
well wrathatll be the wrap up.
Lets just say that tonight is the
During another call later that same day, the two again discussed
the termination of the wiretap:
Pellicano:
Well, Ive gotta have an adventure tonight and

then well find out.
102
Christensen:
Alright, then were, then were off duty.
Pellicano:
Okay.
Christensen:
Okay?
Pellicano:
For good.
Christensen:
Probably for good, yeah, but certainly, certainly.

Well.
Pellicano:
Aw, dont say probably.

redo this.
Christensen:
Alright, well, then were off duty.
Pellicano:
Okay. I, I just want to make this clear to you.

Its gonna be too difficult to do this again. I,
I was able to do it because I, Im smart and Im
the best. You understand? But it would be too
dangerous.
Christensen:
Alright, but I mean, we dont wanna just keep

going forever, do we?
Pellicano:
(sighs) Im not (UNT)
Christensen:
I mean, whatta you trying to do, talk yourself

into going forever here?
Pellicano:
Who me?
Christensen:
(laughs)
Pellicano:
Nuh, nothing would make me happier as if you, if

you would say, Thats it. Thank you Anthony.
You did a very nice job. Now, bye-bye.
Christensen:
Umm.
Pellicano:
So just say that and make me happy.
Christensen:
No. Im saying the, Im saying, you know, if

youre telling me that, that uh, well, I dont
wanna keep going into this anyway, okay?
Its too difficult to

Screw it.
What are you fucking crazy?
103
Pellicano:
Okay.
Christensen:
Well stay with it.
Pellicano:
Well stay with what?
Christensen:
Well stay with the decision.
Pellicano:
The decision, good.
Christensen:
Yeah.
The call then ended with Christensen instructing Pellicano that

he had to listen to the wiretapped calls one last time:
Pellicano:
I have to, I have to have an adventure tonight,

right?
Christensen:
Yeah.
Pellicano:
Okay, I was trying to get out of that.
Christensen:
No, one more.
Pellicano:
(laughs).
Christensen:
One more adventure.
Pellicano:
I was tryin' to scheme my way outta this (laughs).
Christensen:
That's okay, you know, I- I got it.

you know, I get it.
Pellicano:
(laughs) I'm just, you know, I just don't wanna

go through, you know, that, that, uh, episode one
more time. I just like, you know, you've been
eating fucking spinach for, you know, three months
now, and I only have one more fucking spoonful.
Christensen:
That's true, at a certain point you can only have

so much.
Pellicano:
UNT gagging on me, gagging on me, you know what I

mean?
104
I get the,
Christensen:
Yep.
Pellicano:
Well, I just hope that I've proved my loyalty to

you. And, and I also, that you see the kind of
soldier I am. I hope that that's all come
forward.
Christensen:
It sure has.
Pellicano:
Okay pal.
Christensen:
Okay, talk to you in the morning.
The following day (May 16, 2002), Christensen and Pellicano

spoke again.
At the outset of the conversation, Christensen
inquired about hiring Pellicano for a second time to destroy an

opponent - with the adversary this time being Roy Olofson, a
whistle blower who provided damaging information against a
Christensen client in matters related to the Global Crossing
accounting scandal.
As the conversation continued, Christensen,
in response to a question from Pellicano, advised Pellicano that

the matter, like the Bonder-Kerkorian matter, should be kept
under the covers.
Pellicano then addressed the issue of
whether Christensen wanted him to do the same thing as here?

Because thats when it gets really expensive.
In response,
Christensen noted that, unlike the Bonder Kerkorian matter, he

was not concerned with real time information but rather wanted to
learn about Olofsons past.59
59
As this call was about to
Arneson conducted unauthorized criminal history database

(continued...)
105
conclude, Pellicano referenced back to the previous days

agreement to discontinue the Bonder Kerkorian wiretap:
Pellicano:
Alright, pal.
Christensen:
Alright.
Pellicano:
So the switch gets shut?
Christensen:
Ok.
Pellicano:
Ok.
IV
ARGUMENT
A.
PELLICANOS AND CHRISTENSENS CHALLENGES TO THE SEARCH

WARRANTS FAIL
Pellicano and Christensen challenge two search warrants and
the resulting searches of PIAs offices and computer data.
With
respect to the earlier warrant and search, in November 2002,

(which led to the seizure of computer storage materials at PIA,
but did not result in the examination of Christensens and
Pellicanos calls recorded in those storage materials) Pellicano
and Christensen assert the warrant lacked probable cause because
the affidavit failed to establish a Hobbs Act element deemed
necessary by Scheidler v. NOW, Inc., 537 U.S. 393 (2003), and
59
(...continued)
inquiries on Olofson on July 9, 2002.
106
they claim they were wrongly denied a hearing to test the

affidavits veracity.
With respect to the later, July 2003,
warrant and search that decrypted the Christensen-Pellicano

recordings, Christensen and Pellicano argue the warrant and
search were overbroad and unparticular.
Christensens challenges to the warrants fail because he
lacks standing in PIAs premises and computer data.
Pellicanos challenge to the November 2002 Warrant is also
barred.
Because he unsuccessfully raised the same challenges in
his earlier case, including on appeal to this Court, collateral

estoppel prohibits him from relitigating the issues here.
Even considered on the merits, however, Christensens and
Pellicanos challenges to each warrant fail.
Defendants
probable cause challenge to the November 2002 Warrant fails

because, regardless whether the affidavit states a Hobbs Act
violation in light of current law, the law at the time of the
search was unclear enough that agents were reasonable to rely on
the Chief Magistrate Judges probable cause finding, as this
Court previously found.
Defendants challenge to the same
warrant under Franks v. Delaware, 438 U.S. 154 (1978), fails

because the district court neither clearly erred in its factual
finding that Agent Ornellas made no intentional or reckless
misrepresentations, nor clearly erred in its finding that
107
defendants challenges to the affidavit would not have materially

affected the probable cause finding in any case.
Defendants challenges to the July 2003 Warrant and search
also fail on the merits.
When the actual terms of the warrant
are examined, the warrant was adequately targeted toward PIAs

specifically known crimes.
In any case, the law enforcement
agents conducting the searches reasonably relied on the

Magistrate Judges assessment that the warrant was valid.
In short, Pellicano and Christensen suffered no injury to
their Fourth Amendment rights.
The district courts decision,
which accorded with the decision of this Court in Pellicanos

prior case and with the decisions of the magistrate judges
reviewing each warrant, must be affirmed.
1.
Factual Background
The facts, stated accurately, paint a far different picture

than the portrayal in defendants briefs.
The government
obtained a series of search warrants which gradually expanded the

searches scope in response to the growing evidence of the scope
of PIAs criminality.
judges.
The warrants were upheld by multiple
And, in the end, Pellicano was convicted of all of the
criminal activities that the warrants said he had done.

a.
Warrants and Searches

(1)
The November 2002 Warrant and Search
108
On November 19, 2002, FBI Special Agent (SA) Stanley

Ornellas presented an application to Chief Magistrate Judge
Robert Block, requesting a warrant to search PIAs offices for
evidence of violations of 18 U.S.C. 371 (Conspiracy) and 18
U.S.C. 1951 (the Hobbs Act), related to the June 2002 attack
on Buschs car.
(JER 14-53).
Ornellas affidavit was based in
large part on a series of recorded conversations between Alex

Proctor and a cooperating witness (CW), in which Proctor told
the CW that he had been hired by Pellicano to threaten Busch on
behalf of Pellicano client Steven Seagal, and in which Proctor
provided numerous details that a secondhand source was unlikely
to know.
(JER 168).
The affidavit included summaries of the
recorded conversations, as well as summaries of telephone records

showing contact between Pellicano and Proctor in the days before
the Busch threat.
(JER 29-33).
The affidavit also contained
additional information about threats against Ned Zeman.
(JER 33-
36).
The Chief Magistrate Judge found probable cause and issued
the warrant (the November 2002 warrant).
The warrant
authorized agents to search PIA, and to seize specific categories

of evidence of the statutory violations.
The warrants
description of ITEMS TO BE SEIZED included a detailed search

protocol for electronic data (JER 16-18) which was added in
109
response to the same magistrates declination of a warrant for

Proctors residence that had not included such a protocol.
The
warrant also included a memorandum setting forth procedures for

maintaining attorney-client privilege.
(JER 44-51).
The warrant was executed at PIA on November 21, 2002,

resulting in the seizure of computers, hard drives, and other
data storage devices.
The search team also found hand grenades
and plastic explosives, which were seized that day under a

follow-up warrant.
(JER 55).
Based on the grenades and
explosives, Pellicano was initially prosecuted and convicted on

explosives charges in United States v. Anthony Pellicano, Case
No. CR 02-1278-DT (C.D. Cal.) (the 2002 Case).60
(2)
The January 2003 Warrant
Continued investigation disclosed that Pellicano was also

committing illegal wiretapping.
Ornellas therefore applied for a
new warrant, based on a new affidavit.
The affidavit recounted
that Sarit Shafrir had confessed to listening at PIA to recorded

telephone conversations that Pellicano had wiretapped at the
Nicherie brothers request.
(JER 111-12).
60
A confidential
The government has filed a Request for Judicial Notice

requesting that the Court take judicial notice of [these] court
filings that are relevant to the issue of collateral estoppel,
as the Court did in Reyns Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741, 746 n.6 (9th Cir. 2006). See, e.g., United States
v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (taking
judicial notice of proceedings in another case because they are
directly related to this case and may in fact be dispositive).
110
informant had described how Pellicano was engaging in wiretapping

using software named TELESLEUTH.
(JER 113-14).
And phone
company technicians had discovered a half-tap placed on Buschs

telephone line with the possible use of monitor[ing] phone
conversations.
(JER 109-110, 113).
Magistrate Judge Suzanne Segal found probable cause and

issued a warrant on January 14, 2003 (the January 2003
Warrant).
(JER 77).
That warrant authorized agents to search
PIA again for additional computer items not taken under the
November 2002 warrant, and also to search computer items (or
previously copied images of those items) that had been previously
seized under the November 2002 warrant.
(JER 78).
The agents
were authorized to seize documents reflecting the interception or

capability of interception of telephonic communications; audio
recordings of telephonic conversations involving Busch, Ami
Shafrir, and Dale Walker; and telephone equipment.
(JER 80).
In
a handwritten emendation, the warrant authorized seizure of

client files only pertaining to . . . Julius Nasso; Steven
Seagal; Abner Nicherie; Daniel Nicherie; Anita Busch; [and] Ami
Shafrir.
(Id.)
search protocol.
Once again, the warrant included a detailed

(JER 80-82).61
When agents executed the
61
Once again, the executing agents were given both a

search-protocol memorandum (JER 83-90) and the affidavit on which
the warrant was based (see JER 83). The computer items taken for
(continued...)
111
January 2003 warrant, however, they found that most of the

computer and storage equipment at PIA had been removed or
destroyed between the November search and the January search.
(3)
The July 2003 Warrant
As the investigation progressed, the government learned that

Pellicanos criminal activity was even broader that Pellicano
engaged in regular wiretapping and purchased law-enforcement
database information as a matter of course, throughout his
operations.
On July 25, 2003, the government applied for a
further warrant (the July 2003 Warrant), based on affidavit by

FBI SA R.T. Ballard, III.
(CR __ Ex. B to Supp. Decl. Of Daniel
A. Saunders in Oppn to Def. Terry Christensens Mot. To Suppress

Evidence Pursuant to July 25, 2003 Search Warrant.)
The July
2003 Warrant sought evidence of violations of many of the crimes

Pellicano was eventually convicted of at trial.
Ballards affidavit contained copious evidence of PIAs
crimes.
PIA employees had revealed PIAs wiretapping activities
against multiple PIA targets.
(Id. at 37-40, 42, 46, 49-50).
Various PIA clients had confirmed that they had listened to

adversaries calls that PIA had intercepted.
54).
(Id. at 47-49, 53-
PIAs victims detailed facts causing them to believe they
61
(...continued)
off-site search pursuant to the January 2003 warrant were imaged,
then were returned to Pellicano.
112
were being wiretapped including the discovery of a half-tap.

(Id. at 20-29, 36, 40-43).
Kachikian had confessed that, at
Pellicanos direction, he had created the Telesleuth program,

designed to allow the user to intercept telephone calls.
at 34-36).
(Id.
Arneson not only admitted conversations in which
Pellicano spoke of his ability to conduct wiretaps, but also

told of Pellicano demonstrat[ing] the system by playing a
[wiretapped] conversation.
(Id. at 35.)
Informants revealed
Pellicanos method of sometimes renting space near the wiretap

target and retrieving the drives daily, when the wiretaps could
not be run directly through PIAs offices.
(Id.)
PIA employees
also said that PIA used a police officer to access law

enforcement databases (id. at 9-16) and used phone company
employees to get confidential telephone records (id. at 30-33,
52).
PIAs criminality was not limited to a few cases.
For
instance, PIA employees reported that Pellicano obtained

confidential law-enforcement and DMV records as a matter of
course when opening new files.
16).
(Id. at 10; see also id. at 15,
The routine scope of PIAs criminality was also revealed by
information that Pellicano paid one of his sources on what

appeared to be a monthly basis.
(Id. at 12; see also id. at 19
(large total payments confirmed by bank records)).
113
Finally, the affidavit explained Pellicanos steps to

conceal evidence.
Pellicano had told a confederate that he knew
wiretapping was illegal, but that his program was encrypted.

(Id. at 35-36).
Pellicano concealed the source of illegal
information by making employees reformat the information on

office computers then shred the originals.
also id. at 13, 15, 17).
(Id. at 10-11; see
Pellicano was aware that the office
could become the subject of a law enforcement warrant, and took

steps to conceal his sources and destroy illegal information.
(Id. at 13, 14, 17).
Based on witness interviews, the affidavit
concluded that the basic operations of Pellicanos businesses

were permeated by criminal conduct.
(Id. at 1).
Magistrate Judge Andrew J. Wistrich found probable cause and

issued the warrant.
The warrant authorized search of a specific
list of computer items that had been previously imaged pursuant

to the November 2002 and January 2003 warrants.
Within those
items, the warrant authorized seizure of [e]vidence of

violations of [18 U.S.C. ] 2511 (Interception and Disclosure of
Wire, Oral, or Electronic Communications); 1030 (Unauthorized Use
of Computer Information); 1343 (Wire Fraud); and 371
(Conspiracy), falling into two categories: documents and
electronic records reflecting the interception of, or the
capability of intercepting telephonic communications, or the
unauthorized use of, or access to, confidential law enforcement
114
databases or confidential databases for personal financial

information, wire fraud and conspiracy, and audio recordings of
telephonic conversations.
Given the systemic nature of the
crimes, the July 2003 Warrant, unlike the January 2003 Warrant,
allowed seizure of any client files evidencing the wiretapping
and other offenses not just the files of specific clients.
Id.
As with the previous warrants, the July 2003 Warrant specified a

detailed search protocol.
(Id. at 1-3, 57-58).
It was pursuant to the July 2003 warrant that the 34

recordings of Pellicano and Christensen discussing the
implementation, results, and termination of their illegal wiretap
of Lisa Bonder Kerkorian were examined, on a hard drive that
previously had been seized and imaged pursuant to the November
2002 warrant.
b.
The District Court and This Court Uphold the

November 2002 Warrant in Pellicanos 2002 Case
While the investigation into Pellicanos wiretapping

activities continued, the government prosecuted the 2002 Case,
charging Pellicano for the explosives and grenades that had been
found in his office in November 2002.
Pellicano was assisted by
three prominent criminal defense lawyers.62
62
Pellicano maintains
Pellicanos defense lawyers were Donald Re, Victor

Sherman, and Alan Weil. (RJN 1 (Docket in 2002 Case)). All
three are highly experienced, well regarded criminal defense
lawyers in southern California.
115
that his counsel in the 2002 Case was aware of the governments
ongoing investigation into wiretapping and RICO allegations, and
that his lawyers were working to gain a global disposition of
both sets of charges.63
Pellicanos lawyers moved to suppress the November 2002
Warrant on Fourth Amendment grounds.
As relevant here, Pellicano
(1) argued that the warrant lacked probable cause for the Hobbs
Act offense in light of the Supreme Courts Scheidler decision;
(2) requested an evidentiary hearing under Franks v. Delaware,
438 U.S. 154 (1978), based on alleged misstatements in the
warrants affidavit; and (3) claimed that the good-faith
exception did not apply.64
The district court (Hon. Dickram M. Tervizian) rejected each
challenge.
(RJN 17-32 (Findings of Fact & Conclusions of Law)).
The court rejected Pellicanos challenge to probable cause for

the Hobbs Act violation.
Although the court considered the
warrant to have been supported by probable cause with respect to

the subject offenses (RJN 21), the court found that exclusion
63
See JER 921 (declaration by Pellicanos lawyer,

referring to his global settlement discussions including
various charges); id. (from November 2002 until December 13,
2005, . . . I represented Anthony Pellicano not only with respect
to the pending charges before Judge Tevrizan, but also with
respect to the ongoing wiretapping and RICO investigations).
64
RJN 38, 46-31 (Notice of Mot. & Mot. to Suppress

Evidence; Quash & Traverse Search Warrants; for a Taint Hrg., in
2002 Case); RJN 114-24 (Pellicanos Reply to Govts Oppn to Mot.
To Suppress Evid.; To Quash & Traverse Search Warrants).
116
would be unwarranted even if probable cause had fallen short,

because the agents relied in good faith on the magistrate finding
of probable cause.
The court found that Chief Magistrate Judge
Block did not abandon his detached and neutral role when he
issued the warrant (RJN 22); that the Hobbes Act theory for the
November 2002 Warrant had been approved at multiple levels in the
Department of Justice, as had the search warrant, application,
and affidavit;65 and that Ornellas was not dishonest or reckless
in preparing the affidavit (RJN 22).
After reviewing the case
law, the court rejected Pellicanos argument that the Supreme

Courts interpretation of the Hobbs Act in Scheidler was so
obvious that the searching agents could not reasonably have
relied on the experienced magistrate judges issuance of the
warrant.66
Instead, the court concluded, agents reliance on
65
See RJN 19 (finding that the agents affidavit was

approved by an Assistant U.S. Attorney, the Deputy Chief of the
Terrorism & Organized Crime Section, and the Chief of the U.S.
Attorneys Offices Criminal Division); id. (finding that the
indictments Hobbs Act theory that extortion was committed by
depriving [Buschs employer] of the intangible property right . .
. [was] presented to and approved by a Senior Litigation Counsel
and Deputy Chief within the Department of Justices Organized
Crime and Racketeering Section); id. (finding that the warrant
application and the procedures to protect any privileged
documents were approved directly by the offices Criminal
Division Chief, by the U.S. Attorney herself, and by an attorney
at the Department of Justices Office of Enforcement Operations);
RJN 20 (finding that the computer search language in the warrant
was reviewed by the Department of Justices Computer Crimes
Section in Washington, D.C.).
66
RJN 23; see also id. (surveying other circuits cases

(continued...)
117
the apparently valid search warrant was objectively reasonable.

(RJN 22-23).
The court likewise found Pellicanos request for a Franks
hearing to be meritless.
(RJN 29).
Having earlier found that
Ornellas was not dishonest or reckless in preparing the

affidavit (RJN 22), the court, in detailed factual findings,
found that Pellicanos allegations of dishonesty were not borne
out by the record.67
As an independent basis for denying the
hearing, the court found Pellicanos accusations immaterial to

the finding of probable cause, because the recordings of Procter
made the cooperating witness credibility immaterial.
(RJN 31-
32).
66
(...continued)
whose decisions had conflicted with Scheidler); RJN 25 (the
issue of what it means to obtain property under the Hobbs Act
(and, consequently, of the existence of probable cause in the
affidavit in this case) was and is onesufficient to create
disagreement among thoughtful and competent judges).
67
Although Pellicano claimed that the CW had an

undisclosed ability to access and manipulate the recorded
conversations with Proctor, the court found that Ornellas had
verified that the recordings had not been previously downloaded.
(RJN 29-30). While Pellicano claimed that Ornellas had hidden
from the magistrate some of the CWs prior criminal contacts, the
court found Pellicanos charges unsustained because the
complained of contacts were not convictions and in any case had
failed to show any deliberate or reckless omissions. (RJN 30).
Though Pellicano claimed that the CW had extorted money from a
New York lawyer, the court found that Ornellas did not learn of
the extortion until after the warrant was obtained. (Id.) And
although Pellicano claimed the affidavit failed to inform the
magistrate that the CW (rather than Proctor) had first brought up
Pellicanos name on the call, the court found that the
affidavits statement was truthful. (RJN 31).
118
Concluding that the initial search was conducted in good

faith (RJN 25), the court denied Pellicanos challenge.68
the second day of trial, Pellicano pleaded guilty.
On
(RJN 12).
Pellicano appealed the denial of his suppression motion

to this Court, assisted by one of his district court lawyers,
Donald Re.69
In addition to other challenges, Pellicanos appeal
again contended that the warrant affidavit had not established

probable cause after Scheidler, and that the warrant could not be
saved by the agents good-faith reliance on the issuing
magistrate.
(RJN 132).
Pellicano chose not to appeal the
district courts denial of his request for a Franks hearing.

(Id.)
This Court upheld the warrant.
United States v. Pellicano,
135 Fed. Appx. 44 (9th Cir. 2005) (hereinafter Pellicano I).

Because Scheidler v. NOW, Inc., 537 U.S. 393 (2003), was decided
after the warrants issuance, this Court found no need to decide
whether there was probable cause for the Hobbs Act violation
alleged in the November 2002 Warrant.
Id. at 45.
Instead, based
68
Some of Judge Tervizians findings are also noted by

Judge Fischer in her orders in the pending case (e.g., JER 16667), and in this Court's prior opinion, United States v.
Pellicano, 135 Fed. Appx. 44, 46 n.1 (9th Cir. 2005) (hereinafter
Pellicano I) (noting Judge Tervizian's finding that Ornellas
was not dishonest or reckless in preparing the affidavit).
69
RJN 128 (Br. of Appellant in United States v. Pellicano,

No. 04-50043 (9th Cir. filed June 8, 2004), available at 2004 WL
1553199)).
119
on a survey of pre-Scheidler law, the Court found that agents

were entitled to rely in good faith on the magistrates finding
of probable cause.
Id. at 4547.
The Court found conflicting
Ninth Circuit precedents on the receipt-of-property issue before

Scheidler.
Despite one case to the contrary,70 the Court found,
two other Ninth Circuit cases could fairly be read to support

the proposition that the destruction of an intangible right was
the legal equivalent of appropriating control of the right,
thereby satisfying the requisite obtaining element under 1951.
Id. at 47 n.2.
Therefore, thoughtful and competent lawyers and
judges could have disagreed on whether . . . the misconduct that

was the subject of this investigation constituted a violation of
the Hobbs Act.
Id. at 46.
Because the warrant was not so
lacking in indicia of probable cause as to render official belief

in [probable cause] entirely unreasonable, the agents were
allowed to rely upon the warrant.
Id. at 46.
[T]he officer
manifested objective good faith, id. at 47, and the search fell
within the good faith exception to the exclusionary rule, id. at
70
Although United States v. Panaro, 266 F.3d 939, 948 (9th

Cir. 2001), foreshadowed the Scheidler rule, another line of
Ninth Circuit cases suggest[ed] that it was possible to extort
intangible property rights under 1951 by appropriating control
of the right. Id. at 46 (citing United States v. Hoelker, 765
F.2d 1422, 1425 (9th Cir. 1985), and United States v. Zemek, 634
F.2d 1159, 1174 (9th Cir. 1980)). Indeed, this Court noted, even
Justice Stevens seemed to interpret Ninth Circuit precedent as
permitting such theories. Pellicano I, 135 Fed. Appx. at 47
(discussing Scheidler, 537 U.S. at 414 n.1 (Stevens, J.,
dissenting)).
120
46.
The Court also rejected Pellicanos other challenges, id. at
47-48, finding that the scope of the November 2002 Warrant was
supported by probable cause and that the warrant was sufficiently
specific under the circumstances to protect Pellicanos right to
be free from unbounded searches.
Id. at 48.
One judge
dissented.
c.
The District Courts Rejection of Defendants

Challenges to the November 2002 Warrant in This
Case
Later, when Pellicano and Christensen were indicted in this

new case on wiretapping, RICO, and other charges, Pellicano and
Christensen filed motions challenging the governments warrants
on various grounds.
S. Fischer.
The case was assigned to the Honorable Dale.
With respect to the November 2002 Warrant,
defendants both sought a Franks hearing to challenge the

affidavit, and complained that the warrant was without probable
cause for a Hobbs Act violation under Scheidler.
Although the
government challenged Christensens standing (C.R. 904; C.R. 899,

at 11), Christensen submitted no declaration or other evidence
about his arrangements with Pellicano regarding privacy.
The
government relied on and cited Pellicano I, without specifically

arguing that Pellicanos challenge was collaterally estopped.
See p.
121
The district court issued a written opinion on the merits,

denying suppression and denying the request for a Franks hearing.
(JER 165-76).
With respect to the Franks claim, the court ruled that
defendants had not made either of the showings necessary: they
had not shown Ornellas to be intentionally or recklessly
dishonest, and they had not shown that the statements they
challenged affected the magistrates finding of probable cause.
Most of the supposedly erroneous details given by Procter
and omitted by Ornellas are of little consequence, the court
found (JER 168),71 and even with respect to the most
significant of the purported discrepancies, the defendants had
not met their burdens to get a Franks hearing.
(JER 168-69).
The court thought that if [it] were the case that the shatter
mark and puncture[] to Buschs windshield was not thought
to have been caused by a bullet, then Ornellas should have said
so and that he arguably should have mentioned that the police
reports did not mention finding a bullet in the car.
(JER 169).
But the court found no evidence that Ornellas recklessly or
71
For instance, defendants concern with whether the fish

on Buschs car was left in a plastic or metal container was a
minor detail bear[ing] very little on probable cause, especially
given that Procter knew that a container was used at all. (Id.)
The defendants quibble with whether the sign was pasted or
taped to Buschs windshield was likewise held not significant
to the overall probable cause analysis. (Id.)
122
intentionally withheld this information.
(Id.).72
Moreover,
the Court found, the probable cause determination would have

been the same if Ornellas had added that no bullet had been
found.
Id.
In other words, whether or not Buschs windshield
was shot would have made no difference to the magistrates

probable cause finding something the court later reiterated
several times on motions for reconsideration.73
72
Indeed, the court found, defendants evidence still did

not disprove Procters version of events as stated in the
affidavit the mere fact that a bullet was not found did not
mean that a bullet was not used. (JER 169 (Defendants
suggestion that the hole was definitively not caused by a bullet
is completely unsupported.); id. ([T]he only evidence to the
contrary the fact that no bullet was found did not disprove
that Procter may have been telling the truth.); id.
(Christensens counsel provide[d] no basis for his accusation
that the hole in the windshield was clearly a puncture
wound)). The court did not consider whether Proctors
statement about putting a bullet hole in Buschs windshield could
have been meant by Proctor to say he put what looked like a
bullet hole in the windshield, in order to convey the threat.
73
JER 528 (order denying Pellicanos post-trial motion)

(whether a gunshot actually caused the hole in Anita Buschs
windshield was not essential to the magistrate judges finding of
probable cause given Alex Proctors extensive knowledge of the
other details regarding the Busch threat); id. (disclosure
would not have changed the outcome the warrant would still have
been issued.). See also C.R. 1666, at 1-2 (order denying
Christensens motion for reconsideration) (The Court[s earlier
opinion] assumed for the sake of argument that Ornellas knew, or
had reason to know, that Proctor had not fired a gun into Buschs
windshield and found that there was no reason to believe that
Ornellas recklessly or intentionally withheld this information.
The Court further found that had the information been included in
the affidavit it would not have changed the probable cause
determination.); id. (Christensens purported new information
would not have changed the probable cause determination.).
123
Nor did a purported inaccuracy in Proctors recollection

about the layout of Buschs street require a Franks hearing.
There was no evidence that Ornellas intentionally or recklessly
withheld the information that defendants said contradicted
Procters account of the layout of Buschs street, and adding the
additional information to the warrant have would not defeat
probable cause.74
Reviewing defendants allegations of omissions in the
affidavits description of a threat against Ned Zeman, the court
found that the entire discussion of Zeman is virtually
irrelevant to the finding of probable cause, because probable
cause was instead established by Proctors statements regarding
the Busch threat.75
While the court did find one error in the
74
JER 170; id. (considering a variety of explanations that

reasonably would lessen the weight of the inconsistency in the
eyes of Ornellas or a judge reviewing the proposed warrant, and
concluding that [h]ad Ornellas added that there seemed to be
easy egress from Buschs street, the probable cause determination
would have been the same); id. (noting, inter alia, that
conditions could have been different when Procter was there if,
for instance, poorly parked cars narrowed the street, or that
Procter also could have perceived or remembered the street
incorrectly). Later, trial testimony would establish that, even
if the street did not dead-end, it only allowed a right-hand turn
another reason why proctor could have remembered the egress
from Buschs street to be difficult. (4/9/08 RT (P.M.) 59).
75
JER 170; see also JER 171 (the whole Zeman incident is,
at best, tangentially related to a finding of probable cause to
search Pellicanos offices).
124
affidavits account,76 the court found no evidence that the

error was intentional or reckless.
(JER 170).
Indeed, the fact
that Ornellas specifically included in his affidavit other

statements lessening Pellicanos connection to the incident
strongly undercuts any inference that Ornellas omitted facts in
order to skew the affidavit against Pellicano.
(JER 170-71).
Proceeding carefully through each of defendants allegations, the

court found that defendants other complaints about the Zeman
incident were factually unsupported;77 were minor and
irrelevant to [the] finding of probable cause;78 concerned
statements that were not misleading;79 and like defendants
76
Ornellas affidavit conflated John Rottger (who matched

the informants biographical description but did not match
Zemans physical description) with his son John Rottger, Jr. (who
did match the physical description). (JER 170).
77
Contrary to defendants allegations, the court found no

evidence that Ornellas pressured Zeman to change his
identification of Rottger, Jr., and no evidence that the result
of the photospread presentation was any different than is
described in the affidavit. (JER 171).
78
JER 171. Although defendants claimed Ornellas should

have connected the Rotger tip to Jules Nasso, who had a purported
motive to smear Steven Seagal, the court not only found no
evidence that Ornellas intentionally or recklessly left this
information out, but also found the point so minor that it does
not impact probable cause. (Id.)
79
Citing United States v. Burnes, 816 F.2d 1354, 1358 (9th

Cir. 1987), the court found no deception in the affidavits
omission of alternative theories about the Zeman threat. (JER
171). The court also found that Ornellas did not mislead the
magistrate by omitting a sequence of phone calls among Ornellas,
Procter, Pellicano, and the CW, because there is no evidence
(continued...)
125
other arguments contained no evidence that Ornellas made any

omissions intentionally or recklessly.80
Rejecting defendants claim that the warrant should have
described Seagal and Pellicano as antagonists, the court found
no evidence that Ornellas knew details about Seagal and
Pellicanos relationship.
(JER 172).
In any case, the court
reasoned, the additional information would not undermine

probable cause because [w]hether Seagal had hired Pellicano or
someone else had hired Pellicano was at best a secondary issue
compared to the main determinant of probable cause to search
Pellicanos offices namely, Pellicanos connection to the
crime.
(Id.)
The court rejected defendants objection that the PIA search

was pretextual, reasoning not only that the court doubt[ed] that
[Christensens claim] is true given the lack of persuasive
evidence produced, but also that pretext is not a basis to
challenge an otherwise valid search.
(JER 173-74 (citing
Brigham City v. Stuart, 547 U.S. 398, 404 (2006))).
And the
court rejected as irrelevant a variety of other defense claims.81
79
(...continued)
that Ornellas knew about the phone calls at issue.
Id.
80
See id. (discussing defendants allegations that Jules

Nasso had a motive to smear Steven Seagal)
81
The court found no relevance to probable cause in

Pellicanos complaint that the affidavit should have discussed
(continued...)
126
The court also found that defendants attempt to portray

Ornellas as intentionally or recklessly deceptive rests entirely
on conjecture and innuendo.
(JER 175).
In contrast to the
defendants portrayal of Ornellas as a man out to get Pellicano

by hiding unfavorable facts, the court found that Ornellas in his
affidavit had specifically included information favorable to
Pellicano,82 and that he had left out facts that would have
further bolstered the case against Pellicano.83
Moreover, the
court stressed the many ways in which Proctors recorded

conversations were corroborated by physical and other evidence:
Even considering cumulatively the effect of any arguable
81
(...continued)
his work for government agencies. (JER 172). The court found
that defendants failed to present[] . . . evidence to contradict
Proctors account of the conversation in which Pellicano had
said that Busch was back at it again. (JER 174). The court
found no reason why allegations of other threats [against Busch]
has anything to do with probable cause when there was ample
support for probable cause to believe that Pellicano was involved
in the June 2002 threat. (JER 172). And the court rejected
Christensens argument that Ornellas should have done more to
investigate other potential attackers. (JER 173).
82
JER 170-71 (noting affidavits inclusion of Proctors

remarks that [he] did not think that Pellicano was involved in
the Zeman incident).
83
JER 168 (It is significant that Procter knew the sign

was affixed in some way to the windshield, but Ornellas did not
include this bolstering fact.).
The court also found that some
facts that defendants said should have been added to the
affidavit could actually have strengthened probable cause rather
than weakening it, had it been included. (JER 171 (reasoning
that inclusion of Proctors criminal history could have
strengthened probable cause by increasing the probability that
Proctor was involved in this crime)).
127
misrepresentations or omissions, the affidavit still established

probable cause, because Proctors accurate account of most of
the major details of the Busch threat (as documented by tape
recordings), and his implication of Pellicano in the threat was
sufficient to establish probable cause for a search of
Pellicanos office.
(JER 175).
The court also rejected defendants argument that the facts

in the first warrant failed to state a Hobbs Act violation.
Instead, the district court applied as persuasive authority this
Courts holding in Pellicano I that Ornellas could not be
required to anticipate the Courts decision in Scheidler.
d.
Id.
The District Courts Rejection of Defendants

Specificity and Overbreadth Challenges to the July
2003 Warrant
When defendants challenged the July 2003 Warrant as

overbroad and unparticular, the district court issued a separate
opinion denying those challenges.
(JER 155).
Once again,
because the court rejected the claims on the merits, it did not
address the governments objections to Christensens standing.
(JER 161).
The court found that the July 2003 Warrant was sufficiently
particular.
This is not a case where the government sought to
seize vaguely described materials with no further explanation.

(JER 158).
Rather, the warrants incorporated Attachment B
listed the types of items to be seized, and [n]one of the items
128
are vague.
(Id.)
That list, moreover, was limited by an
opening paragraph listing the crimes to which the seized evidence

should pertain.
That gave [l]ittle discretion to the seizing
agents: They [were] to seize items from the list . . . if they

constitute evidence of the crimes enunciated in the preamble.
(Id.)84
Indeed, the Court found the warrant contain[ed] the
reference to specific illegal activity . . . that Spilotro

recommends.
Id. (citing United States v. Spilotro, 800 F.2d
959, 963 (9th Cir. 1986).

The court further found that the July 2003 Warrant was not
overbroad.
The court rejected Christensens argument that the
warrant should have been limited to evidence of specific

enumerated victims, or that the evidence in the affidavit only
supported a search for evidence from 1999 to 2003.
The court
found that Christensen was wrong about the time-period of

wrongdoing shown in the affidavit, because [t]he affidavit
describes specific wrongful conduct from as early as 1995-1996.
(JER 159).
Beyond that, the evidence in the affidavit provided
probable cause that Pellicanos illegal activities surpassed the

limited cases that the government was aware of.
84
(JER 159).
The court found that, because the warrants context

makes clear that the warrant does not mean to authorize a broad
seizure of anything that might have to do with a general
conspiracy or unspecified types of wire fraud (id.), the agents
were empowered to seize only evidence of enumerated crimes
related to the activity described in the affidavit.
129
That was because of the affidavits description of the computer

program specifically designed to intercept phone calls, the
information that PIA illegally acquired law enforcement database
information as standard office procedure when opening a new
case, and the information that PIA routinely acquired
confidential telephone company records from individuals within
the phone company.
(Id.)
As a result, the government was
justified in searching PIAs computers for other incidents of

wiretapping besides the several they had already confirmed.
Because the affidavit thus established probable cause to
search all of Pellicanos computer records for evidence of
wiretapping, the court also rejected Christensens argument that
the government should not have searched the folder named CRAIG,
where the Christensen-Pellicano recordings were found.
(Id.)
In
particular, the court found, the common sense fact that a

computer user can use an innocuous or misleading filename to
conceal incriminating evidence meant that agents were not
required to desist from searching the CRAIG folder based on the
name alone.
(Id.)
Finally, the Court found, even if the warrant had been

defective in some way, the agents were entitled to rely on it in
good faith.
(JER 159-61).
Because the warrant, read as a
whole, conveys that the agents were allowed to seize particular

types of items that constituted evidence of a narrow and fairly
130
well-defined set of crimes (JER 160), the court found the

agents reliance on the magistrates approval to be proper.
See
also JER 161 (reasoning that no remedial benefit would be served

by suppression, because the face of the warrant shows that the
agents and AUSA tasked with applying for the July 25, 2003
warrant were trying to particularize the warrant and to limit its
scope to the probable cause described in the affidavit).
Moreover, the court found, suppression was improper because even
if Christensen could hypothesize a better drafted warrant, the
items that Christensen is seeking to suppress would have fallen
easily within the scope of such a warrant.
e.
(JER 161).
Pellicanos State-Court Conviction for Threatening

Busch
After Pellicanos federal convictions in the present case,

Pellicano and Proctor were prosecuted in state court for the
threats against Busch.
(RJN 150-68).
On October 23, 2009,
Pellicano pled nolo contendere and was convicted of violating

California Penal Code 422 (threats); he was sentenced to three
years of imprisonment.
(RJN 162-63).
the same charge the same day.

2.
Proctor was convicted of
(RJN 166).
Defendants Challenges to the November 2002 Warrant and

Search Are Barred by Lack of Standing and by Collateral
Estoppel
Although the district court did not address standing and

collateral estoppel, this Court should do so, because those
131
doctrines resolve entirely all claims on the November 2002

Warrant and Christensens claims on the July 2003 Warrant.
a.
Christensen Has No Standing to Protest the Search

of Pellicanos Office
A person who is aggrieved by an illegal search and seizure

only through the introduction of damaging evidence secured by a
search of a third persons premises or property has not had any
of his Fourth Amendment rights infringed.
United States v.
Ligenfelter, 997 F.2d 632, 636 (9th Cir. 1993).
To prevail on
suppression, Christensen must show that he had a legitimate

expectation of privacy in the place searched.
Id.
Because
Christensen cannot meet this standard, his challenges to both

warrants must be rejected.
(1)
Standard of Review
A party seeking suppression bears the burden of

demonstrating that he or she had a legitimate expectation of
privacy in the place searched.
439 U.S. 128, 131 n.1.
Id.; see Rakas v. United States,
Fourth Amendment standing is a mixed
question of fact and law, for which [t]he district courts

ultimate legal conclusion is reviewed de novo, and the findings
of fact underlying that conclusion are reviewed for clear
error.
United States v. 40,955.00 in U.S. Currency, 554 F.3d
752, 755-56 (9th Cir. 2009).
Although the district court did not
directly address the governments arguments on standing, factual

findings elsewhere in the case (for instance, on the crime-fraud
132
exception to Christensens privilege claims) do affect standing

and are reviewed for clear error.
(2)
Christensens Appeal Should Be Denied Under

Caymen and Wardlow Because He Failed To Meet
His Burden
As the party seeking to suppress evidence, Christensen had

the burden to introduce sufficient evidence to prove his
standing.
United States v. Dorais, 241 F.3d 1124, 1129-30 (9th
Cir. 2001); United States v. Reyes-Bosque, 596 F.3d 1017, 1026,

1028 (9th Cir. 2010).
He did not.
[W]ithout an affidavit or testimony from the defendant, it

is almost impossible to find a privacy interest supporting
standing.
2006).
United States v. Mendoza, 438 F.3d 792, 795 (7th Cir.
Although he submitted his attorneys affidavit
introducing various documents, Christensen never submitted an

affidavit explaining his subjective expectations or the steps he
took objectively.
He produced no written agreement between
himself and Pellicano and no evidence of their oral agreements.

He explained nothing about any steps he took to make sure
Pellicano would keep the PIA files private for Christensens or
anyone elses benefit.85
In United States v. Caymen, 404 F.3d
85
It is not enough that Christensen, in the recordings, is

heard discussing secrecy with his coconspirator. Every
conspirator asks secrecy of his cohorts; yet under United States
v. Padilla, 508 U.S. 77, 81-82 (1993), being a coconspirator of
the searchs target does not establish standing. To support his
standing claim, Christensen had to show particular steps that he
(continued...)
133
1196, 1200 (9th Cir. 2005), this Court found that a defendant had
not met his burden to show Fourth Amendment standing where he did
not submit an affidavit or other evidence showing his
reasonable expectation of privacy.
Christensens failure was particularly inexcusable because
it violated the district courts specific rule.
See C.D. Cal.
Local Crim. R. 12-1.1 (A motion to suppress shall be supported

by a declaration on behalf of the defendant, setting forth all
facts then known upon which it is contended the motion should be
granted.
The declaration shall contain only such facts as would
be admissible in evidence and shall show affirmatively that the

declarant is competent to testify to the matters stated
therein.).86
In United States v. Wardlow, 951 F.2d 1115, 1116
(9th Cir. 1991) (per curiam), this Court held that a defendants
noncompliance with a nearly identical local rule justified
denying a hearing on a motion to suppress.
Id. (denial of
suppression hearing was proper where defendants assertions were

supported only by a declaration signed by counsel rather than an
individual competent to testify as the rule required).
Because
Christensens motion was similarly deficient, this Court should
(...continued)
obliged Pellicano to undertake such as legal undertakings they
entered into, or agreements on handling data.
86
This portion of the rule has not changed between 2007
and now.
134
follow Wardlow and Caymen and deem Christensens claims

forfeited.87
(3)
Christensen Cannot Turn His Ethical Duties

Toward Kerkorian Into a Shield for His
Misconduct at PIA
Instead of concrete evidence to meet his evidentiary burden,

Christensen presents a variety of abstract arguments.
All fail.
Christensens attempt (COB 38-40) to ground Fourth Amendment

standing on the attorney-client and work-product privileges adds
nothing to his case, because, as the district court found,
Christensens fraudulent, criminal scheme vitiated any such
privilege.
Once this Court determines that the district courts
factual findings on the non-applicability of the privileges were

not clearly erroneous, this Court need go no further:
Christensens arguments for standing based on those privileges
must be ruled meritless.
In any case, Christensen could not have expected privacy in
recordings that he did not think existed.
87
Christensens
Christensen cannot rely on the governments theory of

the case to establish standing in lieu of a competent witness
affidavit. See United States v. Silva, 247 F.3d 1051, 1057 (9th
Cir. 2001) ([T]he governments position . . . cannot discharge
Defendants factual burden of establishing standing.); United
States v. Singleton, 987 F.2d 1444, 1449 (9th Cir. 1993).
Nothing about the governments theory of the case necessarily
entailed facts proving standing the government proved
Christensens crimes without alleging or proving Christensens
ownership or possession of the recordings Pellicano made of their
conversations. Cf. United States v. Issacs, 708 F.2d 1365 (9th
Cir. 1983). Nor was it necessary for the jury to find facts
establishing standing in order to convict Christensen.
135
admission that he was unaware that Pellicano was recording

their phone calls (COB 2) therefore dooms Christensens claim.
In United States v. Hunt, 505 F.2d 931, 933-34 (5th Cir. 1974),
the defendants, who had hired a private investigator to conduct
illegal wiretapping but remained unaware of the investigators
precise methods, sought to suppress a police search that had
discovered the wiretapping equipment and tapes in the
investigators car.
The Court of Appeals denied standing,
reasoning the defendants could not expect privacy in objects

which they have never seen and of whose particular existence they
were unaware until after the disputed search and seizure.
at 941.
Id.
Christensen, like the defendants in Hunt, asks this
Court to find that he expected privacy in something he never knew

existed.
Following Hunt, this Court should reject the claim.88
In fact, the people with a claim to privacy in the portion

of Christensens calls recounting wiretapped conversations were
the wiretapping victims not the wiretappers.
88
This Court has
The lack of any evidence that Christensen ever accessed

the recordings or any other parts of Pellicanos records also
dooms Christensens claim. United States v. Sarkisian, 197 F.3d
966, 987 (9th Cir. 1999), held that a defendant who merely
possesses the authority to access a storage rental room but does
not use it, without more, lacks Fourth Amendment standing to
challenge the unlawful search of that area. Here, by contrast,
Christensen did not even have the authority to enter PIA where
the recordings were kept he gave no evidence, for instance, of
having a key.
136
denied standing in stolen items, because [w]hatever possessory

interest a thief may have, that interest is subordinate to the
rights of the owner.
Caymen, 404 F.3d at 1200; see also James
v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (no standing in stolen

van).
Pellicano and Christensen were jointly thieves, stealing
the contents of others private telephone conversations.

Christensen had no expectation of the calls in which Pellicano
relayed the stolen information, because the information therein
belonged to the victims.
information at all.
Christensen had no right to the
Caymen, supra; see also United States v.
Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000) (describing the rule
on bank records as reflecting proposition that a person does not
possess a reasonable expectation of privacy in an item in which
he has no possessory or ownership interest).
To the extent Christensen is trying to suppress his own
words, his attempt also contradicts the basic principle that a
person does not have a privacy interest in information revealed
to a third party and subsequently conveyed to governmental
authorities.
Cormier, 220 F.3d at 1108.
Although Christensen
argues (COB 38) that his conversations with Pellicano were part
of Pellicanos legal-investigator work assisting in the
representation of Kerkorian, Christensen did not attempt to meet
his burden on standing, by submitting evidence of any work
Pellicano undertook for him besides illegal wiretapping.
137
Since
illegal wiretapping is not legitimate investigative work,

Christensens conversations with Pellicano are of no different
character than any other solicitation of criminal acts it
should be treated no differently than if Christensen had hired
Pellicano to burglarize his competitors office.
In so speaking
to Pellicano, Christensen necessarily accepted the risk that

Pellicano would expose the contents of their conversation
either negligently for instance, by leaving the recordings or
written summaries in a place to which the police had access, as
ultimately occurred.
See California v. Greenwood, 486 U.S. 35
(1988); United States v. White, 401 U.S. 745, 749 (1971) (Fourth
Amendment affords no protection to a wrongdoers misplaced
belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it).89
Christensens assertion of
standing is therefore blocked by the so-called third-party

doctrine.90
89
This does not mean the government can gain access to

attorney-client communications any time a search uncovers
fraudulent papers from the lawyer. It simply means that the key
restrictions on the governments ability to learn about attorneyclient conversations in this way must stem from the law of
privilege and the Sixth and Fifth Amendments, not the Fourth.
90
See, e.g., United States v. Miller, 425 U.S. 435, 440-42

(no reasonable expectation of privacy in bank records); Smith v.
Maryland, 442 U.S. 735 (1979) (no reasonable expectation of
privacy in record of phone numbers dialed; when defendant
voluntarily conveyed numerical information to the telephone
company, he assumed the risk that the company would reveal to
the police the numbers he dialed). Alderman v. United States,
(continued...)
138
Nor can Christensen manufacture standing through his bare

assertion that he had a duty as a lawyer to arrange
confidentiality.
First, the jurys verdict, which was fully
supported by the trial evidence, shows the folly of assuming that

Christensen follows his ethical duties.91
Second, standing is a
fact-intensive inquiry, and the Supreme Court has prohibited

rules of automatic standing.
See, e.g., United States v.
Salvucci, 448 U.S. 83, 85 (1980); United States v. Padilla, 508

U.S. 77 (1993).
Rather than ask the court to assume that he
expected privacy, Christensen was required to prove that he took

positive steps to ensure privacy.
See Rawlings v. Kentucky, 448
U.S. 98, 1980 (1980) (no standing where defendant did not show
precautions to maintain his privacy).
90
(...continued)
394 U.S. 165, 176 (1969), is not to the contrary. Alderman held
participants in a conversation have standing to protest the
governments unlawful eavesdropping. But, given White, that rule
can only apply when the initial eavesdropping is done by a person
other than the participants in the conversation. Pellicanos
recording, by contrast, was not state action and was by a person
who Christensen knew was listening to (and participating in) the
conversation. As a result, in talking with Pellicano,
Christensen assumed the risk that his conversation would be
exposed by Pellicano. The fact that Pellicano audiorecorded the
conversations which then came into government hands is no
different than if he had written a summary which the government
then found on Pellicanos property.
91
In addition to the obvious violations of legal ethics

proven by the jury verdict, Christensens contention that
Kerkorian was unaware of Christensens use of Pellicano to
wiretap though not credited by the district court (JER 191)
is an admission that Christensen violated Cal. R. Prof. Conduct
3-500 (Communication).
139
Third, a lawyer generally ha[s] no standing to raise the

alleged infringement of the rights of his client.
Gabbert, 526 U.S. 286, 292 (1999).92
Conn v.
Applying this principle in
the Fourth Amendment context, United States v. Baskes, 442 F.

Supp. 322, 327 (N.D. Ill. 1977), held that because the attorneyclient privilege is for the benefit of the client and not the
attorney, it does not establish a new basis for vicarious
standing under the Fourth Amendment.
This Court should follow
Baskes and Conn in finding that Christensen cannot derive

standing from his clients rights, when the client himself left
those rights unenforced for months and years.93
92
See also Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)

(attorneys have no standing to raise future clients Sixth
Amendment rights); Lowry v. Barnhart, 329 F.3d 1019, 1023 n.2
(9th Cir. 2003) (lawyer may not sue based on clients right to
unbiased decisionmaker); United States v. Fortna, 796 F.2d 724,
732 (5th Cir. 1986) (Fourth, Fifth, and Sixth Amendment rights
are personal and cannot be asserted vicariously; therefore,
defendant cannot assert violation of codefendants attorneyclient privilege).
93
By contrast, clients have standing to protest the search

of their lawyers files under DeMassa v. Nunez, 770 F.2d 1505
(9th Cir. 1985). That makes sense: because the attorney-client
privilege exists to benefit the client, it is socially reasonable
for the client to expect that the Fourth Amendment will also
benefit him by preventing searches of his client files even while
they are in the lawyers possession. But Christensen cites no
precedent for a converse rule conveying the clients rights to
the lawyer especially where the client, one of the worlds
wealthiest men, could have filed a Rule 41 motion on his own.
Compare Massey v. Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000)
(denying attorney-standing to vicariously raise clients rights,
because procedure existed by which client could vindicate his own
rights). Indeed, given that Kerkorians lawyers at the district
(continued...)
140
Fourth, Christensens attempt to piggyback on Kerkorians

client-rights is especially inappropriate because Christensen
maintains that the evidence at issue Pellicanos recordings of
Christensen were not part of Pellicanos assignment.
Christensen has continuously maintained that there was no
legitimate purpose underlying Mr. Pellicanos taping of his
communications with Mr. Christensen.
also COB 13-14.
(C.R. 652, at 14-15); see
In arguing that the recordings had no
legitimate purpose, Christensen necessarily concedes that the

recordings were not made to further legitimate legal work.
Expectations of privacy based on a premise of such work therefore
cannot apply, even on Christensens theory of what Pellicano was
doing.
The lack of a legitimate purpose is even more clear-cut when
Christensens self-serving version of the facts is exchanged for
that which the evidence proved - that Pellicanos wiretapping
was done at Christensens request.
Assigning an investigator to
wiretap ones litigation adversaries in their private attorneyclient conversations can in no way be described as legitimate
legal work.
Once the district courts crime-fraud findings are
93
(...continued)
court now represent Christensen on appeal (JER 5463), Kerkorian
was at least as capable of raising his rights at the district
court as Christensen is here. He was also free not to raise his
purported privileges - and his choice not to raise the
privileges gave Christensen no standing to raise them
vicariously.
141
upheld, therefore, it becomes even more clear that Christensen

was not acting in his role as a lawyer - at least not in any way
that society would recognize as objectively reasonable.
Fifth, even if the recordings could be described as client
files, Christensen could not have had a reasonable expectation of
privacy because he had no legal rights over them.
Under state
and federal law, it was Kerkorian who had the right to control
the disposition of his client files94 and his attorney-client
communications.95
The wiretapped adversaries whose calls
Pellicano was discussing also had rights in the recordings, since

Pellicano would have had to hand over to opposing parties most
work-product (and especially opposing-witness statements) on a
94
Spivey v. Zant, 683 F.2d 881, 885 (5th Cir. 1982) (the
work product doctrine does not apply to the situation in which a
client seeks access to documents or other tangible things created
or amassed by his attorney during the course of the
representation); John F. Matull & Assoc., Inc. v. Cloutier, 240
Cal. Rptr. 211, 215 (Cal. Ct. App. 1987) (an attorneys work
product belongs absolutely to the client); Kallen v. Delug, 203
Cal. Rptr. 879, 950 (Cal. Ct. App. 1984) (similar). The one
exception where Christensens rights to the information could be
superior to Kerkorians under California law is if Kerkorian
sought the files in order to sue Christensen. See Lasky, Haas,
Cohler & Munter v. Superior Court, 218 Cal. Rptr. 205 (1985).
But there was obviously no possibility of that here, given the
two mens choice to share lawyers.
95
Wright, Graham et al., 24 Federal Practice & Procedure

5487, at 406-07 (1st ed. 1986) (attorney-client privilege
belongs to the client, who can waive it over the lawyers
objection).
142
showing of substantial need.96
Because Christensen could not
legally control either PIA or the recordings, any expectation of

privacy was unreasonable.
See Couch v. United States, 409 U.S.
322, 335 (1973) (no standing in records given to accountant where

accountant had discretion to disclose the information without
conveyors consent); Rawlings, 448 U.S. at 105 (no standing in
purse where no right to exclude others).97
96
For federal law, see Admiral Ins. Co. v. U.S. Dist.

Court, 881 F.2d 1486, 1494 (9th Cir. 1989) (Although the [work
product] rule affords special protections for work-product that
reveals an attorney's mental impressions and opinions, other
work-product materials nonetheless may be ordered produced upon
an adverse partys demonstration of substantial need or inability
to obtain the equivalent without undue hardship.). For
California law, see Hobbs v. Municipal Court, 284 Cal. Rptr. 655,
669 (Cal. Ct. App. 1991) (To the extent that witnesses
statements and reports of witness interviews reflect merely what
the witnesses said they are not work product because the core of
the work-product doctrine shelters the mental processes of the
attorney), overruled on other grounds, People v. Tillis, 956
P.2d 409 (Cal. 1998), and Cal. Civ. Proc. Code 2018.030
(permitting discovery of attorney work-product if denial of
discovery will unfairly prejudice the party seeking discovery in
preparing that partys claim or defense or will result in an
injustice, unless the work-product is a writing that reflects
an attorneys impressions, conclusions, opinions, or legal
research).
Attorney mental impressions, if extant at all in the
Christensen-Pellicano recordings, were a vanishingly small part
and were immaterial at trial. What mattered most at
Christensens trial the instructions from Christensen to
Pellicano, and Pellicanos factual reports about what he was
hearing people say were therefore the least protected type of
work product, if they were work product at all.
97
Christensens citation (COB 39) of In re Grand Jury

Proc., 727 F.2d 941, 942 (10th Cir. 1984) is off-point. That
case was concerned with Fifth Amendment testimonial privileges,
and said nothing about Fourth Amendment standing. Id. at 943.
(continued...)
143
Finally, as the jury found beyond a reasonable doubt,

Christensen used Pellicano to illegally obtain other lawyers
confidential communications with their clients.
Given
Christensens knowledge of what Pellicano was doing to other

lawyers calls, Christensen can hardly claim an expectation that
Pellicano would refrain from acting similarly to him.
And
whatever Christensens subjective beliefs, society should not

recognize as reasonable an expectation of privacy in
conversations where Pellicano, at Christensens command,
disclosed privileged communications stolen from other litigants.
A legitimate expectation of privacy means more than a subjective
expectation of not being discovered.
Caymen, 404 F.3d at 1200.
Defendants misuse of the attorney-investigator relationship to

invade other lawyer-client relationships should preclude him from
relying on his own status as a lawyer to establish standing.
Cf.
id. (no reasonable expectation in stolen or fraudulently obtained

laptop).
(...continued)
Insofar as the case said anything about privacy more generally,
the cases main lesson is that the attorneys interest in clientfiles is not an interest of ownership, nor privacy, and that
whatever privacy interests an attorney may have in a clients
files are limited to work-product protections regarding to the
lawyers mental processes. Id. at 945 (emphasis added).
Christensens mental processes (as opposed to the factual
information on the wiretap) are, as noted before, an exceedingly
minor part of the Christensen-Pellicano recorded calls.
144
b.
Pellicano Cannot Relitigate the Validity of the

November 2002 Search and Warrant, After Losing His
Prior Appeal
[W]hen an issue of ultimate fact has once been determined

by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.
v. Swenson, 397 U.S. 436, 443 (1970).
Ashe
The November 2002 Warrant
Pellicano now challenges is the same one he challenged in his

prior criminal case, where this Court upheld the warrants
validity.
Pellicano I, 135 Fed. Appx. at 45-47.
He raised
substantially the same challenges there as he does here.

assisted by experienced counsel.
He was
And Pellicano (who knew better
than anyone else what secrets lay hidden in PIAs computers) knew
that the same warrants and searches could very well lead to this
subsequent prosecution.
Pellicanos repetitious challenge is
therefore barred.
[C]ollateral estoppel has been an established rule of
federal criminal law [for decades].
Ashe, 397 U.S. at 443; see,
e.g., United States v. Arnett, 327 F.3d 845, 848-49 (9th Cir.
2003).
Once a Fourth Amendment issue is decided in a criminal
case, it has preclusive effect on the same parties future

litigation;98 and a court hearing a criminal case must apply
98
See Allen v. McCurry, 449 U.S. 90 (1980) (prior finding

that a search or warrant was valid in criminal case collaterally
estopped party from claiming the warrant was invalid in a
subsequent civil case); Ayers v. City of Richmond, 895 F.2d 1267,
(continued...)
145
issue preclusion to Fourth Amendment issues decided in the

defendants prior cases.99
As a result, where either the
government100 or the defense loses a Fourth Amendment issue in one

case, that party may not relitigate the issue in a subsequent
See United States v. McManaman, 673 F.3d 841, 847-48 (8th
case.
Cir. 2012); United States v. Quiroz, 137 Fed. Appx. 667, 672-73
(5th Cir. 2005); United States v. McNair, 439 F. Supp. 103, 10608 (E.D. Pa. 1977), affd, 571 F.2d 573 (3d Cir. 1978).101
The suppression decisions in the 2002 Case and Pellicano I
estopp Pellicano here, because the case met all four conditions
for federal-estoppel identified in In re Palmer, 207 F.3d 566,
568 (9th Cir. 2000).
First, Pellicano had a full and fair
98
(...continued)
1271-72 (9th Cir. 1990).
99
Steele v. United States, 267 U.S. 505, 506-07 (1925)

(because defendant previously sued for return of property
alleging invalid warrant, res judicata barred relitigation of
warrants validity in subsequent criminal trial); United States
v. Rosenberger, 872 F.2d 240, 241-42 (8th Cir. 1989) (criminal
defendant may not reargue validity of warrant where warrant had
been found valid in defendants pre-indictment suit for return of
items under Rule 41).
100
E.g., United States v. Comprehensive Drug Testing, 621

F.3d 1162, 1170 (9th Cir. 2010) (en banc) (per curiam).
101
See also, e.g., United States v. Fernandez-Santos, 2010

WL 5563903, at *2-4 (D. P.R. Nov. 8, 2010); United States v.
Arakelyan, 2008 WL 1849126, at *4 (E.D. Pa. Apr. 25, 2008);
United States v. Lombard, 853 F. Supp. 543, 545-46 (D. Me. 1993);
Commonwealth v. Cabrera, 874 N.E.2d 654, 658-59 (Mass. 2007);
People v. Vogel, 55 Cal. Rptr. 3d 403, 406-10 (Cal. Ct. App.
2007).
146
opportunity to litigate the issue in the previous action.
Id.
Second, the suppression issues regarding probable cause and the

Franks hearing were actually litigated in [the prior] action.
Id.
Third, Pellicanos loss on the issues resulted in a final
judgment in that action.
Id.
party in the previous action.
And fourth, Pellicano was a

Id.102
Although there are exceptions to estoppel, none applies

here.
The crime with which Pellicano was charged in his first
case was a serious felony, not a misdemeanor.

Ericson, 656 F.3d 892, 897-98 (9th Cir. 2011).
the warrant was contested, not conceded.
Cf. Lockett v.
The validity of
Cf. United States v.
Duarte-Aldana, 364 Fed. Appx. 360, 362 (9th Cir. 2010).
The
burden of proof in seeking to suppress evidence in the two cases

was the same.
Cf. Clark v. Bear Stearns & Co., 966 F.2d 1318,
1322 (9th Cir. 1992).
Pellicano had the opportunity to appeal.
Cf. Lombardi v. El Cajon, 117 F.3d 1117, 1122 (9th Cir. 1997).103
102
The decisions in the 2002 Case and Pellicano I likewise

deserve estoppel under the alternative three-step process
announced in Arnett, 327 F.3d at 848. First, the issues in the
two actions were sufficiently similar and sufficiently material
in both actions; second, the issues were actually litigated in
the first case; and third, the issues were necessarily decided
in the first case, in that Pellicanos conviction depended on
the evidence gained from the searches whose suppression Pellicano
sought in both cases. Id.
103
Pellicanos voluntary decision to drop his appeal of the

Franks issue in Pellicano I after the district judge decided the
issue against him does not insulate him from collateral estoppel.
A defendants considered choice not to appeal is a risk, but
(continued...)
147
And the government seeks preclusion not as to an element of the

offense, but rather as to a preliminary issue, suppression.
Cf.
United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir.

2005).
Finally, there is no doubt that Pellicano had every
incentive to litigate the issues to the hilt in the 2002 Case,

given his obvious knowledge of the incriminating information on
his computer equipment, and his present contention that he and
his attorneys were aware of the investigation into his RICO and
wiretapping enterprise.
(JER 835-36, 921).
There is no
unfairness in holding him to the decision reached then.

Nor do Pellicanos claims of newly discovered evidence
exempt him from collateral estoppel.
Rather than meet his burden
to establish material new evidence, Pellicano has submitted an

argument that is long on accusations but nearly devoid of
citations to the record.
for purported quotations.
(POB 24-31).
There are no citations
(E.g., POB 27).
Pellicano claims that
a state-court hearing gave critical new information, but gives no
103
(...continued)
calculated and deliberate, and he cannot be relieved of such a
choice. Ackermann v. United States, 340 U.S. 193, 198. So long
as a party had the ability to appeal, the prior decision has
preclusive effect. See, e.g., Comprehensive Drug Testing, 621
F.3d at 1170 (applying Fourth Amendment issue preclusion where
government did not appeal its loss in prior case); Olson v.
Morris, 188 F.3d 1083, 1086-87 (9th Cir. 1999) (barring
relitigation of claims resolved in administrative hearing, where
litigant could have appealed the administrative finding but chose
not to); Jacobs v. Arizona, 491 Fed. Appx. 837 (9th Cir. 2012)
(applying res judicata to bar Fourth Amendment claim where party
could have appealed adverse decision but did not do so).
148
citation.
(POB 28-29).
The few citations Pellicano does give
are so unspecific that they require looking through hundreds of

pages to find the point that Pellicano claims will be supported.
(See, e.g., POB 28 (citing ER5044-5305" for a six-line quote);
POB 25 (citing ER987-1085" for two-line quote)).
This Court requires that [e]very assertion in briefs
regarding matters in the record shall be supported by a reference
to the location in the excerpts of record where the matter is to
be found.
Ninth Cir. Local R. 28-2.8.
By electing to treat
judges as if they were pigs sniffing for truffles in a case

with a record of this magnitude, In re Oracle Corp. Sec. Litig.,
627 F.3d 376, 386 (9th Cir. 2010), Pellicano has forfeited his
argument.104
Such behavior would justify denial of the Franks
appeal even if this were Pellicanos first challenge the warrant.

See United States v. Rewald, 889 F.2d 836, 861 n.24 (9th Cir.
1989) (declining to consider defendants arguments because he did
not afford[] us the benefit of citation to the record).
Given
that Pellicano has challenged the warrant multiple times in

multiple courts,105 including this Courts prior examination and
104
Pellicanos lax citation practice is particularly

inexcusable, because the district court order under appeal had
warned him that courts should not be required to waste [their]
time delving through hundreds or thousands of pages . . . in
order to find evidence that counsel has not properly cited.
(JER 169).
105
In addition to the federal court rulings denying

(continued...)
149
affirmation of the warrant, this Court should not hesitate to

conclude that Pellicano has either waived his arguments, or
failed to present new evidence justifying a second bite at the
apple.
Finally, while the government did not raise collateral
estoppel as such before the district court,106 that is no reason
to deny its application.
Regardless of the parties arguments,
this Court may affirm on any ground supported by the record.

United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006).
With regard to collateral estoppel, this Court not only may
overlook waiver, but may even raise the issue sua sponte.
Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 329 (9th
105
(...continued)
Pellicanos challenges to the warrant, the state court also
denied Pellicanos motion to traverse the warrant, after full
briefing. (RJN 170). In total, therefore, Pellicanos
challenges to the November 2002 Warrant have now been denied by
two federal district judges, one state court judge, and a panel
of this appellate Court.
106
The government maintained that the issues raised and

decided by the Ninth Circuit [in Pellicano I], to the extent they
were based on particular factual findings on the record before
it, are binding.
(3/19/07 RT 37) The government acknowledged
that if the [d]efense wants to come forward with new evidence
that supports . . . a Franks hearing then the district court
would not be bound by the Franks ruling in the 2002 Case, but
that where there are claims that were litigated based on the
factual record that remains the same, we dont believe there is a
cause or basis to reopen those matters here. (Id.) The
government further agreed that [i]f there is new evidence . . .
[or] new challenges to the warrant that werent raised or
considered by Judge Tervizian or the Ninth Circuit, then those
would be fair game. (Id. at 37-38.)
150
Cir. 1995).
This Court has even applied collateral estoppel on
appeal where there was a complete absence of any discussion of

[preclusion] . . . in the proceedings below.
Id. at 327, 330;
see also Caldera v. Northrop Worldwide Aircraft Servs., Inc., 192

F.3d 962, 970-71 (Fed. Cir. 1999) (following Clements and
applying collateral estoppel for the first time on appeal).
That is because, unlike claim preclusion (which could leave some
issues forever unadjudicated), collateral estoppel bars only
re-litigation of an issue that has been actually litigated and
necessarily decided.
Clements, 69 F.3d at 330.
Thus, the
private interest in new litigation is reduced (since the parties

have already litigated the issue), and the public interest would
be greatly advanced by the application of issue preclusion to
assist in the conservation of our judicial resources.
That reasoning applies here.
Id.
Pellicano has already expended
this Courts resources once in his challenges to this warrant.

His challenges have been rejected by two federal district judges,
plus one state court, in three separate cases, and he has already
lost once on appeal.
His private interest in rechallenging the
warrant yet again is at a nadir, whereas the public interest is

immense, since applying estoppel not only will
conserve
judicial resources and avoid the cost and vexation of multiple
151
lawsuits,107 but also will reduce the issues in this otherwise

voluminous case and avoid unnecessary constitutional
litigation.108
Clements supports that [a party] must . . . have
suffered some prejudice for a waiver argument to defeat res

judicata.
McGinest v. GTE Serv. Corp., 247 Fed. Appx. 72 (9th
Cir. 2007).
Pellicano suffered no prejudice, since there is
nothing he would have done differently in this, his fifth

challenge, had the government raised estoppel earlier.
Following
Clements (and bearing in mind his failure to support claims of

new evidence with citations and particularity) this court should
decline to hear his repetitive claim.
c.
Evaluated on the Merits, the November 2002 Warrant

and Search Were Constitutional
The procedural bars discussed above mean that this Court

need not consider defendants challenges to the November 2002
Warrant on the merits.
Even if considered on the merits,
however, defendants challenges fail.

(1)
107
The Supreme Courts Later Scheidler Decision

Does Not Affect the Agents Earlier Good-
Allen, 449 U.S. at 94.
108
Because Christensen lacks standing to challenge the

November 2002 Warrant, the application of collateral estoppel to
Pellicanos thrice-litigated claims about that same warrant will
remove from this Court the requirement of deciding the issues
related to that warrant. See Lyng v. Nw. Indian Cemetery
Protective Assn, 485 U.S. 439, 445 (1988) (a fundamental . . .
principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of
deciding them).
152
Faith Reliance on the Magistrates Probable

Cause Finding
Defendants argue the affidavit for the November 2002 Warrant
was defective for failing to establish that Pellicano had
obtained or sought to obtain anothers property.
(COB 22).
Defendants therefore contend the affidavit failed to establish

probable cause for a Hobbs Act violation.
These claims fail,
because, as this Court previously found, the agents relied in

good-faith on the magistrates probable cause finding.
(a)
Standard of Review
This Court review[s] for clear error a magistrate's finding

of probable cause to issue a search warrant, and give[s] great
deference to such findings.
1174, 1177 (9th Cir. 2011).
United States v. Krupa, 658 F.3d
The district courts finding of
good-faith reliance under Leon is reviewed de novo.
United
States v. Brown, 951 F.2d 999, 1004 (9th Cir. 1991).

(b)
The Agents Were Entitled to Rely on the

Magistrates Probable Cause Finding
Under Leon
Given the great deference accorded to a magistrates

finding of probable cause and the clear error review that
applies, Krupa, 658 F.3d at 1177, probable cause for the November
2002 Warrant should be upheld on its own terms.
See United
States v. Jennen, 596 F.3d 594, 598 (9th Cir. 2010) (To uphold
the issuance of a warrant, we need only find that the issuing
153
magistrate had a substantial basis for finding probable

cause.).
But this Court need not decide that question.
Even if
probable cause were lacking, that would not necessarily mean

that the exclusionary rule applies.
555 U.S. 135, 140 (2009).
[W]hen law enforcement officers have
acted in objective good faith or their transgressions [are]

minor, excluding the evidence would offend[] basic concepts of
the criminal justice system.
897, 907 (1984).
United States v. Leon, 468 U.S.
This is particularly true where the officer
obtained a search warrant from a judge or magistrate and acted

within its scope.
Id. at 920.
Because [i]t is the
magistrates responsibility to determine whether [an] officers

allegations establish probable cause, in the ordinary case, an
officer cannot be expected to question the magistrate's
probable-cause determination or his judgment that the form of the
warrant is technically sufficient.
Id. at 921.
Because there
would be no value in [p]enalizing the officer for the

magistrates error, id., Leon announced a good-faith rule: In
the absence of an allegation that the magistrate abandoned his
detached and neutral role, suppression is appropriate only if the
officers were dishonest or reckless in preparing their affidavit
or could not have harbored an objectively reasonable belief in
the existence of probable cause.
154
Id. at 926.
That standard defeats defendants claim.
Whether or not the
warrant would withstand de novo review now, the warrant was

issued by the Chief Magistrate Judge after pre-submission review
by multiple attorneys.
Given the law at the time, the agents
relied on the multiply-reviewed warrant in good faith, as a prior

panel of this Court, plus two district judges and a state-judge,
have held.109
Scheidler, 537 U.S. at 404-05, which reversed Hobbes Act and
RICO convictions of protesters who prevented abortion clinics
from seeing patients, established that, for a Hobbs Act extortion
violation to occur, there must be not merely interference with
another persons rights, but also an attempt to obtain the
victims property by acquiring it for oneself.
(i)
As Multiple Courts Have Found, the

Law on the Hobbs Acts Obtaining
Element Was Unclear Before
Scheidler
But Scheidler was decided months after the November 2002

Warrant and search.
At the time of the warrant and search,
plenty of authority promoted the opposite view.
Scheidlers
eventual holding overturned not only the Seventh Circuit decision

that Scheidler reversed, but also four other circuits
109
Defendants do not maintain that the magistrate

abandoned his detached and neutral role.
155
precedents.110
The Supreme Court had ruled that extortion as
defined in the statute in no way depends upon having a direct

benefit conferred on the person who obtains the property.
United States v. Green, 350 U.S. 415, 420 (1956).111
The Court
had further endorsed a broad view of the statute, instructing

that the Hobbs Acts words do not lend themselves to restrictive
interpretation, but rather manifest . . . a purpose to use all
the constitutional power Congress has to punish interference with
interstate commerce by extortion, robbery or physical violence.
110
See United States v. Arena, 180 F.3d 380, 394 (2d Cir.
1999) (even when an extortionist has not taken possession of the
property that the victim has relinquished, she has nonetheless
obtain[ed] that property if she has used violence to force her
victim to abandon it . . . . [W]here the property in question is
the victims right to conduct a business free from threats of
violence and physical harm, a person who has committed or
threatened violence or physical harm in order to induce
abandonment of that right has obtained, or attempted to obtain,
property within the meaning of the Hobbs Act.); Libertad v.
Welch, 53 F.3d 428, 438 n.6 (1st Cir. 1995) (applying Hobbs Act
to attempt to shut down abortion clinic); Northeast Womens Ctr.
v. McMonagle, 868 F.2d 1342, 1350 (3d Cir. 1989) (similar);
United States v. Santoni, 585 F.2d 667, 673 (4th Cir. 1978) (the
gravamen of the offense is loss to the victim rather than
benefit to the extortionist). Indeed, Scheidler went
considerably beyond what any federal court had ever done to
narrow the Hobbs Act. See Scheidler, 537 U.S. at 412 (Stevens,
J., dissenting) (observing that [n]o other federal court has
ever construed this statute so narrowly as the Scheidler
majority).
111
Green stands for the proposition that the person who

obtains property may be different from the person on whom a
benefit is conferred thus indicating that the word obtain
under the Act meant something different than receiving the
benefit of the extortion.
156
United States v. Culbert, 435 U.S. 371, 373 (1978).112
In short,
Supreme Court case law, as interpreted around the country, gave

ample precedent for finding probable cause on the November 2002
Warrant when that warrant was approved and executed.
Nor did Ninth Circuit law compel prediction of Scheidlers
result or bar the November 2002 Warrant.
Rather, before the
Supreme Courts Scheidler decision, this Court had more than once
approved of Hobbs Act prosecutions of extortionists who obtained
no property from their victims.
See United States v. Hoelker,
765 F.2d 1422, 1425 (9th Cir. 1985) (prosecution upheld for
forcing victim to give up his intangible right to make personal
and business decisions about the purchase of life insurance . . .
free of threats and coercion); United States v. Zemek, 634 F.2d
1159, 1174 (9th Cir. 1980).
Zemek held that the right to
solicit business free from threatened destruction and physical

harm falls within the scope of protected property rights under
the Hobbs Act, 634 F.2d at 1174 - a rule with obvious
application to Pellicanos and Proctors attempt to extort Busch
into desisting from soliciting her newspaper client to publish
her articles.
Moreover, because the right to solicit business
free from threatened destruction and physical harm, id.
112
Scheidler later narrowed Culberts broad reading of the

Act by specifying that the broad-reading principle applies only
where the commerce-clause scope of the law is at issue.
Scheidler, 537 U.S. at 408. But that gloss from Scheidler was
not available to the agent executing the pre-Scheidler warrant.
157
(emphasis added), is something that cannot be obtained by

another, both Hoelker and Zemek could fairly be read to support
the proposition that the destruction of an intangible right was
the legal equivalent of appropriating control of the right,
thereby satisfying the requisite obtaining element under
1951.
Pellicano I, 135 Fed. Appx. at 46 n.2.
Given Hoelker
and Zemek, therefore, there was ample reason to believe, that the
November 2002 Warrants Hobbs Act theory was valid until
Scheidler changed the law.
Without addressing or even citing Hoelker and Zemek, (COB
21-22), defendants rely on statements in United States v. Panaro,
266 F.3d 939 (9th Cir. 2001), to say that this Court had
foreclosed such theories even before Scheidler.
See Panaro, 266
F.3d at 948 ([U]nder the Hobbs Act, extortion . . . does not

occur when a victim is merely forced to part with property.
Rather, there must be an obtaining: someone . . . must receive
the property of which the victim is deprived.).
But what it
means to obtain was not at issue in Panaro: the Panaro

defendants raised no challenges based on the statutes
obtaining element,113 and there was no doubt that they had tried
to appropriate the victims business for themselves.
113
Id. at 946,
See id. at 947 (noting defendants challenges only that

no threat was communicated and that there was no nexus to
interstate-commerce); see also Br. of Appellant, United States v.
Panaro, Case No. 99-10446 (9th Cir.), available at 2000 WL
33977159, at *5.
158
947.
Furthermore, as this Court has said, Panaro simply did not
address Hoelker or Zemek.
Pellicano I, 135 Fed. Appx. at 46.
Nor could Panaro have implictly overruled Hoelker and Zemek,

since that could have been done only by an en banc panel.
47.
Id. at
As United States v. McFall, 558 F.3d 951, 956 (9th Cir.
2009), put it, Scheidlers rule (which defendants claim was

presaged by Panaro) created considerable tension with cases
such as Zemek.
To have expected the agents to resolve this
tension more accurately than the Chief Magistrate would be

expecting too much under Leon.
That is particularly so given the unusual context in which
Panaros brief statement on the interpretation of obtain arose
inserted, sua sponte and without adversarial briefing, in an
amended opinion released months after the original opinions and
mandates issuance.114
Panaros discussion of the obtaining
element was not central to [the] panels decision, Sanchez v.
114
Compare United States v. Panaro, 241 F.3d 1104 (9th Cir.

2001) (original opinion), with Panaro 266 F.3d at 943 (amended
opinion). See United States v. Panaro, Case No. 99-10446 (9th
Cir.), Dkt. Entry 58 (rehearing petitions issues, not including
meaning of obtain element). It is not surprising that agents
in Los Angeles would be unaware of dicta belatedly added to the
text of an opinion in a case from another district, where the
text at issue was not necessary to the opinion, was not litigated
by the parties, had not yet been cited by another Ninth Circuit
decision, and was not referenced in model jury instructions, see
Instr. 8.117, Ninth Cir. Model Jury Instr. (2003 ed.) (repeating
Zemeks holding for the definition of property, but neither
citing Panaro nor giving that cases elaboration of the
obtaining element).
159
Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008), and did not decide
an issue presented through the adversary process.
This Courts
law on the authority of such dicta was unsettled in November

2002.115
Just as Agent Ornellas was not required to predict
Scheidler, he cannot be faulted for failing to predict in 2002

that the dicta in Panaro (presaging the Scheidler rule that
McFall describes as being in considerable tension with the
Circuits prior case law), might subsequently be made binding
through this Courts later alteration of its rules on dicta.
Because thoughtful and competent lawyers and judges could
have disagreed on whether, after Panaro, the misconduct that was
the subject of this investigation constituted a violation of the
Hobbs Act, this Court should follow Pellicano I in conclud[ing]
the officer manifested objective good faith in relying on the
first warrant.
Pellicano I, 135 Fed. Appx. at 47.116
Indeed,
115
Not until 2003 did this Court hold that Ninth Circuit
dicta is binding on an issue that was not before the prior
panel but was germane to the eventual resolution of the case
and resolved after reasoned consideration in a published
opinion. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.
2003). (Although Miranda B. cites United States v. Johnson, 256
F.3d 895, 914 (2001) (en banc), for that point, the portion of
Johnson that Miranda cites had only received the votes of four
members of Johnsons en banc panel. See Johnson, 256 F.3d at
898. The rule therefore was not established until Miranda B.)
116
Christensen claims that United States v. McFall, 558

F.3d 951, 957 n.7 (9th Cir. 2009) says that Scheidler . . .
simply clarified Panaro, and did not make new law. (COB 23).
But the McFall footnote Christensen cites says nothing of the
sort indeed, it does not cite Panaro at all. McFall, 558 F.3d
(continued...)
160
Pellicano Is good-faith conclusion has only gotten stronger in

the years since that decisions issuance, given this Courts
acknowledgment in McFall of the tension between Panaro and Zemek,
and given recent Supreme Court decisions underscoring the goodfaith rules importance.
See Davis v. United States, 131 S. Ct.
2419 (2011); Herring v. United States, 555 U.S. 135 (2009); see
also Messerschmidt, 132 S. Ct. 1235 (2012) (addressing equivalent
rule under qualified immunity).
Indeed, the history of this case proves the point.
Judge
Tervizian, in the 2002 Case, said that the issue of what it

means to obtain property under the Hobbs Act . . . was and is
one sufficient to create disagreement among thoughtful and
competent judges. (RJN 23).
This Court, in Pellicano I, agreed
that thoughtful and competent lawyers and judges could have

disagreed on whether, after Panaro, the misconduct that was the
subject of this investigation constituted a violation of the
Hobbs Act.
Pellicano I, 135 Fed. Appx. at 46.
116
The district
(...continued)
at 957 n.7 (cited at COB 23). McFall elsewhere says that
Scheidler agreed with Paranos conclusion on the necessity of
obtaining property to state a Hobbs Act offense. Id. at 956.
But McFall also stated that Scheidlers rule created
considerable tension with Zemek. Id. at 957 n.7. In that
respect, McCall reinforces that Panaro (as forerunner to
Scheidler) was in tension with Zemek. Since Panaro (unlike
Scheidler) could not have overruled Zemek, McFall therefore
bolsters the proposition that, even if Scheidler creates clarity
now, there was no such clarity at the time of the November 2002
Warrant.
161
court here likewise agreed and followed Pellicano I.

175).117
(JER
And McFall found considerable tension between the rule
presaged in Panaro and other Ninth Circuit cases that Panaro

could not have overruled.
In short, judge after judge has been
unable to find the clarity in pre-Scheidler Ninth Circuit law

that defendants say the agent should have found.
Even reviewing
courts accord[] great deference to a magistrates

determination.
Leon, 468 U.S. at 914.
To expect Agent Ornellas
to have divined clarity where so many judges have not would

expect too much and countermand Judge Blocks warrant.
That is particularly so given the many attorneys who
approved the Hobbs Act theory before submission to the
magistrate.118
[A]n officers consultation with a government
attorney is of significant importance to a finding of good

faith.
Brown, 951 F.2d at 1005; see, e.g., Messerchmidt, 132
S.Ct. at 1249.119
117
Pellicanos request for a Leon hearing was also denied

in his state case. (RJN 171).
118
RJN 19-20. More specifically, this warrant and the

supporting affidavit were reviewed by an Assistant U.S.
Attorney, a Section Deputy Chief, a Section Chief, and the Chief
of the Criminal Division in the U.S. Attorneys Office, as well
as by Senior Litigation Counsel and a Deputy Chief with the
[Departments] Organized Crime and Racketeering Section.
Pellicano I, 135 Fed. Appx. at 51 (Reinhardt, J., dissenting).
119
See also, e.g., United States v. Mendonsa, 989 F.2d 366,

369-70 (9th Cir. 1993); Ortiz v. Van Auken, 887 F.2d 1366, 1371
(9th Cir. 1989); United States v. Freitas, 856 F.2d 1425, 1431
(continued...)
162
(ii) Christensens Contrary Arguments

Are Meritless
Christensen claims that [t]he Leon exception does not
extend to legal error as to whether the supporting affidavit
alleged the elements of a crime.
(COB 22).
But that novel
assertion is barred by this Courts precedent.
In Benson v.
Hightower, 633 F.2d 869 (9th Cir. 1980), agents executed a search
warrant and made an arrest premised on their mistaken belief that
the federal currency-smuggling statute applied to South African
Krugerrands.
Id. at 869-70.
Although the charges were later
dropped on the apparently uncontested ground that the currency

smuggling law did not encompass the Krugerrands, id. at 871, this
Court applied qualified immunity to the agents actions.
In so
doing, the Court specifically rejected the same arguments

Christensen makes here, ruling instead that the officers
mistaken understanding of what constituted currency-smuggling
under the law does not, per se, vitiate the qualified immunity
defense.
Id.
Because the standards for qualified immunity and
for Leon good faith are the same, Messerschmidt, 132 S.Ct. at
1245 n.1, Bensons ruling applies equally to the Leon good-faith
issue here.120
119
(...continued)
(9th Cir. 1988); United States v. Michaelian, 803 F.2d 1042, 1047
(9th Cir. 1986).
120
Although Christensen (COB 22) cites Beir v. City of

(continued...)
163
That makes sense, since a purely legal issue (such as the

elements of a federal offense) is precisely the kind of thing
that an agent should expect the magistrate to know best.
Since
[p]enalizing the officer for the magistrates error . . .

cannot logically contribute to the deterrence of Fourth Amendment
violations,
Brown, 951 F.2d at 1004, the good-faith doctrine
must indeed apply.121

(iii)Any Error in the Warrant Was
Harmless
120
(...continued)
Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004), to support his
contrary claim, Beir had nothing to do with good-faith reliance
on a warrant under Leon. Rather, Beir stated that officers
cannot justify warrantless arrests based on mistakes of law. Id.
at 1062. That is a far different question from whether an agent
may rely in good faith on the magistrates determination that the
facts in the affidavit establish probable cause. Good-faith
reliance under Leon, by definition, involves mistakes-of-law
mistakes about whether the facts as stated create probable cause
of the specified violation. And Christensens attempt to require
an inquiry into the agents subjective understanding of the
elements of the offense would violate the general rule against
turning Fourth Amendment questions into questions of subjective
intent. See Devenpeck v. Alford 543 U.S. 146, 153-54 (2004).
121
Christensen appears to have abandoned his earlier

arguments that the government cannot benefit from good-faith
reliance because a separate unit of the Department of Justice
(not the U.S. Attorneys Office) had filed an amicus brief in the
Supreme Court Scheidler litigation before the November 2002
Warrant. The argument is wisely dropped. Given the size of the
United States government, the number of cases it participates in,
and the breadth of jurisdictions it practices in, it would be
foolish for positions taken in one case in one court to bind the
government as to an unrelated case in another court. See United
States v. Mendoza, 464 U.S. 154, 159-60 (1984) (explaining
reasons why nonmutual collateral estoppel does not operate
against the government).
164
Whether or not the affidavit presented probable cause for a

Hobbs Act violation, it presented probable cause for violations
of state laws.
See, e.g., Cal. Penal Code 422 (threats); id.
594 (vandalism).
(Indeed, after Pellicanos federal conviction,
not only was he prosecuted in state court for the threats against
Busch; he was convicted and given a three-year sentence.
162-63).122
(RJN
If the federal application had been denied, agents
and police would not simply have given up on protecting a Los

Angeles Times reporter under threat for her First Amendment
activities.
Nor would they have ignored Proctors tape-recorded
statements confessing involvement and giving numerous

corroborating details.
Rather, if a federal warrant had been
denied, there would have been a state warrant permitting the same
search and leading to the same results -- meaning that the
evidence would inevitably have been found.
Because no Fourth Amendment violation occurs where an
officer merely misunderstands which statute was violated,
Devenpeck, 543 U.S. at 153-54, and because suppression is
inappropriate for matters that would have been discovered even
122
Pellicano (POB 25 n.8) asserts without citation that

there could not have been a California threats offense under
Penal Code Section 422 without evidence of an actual bullet hole.
That contention is disproved by his state-court conviction under
Section 422 for this very threat (RJN 162-63, 158), a conviction
that happened after the preliminary hearing (RJN 170) that
Pellicano maintains (POB 28-29) proved the absence of a real
bullet.
165
without the violation, Nix v. Williams, 467 U.S. 431 (1984), any
error was harmless and suppression should not lie.
(2)
The District Court Properly Denied

Defendants Request for a Franks Hearing
Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978),

defendants who make a substantial and preliminary showing that
a warrants affidavit contained purposefully or recklessly untrue
statements that were necessary to the finding of probable cause
may obtain a hearing to test their contention.
Defendants here
sought such a hearing based on purported misstatements in Agent

Ornellas application for the November 2002 Warrant.
For
Christensen, that request was barred for lack of standing, and

for Pellicano it was barred by collateral estoppel.
Even
considered on the merits, however, defendants claims fail.

(a)
Standard for Franks Hearing and Standard

of Review on Appeal
Because warrant affidavits are presumed valid, United States

v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002), a party
moving for a Franks hearing must make two showings.
First, he
must submit allegations of deliberate falsehood or of reckless

disregard for the truth, accompanied by an offer of proof.
Id.
Second, he must show materiality -- i.e., that the affidavit

cannot support a finding of probable cause without the allegedly
false information.
United States v. Valencia, 24 F.3d 1106,
1109 (9th Cir. 1994).
On both elements, [t]he movant bears the
166
burden of proof and must make a substantial showing in order to

gain a hearing.
Chavez-Miranda, 306 F.3d at 979.
[T]here is a
higher bar for obtaining a Franks hearing on the basis of an . .

. omission as opposed to a[] . . . false affirmative statement.
United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008).123
Although this Court reviews the district courts application
of these standards de novo, all underlying factual findings are
reviewed for clear error.
980 (9th Cir. 2004).
United States v. Staves, 383 F.3d 977,
In particular, where the district court has
denied a Franks hearing, this Court review[s] the . . . findings

of the district court regarding materiality under the clearly
erroneous standard, United States v. Fernandez, 388 F.3d 1199,
1237 (9th Cir. 2004), and review[s] for clear error the district
courts . . . finding that the government did not intentionally
or recklessly make false statements in the affidavit, United
States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).124
123
See also United States v. Colkley, 899 F.2d 297, 301

(4th Cir. 1990); United States v. Reivich, 793 F.2d 957, 961 (8th
Cir. 1986) (recklessness may be inferred from omission in
affidavit only when the material omitted would have been
clearly critical to the finding of probable cause which
usually requires pointing to additional circumstances showing
recklessness besides the mere omission); United States v. Davis,
617 F.2d 677, 694 (D.C. Cir. 1979). See Lombardi v. City of El
Cajon, 117 F.3d 1117, 1124 (9th Cir. 1997) (embrac[ing] the
. . . reasoning of Reivich and Colkley).
124
Christensens argument that the standard of review is de

novo (COB 24) omits mention of these clear-error standards.
167
(b)
None of Defendants Complaints

Establishes Intentional or Reckless
Dishonesty, and None Was Material to
Probable Cause
In a carefully reasoned opinion, the district court examined

each of defendants claims of misstatements or omissions, and
found each claim wanting.
That decision must be affirmed:
defendants cannot establish clear error in the courts

determination that probable cause would have been present even
without the challenged statements, nor in its finding that any
errors or omissions were not reckless or intentional.
(i)
The District Court Did Not Clearly

Err in Its Determination that the
Challenged Statements Would Not
Have Altered Probable Cause
The district courts decision should be upheld because it

did not clearly err in its finding that defendants purported
errors and omissions would not have altered probable cause.
There is no merit to defendants attempt to defeat probable
cause by exaggerating the minor inconsistencies in Proctors
account of his attack on Buschs car.
As the district court
found, [m]ost of the supposedly erroneous details given by

Proctor and omitted by Ornellas are of little consequence.
168).
(JER
The minor discrepancy between the plastic container
Proctor claimed to have put the fish in and the aluminum noted in
police reports was of no consequence to probable cause, because
the far more telling fact was that Proctor knew that a container
168
was used at all.
(Id.)
Similarly, Proctors use of the word
pasted, rather than taped, in describing how he affixed the

sign to Bushs car is not significant compared to the more
telling fact that Procter knew the sign was affixed in some way
to the windshield.
(Id.)
And it would not have altered
probable cause if the affidavit had mentioned that Buschs street

was not narrow and that it had an egress, because in the eyes of
. . . a judge reviewing the warrant, the weight of [any]
inconsistency with Proctors statements would have been
lessen[ed] by the commonsense possibilities that Proctor could
have perceived or remembered the street incorrectly, or that
poorly parked cars or some other temporary condition when
Proctor was there could have narrowed the street for his
purposes.
(JER 170).125
Similarly, when examining the purported discrepancy between

defendants claim that the damage to Buschs windshield was
caused by something other than a bullet and their interpretation
of Proctors statements as saying that he shot the windshield,
the court correctly found no affect on probable cause.
As the
district court found, even [h]ad Ornellas added that no bullet
125
See also id. (noting possibility that any discrepancy

could simply mean that Proctor committed the crime and was
exaggerating the risk of discovery or capture); p. __ & n.__,
infra (noting that Buschs street was not especially wide, and
that it restricted the ways in which drivers could turn when
exiting).
169
had been found, the probable cause determination would have been
the same.
(JER 169).
That is because, as the court found, if
Proctor overstated the way the windshield was damaged, that did
not mean that he had not actually committed the attack.
To the
contrary, Proctors knowledge of other details including the

precise location of the hole in the windshield made it clear
that he was involved in the attack.
(Id.)
From the standpoint
of making the threat against Busch effective, it was irrelevant

whether Proctor shot a hole in the windshield or just used a
tool to simulate a bullet hole - if he claimed to have done the
former when he really did the latter, that seemed simply like
exaggerating a detail to sound[] like more of a tough guy.
(Id.)
Under the clear error standard, the district courts finding
on materiality cannot be reversed unless it was not even
plausible.
United States v. Working, 224 F.3d 1093, 1102
(9th Cir. 2000) (en banc).
In finding, overall, that minor
consistencies would not have changed the probable cause judgment,

the court was in fact highly reasonable.
point the finger at Pellicano.
Pellicano along with himself.
Proctor did not just
Rather, Proctor incriminated

It is well-settled in this
circuit that such declaration[s] against penal interest meet[]

the reliability requirements for probable cause.
170
United States
v. One 56-Foot Yacht, 702 F.2d 1276, 1284 (9th Cir. 1983).126
Moreover, as the district court found, Proctors account was
largely corroborated by non-public details of the crime, such
that any minor inconsistencies were outweighed by these factors
indicating reliability.
That the purported contradiction
between Proctors recorded statement and the physical evidence is

likely due to a misinterpretation of Proctors ambiguous phrase
about put[ting] a bullet hole in the window, is another reason
why it would not have changed the probable cause determination
if the affidavit had contained further facts showing that Buschs
window was not shot.
(C.R. 1666, at 1-2.)
Defendants other attempts to prove materiality also fail.

Defendants (COB 30) accuse Ornellas of misinforming the court
when he said that his experience as a licensed private
investigator led him to believe that certain records would be
found at PIAs offices.
But every bit of the information
ascribed to Ornellas private-investigative experience was

independently provided on the same page from another source whose
veracity defendants do not challenge.127
Deleting Ornellas
126
One 56-Foot Yacht concerned the informant-reliability

requirement under Aguilar v. Texas, 378 U.S. 108 (1964). Its
reasoning applies a fortiori now that Aguilars absolute
requirement to prove reliability in every case has been
superseded by the totality of the circumstances test of
Illinois v. Gates, 462 U.S. 213, 230 (1983).
127
See JER 36.
Ornellas brief statement about his own

(continued...)
171
private-investigator experience from the affidavit would leave

precisely the same facts established through another,
unchallenged part of the warrant -- the very definition of
immateriality.
See Valencia, 24 F.3d at 1109.128
Defendants also attack (COB 27-28) details in the

affidavits discussion of the threat against Zeman.
But as the
district court found, the entire discussion of Zeman is

virtually irrelevant to the finding of probable cause, because
the main determinant for probable cause was Proctors statements
127
(...continued)
expectations as a private investigator came immediately after the
affidavits report of what Michael Wacks, a former FBI SA who
has been a licensed private investigator for approximately three
years, said. (JER 36). Wacks statement included the same
information that Ornellas had predicted from his own privateinvestigation experience See id. (Wacks statement that private
investigators client files maintained at their places of
business will typically contain . . . information indicating
the identity of the client and the purpose for which the
investigator has been retained, as well as records of client
contacts, work performed for clients, and billing/payment
information)).
128
Similarly, defendants continuing effort (COB 29) to

attack the warrantless search of Proctors home is immaterial.
How Proctors home was searched (and the district court found no
reason to doubt Ornellas account (JER 174)) was irrelevant to
probable cause. Because Pellicano had no standing to claim a
Fourth Amendment violation for the search of Proctors residence,
any Fourth Amendment violation with respect to Proctor would not
have been a basis to deny the warrant to search PIA. The only
thing that could possibly matter to probable cause as to PIA was
the description of the items found in Proctors home and
defendants make no claim that the affidavit was misleading as to
those.
172
regarding the Busch threat (JER 170 (emphasis added)) a

decision that was not clearly erroneous.
Defendants other complaints that the affidavit should
have disclosed that the informant was not only trying to avoid
prosecution but also being paid,129 that there were once
unsubstantiated accusations that Ornellas had misremembered
details in another case,130 and that the government should have
129
Even if the informant were paid as Christensen asserts

(COB 29), that would not affect the informants credibility as a
conduit for Proctors statements, because Proctors statements
were recorded. Moreover, the affidavit disclosed that the
informant was then under indictment for conspiracy, mail and
wire fraud and other crimes in a case pending in the same
federal judicial district. (JER 30). The district court did not
clearly err in finding that additional information about payments
would not have altered probable cause, given the potential biases
that were already disclosed. (JER 173). See also United States
v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988) (only a very
naive magistrate would suppose that a confidential informant
would drop in off the street with such detailed evidence and not
have an ulterior motive. The magistrate would naturally have
assumed that the informant was not a disinterested citizen.).
130
In an attempt (COB 30) to smear Ornellas reputation,

defendants dredge up a disagreement between Ornellas and a
Special Assistant United States Attorney (SAUSA), in an
unconnected case, as to Ornellas recollection in 2003 of whether
he had provided a particular recording to a different AUSA in
1998. That dispute is wholly immaterial -- defendants must show
their entitlement to a Franks hearing on the affidavit by showing
that affidavits assertions about Pellicanos connection to the
Busch incident were intentionally or recklessly wrong and that
those wrong assertions caused a warrant to issue improperly.
They cannot simply label the affiant a liar and declare
themselves entitled to a hearing. In any case, the import of the
2003 dispute on Ornellas credibility was minor. No judge made a
finding that Ornellas was not credible. Rather, the SAUSA,
submitted a proposed finding asking the court to credit another
AUSAs recollection of the five-year-old event over Ornellas a
(continued...)
173
investigated other leads before seeking a warrant131 likewise

fail the materiality test, and certainly fail to establish clear
error by the district court.
Unable to refute these findings under the clear-error
standard, Christensen instead claims he does not need to show
materiality.
(COB 31-32).
He is wrong.
To get a Franks
hearing, a defendant must show that any purported omissions and

misstatements were material that is, he must show that probable
130
(...continued)
request wholly consistent with the belief that Ornellas error
was due to the passage of time, not intentional deceit. The
judge rejected the proposed finding, stating that I havent got
[a] basis to enter all these findings. (JER 865.) There is no
precedent requiring Ornellas to report an accusation that was
rejected by the judge. Nor would the unsubstantiated accusation
have altered the magistrates finding of probable cause.
131
Defendants claim that Ornellas should have waited to

interview Seagal before getting the warrant, and claim that
Ornellas believed Seagal to be unconnected to Proctors attack on
Busch. (COB 27). But the warrant was for permission to search
Pellicanos business not Seagals. Exactly who hired Pellicano
therefore was not relevant to probable cause if Proctor were
wrong about who had hired Pellicano, that only meant that
Pellicano had lied to Proctor, not that Proctor had lied about
Pellicano. (Proctor never claimed to have had first-hand
dealings with Seagal all he knew about Seagal was what
Pellicano told him.) And Proctors connection to Pellicano was
proven through phone records showing numerous phone calls
between Proctor and Pellicano during the relevant time period
(JER 174), as well as by Proctors knowledge of attack details
that were corroborated by physical evidence (JER 168-69). There
thus was no clear error in the district courts finding that
whether Seagal or someone else hired Pellicano was at best a
secondary issue with regard to the finding of probable cause to
search Pellicanos offices given the ample evidence that
Pellicano had hired Proctor to threaten Busch. (C.R. 1666, at
1.)
174
cause would not exist if the purported errors had been corrected.
See Franks, 438 U.S. at 171-72 (no hearing is required if
there remains sufficient content in the warrant affidavit to
support a finding of probable cause when material that is the
subject of the alleged falsity or reckless disregard is set fo
one side).
Contrary to Christensens claim, Mills v. Graves, 930 F.2d
729, 733 (9th Cir. 1991), does not hold that a warrant riddled
with falsehoods mandates a Franks hearing (COB 31) regardless of
materiality.
Mills said and held the exact opposite, reaffirming
that no Franks hearing need be held if there is sufficient

content in the affidavit apart from the challenged material to
support a finding of probable cause.
Mills, 930 F.2d at 733.
Indeed, Mills upheld the denial of a Franks hearing preciselyu

because [w]ith or without the challenged statements, there [was]
a sufficient basis for a finding of probable cause.
Id..
Nor can Christensen meet the standard of review by simply

asserting that statements were material (COB 32), without
explaining how the district court misjudged the matter.
This
Court reviews the district courts finding of non-materiality for

clear error.
Fernandez, 388 F.3d at 1237.
Thus, if the
district courts findings are plausible in light of the record

viewed in its entirety, the appellate court cannot reverse even
if it is convinced it would have found differently.
175
Husain v.
Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002).
Christensen
cannot meet that burden, and effectively has not even tried.132
Because defendants have failed to demonstrate clear error in the
district courts rejection of an element that was required for
their Franks claim, this Court need go no further.
Their claim
must be denied.
(ii) The District Court Did Not
Clearly Err in Finding that
Ornellas Did Not Intentionally
or Recklessly Mislead the
Magistrate
There is another, independent reason for rejecting
defendants Franks challenge:
The district court did not commit
clear error in its finding that none of defendants purported

errors involved intentional or reckless deception by Ornellas.
Reviewing the record as a whole, the district court found
that the attempt to portray Ornellas as intentionally or
recklessly deceptive rests entirely on conjecture and innuendo.
(JER 175).
Examining each alleged misstatement individually, the
district court found that Ornellas did not act recklessly or
132
Christensens brief contains another misstatement in its

citation of United States v. Kyllo, 37 F.3d 526, 530 (9th Cir.
1994), for the point that where a defendant establishes even a
single falsehood made with the requisite mental state, all facts
based on falsehoods in the affidavit must be disregarded (COB
32). The cited authority contains no such statement or
implication.
176
intentionally.133
Defendants do not show this to be clear
error.134
133
See JER 169 (there is no evidence that Ornellas

recklessly or intentionally withheld information that Buschs
windshield could have been damaged by something other than a
gunshot); JER 170 ([t]here is also no evidence that Ornellas
intentionally or recklessly withheld information about the
layout of Buschs street); JER 170 (no evidence that Ornellas
intended to mislead or was reckless as to whether he was
misleading in failing to distinguish John Rottger Sr. from John
Rottger, Jr.); JER 171 (contrary to defendants claim, about the
Zeman annotation on the Rottger photo-spread, [t]here is no
evidence of any pressure by Ornellas for Zeman to change his
mind); JER 171 (the possibility that Nasso could have had a
motive to smear Seagal was a minor point, and there is no
evidence that Ornellas intentionally or recklessly left this
information out).
134
Noting that an earlier application for a warrant to

search Proctors residence had been rejected, defendants imply
that Ornellas reacted by adding misstatements in his subsequent
warrant application regarding PIA. (POB 16-17). But a
comparison of the rejected application with the successful one
shows that Ornellas, rather than operating in bad faith, was in
fact faithfully relying on the magistrates application of the
Fourth Amendment. The rejection of the earlier application
appears to have been based on the magistrates insistence on
adding a special computer-search protocol, disallowing the
seizure of financial records and other documents, and narrowing
the scope of seizure of certain documents to those evincing
connections between Pellicano, Segal, Busch, and three kinds of
drugs. Compare C.R. 847-3, Ex. E at 5-6 (ITEMS TO BE SEIZED
list, with handwritten instruction to repeat 6 here[] and
reference procedures in 7-8"), with id. at 13-15 (computer
search protocol in paragraphs 6-8). The magistrate also
apparently criticized the Proctor search application for not
having a provision for the return of seized computers within 60
days absent a further order of the Court upon a showing of [good
cause]. (C.R. 847-3 Ex. E, at 15). Ornellas later application
for a warrant to search PIA accordingly made these changes. See
JER 16-18. Since the necessary changes to the search protocol
and seizure list were made, it is not surprising that the second
application was successful though the first was not. See
generally 3/19/07 RT 45-46 (AUSAs best recollection was that
(continued...)
177
More generally, the court found it significant that

Ornellas affidavit included statements that were favorable to
Pellicano a sign that Ornellas was trying to discharge his
duties appropriately, rather than mislead the court.
For
instance, in his discussion of the Zeman incident, Ornellas

specifically included in his affidavit Proctors remarks that
Proctor did not think that Pellicano was involved a fact that
strongly undercuts any inference that Ornellas omitted facts in
order to skew the affidavit towards a conclusion that Pellicano
was involved in the Zeman threats.
(JER 170-71;135 see also JER
173 (that Ornellas included CWs indictment for, among other

things, fraud, undercuts any inference that Ornellas was trying
to misrepresent CWs credibility)).
These findings cannot be reversed unless clearly erroneous.
Meek, 366 F.3d at 716.
They were not.
Indeed, trial testimony
confirmed the emptiness of defendants allegations against
(...continued)
the Chief Magistrate Judge who had reviewed the earlier
application sent it back for some minor changes in terms of an
attachment that was in the wrong place or modifications to the
computer search language at some point, which I know Judge Block
often has some concerns about. I dont remember the specifics.
I do have a very firm belief that it in no way bore on the
probable cause statement.)
135
See also JER 171 (finding that Ornellas omission of

Proctors prior convictions did not lead to an inference of
reckless or intentional deception; inclusion of the convictions
would have bolstered probable cause by confirming the likelihood
that Proctor, a criminal, was someone likely to be engaged in
illegal activity like the crimes he was talking about).
178
Ornellas: when defendants had the chance to examine Ornellas on

the affidavit at trial, nothing in the testimony cast doubt on
the affidavit.136
Because defendants do not show clear error in
the district courts determination as to this essential element

of their Franks claim, the district courts decision must be
affirmed.
(iii)Defendants Claims of
Misstatements and Omissions
Are Not Substantiated
Finally, when defendants main claims are examined closely,
they turn out not to concern misstatements or omissions at all.
The Bullet-Hole.
Defendants expend their greatest energy
asserting that Ornellas lied by not finding and reporting

evidence that supposedly contradicted Proctors claim to have
shot Buschs window.
But examination of the Proctor transcripts shows that
Proctor did not necessarily make such a claim meaning that
defendants supposed trump card, the absence of a bullet in the
car, did not contradict Proctor at all.
136
If Procter had shot at
In contrast to defendants current argument attacking

Ornellas private-investigator bona fides, in cross-examining
Ornellas at trial Pellicano tried to build up Ornellas
experience in private investigation, in an attempt to get
Ornellas agreement that private investigators value DMV
information and criminal records. 4/18/08 RT 268-69.
Furthermore, Arneson, examining Ornellas, confirmed that
Ornellas affidavit was truthful and accurate to the best of
[his] ability. (4/16/08 RT (P.M.) 118). No other defendants
impeached that answer.
179
Buschs car, he likely would have told the informant that he

shot her car or put a bullet in the car.
the words he used.
But those are not
Instead, Procter told the informant he put a
bullet hole right in the . . . window, and said his intent was
for Busch to see its a bullet right there.
(JSER 409
(emphasis added); see also id. (I put a bullet hole so that, you
know, so the bullet shot the car up, you know.
a bullet right there.)).
So shed see its
Although defendants read this as
Procter saying he shot at the car, his statements could just as

well mean that he made something that looked like a bullet hole,
so Busch would think the car was shot something that is in no
way contradicted by the physical evidence, and that is perfectly
consistent with Proctors intent to threaten Busch.137
But there is no need to dwell on the best interpretation of
Proctors words.
Ornellas affidavit faithfully reproduced the
actual words, reporting that Proctor said he put a bullet hole
137
The district court (which examined the crime-scene

photos) found that [t]he hole in the windshield appears as if it
might have been caused by a bullet, at least to the Courts
untrained eye. (JER 168-69). Crime-scene photos show the
judges finding was not clearly erroneous. (See GSER 5-10).
Busch, in her testimony described it as a round hole. (4/9/08
RT (A.M.) 112.
180
in the windshield.
(JER 31).138
Ornellas delivered an accurate
report, leaving the statement as ambiguous as Proctor uttered it.

Nor do defendants save their case with claims of new
evidence.
Christensens139 and Pellicanos140 attempts to use that
evidence fail both procedurally and logically.
But more
importantly, given Proctors actual words about making it

look like the window was shot, defendants attempt to further
prove the absence of a bullet is just more tilting at windmills:
138
Ornellas affidavit also reported Buschs report that

her window had a shatter mark just below the note. AJER 28.
See also id. (reporting Buschs statement that her neighbor had
described her windshield as punctured).
139
Christensen relies (COB 26) on a defense expert to

bolster his claim that the window was not shot. But his reliance
on that report has three flaws. First, because Christensen does
not claim that Ornellas had access to an equivalent report when
drafting the affidavit, Christensens report does not show that
Ornellas made an intentional or reckless omission. Second, the
report Christensen relies on was submitted not with Christensens
original motion, but rather as part of Christensens motion for
reconsideration; since no governmental hindrance prevented
Christensen from hiring the expert earlier, the district court
was not obliged to consider it, and neither is this Court.
Third, as established above, the absence of a bullet hole did not
clearly contradict Proctors account, since Proctor may have said
only that he tried to make it look like a bullet hole. As a
result, Ornellas repetition of Proctors exact words did not
mislead the court; nor would it have diminished probable cause if
the affidavit had said there was no gun used.
140
Pellicano has forfeited any arguments based on the new

evidence because of his deficient citations in violation of Ninth
Circuit Local Rule 28-2.8. See POB 27-30 (containing no record
citations for several paragraphs of factual assertions); POB 27
(citing over 250 pages, JER 5044-5305, as the source for six
lines of quoted text); POB 29 n.10 (citing 92 pages as the source
for an 11-word quote).
181
it fails to establish an omission in the affidavit or malfeasance

by Ornellas, and it is wholly irrelevant to probable cause.
Indeed, when the district court reviewed Pellicanos extra
evidence post-trial, it found the existence vel non of a bullet
hole to be immaterial: it would not have changed the outcome
the warrant would still have been issued.
(JER 528).
The court
likewise found that Christensens late-submitted evidence failed

to establish either the mens rea141 and materiality142 prongs of
the Franks test.
Since defendants do not show any of these
findings to be clear error, their claims based on new evidence

fail.143
141
See C.R. 1666, at 1 (even if Ornellas knew, or had

reason to know, that Proctor had not fired a gun into Buschs
windshield . . . there was no reason to believe that Ornellas
recklessly or intentionally withheld this information).
142
C.R. 1666,at 1-2 (even assum[ing] for the sake of

argument that Ornellas knew, or had reason to know, that Proctor
had not fired a gun into Buschs windshield, it would not have
changed the probable cause determination).
143
Defendants other purported evidence is exceedingly

weak. Pellicano implies (POB 17) that Proctors tape recorded
statements were not credible because no drugs were found at
Proctors house despite Proctors comments about drug-dealing.
In fact, the available evidence confirms Proctors drug-dealing:
Proctor was convicted of multiple drug charges in the case
stemming from his comments to this informant. (RJN 174-78).
Christensen (COB 26), in turn, relies on his lawyers affidavit
reporting on a 2008 interview in which the informant described
his meetings with Ornellas. But it was not clear error for the
court to determine that Ornellas contemporary account from 2002
was more credible than the informants six-years-stale memory in
2008.
182
The Proctor-Residence Search.
Defendants claim (COB 29)
that the affiant lied in saying that Proctors landlord signed a

written consent form authorizing a search of [Proctors] room, to
which she had access.
(JER 33).
Christensen claims the
statement was misleading by implication, because the landlords

consent came out of her subjective feeling of fear and
intimidation.
(COB 29 n.11).
But Christensen admits that the
landlord signed the consent form.
Id.144
Even if Christensen
were right about the landlords motivation, that would not make
any part of Ornellas statement false.
In any case, the
landlords motivations and the circumstance in which she

consented were irrelevant to the issuance of the warrant to
search PIA, because Pellicano and Christensen had no Fourth
Amendment standing in Proctors house.
Defendants allegation
about the Proctor search is either a backdoor attempt to litigate

the permissibility of a search where defendants have no standing,
or is just another gratuitous slur.
Neither suffices to get a
Franks hearing.
Buschs Street.
Defendants claim that Proctor inaccurately
described Buschs street as a narrow one that left him no way

out.
In support, defendants cite (COB 26) an FBI report on the
144
Indeed, the consent form is in the record. See C.R. __

(Ex. C to Supp. Decl. Of Daniel A. Saunders in Oppn to Defs.
Anthony Pellicano and Terry Christensens Mots. For Evidentiary
Hrgs. Pursuant to Franks v. Delaware).
183
informants retelling of Proctors statements.
But any purported
discrepancy between that FBI report and the actual layout of

Buschs street could simply have been the ordinary result of
double hearsay changing the nuance of Proctors words.
Crime-
scene photos show a standard residential street, which would

indeed seem narrow compared to a highway or boulevard.
5-10).
And Busch eventually testified that although her street
did not dead-end, it allowed only a right-hand turn.

RT 59).
(See GSER
(4/9/08 PM
Both factors make Proctors statement, in context,
reasonable as an explanation of why he felt the layout of Buschs

street made the attack on her car risky.
The district court
found no evidence that Ornellas recklessly or intentionally

withheld conflicting information on the streets true layout (JER
170), and defendants point to nothing showing that finding to be
clear error.
Defendants have never explained why they believe
Ornellas would have remembered the layout of Buschs street when

he drafted the affidavit something fatal to defendants claim
since, on a claim of omission, they must prove that the
omissions are designed to mislead, or . . . are made in
reckless disregard of whether they would mislead, the
magistrate.
Lombardi, 117 F.3d at 1124.
Nor do defendants
undercut the district courts judgment that it would not have

affected probable cause if Ornellas had added a statement about
the streets actual layout, since Procter could simply have
184
perceived or remembered the street incorrectly in the heat of

carrying out his attack, or since conditions could have been
different when Procter was there, if, for example, poorly
parked cars narrowed the street.
(JER 170).
Simply put, the
district court was correct that, [h]ad Ornellas added that there
seemed to be easy egress from Buschs street, the probable cause
determination would have been the same.
The Zeman photo-spread.
(Id.)
Defendants claim that agents
altered Zemans identification statement is frivolous.
Zemans
self-corrections to the photo-spread (JSER 530 (This looks

closest.
Like him but not him sure.) track Zemans full written
statement, which likewise recognized a close similarity in the

photo but expressed a lack of certainty: Number one looks like
him, but not him exactly.
added)).
Not sure.
(JSER 531 (emphasis
As the district court noted, There is no evidence of
any pressure by Ornellas no declaration from Zeman has been

submitted and no evidence that the result of the photospread
was any different than is described in the affidavit.
171).
(JER
Defendants, who evidently believe there is witness
tampering any time a witness crosses out a word do not even

come close to showing that the district courts judgment was so
implausible as to be clear error.
Nor do they show clear error
in the courts finding that the entire Zeman discussion was

collateral to probable cause.
185
Defendants failed at the trial court to establish the basic

prerequisites for a Franks hearing, and they fail now to show
clear error in the district courts findings of non-materiality
and good-faith.
d.
The district court must be affirmed.145

The July 2003 Warrant Was Neither Overbroad Nor
Unparticular
Christensen and Pellicano also complain that the July 2003

Warrant was overbroad and insufficiently particular.
While
Christensens claim is barred by his lack of standing, the claims

fail on the merits as well.
(1)
Standard of Review
In determining the facial validity of a warrant, the

district court considers both the warrants particularity and its
breadth.
1991).
In re Grand Jury Subpoenas, 926 F.2d 847, 856 (9th Cir.
Particularity is the requirement that the warrant must
clearly state what is sought; breadth deals with the requirement

that the scope of the warrant be limited by the scope of probable
cause.
Id. at 856-57.
Search warrants must be read in a
common sense fashion, with a reviewing court giving deference

to the issuing magistrates determination.
Id. at 855-56.
As
with all motions to suppress, the district courts underlying
145
Because the November 2002 Warrant was constitutional,

defendants attempt to suppress the July 2003 Warrant as a fruit
of the earlier warrant fails as well.
186
factual findings are reviewed for clear error.
United States
v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc); see
Jennen, 596 F.3d at 597.146
Leons good-faith reliance doctrine
applies with full force to assertions that a warrant was

overbroad, United States v. Luk, 859 F.2d 667, 676-78 (9th Cir.
1988), or insufficiently particular, United States v. Evers, 669
F.3d 645, 654 (6th Cir. 2012).
As a result, even a facially
invalid warrant should not result in suppression unless the

affidavit was so lacking . . . as to render official belief in
the warrants propriety entirely unreasonable.
Leon, 468 U.S.
at 923.
Although Christensen asserts that questions of particularity
and overbreadth are reviewed de novo on appeal (COB 34), his
cited case asserts the de novo standard only for particularity
challenges.
See United States v. Spilotro, 800 F.2d 959, 963
(9th Cir. 1986) (We review de novo the district court's finding
that the warrants lack sufficient particularity.).
146
Clear error review applies to factual findings even

where the findings were based on a written record rather than on
live testimony. See United States v. Stevenson, 396 F.3d 538,
543 (4th Cir. 2005) (in suppression case: It is well-established
that even when findings of fact are not based on observations of
credibility, but rather . . . on entirely documentary evidence,
appellate courts must nonetheless defer to the trial court's
factfinding function.); United States v. Jabara, 644 F.2d 574,
577 (6th Cir. 1981) (similar); cf. Green v. Hall, 8 F.3d 695, 698
n.1 (applying clear-error review to factual findings based on
written record under Fed. R. Civ. P. 52(a)).
187
In fact, the appellate standard for reviewing overbreadth is

complicated.
United States v. Brobst, 558 F.3d 982, 991 (9th
Cir. 2009), and United States v. Adjani, 452 F.3d 1140, 1143 (9th
Cir. 2006), have both said that overbreadth is reviewed de novo.
But questions of overbreadth are essentially questions of
probable cause: a warrant is overbroad if it permits seizure of
items for which there is not probable cause.
United States v.
SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009).
Even
if overbreadth review is ultimately de novo, therefore, the Court

must still apply the appropriate standard of review to the
magistrates underlying determination on the items for which
there is probable cause.
Under that standard, this Court
review[s] a magistrates finding of probable cause to issue a

search warrant for clear error, and we give great deference to
such a finding.
Brobst, 558 F.3d at 993; United States v. Hay,
231 F.3d 630, 634 n.4 (9th Cir. 2000).

(1)
The Warrants Structure Defined and Narrowed

the Scope of Seizable Items
In order to understand whether the warrant was overbroad or

unparticular, it is necessary first to understand how the warrant
operated.
The July 2003 Warrant147 authorized further search of
imaged copies of a list of precisely specified storage devices,
147
At one point during his argument on the July 2003

Warrant, Christensen refers the Court to the wrong warrant,
citing to the January 2003 Warrant. See COB 34 (citing to JER
101). In fact, the July 2003 Warrant is located at JSER 313-3.
188
each of which had been previously seized and copied pursuant to

warrants whose specificity and breadth defendants do not
challenge.
(JSER 316-20).
With respect to that search, it set
forth a detailed protocol, in which a special search team would

review the items searched to determine whether they were within
the warrants scope, and whether they were privileged.
(JSER
381-88).
The warrant defined the ITEMS TO BE SEIZED as follows:
[e]vidence of violations of [18 U.S.C. ] 2511 (Interception and
Disclosure of Wire, Oral, or Electronic Communications); [18
U.S.C. ] 1030 (Unauthorized Use of Computer Information); [18
U.S.C. ] 1343 (Wire Fraud); and [18 U.S.C. ] 371
(Conspiracy),148 falling into two categories: (a) an enumerated
list of types of documents and electronic records reflecting the
interception of, or the capability of intercepting telephonic
communications, or the unauthorized use of, or access to,
confidential law enforcement databases or confidential databases
for personal financial information, wire fraud and conspiracy;
and (b) [a]ll audio recordings of telephonic conversations,
whether contained on disc, tape, computer file, or other media
format.
(JSER 313-6).
148
Defendants appear no longer to contest the district

courts [c]ommon sense finding that these provisions at the
beginning of the ITEMS TO BE SEIZED list function as a limitation
on the types of items discussed below. (JER 157).
189
To be seized, therefore, documents and records had to meet

three requirements: they had to (1) be evidence of violations of
the specified crimes, (2) fall into the list of enumerated types
of records and documents, and (3) reflect[] the interception of
. . . telephonic communications and so forth.
Audiorecordings,
in turn, could be seized only if they met the requirements of

being both (1) audio recordings of telephonic conversations
(emphasis added),149 and (2) evidence of violations of the
specified crimes.150
(2)
The Warrant Was Sufficiently Particular
To fulfill the Fourth Amendments particularity requirement,

a warrant need only be reasonably specific in its description of
the objects of the search and need not be elaborately detailed.
United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir. 1986).
While [t]he level of specificity required varies depending on
149
Christensen omits the underlined portion in his

quotation. (COB 35).
150
The warrant was further narrowed by its incorporation of

the affidavit and search protocol and by the attached memorandum
setting forth search procedures. (Warrant, at 59; Schedule 1).
See United States v. Towne, 997 F.2d 537, 547 (9th Cir. 1993)
(where separate document is incorporated into, or accompanies the
search warrant to the execution team, it will be construed as
part of the warrant); Luk, 859 F.2d at 677 (even where
affidavit is not expressly incorporated into affidavit, the
possession of the affidavit when the officers conduct their
search . . . is evidence of good faith under Leon). Since the
executing agents were required to read the affidavit (Warrant at
59; Schedule 1), the affidavit provided additional details about
the manner in which Pellicano and his associates were known to
engage in wiretapping and computer crimes.
190
the circumstances of the case and the type of items involved.

United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006), the
basic requirement is that the warrants terms must enable the
person conducting the search reasonably to identify the things
authorized to be seized, Spilotro, 800 F.2d at 963.
The July
2003 Warrant met that test.

Contrary to Christensens claim, the warrant did not allow
agents to seize all audiorecordings (COB 35), or to seize
every single recording on Pellicanos computers.
(COB 34).
Those assertions rely on Christensens misleading truncation of

the warrants language.
In truth, the warrant allowed seizure of
audio recordings of telephonic communications (JSER 313-6

(emphasis added)) -- not recordings of in-person conversations,
solo recitations, radio transmissions, or music.
The underlined
language substantially narrowed the scope of seizure and focused

seizure on evidence likely related to the crime of wiretapping.
As the district court found, the warrant was further limited by
the prefatory language limiting the scope of the seizure to
evidence of violations of four specified statutes.151
151
Indeed, as
Defendants do not challenge the warrants specificity as

to the other category of seizable items documents and records.
(See COB 32-36.) Defendants have therefore waived any challenge
to the scope of the first category. As the district court found
(JER 161), even if the audiorecording category was unparticular,
any error would therefore be harmless, since the ChristensenPellicano recordings were also seizable under the other category,
as documents and electronic records reflecting the interception
(continued...)
191
the district court found, it would have been difficult for the
government to have been more particular in its description of the
items to be seized.
(JER 158).
Moreover, this Court has upheld search warrant provisions

far less particular than the July 2003 warrant.
See, e.g.,
United States v. Wong, 334 F.3d 831, 837-38 (9th Cir. 2003)
(warrant including term allowing agents to seize any data as it
relates to this case).
And this Court repeatedly has found the
particularity requirement satisfied where the warrant narrowed

otherwise broad categories of items by specifying that they had
to relate to violations of specified criminal laws.
See United
States v. Hernandez-Escarsega, 886 F.2d 1560, 1567-68 (9th Cir.

1989) (upholding warrant authorizing seizure of records . . .
reflecting the possession and/or distribution of controlled
substances); United States v. Fannin, 817 F.2d 1379, 1383 (9th
Cir. 1987) (upholding warrant authorizing seizure of items
tending to establish illegal trafficking in hashish and other
controlled substances, profits and the investment of profits
derived from such illegal trafficking, and the identities of the
151
(...continued)
of, or the capability of intercepting telephonic communications
constituting [e]vidence of violations of [18 U.S.C. ] 2511.
(JSER 313-6). See United States v. Holzman, 871 F.2d 1496, 150910 (9th Cir. 1989) (finding one part of warrants description
unparticular, but upholding seizure because the items were also
seizable under another part of the description that was
adequately particular), abrogated on other grounds, Horton v.
California, 496 U.S. 128 (1990).
192
persons engaged in such illegal trafficking); see generally

United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986)
(warrants limited as to a particular crime have withstood
scrutiny under the particularity requirement).
In United States
v. Washington, 797 F.2d 1461, 1472 (9th Cir. 1986), for instance,
this Court held that the portion of warrant authorizing seizure
of records, notes, documents indicating Ralph Washingtons
involvement and control of prostitution activity was narrow
enough to satisfy the particularity requirement of the Fourth
Amendment, because it effectively tells the officers to seize
only items indicating prostitution activity.
reasoning applies here.152
Id.
The same
At the very least, in light of such
cases, the agents acted in good faith when they relied on this
warrant after its approval by the magistrate and its vetting by
the attorneys.153
152
Spilotro is not to the contrary. That case found a

warrant insufficiently particular where it failed to identify the
alleged criminal activities in connection with which the items
were sought, failed to tailor the list of items to those that
might typically be associated with the suspected crimes, and
merely required that the items seized be evidence of a violation
of any one of thirteen statutes, some of exceptional scope.
Spilotro, 800 F.2d at 960, 964-65. Here, by contrast, the
warrant listed four statutes rather than thirteen. And, as the
district court found, the warrants listing of the conspiracy and
mail fraud statutes was implicitly limited by the context to mean
only mail frauds and conspiracies relating to the other listed
violations and the activities described in the affidavit.
153
The district court correctly found that the warrants

citation of the wire fraud and conspiracy statutes did not mean
(continued...)
193
(3)
The Warrant Was Not Overbroad
There is likewise no merit to Christensens complaint that

the warrant was overbroad.
Christensens first complaint that [p]robable cause did
not exist to seize all audio recordings, as the warrant
authorized (COB 35) depends on his misleading truncation of
the warrants language.
As previously shown, the warrant in
truth authorized seizure of all audio recordings of telephonic

conversations (JSER 313-6 (emphasis added)).
Because Pellicano
was being investigated for wiretapping, this provision

effectively limited the scope of seizure to materials that were
evidence of the charge being investigated.154
153
(...continued)
to authorize a broad seizure of anything that might have to do
with a general conspiracy or unspecified types of wire fraud.
(JER 158). Rather, based on the context, the particular type of
wire fraud at issue was fraud relating to the more specific
crimes [listed] and conspiracy means conspiracy to commit the
other crimes listed. (Id.; see also JER 160).
154
There is no merit in Christensens fanciful hypothesis

that the warrant would have permitted seizure of innocent
recordings such as voicemails. As the district court found, the
preamble to the items to be seized list limited the categories of
seizable recordings by providing that recordings could only be
seized if they were evidence of the specific statutory crimes
such as wiretapping. If a voicemail did not constitute or
contain evidence of wiretapping, then it therefore would have
been excluded from seizure. And if a voicemail was evidence of
wiretapping (for instance, if it contained a coconspirator
talking about wiretapping), then it would have been within the
scope of probable cause.
194
Christensen next argues the warrant was overbroad because

it was unlimited as to time and was not limited to evidence as
to the precise victims whom the government had identified.
35).
(COB
But the Fourth Amendment does not require date-
specifications where there are other features of the warrant that

restrict the scope of seizure to items with probable cause.
See,
e.g., Hay, 231 F.3d at 637 (although warrant was not narrowed by
specific acts, time frames or persons, it was not overbroad
because preface limited scope of search to evidence of violations
of specified statutes); United States v. Gomez-Soto, 723 F.2d
649, 652 (9th Cir. 1984) (warrant not overbroad where it
authorized seizure of records relating to travel outside the
United States with no date restriction).
Similarly, where, as here, the affidavit sets forth probable
cause for a pattern of crimes involving multiple victims over an
eight-year period,155 the Fourth Amendment does not require that
155
The affidavit described criminal conduct - including

wiretapping and computer fraud -- occurring from 1994 through
2002. Christensens recorded phone calls took place in the
Spring of 2002 - just months before Pellicanos computers were
seized and in the very midst of the criminal conduct described in
the warrant affidavit. One PIA employee who worked at PIA during
1994-1998, and 2001-2002, explained that throughout [her]
employment Arneson served as a source providing PIA with DMV and
criminal history information. (JSER 325). A PIA employee during
1998-2001 gave further information about Arnesons supplying this
information to PIA. (JSER 330). And a PIA employee during 20002002, further corroborated Arnesons activities providing
confidential information during those years. (JSER 326). LAPD
database records further confirmed Arnesons accessing
(continued...)
195
the government limit its search and seizure to the victims whose
identities were specifically known.
In Hayes, 794 F.2d at 1348,
officers searched the office of a doctor who was suspected of

violating controlled substance laws with respect to 58 patients
prescriptions.
The defendant complained that the warrants
should have been limited to those 58 patient files.

1356.
Id. at
This Court rejected the argument, reasoning that [t]he 58
known cases could fairly be considered as representative of more

pervasive violations of the same statute.
That reasoning is even stronger here.
Id.
The affidavit
established that Pellicano had developed a computer program in

1995 for the specific purpose of intercepting telephonic
communications (JSER 348-50) -- an unlikely investment if the
program were to be used only for a handful of cases.
The fact of
wiretapping was established by both employee and client
155
(...continued)
confidential information on PIA-targets during 1999 (JSER 336,
343), 2000 (JSER 340, 344), 2001 (JSER 339, 341), and in 2002,
just months before the warrant (JSER 337). The Telesleuth
program to allow the user to intercept telephone calls was
developed in 1995. (JSER 348). The affidavit gave probable
cause to understand that Telesleuth was still being used for that
purpose in 2002. (See, e.g., JSER 350 (half-tap found on Buschs
line in November 2002). First-hand knowledge of wiretapping
during 2000 to 2002 came from one employees. (JER 326, 351-54).
Another employee and one of Pellicanos clients gave information
on wiretapping during 1999 to 2000. (JSER 360-62). Another
Pellicano client gave information on wiretapping he had conducted
for her around 1996. (JSER 364-68). And a letter referenced in
the affidavit established that Pellicano was believed to be
wiretapping during the Gordon Jones rape case in 1998 to 1999.
(JSER 368, 334).
196
interviews.
(JSER 351-68).
The fact that Pellicano routinely
acquired confidential telephone records from individuals within

the phone company (JSER 344) and that standard operating
procedure when opening a new case was to contact Arneson who
would send both criminal history information and DMV records
(JSER 329-30), gave ample ground for the district courts finding
of probable cause that Pellicanos illegal activities surpassed
the limited cases that the government directly was aware of.
(JER 159).
The magistrate, too, was allowed to infer . . . that
the scope of the evidence presented represents the tip of the

iceberg and conclude that probable cause is not limited to [the
precise] evidence described by informants.
at 1045.
Michaelian, 803 F.2d
Indeed, the magistrates and district courts judgment
as to the extent of criminal activity for which there was

probable cause would deserve affirmance even if reviewed de novo.
Because magistrates judgments as to probable cause in fact
receive great deference and clear error review, Brobst, 558
F.3d at 993, the need to affirm is even clearer.
Because the PIA
violations discussed in the affidavit were likely representative

of more pervasive violations of the same statutes, Hayes, 794
F.2d at 1356, the warrant properly allowed agents to search for
evidence of additional incidents.
197
At the very least, in light of
Hayes, the agents were not reckless in relying on the

magistrate.156
Finally, to the extent Christensen believes computer
searches should have been limited to files whose titles
referenced specifically identified PIA victims, that argument is
foreclosed by precedent.
As Chief Judge Kozinski said in
language adopted by this Court, [c]riminals will do all they can

to conceal contraband, including the simple expedient of changing
the names and extensions of files to disguise their content from
the casual observer.
Hill, 459 F.3d at 978 (quoting district
court opinion of Kozinski, J.).
There is no way to know what is
in a file without examining its contents.
Id.
Because
[c]omputer files are easy to disguise or rename, the government

should not be required to trust the suspects self-labeling when
executing a warrant.
Adjani, 452 F.3d at 1150.
That rule has
even greater application here, because the affidavit revealed
156
Christensens reliance (COB 35-36) on United States v.

SDI Future Health, Inc., 568 F.3d 684 (9th Cir. 2009), is
misplaced. SDI found certain categories of a warrant to be
overbroad - such as the authorization to seize all banking
records without limitation (even if the records might have
related to employees rather than the target company), all
memoranda and E-mail without limitation, and all rolodexes,
address books and calendars. Id. at 704-05. Unlike the warrant
in SDI, which did not limit these categories by requiring seized
items to be evidence of the crimes under investigation (or even
identify those crimes), the warrant in this case specified the
criminal activities underway. It thus sought a limited universe
of items that [were] evidence of a limited number of well-defined
crimes. (JER 159).
198
Pellicanos awareness of the danger of possible searches and his

efforts to disguise his activities, including through computer
encryption.
Requiring the agents to have limit[ed] their
searches to files that Pellicano labeled in a particular way

would make no more sense than saying police may not seize a
plastic bag containing a powdery white substance if it is labeled
flour or talcum powder.
Hill, 459 F.3d at 978; see also
United States v. Giberson, 527 F.3d 882, 889-90 (9th Cir.

2008).157
The warrant therefore properly allowed agents to
examine the entire computer system to find files satisfying the

warrants requirements for seizure.
(4)
Even If the Warrants Were Overbroad or

Insufficiently Particular, Suppression Is
Improper Because the Agents Relied on the
Magistrates Judgment in Good Faith and
Because Any Overbreadth Was Harmless
[A] warrant issued by a magistrate normally suffices to

establish that a law enforcement officer has acted in good
faith in conducting the search.
Leon, 468 U.S. at 922.
When
officers have acted pursuant to a warrant, the prosecution should

ordinarily be able to establish objective good faith without a
substantial expenditure of judicial time.
157
Id. at 924.
While some members of this Court have advocated a more

restrictive procedure for computer searches, see Comprehensive
Drug Testing, 621 F.3d at 1178 (Kozinski, C.J., concurring), no
opinion for the Court has adopted such a standard. In any case,
under the good-faith standard, the government cannot be held to
have fallen short in its obligations for failing to anticipate
opinions issued after the warrants here considered were executed.
199
The district court properly found that, even if the July

2003 warrant was defective, suppression was precluded by SA
Ballards good faith reliance on the magistrates judgment in
issuing the warrant.
(JER 159-61).
The magistrate judge who
issued the warrant determined that probable cause existed to

conduct the requested search and that the warrant was
sufficiently particular.
(JSER 313-3).
Before that, the warrant
had been reviewed by an Assistant United States Attorney.

160).
(JSER
In light of the prosecutors ratification and magistrates
approval, the agents reliance on the warrant was objectively

reasonable.
See, e.g., United States v. Towne, 998 F.2d 537,
549-50 (9th Cir. 1993) (applying good faith exception to

overbroad warrant); United States v. Schmidt, 947 F.2d 362, 374
(9th Cir. 1991) (similar); Luk, 859 F.2d at 678 (similar).
Recent Supreme Court precedent confirms the agents goodfaith here.
The standard for the Leon good-faith exception and
that for qualified immunity to an agent executing a warrant are

the same, Messerchmidt, 132 S.Ct. at 1245 n.1, and the threshold
for establishing inappropriate reliance in either case is a
high one, id. at 1245.
To establish a lack of good-faith
reliance, the defendant must establish that the magistrates

issuance of the warrant amounted to such professional[]
[in]competence on the magistrates part, Malley v. Briggs, 475
200
U.S. 335, 346 n.9 (1986), that agents should have discounted
entirely the magistrates decision.
In Messerchmidt, police officers had evidence that a suspect
had used a particular kind of gun to threaten his girlfriend.
132 S.Ct. at 1246.
They executed a warrant authorizing them to
search for all guns even though they had information only
about a specific one.
Id.
The suspects family sued, claiming
that the warrant was overbroad, because, inter alia, it should

have been limited to the one gun police knew was used in the
threat.
Id. at 1243.
After noting that the standard for
qualified immunity and that for Leon good-faith are the same, id.
at 1245 n.1, the Court ruled that the officers good-faith
reliance on the warrant shielded them from liability, id. at
1246.
Given the officers knowledge about the one gun and the
suspects pattern of gang activities, the Court held, a

reasonable officer could conclude that there would be additional
illegal guns among others that [the suspect] owned.
Id.
The
Court also concluded that the officers relied on the warrant in

good-faith in conducting their search for evidence of the
suspects gang affiliation.
Although this Court had believed
gang affiliation irrelevant to the domestic threats case

described in the warrant, the Supreme Court ruled that officers
also relied on the warrant in good-faith in searching for
evidence of the suspects gang affiliation: officers could
201
reasonably have believed the gang-affiliation evidence could be

helpful in prosecuting the suspect not only by
establish[ing] motive for the crime in the warrant, but also by
support[ing] the bringing of additional, related charges and
providing material helpful in impeaching [the suspect] or
rebutting [his potential] defenses.
Id. at 1247-48.
Messerschmidt dictates the result here.
Law enforcement
knew of certain specific illegal activities by Pellicano

(wiretapping of several targets specified in the affidavit
without their consent).
Evidence of additional wiretapping not
only would help to prove Pellicanos wiretap capabilities, modus

operandi, and motive, but also could support the bringing of
additional related charges and provide impeachment and rebuttal
material for the governments use at trial.
Id.
It thus would
not have been entirely unreasonable for an officer to believe .

. . that there was probable cause to search for all . . .
[wiretap]-related materials.
Id. at 1246-47.
As in
Messerschmidt, it is also significant that agents had their

warrant and affidavit reviewed and approved by government counsel
before submission to the magistrate.
JER 160.
Compare id. at 1249, with
Under Messerschmidt, a finding of good faith is
required.158
158
Christensen claims that Leon good-faith cannot apply to

overbreadth unless the magistrate specifically told the agents
(continued...)
202
Christensens reliance (COB 36) on Ninth Circuit cases

predating Messerschmidt is therefore off-point.
Although
Messerschmidt reiterates that a magistrates approval of the

warrant does not automatically make the officers reliance
reasonable, id. at 1249-50, Messerschmidt makes clear that any
exceptions are narrow limited, for instance, to instances, such
as in Groh v. Ramirez, 540 U.S. 551 (2004), where the warrant in
question was nonsensical[] and failed to describe the items to
be seized at all.
Messerschmidt, 132 S.Ct at 1250.
Because
such was not the case here, the good-faith doctrine permitted
agents to rely on the magistrates warrant.159
158
(...continued)
that overbreadth was not a problem. (COB 36 n.13 (citing United
States v. Kow, 58 F.3d 423 (9th Cir. 1995)). That makes no
sense: every time a magistrate signs a warrant, she is
representing that the warrant is proper, and there is no reason a
specific warning should be required regarding overbreadth when
none is required for, say, probable cause or . In any case,
whatever validity Christensens position once had, it is no
longer tenable after Messerschmidt, which granted qualified
immunity (under the same standard as Leon good-faith) against an
overbreadth claim without requiring any evidence of specific
guarantees from the magistrate.
159
Even without reference to Messerschmidt, Christensens

cited cases fail to show any inapplicability of Leon.
Christensen cites United States v. Stubbs, 873 F.2d 210, 212 (9th
Cir. 1989), as a case where this Court rejected the governments
good-faith argument where a warrant described broad categories of
documents without reference to criminal activity and failed to
describe specifically the items to be seized. (COB 36 (emphasis
added)); see also Stubbs, 873 F.2d at 212 (warrant contained no
reference to any criminal activity); KRL v. Estate of Moore, 512
F.3d 1184, 1190 (9th Cir. 2008) (describing Stubbs). Here, by
contrast, the warrants description of documents did what the
(continued...)
203
The agents good-faith rested on another basis as well.

[E]ven an extraordinarily broad warrant authorizing the
seizure of essentially all business records may be justified when
there is probable cause to believe that fraud permeated the
entire business operation.
992, 1006 (9th Cir. 2005).
United States v. Smith, 424 F.3d
Such complex cases require a more
flexible reading of the particularity requirement.
United
States v. Bradley, 644 F.3d 1213, 1259 (11th Cir. 2011).

The leading case is Hayes, 794 F.2d at 1355, where the
magistrate granted a warrant allowing the seizure of all records
159
(...continued)
warrant in Stubbs had not done: the warrant here allowed items to
be seized only if they were evidence of specified crimes. (JER
158). Stubbs therefoer does not apply even on its own terms.
Defendants reliance (COB 36) on Center Art Galleries-Hawaii
v. United States, 875 F.2d 747 (9th Cir. 1989), is similarly
lacking. As Hay, explained, the warrant in Center Art Galleries
was overbroad because it allowed virtually unrestricted seizure
of items without describing the specific crimes suspected. Hay,
231 F.3d at 637 (emphasis added). Since the warrant here did
describe the specific crimes suspected, Center Art Galleries has
no applicability. Moreover, Center Art Galleries involved a
particularly overbroad search. As United States v. Noushfar, 78
F.3d 1442, 1447 n.4 (9th Cir. 1996), explained, in Center Art
Galleries, defendants were suspected of mail and wire fraud
involving the sale of forged Salvador Dali paintings, but the
warrant allowed seizure of all documents, books, ledgers,
records and objects which are evidence of violations of criminal
law. Id. (emphasis added). A warrant to seize evidence of all
violations of any criminal law is obviously different than one to
seize evidence of violations of specific statutes. See also id.
(noting that in Center Art Galleries, agents seized five
truckloads of documents, artwork, and other property (emphasis
added)).
204
that related to the procuring, transferring, administering,

prescribing, or dispensing of controlled substances.
1355.
Id. at
This Court denied defendants overbreadth and
particularity challenges, even though agents had to search

through over 10,000 patient files to discover the ones bearing
on the criminal allegations at issue.
Id.
The Court recognized
that [i]n searches of this nature, some innocuous documents

will be examined, at least cursorily, in order to determine
whether they are, in fact, among those papers authorized to be
seized.
Id. (quoting Andresen v. Maryland, 427 U.S. 463, 482
n.11 (1976)).
This Court nevertheless upheld the broad search,
because the known cases could fairly be considered as

representative of more pervasive violations of the Act.
The same considerations govern here.
Id.160
The government here
had evidence of systemic criminality at PIA, including PIAs

practice of beginning every engagement by illegally acquiring law
enforcement records.
They also had evidence of a large number of
individual wiretapping events, which the magistrate deemed

representative of more pervasive violations.
at 1356.
Hayes, 794 F.2d
The scope of the warrant was therefore justified by the
160
Hayes shows that, to qualify for permeated-with-fraud

treatment, the governments affidavit need not show that all of
the business activities were criminal. Indeed, Hayes approved a
search of over 10,000 patient files where the government had
specific evidence of wrongdoing with respect to just 58 less
than 0.6%.
205
pervasive fraud doctrine, which would have allowed an even

broader all records search warrant based on evidence
demonstrating a pattern of illegal conduct that is likely to
extend beyond the conduct already in evidence and infect the rest
of the companys business.
Bradley, 644 F.3d at 1259.
SA Ballard presented to the magistrate an affidavit stating

that the basic operations of Pellicanos businesses [are]
permeated by criminal conduct, including illegal wiretapping . .
. unauthorized use of computer equipment and so forth.
(JSER
315-16).
The magistrate accepted this conclusion and issued the
warrant.
At the very least, the agent was reasonable to assume
that the magistrate had considered the matter and judged the
scope of the warrant to be appropriate, rather than overbroad
and in light of the affidavits allegations, the magistrates
determination was not so professionally incompetent as to render
the agents reliance improper.
Suppression is therefore improper
under Leon.
(6)
Any Overbreadth Was Harmless
If the seizure list had been more narrowly drawn, per

Christensens arguments, to refer only to a limited time-frame or
list of victims, it would have made no difference in this case.
The recordings of Pellicanos dealings with Christensen were
evidence relevant to Pellicanos wiretapping of the previously
206
known victims, because proof of similar acts is admissible to

show intent or the absence of mistake.
Andresen, 427 U.S. at
483.
Additionally, once the agents found the Christensen
materials during any search for materials on the known victims,
they would have been entitled to seize the materials to aid in
the newly arisen investigation of Christensen.
In Adjani, 452
F.3d at 1151, one defendant complained that seized emails showing

her involvement in extortion were outside the scope of the
warrant because she had not been identified as a target and the
warrant affidavit had involved other crimes.
This Court rejected
her challenge, reasoning that [t]here is no rule . . . that

evidence turned up while officers are rightfully searching a
location under a properly issued warrant must be excluded simply
because the evidence found may support charges for a related
crime (or against a suspect) not expressly contemplated in the
warrant.
Id.
Here, too, the agents were looking at their
targets (Pellicanos) computer system for evidence of

wiretapping crimes, and in so doing they came across information
that was both related to the purposes of their search and
implicated [a new target (Christensen)].
Id.
The fact [t]hat
the evidence could now support a new charge against a new . . .

person does not compel its suppression.
207
Id.
Instead, the
harmless error rule requires affirmance, because even a narrower

warrant would have led to permissible seizures of the exact same
evidence.
See United States v. Parker, 549 F.3d 5, 10 (1st Cir.
2008) (rejecting overbreadth challenge, because specifying

weapons and drugs rather than a gun and marijuana can hardly have
enlarged the intrusiveness of the search.
Indeed, had the
warrant referred only to a gun and marijuana, the officers would

have been entitled to seize other guns and illegal drugs as
suspected contraband if found in plain view in the course of the
narrower search).161
* * *
For the reasons given above, Christensens challenges to
both warrants must be denied for lack of standing, and
Pellicanos challenge to the November 2002 Warrant must be denied
161
Finally, where parts of a warrant are overbroad but

other parts are valid, the valid portions . . . may be severed
from the invalid portions and the search made pursuant to the
valid portions upheld. In re Grand Jury Subpoenas, 926 F.2d
847, 858 (9th Cir. 1991). Given that defendants do not even
challenge the main portion of the warrant, which applied to
documents and records, this is a case where most of the warrant
was valid even on defendants theory. As a result, the severance
doctrine applies because this is not a case where the valid
portion of the warrant is a relatively insignificant part of an
otherwise invalid search. In re Grand Jury Subpoenas, 926 F.2d
at 858. As a result, if the audio-recording-portion of the
warrant were ruled deficient, the proper remedy would be to
remand the case to the district court for a determination of
which records were seized pursuant to that provision as opposed
to other provisions.
208
for collateral estoppel.
In addition, both warrants must be
upheld on the merits.

B.
THE COURT NEITHER CLEARLY ERRED IN DECLINING TO SUPPRESS

PELLICANOS RECORDINGS OF HIS CONVERSATIONS WITH CHRISTENSEN
NOR ABUSED ITS DISCRETION IN DENYING AN EVIDENTIARY HEARING
ON THE ISSUE
With Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. No. 90-351, 802, 82 Stat. 197, 212-23,

Congress enacted a comprehensive scheme for regulating
wiretapping and electronic surveillance.
Title III provides:
[w]henever any wire or oral communication has been

intercepted, no part of the contents of such
communication and no evidence derived therefrom may be
received in evidence in any trial . . . before any
court . . . if the disclosure of that information would
be in violation of this chapter.
18 U.S.C. 2515 (emphasis added).
A private-party recording is
not in violation of Title III, however, simply because it is

surreptitious.
Section 2511(2)(d) expressly exempts
communications intercepted by a party to the communication . . .

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.
Through three separate rounds of pre-trial requests,
Christen sought suppression of Pellicanos surreptitious
recordings of their inculpatory telephone conversations
discussing the illegal wiretapping of Lisa Bonder Kerkorian on
209
the ground that Pellicano recorded Christensen for the purpose of

committing a criminal or tortious act.162
GER 204-29, 282-446, 1317-1485).
(CR 652, 797, 1595;
The court denied each of these
requests, finding that Christensen presented no evidence

specifically addressing th[ose] Recordings (CR 718; JER 5) and
that, [w]hile Christensen makes attractive arguments that
Pellicano had a criminal or tortious purpose for taping his
conversations with Christensen . . . he lacks evidence to support
these arguments (CR 862; JER 137).
The court also denied
Christensens request for an evidentiary hearing, finding that he

has not shown that he will introduce adequate relevant and
admissible evidence at the proposed evidentiary hearing.
(JER
136).
Christensen now renews on appeal his suppression and
evidentiary hearing requests, asserting (1) that the court
improperly revers[ed] the burden of proof by requiring
Christensen -- not the government -- to establish Pellicanos
purpose, (2) that a recording made for the purpose of
maintaining accurate records of a criminal enterprise is made for
a criminal purpose under Title III, and (3) that there
162
Because this suppression request was based on a

statutory claim rather than a constitutional one, the government
did not dispute Christensens standing to make the request. See
Meredith v. Gavin, 446 F.2d 794, 797 & n.3 (8th Cir. 1971)
(noting that 2511 exceeds protections of Fourth Amendment).
210
purportedly was ample evidence that Pellicano surreptitiously

recorded Christensen for that purportedly criminal purpose.163
(COB 13-20).
Each of these assertions is meritless -- if not
outright foreclosed by this Courts recent rejection of nearly

identical suppression and evidentiary hearing requests by another
Pellicano client/coconspirator, Hollywood film producer John
McTiernan.
See United States v. McTiernan, 695 F.3d 882 (9th
Cir. 2012), cert. denied, 133 S. Ct. 964 (2013).

1.
Standard of Review
The district courts denial of a motion to suppress is

reviewed de novo, and the factual findings underlying that
decision are reviewed for clear error.
See id. at 887.
Whether
a party failed to satisfy its burden of proving that a recording

was made for a criminal or tortious purpose is such a factual
finding subject to clear error review, see, e.g., United States
163
Christensen suggests that Pellicano also recorded him

for the tortious purpose of breaching his fiduciary duty to
Christensen by simultaneously representing Steve Bing. (COB 1516). This alleged purpose was not raised before the district
court in Christensens motion, his supplemental motion, or his
motion for reconsideration, and is therefore waived. See United
States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per
curiam) (Just as a failure to file a timely motion to suppress
evidence constitutes a waiver, so too does a failure to raise a
particular ground in support of a motion to suppress.). In any
event, Christensen fails even to suggest how Pellicanos
representation of Bing related to Pellicanos recordings of his
conversations with Christensen or how Pellicano intended to use
those recordings to further his alleged tortious doubledealing. (COB 16).
211
v. Cassiere, 4 F.3d 1006, 1021 (1st Cir. 1993); United States v.

Dale, 991 F.2d 819, 841 (D.C. Cir. 1993); United States v.
Truglio, 731 F.2d 1123, 1131-32 (4th Cir. 1984), and will be
reversed only if it is illogical, implausible, or without
support in the record, United States v. Pineda-Doval, 692 F.3d
942, 944 (9th Cir. 2012).
In other words, so long as
inferences that may be drawn from the facts in the record

support the courts finding, there will be no clear error.
Hinkson, 585 F.3d at 1262.
Thus, as applied here, simply
because the factual record could reasonably lead a factfinder to

conclude that [Pellicano] did have an illegal or tortious purpose
in taping does not mean that the district courts contrary, and
at least equally permissible, view of the facts is clearly
erroneous.
Dale, 991 F.2d at 842.
A district courts decision not to conduct an evidentiary

hearing on a motion to suppress is reviewed under the abuse-ofdiscretion standard, McTiernan, 695 F.3d at 891, and therefore
will be reversed only if the decision is illogical, implausible,
or without support in inferences that may be drawn from facts in
the record, United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc).
2.
The Court Properly Placed the Burden on Christensen to

Establish Pellicanos Purpose by a Preponderance of the
Evidence
212
Mis-citing a footnote in the Eighth Circuits decision in

United States v. Phillips, 540 F.2d 319, 326 n.3 (8th Cir. 1976),
Christensen first attacks the courts suppression rulings by
asserting that the court improperly revers[ed] the burden of
proof by requiring Christensen -- not the government -- to
establish Pellicanos purpose.
(COB 13).
As an initial matter,
Christensen has waived this claim because, at argument before the

district court, he acknowledged that, notwithstanding Phillips,
he bore the burden of proving by a preponderance of the evidnce
that Pellicano had a criminal or tortious purpose.
(7/30/07 RT
22, 28-29; GERT 179, 185-86).

Even if not waived, the claim is foreclosed by McTiernan.
There, this Court surveyed the law of every other circuit to
consider the issue, saw no reason [to] deviate from [their]
consensus, and unequivocally held that the burden was on
McTiernan to prove by a preponderance of the evidence that the
Recording at issue was made for a criminal or tortious purpose.
McTiernan, 695 F.3d at 888.
In fact, in doing so, McTiernan
cited the very Phillips decision that Christensen mistakenly

characterizes as placing a burden on the government.
Id. (citing
Phillips, 540 F.2d at 327).

That this Court read Phillips that way is unsurprising
because the footnote that Christensen mistakenly invokes will not
213
bear the interpretive weight that Christensen attempts to place

upon it.
The cited footnote simply stated that Phillips holding
that a defendant bears the burden of proving a criminal or

tortious purpose does not affect 18 U.S.C. 3504(a)(1), which
provides that the government, in response to a claim that
evidence is inadmissible as being the product of an unlawful act,
shall affirm or deny the occurrence of the alleged unlawful
act.
See Phillips, 540 F.2d at 326 n.3.
That requirement
applies where a defendant claims that he has been a victim of

unlawful electronic surveillance by the government -- the only
situation in which the government is in a position to affirm or
deny that surveillance occurred.164
See, e.g., In re Grand Jury
Proceedings, 889 F.2d 220, 223 (9th Cir. 1989); United States v.
Gardner, 611 F.2d 770, 774 (9th Cir. 1980); In re Grand Jury
Subpoena Duces Tecum, 549 F.2d 1317, 1318 (9th Cir. 1977); United
States v. Vielguth, 502 F.2d 1257, 1258 (9th Cir. 1974).
Moreover, Christensens reading of the footnote is defeated by
the Phillips opinion itself, which recognizes the impossible
burden that would be placed on the government by requiring it to
prove a negative[] (i.e., that an interception was not made for
164
This is made even more clear by the footnotes

suggestion that the trial judge should require the government to
call the parties responsible for the interception, an act that
would have been impossible in this case. Phillips, 540 F.2d at
326 n.3.
214
a criminal or tortious purpose) and places the burden on the

defendant to alleg[e] and prov[e] the specific criminal [or]
tortious . . . purpose for which the interception was made.165
Id. at 326.
The district court, therefore, committed no error
when it held that the government need not have presented any
evidence at all.
3.
(CR 786: 2).
This Courts Rejection of Christensens Record-Keeping

Theory in McTiernan Requires Affirmance Here
Whereas in district court, Christensen offered a number of

unsupported purposes for which he claimed Pellicano recorded
their conversations (including blackmail and sale to tabloids
(JER 5, 137-39)), Christensen renews only his assertion that a
recording made for the purpose of maintaining accurate records of
a criminal enterprise is made for a criminal purpose under Title
III.
(COB 16).
Putting aside whether Christensen proved -- or
even made a sufficient offer of proof that he could prove -- that
165
Even were 3504(a)(1) to apply in a case involving nongovernmental electronic surveillance, Christensens claim that
the government was required to present[] evidence of a lawful
purpose underlying Pellicanos recording of Christensen is
unsupported. (COB 12-13). All that the statute requires is that
the government affirm or deny the occurrence of the alleged
unlawful act. 18 U.S.C. 3504(a)(1). Here, the government, in
its opposition to Christensens motion and at the hearing,
unequivocally denied that Pellicano recorded his conversations
with Christensen for an illegal purpose. (CR 679; 7/30/07 RT 3839; GERT 195-96; see also JER 4 (In this case, the government
has affirmed that the Recordings were made by Pellicano and has
denied a criminal or tortious purpose. This is the extent of the
governments obligation, if any, under 18 U.S.C. 3504.)).
215
Pellicano had that particular purpose, this Court rejected

Christensens enterprise record-keeping in its intervening
decision in McTiernan.
In that case, McTiernan seized on Pellicanos unsworn uncross-examined pro se opening statement from the RICO trial and
argued, like Christensen argues here (COB 13, 15, 19-20), that in
the opening statement, Pellicano admitted that he recorded his
clients -- like McTiernan and Christensen -- as part of a
recordkeeping process in support of Pellicanos far-reaching
criminal enterprise.166
McTiernan, 695 F.3d at 888.
In that
case, as Christensen does here (COB 14-17), McTiernan also relied

most prominently on the district court decisions in United States
v. Lam, 271 F. Supp. 2d 1182, 1183 (N.D. Cal. 2003), and United
States v. Vest, 639 F. Supp. 899 (D. Mass. 1986), affd 813 F.2d
477 (1st Cir. 1987).
See McTiernan, 695 F.3d at 890-91
(discussing Lam and Vest).

166
Despite Pellicanos opening
Specifically, in the opening statement, Pellicano
stated:
Now, he [Pellicano] decided to record those
conversations for -- you know, for inventory; for
safekeeping; for, in effect, to remind himself of what
he needed to do and what a client professed a need to
have, and thought, well, the best way to do that is to
have a program to do that, to record those
conversations in an encrypted fashion so that no one
else but Mr. Pellicano could listen to those recordings
ever.
(3/6/08 (P.M.) RT 33; GERT 609).
216
statement, this Court rejected McTiernans (and therefore

Christensens) enterprise record-keeping theory, and found Lam
unpersuasive and Vest distinguishable.
Id.
In doing so, the
Court explained that recording a conversation in which an

illegal enterprise was discussed or to create a reminder list
(even a list of illegal acts that are agreed to be done) is not a
criminal or tortious purpose because 2511(2)(d) requires that
we look to the purpose and not the subject matter of the
recording.
Id.
[U]nlike a recording of a conversation made
for the purpose of blackmailing another person, which directly

facilitates the criminal conduct of blackmail and is the key
distinction between Vest and the present case, the Court
elaborated, recording a conversation to create a reminder list
. . . of illegal acts that are agreed to be done is not
essential to the actual execution of the agreed-upon illegal
act, which in both McTiernans and Christensens cases was to
execute an illegal wiretap.
Id. at 890-91.
Because McTiernan specifically rejected Christensens theory

and the authorities on which he relies, McTiernan requires this
Court to affirm the district courts rejection of Christensens
suppression requests.
4.
McTiernan Also Requires Rejection of Christensens

Evidentiary Hearing Request
217
Just like Christensen, McTiernan also requested and was

denied an evidentiary hearing on his suppression request.
Id.
McTiernan argued, as Christensen argues (COB 19-20), that he

would call witnesses to demonstrate that Pellicano made the
Recording for the purpose of having something to remind himself
of the criminal acts he intended to commit, McTiernan, 695 F.3d
at 891.
After assum[ing] for the purposes of its ruling that
McTiernan had proven that recordkeeping was indeed Pellicanos

purpose in making the Recording, this Court affirmed the
district courts denial of McTiernans evidentiary hearing
request as unnecessary because the Court had already rejected
the record-keeping theory.
Id.
The same result must follow here
too.
C.
THE DISTRICT COURT CORRECTLY FOUND CHRISTENSENS RECORDED

CONVERSATIONS WITH PELLICANO TO BE UNPRIVILEGED
Christensen next claims (COB 40-54) that the district court
violated the attorney-client and work-product privileges in

permitting the prosecution to access and introduce recordings of
phone calls in which Christensen and Pellicano implemented their
scheme to wiretap the calls of Lisa Bonder Kerkorian (Bonder).
Without specifically alleging which privilege covers which
particular call or portion of a call and why that privilege
applies, Christensen generally avers that the calls were covered
by the attorney-client or work-product privileges in gross.
218
In
addition to challenging the district courts ruling that the

privileges did not apply, Christensen attacks that courts
further ruling that the privileges, if extant, were vitiated by
Christensens use of his communications for criminal purposes.
Finally, Christensen alleges that the district courts initial
procedures analyzing the crime-fraud question under the wrong
standard irrevocably tainted its later procedures reanalyzing
that question de novo under the right standard.
Because those claims are meritless, the district courts
decision must be affirmed.
There, as here, Christensen never
produced evidence meeting his initial burden, as the privileges

proponent, to establish the elements of either privilege.
Moreover, although the law required Christensen to claim
privilege with specificity by identifying the particular
privilege that applied to particular statements and calls,
Christensens claims asserted both privileges generally as to all
of the conversations.
In any case, the district courts crime-
fraud finding, which was eventually confirmed by the jury after a

full adversarial trial, was correct: Christensen and Pellicanos
purpose in engaging in the calls at issue was to implement their
criminal conspiracy to wiretap Bonders phone.
Christensens
counter argument -- that he should be immunized from his own

misconduct because of his clients claimed innocent intent --
219
would convert the privileges at issue from methods to protect

clients ability to access legal advice into an undeserved shield
for intentionally criminal lawyers.
Finally, there is no merit
to Christensens argument that the district courts and the

privilege attorneys inadvertent missteps in initially applying
privilege-examination procedures irrevocably tainted the judges
final, correctly analyzed determination.
When the court realized
that its initial analysis of the issue had failed to follow the
two-step procedure of United States v. Zolin, 491 U.S. 554
(1989), the court did something that trial- and appellate-courts
routinely do: it reanalyzed the issue under the correct standard.
That commonsense cure for an initial Zolin misstep has in fact
been explicitly endorsed by this Court.
The decision should be
affirmed.
1.
Factual Background
a.
The Governments Original Motion
Because the government anticipated concerns that files

seized from PIA might include privileged materials, the search
warrants for PIA had set forth special protocols by which
potentially privileged materials would be reviewed by a team of
privilege attorneys who were separate from the main Pellicano
investigative team.
(JSER 43).
Two attorneys, DOJ Special Trial
Attorney Robert Tully and AUSA Samantha Jessner, were designated
220
to review those materials and, where appropriate, to file motions

with the court seeking findings that exceptions to the privilege
applied.
(Id.)
In November 2005, the privilege attorneys filed a motion

identifying 25 recorded telephone conversations as potentially
privileged, and requested that the district court conduct an in
camera review to determine whether the crime-fraud exception
applied.
The motion made reference to a crime-fraud application
that the main Pellicano prosecutors had filed when certain law
firms had resisted grand jury subpoenas earlier in the case.
(JSER 44).
But unlike that application by the main prosecutors
(JSER 235), the privilege attorneys application did not cite

Zolin and did not request the two-step analysis set forth in that
case.167
Accordingly, the application included in its
declarations two kinds of facts: facts extrinsic to the

recordings (i.e., facts learned from other parts of the
investigation), and the contents of the recordings themselves.
In the first category, which did not rely on the contents of
any recordings of Christensen, the application relayed to the
court considerable evidence showing that Pellicano not only was
167
The application for grand jury materials could be

handled by the main prosecutors rather than a privilege attorney,
because the materials were not yet in the governments
possession; hence, there were no potentially privileged materials
to review before the application.
221
capable of wiretapping, but actually engaged in wiretapping as a

matter of common practice for his clients.168
With respect to Christensen in particular, the extrinsic
evidence gave information on the contentious Bonder Kerkorian
litigation, in which Christensen was representing Kerkorian.
(JSER 84-85, 87-90).
It further included a report from a close
Pellicano associate explaining that she had heard Pellicano admit

to wiretapping someone for Kerkorian.
Pellicanos former
girlfriend, Sandra Carradine, had told the FBI that she had once
observed Pellicano receive a call in the summer of 2002, which he
told her was from Kerkorian.
(JSER 68, 77-78).
In the course of
the call, Carradine heard Pellicano telling Kerkorian about a

conversation he had listened to between Bonder and Bonders
168
Former PIA employees had appeared before the grand jury,

testifying as to their personal observations of Pellicanos
widespread use of wiretapping in Pellicanos investigations.
(JSER 83). In addition, as the application informed the court,
the government had recovered text files relating to the
TeleSleuth wiretapping software, written summaries of
wiretapped conversations, lists of telephone numbers, and
telephone toll records (JSER 65), Pellicanos statements to his
girlfriend about wiretapping his own daughter (JSER 78), a
wiretap recording undertaken at the behest of a PIA client (JSER
65-66), and a host of conversations in which Pellicano and
various clients discussed wiretapping plans. Among other things,
Pellicano asked a client if he wanted Pellicano to listen to a
targets phone calls; another client told Pellicano that he had
paid a lot of money trying to get [his target] on a
conversation saying she was lying; and Pellicano asked a third
client how many telephone lines were in his wifes house in Los
Angeles because Pellicano was going to listen to the things
shes talking about. (JSER 66).
222
friend Diane an obviously wiretapped conversation.
(Id.).
And
bank records showed that Christensens law firm had paid

Pellicano $186,000 between from March to December 2002, with
about $160,000 of that coming between March 25 and July 19 (JSER
110) -- precisely the time when Carradine heard Pellicano talking
to Kerkorian about wiretapped calls.
In addition to this extrinsic evidence, the motion discussed
the recordings contents -- the numerous calls between
Christensen and Pellicano in which Pellicano relayed information
he had learned from wiretapping Bonder.
!
Pellicano reported extensively on Bonders arguments
with her attorneys.
(JSER 92-93; GEX 3055 (Christensen: What
did they say about getting their asses kicked on Friday?;

Pellicano: She tried to fire Kolodny [her lawyer] and Kolodny
talked her back into . . . .)); (JSER 94; GEX 3060-61
(Christensen asks if Kolodny almost got fired again; Pellicano
responds: You could hear a sigh of relief in his voice too . . .
He said I got you back on center again.
got me back on center.)).169
She said Yeah, you
Pellicano also told Christensen
about how Kolodny was describing court proceedings to Bonder -causing Christensen to say that Kolodny was lying to his client,
169
At another point, when Christensen asked whether Kolodny

had threatened to resign, Pellicano said he didnt say that to
her directly. (JSER 97; GEX 3098).
223
because what Kolodny had told Bonder about a recent hearing softpedaled how bad the hearing had been for Kolodny.
(JSER 108-09;
GEX 3239-41).
!
Pellicano reported on how Bonders calls revealed her
emotional condition, and how Christensen should exploit that

information.
(JSER 93-94; GEX 3056 (Pellicano tells Christensen
that Bonder went to fucking pieces after a recent hearing));

(JSER 94-95; GEX 3064 (Pellicano telling Christensen that Bonder
was bordering on breaking, so Christensen should keep hammering
her)).
!
Pellicano reported on Bonders and her lawyers
reactions to court developments.
Pellicano once told Christensen
that Bonder said she wanted to give up.
When Christensen asked
for more details (She said at home to people that she wants to
give up?), Pellicano confirmed: Absolutely . . . The only thing
that she wants to do is to have this annuity continued.
all she wants.
of money.
Thats
They are telling her they can get her a big pot
(JSER 90-91; GEX 3043; see also id.; GEX 3041
(Pellicano telling Christensen that they (i.e., Bonder and her

attorneys) were devastated that Christensen had not been
disqualified from the case)).
!
Pellicano reported on Bonders and her lawyers
conversations on settlement strategy.
224
Pellicano reported, they
are trying to convince her, that this judge is going to award

some child support.
(JSER 91; GEX 3045).
Pellicano elsewhere
said that Bonder had asked her lawyers What if I agree to

$50,000 and just ask him to . . . forgive the $3 million.
94; GEX 3058).
(JSER
When Christensen asked Pellicano What kind of
money are they talking about, Pellicano answered that they would
take 125 grand.
(JSER 100; GEX 3113); see also id. (Pellicano
telling Christensen that Bonders exact words were How much

money is he willing to pay to get that?); (JSER 100-01
(discussing various terms Bonder told her attorneys she wants in
settlement); JSER 103 (reporting comment from lawyer to Bonder
that she should be able to get $320,000 per month); JSER 111-12
(relaying lawyers statements to Bonder about settlement
positions).
!
Pellicano told Christensen about the planned motions
Bonders lawyers were telling her about, and about Bonders

attorneys legal strategy.
(JSER 93; GEX 3056 (Pellicano telling
Christensen that Kolodny was having someone research the . . .

attorney-client privilege.); JSER 94; GEX 3057 (Pellicano
telling Christensen about Bonders lawyers plans to get a
guardian ad litem appointed); JSER 95 (Pellicano telling
Christensen that Bonders lawyer planned to delay filing a
guardian ad litem petition until after deposition); JSER 96; GEX
225
3088 (Pellicano telling Christensen about Kolodnys plan to hire

an appellate lawyer).
Pellicano also told Christensen about how
Bonder had been on the phone with her attorneys for hours
going over a declaration she was writing.
!
(JSER 112).
When Christensen tried to tell Pellicano details about
the case, Pellicano sometimes already knew them from having

listened in on Bonder and her lawyers.
For instance, when
Christensen told Pellicano that the judge had questioned Bonders

credibility, Pellicano said he already knew because Harlee [one
of Bonders lawyers] told her about it in detail.
Pellicano
said of the Bonder-Harlee conversation: Lisa kept saying She

thinks Im a liar, . . . right? and Harlee said No she didnt
say youre a liar . . . but she didnt believe you.
(JSER 91-
92; GEX 3078).

!
Pellicano even knew about the answering-machine
messages Kolodny was leaving on Bonders phone, mentioning, for

instance, three messages in a row that Kolodny had left one
morning before Bonder called him back.
(JSER 100; GEX 3120).
And Pellicano told Christensen about Bonders phone habits,

complaining: She is on the phone from morning til night.
When
she speaks, she speaks in parables . . . she tells the C and the
B story before she gets to the A story . . . which is why it
takes me so long.
(JSER 102; GEX 3136).
226
Indeed, Pellicano
spoke not only about Bonders telephone habits, but also about
the childs.
(JSER 95; GEX 3080 (reporting that the kid gets
on the phone five or six times a day)).
Pellicano was listening
closely enough to call special attention to some of Bonders word

choices.
(See, e.g., JSER 103; GEX 3157-58 (emphasizing that
Bonder said there was another candidate for biological

father)).
!
Pellicano and Christensen alluded to the illegality of
their scheme, with Pellicano cautioning Christensen to be careful

when using the wiretapping results, so as not to tip the other
side off to their wiretap.
For instance, when Pellicano told
Christensen about developments in Bonders plans, Pellicano

warned, You have to be real careful with this . . . be very
careful about this because there is only one way for me to know
this.
(JSER 93; GEX 3056 (emphasis added); see also JSER 113-
14; GEX 3285 (after Pellicano tells Christensen that Kolodny

seems to be sharing Kerkorians tax returns with Bonder,
Christensen says, that is a violation but I dont know how to
bust them for it. (emphasis added); JSER 118 (Pellicano explains
that once the wiretap ends, it will be too difficult to do this
again . . . It will be too dangerous)).
Pellicano emphasized
that the information he was getting Christensen could not have

been gained by conventional means -- there is no way, except
227
with my unique techniques, that you would know this.
(JSER 100;
GEX 3119).
!
Pellicano spoke of the practicalities of wiretapping,
which required him to visit an off-site location to collect the

recordings.
(JSER 120; GEX 3099).
For instance, when discussing
his concern that the case could settle, leaving Pellicano out of
his full fee, Pellicano reminded Christensen that Ive been
there every fucking night and Im going to be there again over
the weekend, so if youve got a chance of getting this
information without me and Im going to get cut out of what I was
going to get before, why do it?
b.
(JSER 99; GEX 3106).
Court Orders and Litigation
Judge Fischer, who received the application as the duty

judge, granted the application, finding first that the recordings
at issue were not protected by the attorney-client privilege or
the work-product doctrine, and second that they come within the
crime-fraud exception to each privilege.
(JSER 211).
The court
found likewise with respect to certain supplemental applications

that the government had submitted pertaining to additional,
later-discovered Christesen-Pellicano recordings.
(JSER 214-18).
After Christensens indictment, the government requested and

received permission to disclose its crime-fraud applications to
Christensens and Pellicanos counsel.
228
(JSER 264-65).
Christensen challenged the crime-fraud determination in his

motion to dismiss the indictment.
The government acknowledged
that the privilege attorneys original application had erred in

failing to follow Zolins two-step procedure.
Nevertheless, the
government explained, that error was harmless: following two

Ninth Circuit precedents, the court could reexamine the
application to see whether the application would have supported a
Zolin Step One finding based purely on the extrinsic evidence,
without reference to the recordings.
Christensen disagreed, arguing that the faults in the
governments initial submission required dismissal of the entire
indictment, and that the motion for dismissal should be heard by
a different judge.
Christensens recusal motion was assigned to
a new district judge, the Honorable A. Howard Matz (CR 836), who
denied the motion for recusal, finding that having Judge Fischer
rule on the validity of her previous crime-fraud determination
caused neither bias nor the appearance of bias (C.R. 879, at 2-4;
GER--), and finding that the Supreme Courts decision in Liteky
v. United States, 510 U.S. 540 (1994), prohibited recusal.
With the motion for recusal denied, the original district
judge found that the proper procedure was for her to reanalyze
the evidence under the proper Zolin standard.
In a written
opinion on December 18, 2007, the court held that it could
229
conduct a Zolin Step One analysis that disregarded the

communications themselves and relied only on the other material
that the government had submitted in its initial application.
(JER 177).
In reaching this conclusion, the court relied on this
Courts opinions in United States v. de la Jara, 973 F.2d 746

(9th Cir. 1992), and United States v. Chen, 99 F.3d 1495 (9th
Cir. 1996).
In Chen, the court noted, government lawyers had
also included potentially privileged materials in an application

requesting a crime-fraud finding.
The district court had noticed
the error and had explicitly disregarded those materials, basing

its decision instead on the extrinsic evidence.
This Court
affirmed, finding that any Zolin error was harmless because the
district court had made a proper Zolin finding based on
permissible materials.
(JER 179).
If Chen allows courts to
conduct a proper Zolin review by simply disregarding improperly

submitted material sua sponte, the court reasoned, there was no
reason the rule should be different when the court learns of and
corrects such a mistake later at a litigants urging.
(Id.)
In
de la Jara, the district court had likewise viewed allegedly

privileged materials prematurely, when asked to conduct a crimefraud analysis.
Although this Court affirmed on other grounds,
de la Jara stated that if it had not done so, it would have

remanded to the same district court for that court to conduct a
230
proper Zolin analysis.
(Id.)
In Christensens case, the court
reasoned, de la Jara therefore allowed a re-analysis limited to

the proper Step-One materials: If it would have been acceptable
in de la Jara for the appeals court to have remanded the matter
to the district court for reconsideration, surely it would have
been acceptable for the district court to correct its own mistake
before the appeal.
(Id.)
Thus, the district court reasoned, the appropriate course

is to reconsider the prior application, disregarding the
improperly submitted allegedly privileged materials.
(Id.)
The
court therefore reviewed the original evidence from the initial

application, together with the parties recent arguments, to
determine if the government met its threshold showing under
Zolin to warrant in camera review of the recordings.
(JER 180).
When the court proceeded to do so, its conclusion was that

the non-privileged evidence was adequate to show that in
camera review could reveal evidence of an ongoing crime on the
part of Christensen and Pellicano.
(Id.)
The court found that
three pieces of extrinsic evidence combined to meet the standard.

Christensen had represented Kerkorian in the child-support
dispute against Bonder.
(Id.)
Christensens firm had paid
Pellicano $186,000 around the time of the recordings at issue.

(Id.)
And Pellicanos former girlfriend had reported that she
231
had heard Pellicano discuss the contents of Bonders wiretapped

calls with a person Pellicano identified as Kerkorian, during the
same time when Christensen was paying the money to Pellicano
during the Kerkorian-Bonder litigation.
(JER 181).
Although the
court acknowledged that the mere fact of the payment would not
give rise to an inference of crime or fraud, the large payment
in the context of Carradines statements that Pellicano was
listening to conversations of the opponent of Christensens
client certainly raised the inference that the $186,000 was, at
least in part, in exchange for illegal wiretapping services.
(Id.)
The court rejected Christensens attacks on Carradines
credibility and the defenses now de rigeur attack on . . .

Special Agent Stanley Ornellas, as well as various other
arguments for which Christensen had little to no foundation.
(JER 181-83).
The court found that the prosecution team had not committed
misconduct, noting that the prosecutors would not have been
intentionally or wantonly negligent to have relied on their
colleagues [the privilege attorneys] to have filed an appropriate
motion and on this Court to have followed the appropriate law.
(JER 183).
The court found that Christensen had not shown that
the prosecutors knew that improper procedures were followed in

the recordings release.
(Id.)
Indeed, the court noted, the
232
government had no incentive to engage in such misconduct, since,

as the district courts ruling here proved, a proper
Zolin showing could easily have been made -- and with
substantially less effort than was actually expended.
184).
(JER
Nor, the court found, was there any merit to Christensens
assertion that the government had tried to trick Kerkorian into

waiving his privileges.
(JER 183).
The court did not reach the
governments arguments that the privileges had been effectively

waived under de la Jara by Kerkorians decision not to assert his
privileges in court, or the governments argument that
Christensen lacked standing to assert the privileges.
(JER 184).
In short, the court denied Christensens motion to dismiss, and

held that its next step would be to conduct an in camera review
of the allegedly privileged recordings to determine if they are
privileged, or if the crime-fraud exception to the attorneyclient or work-product privilege applies.
(Id.).
The court
accordingly ordered the government to supply copies of the

recordings for in camera review.
The results of that review were explained in the courts
January 4, 2008, order.
(JER 185).
170
Based on the recordings,170
Because the recordings were played at trial in their

entirety, this Court may find it convenient to examine the court
reporters transcriptions of the recordings, which can be found
at 7/25/08 RT (P.M.) 28-41, GERT 9918-31 (Ex. 1); 7/25/08 RT
(P.M.) 41-46, GERT 9931-36 (Ex. 2); 7/25/08 RT (P.M.) 46-52, GERT
(continued...)
233
the court found first that neither the attorney-client privilege

nor work-product privilege applies, and second, that even if the
privileges did apply, the crime-fraud exception would vitiate
both.
(JER 187).
As an initial matter, the court found, [n]early all of the

communications appear to be not protected by the attorney-client
privilege, at least in the absence of evidence or argument to the
contrary, because [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
(...continued)
9936-42 (Ex. 3); 7/25/08 RT (P.M.) 52-75, GERT 9942-65 (Ex. 4);
7/25/08 RT 110-69 (P.M.), GERT 10000-59 (Ex. 5); 7/25/08 RT
(P.M.) 169-79, GERT 10059-69 (Ex. 6); 8/5/08 (A.M.) RT 19-21,
GERT 10096-98 (Ex. 7); 8/5/08 (A.M.) RT 21-23, GERT 10098-100
(Ex. 8); 8/5/08 (A.M.) RT 23-24, GERT 10100-01 (Ex. 9); 8/5/08
(A.M.) RT 24-26, GERT 10101-03 (Ex. 10); 8/5/08 (A.M.) RT 26-31,
GERT 10103-08 (Ex. 11); 8/5/08 (A.M.) RT 98-127, GERT 10175-204
(Ex. 12); 8/5/08 (A.M.) RT 127-39, GERT 10204-16 (Ex. 13); 8/5/08
(A.M.) RT 139-52, GERT 10216-29 (Ex. 14); 8/5/08 (P.M.) RT 5-25,
GERT 10235-55 (Ex. 15); 8/5/08 (P.M.) RT 25-48, GERT 10255-78
(Ex. 16); 8/6/08 (P.M.) RT 15-32, GERT 10496-513 (Ex. 17); 8/6/08
(P.M.) RT 32-41, GERT 10513-22 (Ex. 18); 8/6/08 (P.M.) RT 41-48,
GERT 10522-29 (Ex. 19); 8/6/08 (P.M.) RT 48-52, GERT 10529-33
(Ex. 20); 8/6/08 (P.M.) RT 52-97, GERT 10533-78 (Ex. 21); 8/7/08
(A.M.) RT 25-48, GERT 10684-707 (Ex. 22); 8/7/08 (A.M.) RT 48-75,
GERT 10707-34 (Ex. 23); 8/7/08 (A.M.) RT 137-38, GERT 10796-97
(Ex. 24); 8/7/08 (A.M.) RT 138-41, GERT 10797-800 (Ex. 25);
8/7/08 (P.M.) RT 27-35, GERT 10828-36 (Ex. 26); 8/7/08 (P.M.) RT
35-43, GERT 10836-44 (Ex. 27); 8/7/08 (P.M.) RT 43-57, GERT
10844-58 (Ex. 28); 8/7/08 (P.M.) RT 57-85, GERT 10858-86 (Ex.
29); 8/8/08 (P.M.) RT 126-30, GERT 11215-19 (Ex. 30); 8/8/08
(P.M.) RT 131-33, GERT 11220-22 (Ex. 31); 8/8/08 (P.M.) RT 13351, 11222-40 (Ex. 32); 8/12/08 RT 59-78, GERT 11310-29 (Ex. 33);
8/12/08 RT 78-88, 11329-39 (Ex. 34); and 7/24/08 (P.M.) RT 5-9,
GERT 9667-71 (Ex. 35).
234
Kerkorian.
(JER 190-91).
Moreover, the court concluded, the
recordings provided reasonable cause to believe that Kerkorian

was complicit in the alleged illegal conduct (JER 191) -- a
conclusion further supported by Carradines report of overhearing
Pellicano telling Kerkorian directly about the wiretapped
conversations (id.).
Because [r]etaining an attorney to
contract for illegal wiretapping services or communicating with

him in that connection does not constitute seeking legal advice,
the court found this to be a further reason why the recordings
did not meet the elements of the attorney-client privilege.
(Id.)
The court likewise found substantial reason to doubt the
applicability of the work-product privilege.
The court found the
conversations to be permeated with the fruits of Pellicanos

wiretapping.
(JER 192).
For the most part, Pellicano conveys
to Christensen the content and tone of communications between

Bonder Kerkorian and others, including attorneys, friends, and
the mediator.
(Id.)
A second topic of discussion was the true
parentage of Kira Kerkorian -- with much of the discussion

incorporat[ing] the contents of Bonder[s] telephone
conversations, with another substantial portion relating to
Pellicanos efforts to mediate a deal between Bing and Kerkorian.
(Id.)
As the court noted, these discussions may well not have
235
related to Kerkorians litigation.
When Christensen was asked
by Pellicano why Kerkorian was interested in knowing how Bonder

. . . became pregnant, Christensen responded on several occasions
that its just something he wants to know, or that Kerkorian
simply wanted to know the truth.
(JER 193).
And while
Kerkorian apparently wanted a financial contribution from Bing,

it is not clear that such a contribution could have been
obtained through the pending litigation.
(Id.)
Indeed, [o]n
at least one occasion Christensen stated that Christensen was

interested in what was best for Kira -- though she certainly was
not his client.
(Id.)
The court therefore agreed with the
government that the privileges did not apply because the

communications do not relate to legal advice.
(Id.)
In any case, the court found, neither privilege controlled

because the bulk of the communications appear to relate to
illegal or unethical activity that vitiates any privilege that
might exist.
(Id.)
The court found substantial evidence that
the recordings represented the transmission by Pellicano to

Christensen of wiretapped conversations.
Pellicano is reporting
to Christensen conversations between Bonder[] and numerous other

persons.
(Id.)
Pellicano described not only what the
conversants say or tell each other and what theyre

talking about but also their tone of voice.
236
(Id.)
Some of
the communications make clear that it is Pellicano hearing the

conversations first-hand, rather than relayed through another
source -- for instance, when Pellicano said that [y]ou could
hear the sigh of relief in [a conversants] voice, or told
Christensen [t]his is her exact words, and [y]ou could tell
in her [the mediators] voice. (Id.)
The court further found
that the communications established wiretapping rather than a

bug in the home -- as evidenced by Pellicanos statements about
listening to messages on Bonders answering machine, his
complaints about Bonders circumlocutious phone manner, and his
description of a phone conversation between Bonder and her lawyer
that Pellicano said lasted until almost midnight.
(JER 194).
The court found that other portions of the calls confirmed

that Pellicano and Christensen had conspired to engage in illegal
wiretapping, noting that the two men created a fictitious name
for billing purposes, noting Pellicanos description of his
unique techniques, and noting Pellicanos warnings for
Christensen to be careful in using the information since
theres only one way Pellicano could have acquired it.
(Id.)
(The court also noted that another call, at the end of the
defendants wiretapping of Bonder, appeared to show Christensen
and Pellicano agreeing to engage in subsequent wiretapping of
another target.
(JER 195)).
237
In short, the court found reasonable cause to believe that

Christensens services were utilized in furtherance of the
ongoing unlawful scheme to wiretap Kerkorians adversary and
commit other illegal conduct.
The communications are integrally
related to this apparent illegality.
(Id.).
Having found first
that the recordings were not privileged, and second that they
would be covered by the crime-fraud exception in any event, the
court ordered the recordings released.
(Id.)
Christensens interlocutory appeal was dismissed for lack of

jurisdiction.
2.
(CR 1258).
Christensen Failed His Burden To Claim Privilege with

Specificity
The district courts rulings were correct.
As the proponent
of the privileges at issue -- that is, as the person trying to

keep valuable information from the trials truth-seeking process
-- Christensen had the burden both to claim privilege with
specificity, and to establish the elements for each privilege.
See In re Grand Jury Subpoenas, 803 F.2d 493, 496 (9th Cir. 1986)
(The burden is on the party asserting the attorney-client
privilege to demonstrate how the information sought fits within
it.).
That is a burden he failed to meet at the district court,
and fails to meet now.

a.
Christensens Blanket Assertion of Privilege Was

Insufficient Under Ninth Circuit Law
238
Blanket assertions [of privilege] are extremely

disfavored.
United States v. Martin, 278 F.3d 988, 1000 (9th
Cir. 2002); United States v. Ruehle, 583 F.3d 600, 609 (9th Cir.
2009).
Since a given document is likely to contain both
privileged and unprivileged material, a privileges proponent

must, if necessary, distinguish the privileged information from
the non-privileged information.
Ruehle, 583 F.3d at 609.
Moreover, since the privileges apply differently to different

kinds of content, a person claiming privilege should specify
which privilege applies to which content.
Christensen violated
these rules in district court, and he violates them here.
Rather
than identify which portions of which calls he believed were

work-product and which he believed were attorney-client
privileged, Christensen simply asserted both privileges against
all of the calls -- a plainly unsupportable position since, for
instance, many of the calls contained no communications from the
client at all.
Christensen likewise made no attempt to
distinguish purported factual work-product from purported opinion

work-product -- another important distinction given the different
levels of protection that apply to each.
Christensens dereliction of these duties makes it
impossible to sustain his claims.
A party claiming the privilege
must identify specific communications and the grounds supporting
239
the privilege as to each piece of evidence over which privilege

is asserted.
Martin, 278 F.3d at 1000.
calls at issue were varied.
As discussed below, the
Some potentially conveyed
Kerkorians statements, while others clearly did not; some

discussed litigation events, while others gave gossip.
As the
party trying to keep evidence away from the court proceeding,

Christensen had the burden of specifying which privileges applied
to which items.
Christensens failure to define the scope of
his claim of privilege weighs in favor of disclosure.
Ruehle,
583 F.3d at 609.171

b.
Christensen Failed to Establish the Elements of

the Attorney-Client Privilege
171
In In re Horn, 976 F.2d 1314, 1318 (9th Cir. 1992), the

Court held that an extraordinarily overbroad subpoena, which
sought the widest possible range of privileged information -all information relating to clients financial transactions -- by
and between a large number of entities over [more than] 6 1/2
years and made no effort to exclude clearly privileged
materials from its scope, relieved the proponent of privilege
from identifying specific privileged items and explaining how the
privilege applied. But the situation here hardly approaches that
in Horn. The parties dispute here concerns only six hours of
recorded phone calls, which took place over just three months.
(JER 191). Given that the court denied Christensens privilege
claim, this case is not like Horn where the items were clearly
privileged. Even Horn acknowledged that its special dispensation
from the blanket-privilege rule applied only in that highly
exceptional case. In ordinary cases, by contrast, Horn agrees
that a privilege proponents refusal to follow the established
procedure for invoking the privilege -- here, Christensens
refusal to specifically segregate potentially privileged
information from unprivileged information, and to explain which
privilege applied to which portions and how --should be the end
of the matter. Id.
240
Because it impedes full and free discovery of the truth,

the attorney-client privilege is strictly construed.
Martin,
278 F.3d at 999; see also United States v. Gray, 876 F.2d 1411
(9th Cir. 1989) (attorney-client privilege is narrowly and
strictly construed).
The burden is on the party asserting the
privilege to establish all the elements of the privilege.

Martin, 278 F.3d at 999-1000; Ruehle, 583 F.3d at 608-09 ([T]he
party asserting the privilege is obliged by federal law to
establish the privileged nature of the communications.).
This
Court applies Wigmores formulation of the elements the privilege

claimant must show:
(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 clients instance, permanently protected (7) from
disclosure by the client or by the legal adviser (8)
unless the protection be waived.
As the party claiming the privilege,
Christensen had the burden to identify specific communications

and the grounds supporting the privilege as to each piece of
evidence over which privilege is asserted.
Id. at 1000.
Christensens claim was properly denied at the district

court, because he failed to establish all the elements of the
privilege as the law requires, and because he failed to
specifically identify which privilege he claimed for which
241
information.
elements.
Id. at 999-1000.
Even now he glosses over required
Each such failure is independently fatal to his claim.
As the proponent of the privilege, Christensen had the duty

to establish communications by the client to the lawyer or from
the lawyer to the client, in the calls at issue.172
This is a duty Christensen entirely skipped.
established from the calls themselves.
Id. at 999.
Nor is the element
Kerkorians voice is
never heard on the calls -- the only recorded participants were

Christensen and Pellicano.173
Christensens voluminous trial-
court briefings contained none of the information on this subject

that would have been required to justify a finding of attorney-
172
See Chen, 99 F.3d at 1501 (attorney-client privilege

covers an attorneys advice [to the client] in response to [the
clients] disclosures). While the attorney-client privilege
may occasionally be extended to communications between a lawyer
and a third-party where the client does not take part, the
instances for such extensions are subject to limitations to
prevent the privilege from engulf[ing] all manner of services
performed for the lawyer that are not now, and should not be,
summarily excluded from the adversary process. FTC v. TRW,
Inc., 628 F.2d 207, 212 (D.C. Cir. 1980).
173
On discrete occasions, Christensen claimed to be saying

something about Kerkorians interests or thought-processes. But
that by itself does not establish that Christensen was actually
relaying Kerkorians communications, as opposed to speculating
about Kerkorians thoughts -- an issue Christensen had the burden
to establish by identifying which specific statements he believed
covered by this privilege, and how those specific statements
revealed communications with Kerkorian.
242
client privilege.
The district court was right to deem this
insufficient.174
Even now, Christensen makes only the barest pretense of
discussing this element, claiming generally that statements in
the recordings reference privileged communications from his
client, including statements about Kerkorians litigation
objectives, his desires to identify Kiras biological father, and
other references to the ongoing litigation.
(COB 54 n.20).
Even if this single, exceedingly general sentence in a single

footnote were not already fatally late and unspecific,175 it would
fail for another reason: Christensen also has the burden to show
that each such communication purportedly to or from Kerkorian was
made in confidence at the time it was made.
at 999.
Martin, 278 F.3d
As the district court found, it is entirely conceivable
that much or all of what Christensen vaguely complains about was

information that had already been conveyed to Bonder Kerkorians
174
Compare United States v. Kovel, 296 F.2d 918, 924 (2d

Cir. 1961) (Friendly, J.) ([A] witness claiming the
attorney-client privilege may not refuse to disclose to the judge
the circumstances into which the judge must inquire in order to
rule on the claim).
175
See 9th Cir. Rule 28-2.8 (Every assertion in briefs

regarding matters in the record shall be supported by a reference
to the location in the excerpts of record where the matter is to
be found.); Western Radio Servs. Corp. v. Qwest Corp., 678 F.3d
970, 979 (9th Cir. 2012) (We will not do an appellants work for
it . . . by combing the record on its behalf for factual
support.).
243
counsel or to the[ir] mediator.
(JER 191).
Christensens
attempts both in the lower court and here to establish the

privilege by ipse dixit rather than evidence must fail.
Although Christensen vigorously asserted the privilege for
his own benefit, Christensen did not at the district court and
does not now point to any assertion of the privilege by Kerkorian
or his agents.
This, too, is fatal to his claim.
The attorney-
client privilege belongs to the client, not the lawyer, In re

Chevron Corp., 650 F.3d 276, 283 n.8 (3d Cir. 2011); United
States v. Amodeo, 71 F.3d 1044, 1052 (2d Cir. 1995), and the
Ninth Circuit elements state that it operates only at the
clients instance, Martin, 278 F.3d at 999.
To say that
something operates at the instance of (a person) is to say that

it operates at the solicitation, suit, instigation, or
suggestion of that person.176
Kerkorian made no attempt to
instigate, solicit, or otherwise instantiate the privilege here.

Although represented by counsel, aware of the proceeding, and
appearing at trial as a witness, Kerkorian never asserted the
privilege in connection with the motion to suppress.
176
(C.R. 1046
Oxford English Dictionary (2d ed. 1989 & March 2012

online version); see also 1 New Shorter Oxford English Dictionary
1381 (1993) (defining at the instance of as at the request or
suggestion of); American Heritage Dictionary of the English
Language 907 (4th ed. 2000) (defining instance as A suggestion
or request: called at the instance of his attorney.); Webster
Illustrated Contemporary Dictionary 372 (1982) (defining
instance as the act of suggesting or urging; a request).
244
at 3; GER- (Importantly, the purported holder of the attorneyclient privilege over the Recordings, Kirk Kerkorian, has not
intervened in this matter to protect the privilege.)).177
Nor
was Christensens assertion of the privilege done as Kerkorians

agent.178
Indeed, throughout this case, it was clear that
177
With respect to the May 16, 2002, recording in which

Christensen and Pellicano proposed wiretapping a different target
for a different Christensen client, the district court similarly
found that [t]o the Courts knowledge the client whose matter is
discussed on the May 16, 2002, recording has not stepped forward
to claim the privilege over the matters discussed in the
recording. (C.R. 1731, at 1; GER).
178
C.R. 1731, at 1; GER--. Christensens assertion of the

privilege cannot be read as being implicitly on Kerkorians
behalf. Given the allegations, Christensen suffered from a
disabling conflict of interest that completely prevented him or
his counsel from serving as Kerkorians legal representative on
matters relating to Christensens own criminal prosecution. See
id. (expressing skepticism at hypothetical ability of Christensen
to claim privilege on Kerkorians behalf given Christensens
obvious conflict of interest).
In his district court reply brief, Christensen fleetingly
claimed that Christensen was taking every opportunity to protect
the attorney-client privilege of the recordings in behalf of
Mr. Kerkorian. Reply Br. at 26. The brief did not, however,
claim that Christensen was acting at Kerkorians direction
something that would have been easy enough to establish, by
affidavit, if true. Indeed, by that time, Kerkorian was
represented by separate counsel (strangely enough, the same
lawyers serving as Christensens current counsel on appeal),
making it clear that Christensen was not asserting anything on
Kerkorians behalf as Kerkorians counsel. Finally, Christensen
cannot meet his burden on this element through his allegation
(COB 42 n.16) that Kerkorian was asked to explicitly waive his
privileges and declined to do so. Kerkorians decision to remain
out of the fray, by neither asserting nor waiving any claim of
privilege over the recordings, is tantamount to the clients
decision not to assert his rights in de la Jara, where it was
held to constitute a de facto waiver. Indeed, Christensens
(continued...)
245
Christensen is an attorney seeking to invoke privileges not to

protect his client or to protect the legal system, but instead to
protect his own personal interest.
(C.R. 1046, at 3; GER--).
Even if Kerkorian did not explicitly waive his privileges

when the government (out of court) gave him an opportunity, it is
also true that, despite knowing of the governments intent to
access and use these calls, and despite being represented by new
counsel during the entirety of the trial court proceedings,
Kerkorian likewise did not invoke the privilege in connection
with the motion to suppress.179
This Court will deem the
privilege to be waived if the privilege holder fails to pursue

all reasonable means of preserving the confidentiality of the
privileged matter.
de la Jara, 973 F.2d at 749.
Thus, a client
who knows his communications are sought, has the opportunity to
(...continued)
allegation underscores that Kerkorians decision not to come to
court and assert privilege claims on his own behalf was a
considered decision reconfirming that Christensens privilege
claims were made for Christensens protection, not at his former
clients instance as Martin would require.
179
Rather than supply evidence to satisfy this vital

element of the privilege, Christensen instead accused the
government of attempting to trick Kerkorian (who was by then
represented by separate counsel) into waiving his privilege -- an
accusation the trial court found completely baseless. (JER
183).
246
intervene, and declines to do so will be held to have

constructively waived the privilege.180
Whether analyzed as an implicit waiver under de la Jara, or
as Christensens failure to show that the privilege was invoked
at the clients instance under Martin, Christensen has failed
to establish his clients assertion of the privilege and that
missing element means his claim must fail.
c.
Christensen Failed To Establish the Elements of

the Work-Product Privilege and Did Not Defeat the
Governments Overwhelming Need for the Material
Christensen likewise failed to establish the elements of the

work-product privilege.
The work-product privilege is a
qualified privilege for certain materials prepared by an attorney

acting for his client in anticipation of litigation.
States v. Nobles, 422 U.S. 225, 237-38 (1975).
United
The privilege
exists to foster the public policy underlying the orderly

prosecution and defense of legal claims, Hickman v. Taylor, 329
U.S. 495, 510 (1947), and its primary purpose is to prevent
180
In de la Jara, a businessman challenged the admission at

trial of a letter his attorney had written him. 973 F.2d at 748.
Although the businessman attempted at trial to assert attorneyclient privilege, this Court found that he had effectively waived
the privilege, because he had done nothing to recover the letter
or protect its confidentiality during the six month interlude
between its seizure and introduction into evidence. Id. at 749.
Here, as in de la Jara, the privilege should be deem[ed] . . .
waived, because the privilege holder fail[ed] to pursue all
reasonable means of preserving the confidentiality of the
privileged matter. Id.
247
exploitation of a party's efforts in preparing for litigation.

Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 576
(9th Cir. 1992).
From its inception, . . . the courts have
stressed that the [work product] privilege is not to protect any

interest of the attorney, who is no more entitled to privacy or
protection than any other person, but to protect the adversary
trial process itself.
Moody v. IRS, 654 F.2d 795, 800 (D.C.
Cir. 1981).
This Court has held that, to qualify for the privilege,
documents must 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.
In re Grand Jury Subpoena (Mark
Torf), 357 F.3d 900, 907 (9th Cir. 2004).
As with the attorney-
client privilege, the burden of establishing the privileges

applicability lies on the privileges proponent: The party
invoking the [work product] privilege bears the heavy burden of
establishing its applicability.
In re Grand Jury Subpoena Dated
July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); see also In re
Grand Jury Proceedings, 616 F.3d 1172, 1185 (10th Cir. 2010).
Even where otherwise established, the work product privilege
is not absolute.
Where the privilege facially applies, one who
would invade that privacy may still establish adequate reasons
248
to justify production through a subpoena or court order.

Hickman, 329 U.S. at 512.
In this regard, cases distinguish
between work product that contains merely factual information,

and that which reveals the attorneys legal opinions and strategy
-- with an attorneys legal opinions and strategy (so-called
opinion work-product) gaining more protection than so-called
fact work-product, though neither type of product is protected
absolutely.
Christensens work-product claim made the same mistake as
his attorney-client claim: It failed to meet his burden to
establish the specific privilege as to specific documents, by
means of specific arguments and facts.
Where the arguments and
affirmations of the privileges proponent are mere[ly]

conclusory or ipse dixit assertions, he [does] not carry his
heavy burden of demonstrating the applicability of the
privilege.
In re Grand Jury Subpoena Dated July 6, 2005, 510
F.3d at 184.
Such ipse dixit is all that Christensen supplied
here in his generalized claim that the privilege applied to all

of the recordings.
Christensen never specified the scope of his
representation, the goals of litigation, and how various portions

of the calls were in preparation for that litigation, as opposed
to for Kerkorians other personal reasons.181
181
Facts establishing
Even if one general motivation for hiring Pellicano was

(continued...)
249
the nature of Christensens representation and the scope of the

foreseen litigation were facts particularly available to
Christensen, and he was the person with the burden to establish
the work-product privilege.
His failure to produce those facts
dooms his claim.

The nature of Christensens work with Pellicano also argues
against recognition of the privilege.
181
Christensen did not hire
(...continued)
to give Kerkorian an advantage in the legal dispute with Bonder,
the existence of that general motivation does not meet
Christensens burden to show that each particular call related to
that litigation rather than to other motivations and interests.
The recordings focus, in considerable part, on Kerkorians
attempts to determine the biological father of Bonders child
Kira Kerkorian -- a matter in which Kerkorian presumably had a
personal interest that could have existed whether or not there
was litigation. Indeed, as the trial court recognized, in the
calls themselves Christensen posits Kerkorians curiosity and
personal satisfaction as the motive for wanting Bonder
investigated. (See JER 193 (When Christensen was asked by
Pellicano why Kerkorian was interested in knowing how Bonder
Kerkorian became pregnant, Christensen responded on several
occasions that its just something he wants to know or that
Kerkorian simply wanted to know the truth.)). At closing
argument, Christensens lawyer urged the jury to infer that one
of Kerkorians motives was to get an answer for Kira. (See
8/26/08 (P.M.) RT 12-18; GERT 13462-68 (arguing to jury that Mr.
Christensen and Mr. Kerkorians concern was all about Kira;
supporting that argument by playing Christensens recorded
statements to Pellicano saying that: If [Bing is] the father,
he needs to step up and recognize being the father. That's a
combination of financial and . . . that somehow Kira knows that
he's there, and [Kerkorian] thinks that Kira should know who
her real father is rather than belatedly learning the news at
Kerkorians eventual death)). In short, the content of the calls
made it less than obvious whether Christensens work was for the
litigation or for Kerkorians personal reasons. Christensen
should not have dodged his burden to establish that element.
250
Pellicano to engage in traditional legal investigation or

strategizing.
There is no evidence that Pellicanos strength was
as an interviewer of witnesses or a finder of documents.
Rather,
as the jury found beyond a reasonable doubt, Christensen hired

Pellicano to conduct illegal wiretaps.
Those wiretaps may have
been intended for blackmail or for psychological gratification,

rather than litigation.
Just as Pellicano was not hired as a legal investigator, so
too the recordings were not created as part of Christensens
legally cognizable activities as a lawyer.
wiretaps are far outside the lawyers role.
Indeed, illegal
See Cal. Bus. &
Prof. Code 6106 (prescribing disbarment for acts of moral

turpitude).
As a result, insofar as Christensens role was to
obtain illegal wiretaps, that was a task that could just as well
have been performed by a non-lawyer, Torf, 357 F.3d at 909,
meaning the work-product privilege specific to lawyers work
should not apply.
Lastly, even if Christensen had met his burden of showing
the work-product privilege to be generally applicable, the
government was still entitled to use these materials because of
overwhelming necessity.
From its beginning, the work-product
doctrine has acknowledged that even where the privilege facially

applies, one who would invade that privacy may still establish
251
adequate reasons to justify production.

512.182
Hickman, 329 U.S. at
Accordingly, a party may obtain discovery of work
product absent waiver upon a sufficient showing of need and

hardship, bearing in mind that a higher burden must be met to
obtain that pertaining to mental processes than that pertaining
to fact development.
In re Seagate Tech., LLC, 497 F.3d 1360,
1376 (Fed. Cir. 2007) (en banc); see also Admiral Ins. Co. v.
U.S. Dist. Court, 881 F.2d 1486, 1494 (9th Cir. 1989) (Although
the [work-product] rule affords special protections for
work-product that reveals an attorneys mental impressions and
opinions, other work-product materials nonetheless may be ordered
produced upon an adverse partys demonstration of substantial
need or inability to obtain the equivalent without undue
hardship.).
Even with respect to a lawyers mental impressions,
opinion work product may be discovered and admitted when mental

impressions are at issue in a case and the need for the material
is compelling.
Holmgren v. State Farm Mut. Auto Ins. Co., 976
F.2d 573, 577 (9th Cir. 1992).

182
See also id. at 511 (Where relevant and non-privileged

facts remain hidden in an attorneys file and where production of
those facts is essential to the preparation of ones case,
discovery may properly be had. Such written statements and
documents might, under certain circumstances, be admissible in
evidence or give clues as to the existence or location of
relevant facts. Or they might be useful for purposes of
impeachment or corroboration. And production might be justified
where the witnesses are no longer available or can be reached
only with difficulty.).
252
The compelling need for the Christensen-Pellicano recordings

justified their use, as shown by the Second Circuits decision in
In re Grand Jury Subpoena, 510 F.3d 180 (2d Cir. 2007).
In that
case, a client acting on his lawyers instruction

surreptitiously recorded conversations with another person.
Id. at 182.
When the grand jury subpoenaed those recordings, the
client sought refuge in the work-product doctrine.
The doctrine
facially applied, since the recordings were conducted at the

attorneys instructions, id. at 184, and in anticipation of
litigation, id. at 183.
Nevertheless, the Second Circuit granted
the grand jury access to the materials.
The Court reasoned that
the recordings at issue were only fact work-product, rather than

opinion work-product, because, notwithstanding the fact that the
recordings could reveal aspects of the attorneys litigation
strategy, such tape recordings are less reflective of an
attorneys thought processes than his notes or memoranda would
be.
Id. at 184.
Moreover, given the unique evidentiary value
of the recordings, the Court found that the grand jurys

compelling need justified its invasion of the work-product
privilege.
Id. at 188.
Accordingly, the work-product privilege
was no bar to accessing the defendants surreptitious recordings.

That reasoning should lead to affirmance here.
See United
States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (Court of
253
Appeals may affirm the district court's decision on any ground

supported by the record).
Pellicanos recordings are a unique
memorialization of the conversations between [the two defendants]

that is not subject to fading memories or contradiction.
re Grand Jury Subpoena, 510 F.3d at 188.
In
Because Christensen
did not know that he was being recorded, the recordings

provide insight into the conspiracy that cannot be replicated
by subsequent interviews.
Id.
Moreover, the jurys access to
the recordings here served to vindicate a crucial societal goal:

protecting the social values of attorney-client confidentiality
and personal privacy, which Christensen and Pellicano
(ironically, given their arguments now) were all too ready to
invade.183
Finally, to whatever extent opinion work product is
revealed in the calls, it is justified under Ninth Circuit law

because Christensens thought processes were at issue in [the]
case, Holmgren, 976 F.2d at 577, as the district court found
(C.R. 1731, at 2; GER--).
The work-product privilege therefore
did not bar the trial jurys access to the recordings, given the
substantial need for the recordings and the governments
inability to obtain the information through other means.
Holmgren, 976 F.2d at 577.
183
Compare Parrott v. Wilson, 707 F.2d 1262 (11th Cir.

1983) (finding crime-fraud exception sufficient to vitiate workproduct privilege where attorney surreptitiously recorded
conversations).
254
3.
The Trial Courts Ultimate Zolin Process Correctly

Found that the Crime-Fraud Exception Applied
Even if Christensen had asserted the privileges with

specificity, had met his burden to establish each privileges
elements, and could counter the governments showing of
compelling need, that still would not be the end of the matter.
Because the calls and communications at issue were part of the
defendants criminal scheme to illegally wiretap Lisa Bonder, the
trial court correctly held that the communications lost privilege
protection under the crime-fraud doctrine.
The trial courts conclusions in its two opinions analyzing
the issue under United States v. Zolin, 491 U.S. 554 (1989), were
correct and should be affirmed.184
At Step One, the trial court
considered all the governments evidence except the challenged

recordings.
The trial court correctly found that evidence, which
included Pellicanos statements that he was wiretapping Bonders

phone, his statements discussing the wiretapped contents with
Christensen, and a large payment to Pellicano from Christensen,
raised a suspicion that the recorded calls were implementing
criminal activity, making it proper for the court to proceed with
a minimally invasive in camera examination of the calls
184
Christensen wrongly begins his analysis by concentrating

on the trial courts initial misstep in skipping the Zolin
inquiry. As explained below, this mistake was cured by the trial
courts later application of the correct Zolin inquiry, making
any initial missteps harmless error.
255
themselves in Step Two.
When examined in camera, in turn, the
recordings proved to be replete with direct, convincing evidence

of the criminal conspiracy -- the same evidence the jury later
found sufficient to convict both men beyond a reasonable doubt.
The crime-fraud exception applied.
a.
Standard of Review
Zolin established a two-step process for determining the

applicability of the crime-fraud exception.
In Step One, the
proponent of review (here, the government) relying on evidence

other than the communications at issue, must make a minimal
showing that the crime-fraud exception could apply.
In re Grand
Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992).
This
means the government must establish reasonable cause to

believe that the crime-fraud exception may turn out to apply -with reasonable cause defined as more than suspicion but less
than a preponderance of evidence.
Chen, 99 F.3d at 1503.
With
that burden met, the court proceeds to Zolins Step Two, where
the decision to engage in in camera review rests in the sound
discretion of the district court.
Zolin, 491 U.S. at 572.
Finally, during in camera review, the trial court examines all of

the evidence -- both the material as to which privilege is
asserted and the evidence that was received as background
256
material -- to determine whether the crime-fraud exception

applies.
In reviewing a decision on the applicability of the
privileges, the district courts credibility determinations are
given special deference.
This Court
has not settled whether the trial courts Step One decision is
reviewed for abuse of discretion or reviewed de novo.
States v. Bauer, 132 F.3d 504, 509 (9th Cir. 1997).
United
Given the
judgment such a decision entails, the factual conclusions the

district court is called upon to make, and the minimal intrusion
posed by a decision to inspect documents in camera, the proper
standard should be review for abuse of discretion or clear error.
Cf. United States v. Frederick, 182 F.3d 496, 499 (7th Cir. 1999)
(our review of the judges ruling on the privilege claims is
deferential[, asking] not whether the ruling was erroneous but
whether it was clearly erroneous; [w]hether a particular
document is privileged is a fact-specific and case-specific
issue, the sort of issue that district judges are particularly
experienced in resolving).
Once a sufficient showing has been
made at Step One, this Court review[s] the district courts

decision to allow inspection for abuse of discretion and cannot
reverse absent a definite and firm conviction that the district
court committed a clear error of judgment.
257
Bauer, 132 F.3d at
509.
At the final stage, rulings on the scope of the
privilege, including the crime-fraud 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
Litig., 479 F.3d 1078, 1089 (9th Cir. 2007).

b.
The Trial Courts Step One Ruling Correctly Found,

Based on Facts Separate from the Contested
Communications, that the Crime-Fraud Exception
Could Apply
After briefing and argument, the trial court performed its

Zolins Step One analysis in its December 18, 2007, ruling.
180-84).
(JER
That ruling examined only non-privileged pieces of
information, and found them adequate to show that in camera

review could reveal evidence of an ongoing crime on the part of
Christensen and Pellicano.
(JER 180).
The order was correct.
In light of the relatively small intrusion on the privilege

posed by in camera review, Zolin set the Step One threshhold as
not a stringent one.
491 U.S. at 572.
While Christensen
advocates for a Step One standard that would effectively shield

his incriminating recordings from disclosure despite the numerous
smoking guns pointing to their likely contents, this Court, in
contrast, has held that the Step One test must be set
sufficiently low to discourage abuse of privilege.
258
In re Grand
Jury Investigation, 974 F.2d at 1072.
Accordingly, under the
Step One standard of review (which Christensen does not mention),

the trial court should not require a prima facie showing that
the exception does apply.
In re Grand Jury Subpoena 92-I, 31
F.3d 826, 829 (9th Cir. 1994) (emphasis in original).
Rather,
the government must make only a minimal showing that the crimefraud exception could apply.
Id.
This is a considerably lower
threshold, requiring only enough evidence to support a

reasonable good faith belief the review of the privileged
documents may reveal evidence to establish the claim that the
crime fraud exception applies.
974 F.2d at 1073.
In re Grand Jury Investigation,
In determining whether the government meets
this minimal standard, moreover, the trial court properly

considers only [the] evidence presented by the party seeking in
camera review.
In re Grand Jury Subpoena 92-1, 31 F.3d at 829.
Christensen also understates the evidence the trial court

had with which to find this minimal and not . . . stringent
standard met.
Id.
Asserting (COB 47-48) that the trial court
relied on only three facts to support its Step One finding,

Christensen describes those facts as the existence of a
connection between Christensen and Kerkorian, evidence that
Pellicano was surreptitiously listening to Bonder-Kerkorian
259
conversations, and a contemporaneous payment of a large sum of

money from Christensens firm to Pellicano.
In fact, the trial court had more.
(COB 48).
For one thing, the trial
court had the statement of Pellicanos girlfriend (Carradine)

that she heard Pellicano discuss[ing] the substance of the
recorded Bonder-Kerkorian conversations with a person Pellicano
identified as Kirk Kerkorian.
(JER 159).185
That discussion, in
which Pellicano told Kerkorian about the contents of the

eavesdropped calls, happened when Kerkorians lawyers had
recently paid Pellicano not just a large sum of money, but an
extremely large sum of $186,000.
(JSER 110).
Moreover, this all
happened when grand jury testimony and PIA-employees confessions

showed that Pellicano was wiretapping other targets as a matter
of course.
In short, the trial court had evidence that Pellicano
was eavesdropping on Bonders conversations and discussing the

confidential contents with Kerkorian at the same time that
Kerkorians lawyer in his dispute with Bonder was paying
Pellicano a large sum of money.
Not surprisingly, the court
185
Although Christensen attacked the witness credibility,

the trial court found these attacks to be largely without
foundation (JER 181) -- a credibility determination by the
district court that receives special deference. Ruehle, 583
F.3d at 606. In any case, given the minimal intrusion posed by
proceeding from Zolins Step One to in camera review, the trial
courts Step One decision should credit the governments
witnesses, much as a plaintiffs complaint would be credited when
deciding a civil motion to dismiss.
260
found that this certainly raised the inference that the $186,000
was, at least in part, in exchange for illegal wiretapping
services.
(JER 181).186
Although the court was not required to consider

Christensens arguments on the matter, see In re Grand Jury
Subpoena 92-1, 31 F.3d at 829, the court considered and rejected
Christensens attempts to besmirch Carradines credibility and
186
The trial court also had before it information from an

FBI interview with Bonders lawyer, Kolodny, in which Kolodny
discussed the extremely contentious dispute between Bonder and
Kerkorian, discussed Christensens actions in the lawsuit, and
stated that Christensens apparent access to confidential
information had led Kolodny to have Bonders home swept for bugs.
(JER 88). Contrary to Christensens smear, there was no evidence
that the government used any of the recordings contents in
interviewing Kolodny on the subject. Indeed, the district court
found no basis for Christensens allegation that the FBI case
agent had listened to the privileged materials before their
court-ordered release (JER 182) -- a finding that Christensen
does not prove clearly erroneous. Even aside from that factual
finding, Christensens complaints about derivative use of
privileged materials fail as a matter of law, given this Courts
prior statement that no court has ever applied the fruit of
the poisonous tree doctrine to any evidentiary privilege, and .
. . we have indicated we would not be the first to do so.
United States v. Marashi, 913 F.2d 724, 731 n.11 (9th Cir. 1990).
Since Christensens claims concern purely evidentiary privileges
(since the communications did not originate in the course of
representing Kerkorian in a criminal matter), Marashi disposes of
all of Christensens derivative evidence claims. Regardless,
although information from Kolodny further underscores the ample
basis on which the district court could find the Step One burden
met, it was not necessary to the district courts decision and
the district court did not rely on it, except possibly for
background facts of the litigation (such as the names of the
lawyers and the issues in the case) that were unconnected to the
content of the calls.
261
explain away the suspicious background facts.187
The court
likewise found no basis at all for the latest installation of the

defenses now de rigueur attack on the credibility and tactics
of Special Agent . . .
Ornellas.
187
(JER 182 & n.5.
These
The trial court found that Christensens attacks on

Carradines credibility are largely without foundation -- noting
that Carradines incentives were no different from those of other
cooperators, whom courts and juries must at times rely on, and
noting that any prior instances of Carradines untruthfulness
when she was attempting to protect her boyfriend Pellicano did
not show that she would lie to harm him. (JER 181). This
credibility determination receives deference under Ruehle, 583
F.3d at 606.
Christensen further attacks the trial courts reliance on
Carradines statements by saying that they were inadmissible
triple hearsay. (COB 52). But Christensen cites no authority
to say that Zolin Step One evidence must qualify as admissible at
trial, or that it must be non-hearsay. Hearsay rules do not
apply to determinations of any preliminary question about
whether . . . a privilege exists. Fed. R. Evid. 104(a); see
also Fed. R. Evid. 1101(d)(3) (rules of evidence do not apply to
miscellaneous proceedings); Fed. R. Evid. 1101(d)(1) (rules of
evidence do not apply to a preliminary question of fact
determining admissibility). (Rule 104(a) makes clear that the
rules on privileges apply to such proceedings but that simply
means that, for instance, the government could not have forced
Kerkorian to testify as to his communications with his lawyer in
order to establish the crime-fraud exception).
Christensens characterization of the statements as triplehearsay is, in any event, exaggerated. Pellicanos statements
about who he was talking to were nonhearsay statements of
identification and present sense impressions; his conversation
with Kerkorian was nonhearsay under the coconspirator rule; and
his admissions that he was engaged in illegal wiretapping were
statements against penal interest. See Fed. R. Evid. 803(1),
801(d)(2)(B), 804(b)(3). The fact that the girlfriends
statements about all this were conveyed to the judge through an
FBI agents written summary rather than by her own in-person live
testimony is not surprising that is the way such statements are
routinely presented, including in search warrant affidavits.
262
credibility determinations receive special deference on

appeal.
Indeed, in the Zolin Step One analysis, the court was

effectively required to credit the governments evidence.
The
Step One question, as this Court has defined it, is whether

there was evidence that if believed by the jury would establish
the elements of an ongoing violation.
United States v. Laurins,
857 F.2d 529, 541 (9th Cir. 1988) (emphasis added); see also
Chen, 99 F.3d at 1503 (similar).
As a leading treatise puts it,
the judges task at Zolins Step One is not to determine issues

of credibility or whether a particular inference should be drawn,
but rather to see what conclusions could be reached if the
witnesses were credited and the permissible inferences drawn.
24 Wright & Graham, Federal Practice and Procedure: Evidence
5501, at 525 (1st ed. 1986) (footnotes omitted).
Christensens
complaint about witness credibility, therefore, is entirely offpoint.

Christensen notes that, given the Step One evidence alone,
it was impossible for the trial court to rule out potential
innocent explanations for the suspicious circumstances noted by
the trial court.
In complaining that the courts cited evidence
does not support its conclusion that the crime-fraud exception

applied, however, Christensen asks the wrong question.
263
(COB 53
(emphasis added)).
Christensen essentially asks this Court to
commit the same error that this Court reversed a district court
for committing in In re Grand Jury Investigation, 974 F.2d at
1073 (The district court . . . apparently required a factual
showing that supports a good-faith belief that the crime-fraud
exception applies.
Such a standard is set too high.).
Evaluated instead under the proper standard, the trial courts

Step One decision easily passes muster.188
At Step One, the
government need only prove that the crime fraud exception may
turn out to apply, not that it definitely does apply.
There is
an important difference between showing how documents may supply

evidence that the crime-fraud exception applies [under Zolins
Step One] and showing directly that the exception applies.
Id. (emphasis added).
The Zolin threshold is set sufficiently
low to discourage abuse of the privilege and ensure that mere

assertions of the attorney-client privilege will not become
sacrosanct.
Id. at 1072.
It is entirely proper for the trial
188
This case illustrates precisely why the Step One

standard must be low, so as not to be overprotective of attorney
crimes. [T]here are many blatant abuses of privilege which
cannot be proven by extrinsic evidence -- particularly where an
alleged illegal proposal is made in the context of a relationship
which has an apparent legitimate end. Zolin, 491 U.S. at 569.
Setting too high a standard at Zolins Step One would result in
an overzealous protection of the attorney-client privilege in a
context where the rationale for that privilege may be
inapplicable. In re Grand Jury Investigation, 974 F.2d at
1072.
264
court to consider how suspicious Step One evidence may be

connected to possible criminal conduct: The Zolin threshold is
designed to prevent groundless fishing expeditions, not to
prevent all speculation by the district court.
Id.
Here, given
the tremendous confluence of suspicious signals, including

Pellicanos own statements, the trial courts willingness to
proceed to a confidential, in camera examination of the recorded
calls themselves was far from a groundless fishing
expedition.
Id.
In any event, even if the Step One evidence came up short,

any error was harmless.
By the time the evidence was actually
introduced at the second trial (as opposed to in the pretrial

motions well before the first trial), the government had amassed,
and the trial court seen, tremendous further evidence showing
that Pellicano was a repeat wiretapper.
If the trial court had
found the Step One analysis lacking in the pretrial motion stage,
therefore, that is a result that could have been revisited before
the second trial.
At that point, the trial court would have had
no problem connecting the dots between Christensens large

payment to a proven wiretapper, and confidential information
overheard by Carradine.
Since the government then would have
been fully justified in re-filing for a new Step One inquiry,
265
leading to the informations eventual use at trial, any Step One

error is harmless.
c.
The District Court, After Reviewing the Recordings

In Camera, Correctly Found that the Crime-Fraud
Exception Applied, Since the Calls Were Replete
with Evidence that Christensen Had Hired Pellicano
to Commit Illegal Wiretapping
After determining that the government had satisfied Step

Ones minimal standard, the trial court appropriately exercised
its Step Two discretion to conduct an in camera review of the
recordings themselves -- a decision Christensen seems not to
challenge.
Instead, Christensen challenges the trial courts
ultimate ruling on the applicability of the crime-fraud exception

after its in camera review of the recordings.
The challenge is
meritless.
The crime-fraud exception applies to both the attorneyclient and work-product privileges.189
Communications lose their
privileged character if the communications were in furtherance

of an intended or present illegality and . . . there is some
relationship between the communications and the illegality.
189
Every circuit which has considered the question has

held or assumed that the crime-fraud exception applies to the
work product privilege. In re Sealed Case, 676 F.2d 793, 811
n.67 (D.C. Cir. 1982); see also, e.g., In re Grand Jury
Proceedings, 867 F.2d 539, 541 (9th Cir. 1989) (affirming crimefraud exceptions application to work-product); In re Grand Jury
Proceedings, 87 F.3d 377 (9th Cir. 1996) (similar).
266
Chen, 99 F.3d at 1503.
The government bears the burden of
showing that the exception applies.
For attorney-client communications, the crime-fraud

exception entirely vitiates the privilege.
1001.
Martin, 278 F.3d at
For work-product, a more complex analysis applies, with
purely factual work product treated differently than opinion

work product that reflect[s] the attorneys mental impressions,
opinions, conclusions, judgments or legal theories.
In re
Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986); see
also In re Special Sept. 1978 Grand Jury II, 640 F.2d 49, 63 (7th
Cir. 1980).
Where the client is guilty and the attorney
blameless, the crime-fraud exception ordinarily justifies

disclosure of fact work product but not opinion work product -because a guiltless attorneys mental impressions should not be
disclosed merely because of his clients culpability.
See In re
Antitrust Grand Jury, 805 F.2d at 163 (an unknowing attorney may
successfully assert the privilege even in the face of a clients
fraud or crime).
However, on those rare occasions when the
attorney knowingly participates in the crime, even opinion work

product may be disclosable, since none of the public policies
advanced in support of the privilege would be served if an
attorney who committed a crime or fraud could shield himself from
267
prosecution or litigation because he asserted the work product

doctrine.
Id.
Although the contents of the recordings are intensely

relevant at this stage of the analysis, Christensens argument
barely mentions them at all.
That is not surprising.
Those
recordings, which the trial court was entitled to rely on in its

in camera analysis, proved the conspiracy by Christensen and
Pellicano to wiretap Bonders calls in violation of federal law.
Ironically,190 given Christensens current posturing about the
importance of the attorney-client privilege, those calls reveal
that Christensen was using Pellicano to gain information on
Bonders private communications with her own lawyers.
Indeed,
perusing the full transcripts of the recordings makes clear that

Christensen was abusing his position as a lawyer to engage in
criminal activities that subverted the justice system and
perverted Christensens role as lawyer.
190
The irony continued at trial, when Christensen filed a

motion in limine seeking to declare Bonders attorney-client
privilege ineffective, so that he could have complete access to
all her attorney-client communications and all of her attorneys
files and correspondence relating to the dispute with Kerkorian
(C.R. 1653; GER--) -- a level of intrusion that the government
never approached in its limited efforts to receive the few hours
of recorded calls in which Pellicano and Christensen orchestrated
their crime. Since one of Christensens attorneys at trial was
from the same law firm that (through Christensen) had represented
Kerkorian in Kerkorians then ongoing dispute with Bonder, the
potential for abuse in Christensens subpoena was especially
plain.
268
Rather than address the conspiracy revealed by the calls,

Christensen tries to immunize himself by arguing that the crimefraud exception can never apply where the lawyer acted criminally
but without the clients knowledge.
That argument is beside the
point, since, as the district court found, the recordings

provide reasonable cause to believe that Kerkorian was
complicit in the alleged illegal conduct (JER 191) -- something
amply shown by, for instance, Carradines report of Pellicanos
conversation with Kerkorian.191
(Indeed, Carradines statement
that Pellicano had told her he was talking to Kerkorian when

relaying details of Bonders phone conversations was enough, in
itself, to find the requisite standard met to find Kerkorians
involvement.)
In any case, while Christensens legal argument
has not been explicitly decided by this Court, Christensens

argument contradicts both the weight of authority from other
jurisdictions and the reasons for the crime-fraud exception.
The
argument should be rejected.

In In re Impounded Case (Law Firm), 879 F.2d 1211, 1213 (3d
Cir. 1989), the Third Circuit directly addressed the legality of
191
In addition to the evidence cited by the district court,

see also JSER 114-15 (Christensen explaining that he would need
to talk to Kerkorian about Pellicanos information); JSER 114
(Pellicano hypothesizing that Christensen is too solicitous of
Kerkorians feelings when presenting the information to
Kerkorian); JSER 117 (Christensen telling Pellicano that the old
man was happy with Pellicanos work).
269
the application of the crime-fraud exception to a situation where

the attorney-client privilege and the privilege derived from the
work product doctrine are asserted when the alleged criminality
being investigated is solely that of the law firm.
Like
Christensen here, the law firm in that case argued that the
crime-fraud exception could not apply where the pertinent
alleged criminality is solely that of the law firm.
Id.
The
Third Circuit rejected the argument, concluding that the values

implicated weigh heavily in favor of denying the [attorneyclient] privilege in these circumstances, a view that the Court
also applied to the work-product privilege.
Id. at 1215.
In In re Doe, 662 F.2d 1073 (4th Cir. 1981), the Fourth

Circuit likewise held that the crime-fraud exception to the workproduct privilege allowed a grand jury to access work-product in
order to investigate crimes the lawyer may have committed during
his representation of a client.
The Court of Appeals found no
precedent at all for the proposition 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.
Id. at 1078.
To the contrary, the Court
reasoned, the crime-fraud exception must apply in proceedings

against a suspected lawyer equally or even more readily than in a
proceeding to obtain the information for use against a client.
270
Id. at 1079 (emphasis added).
The court rejected as perverse the
notion that the rule should shield a criminal lawyer more than a
criminal client, emphasizing that the work product rule was not
designed as a fringe benefit for protecting lawyers who would,
for their personal advantage, abuse it.
Id.
In short, the
Court found the fraud exception definitely applicable when an

attorney, charged as a fiduciary in the administration of
justice, attempts to use the opinion work product rule to shield
himself from criminal prosecution arising from his actions in
prior litigation.
Id. at 1079-80.
While this approach is not universal,192 it has been widely

followed.
See, e.g., In re Sealed Case, 676 F.2d 793, 815 (D.C.
Cir. 1982) (the violation invoking the crime-fraud exception may

192
See In re Grand Jury Proceedings, 417 F.3d 18, 23 (1st

Cir. 2005), which involved the attorney-client privilege rather
than work-product, id. at 19. It is unlikely that the First
Circuit would extend its ruling to the work-product arena, since
its concern about the In re Impounded Case precedent focused on a
fear that a criminal lawyers wrongdoing could expose an
innocent client[s] communications that the client had intended
to be confidential. Id. at 23 n.5. Such a concern is not
present in this case, since the prerequisites for the attorneyclient privilege were never established, and since the district
court found reason to doubt Kerkorians clean hands. Moreover,
even if attorney-client privilege could be established for the
small handful of statements in which Christensen purportedly
spoke about Kerkorians thoughts, that would leave an immense
number of other statements showing Christensens and Pellicanos
crime. As a result, even if this Court were to follow the First
Circuits resolution of the issue for attorney-client
communications, the trial courts admission of the attorneyclient portions under the crime-fraud exception would be harmless
error.
271
be the clients scheme, or it may also be the attorneys, since

attorney misconduct negates the premise that the adversary system
furthers the cause of justice).193
Indeed, there is directly
analogous authority holding that an attorneys use of illegal or

surreptitious recordings vitiates the work-product privilege.
In
Parrott v. Wilson, 707 F.2d 1262, 1271 (11th Cir. 1983), the
defendants learned that the plaintiffs attorney had
clandestinely taped telephone convesations with . . . two of the
witnesses to the events at issue in the lawsuit.
Reasoning that
disclosure of the recordings would not traumatize[] the

adversary process more than the underlying legal misbehavior,
the Court held that whatever work product privilege might have
193
See also, e.g., In re Grand Jury Subpoena, 561 F.3d 408,

411 (5th Cir. 2009) (the party intending crime or fraud -whether it is the attorney or client -- cannot invoke the work
product doctrine); United States v. Townsley, 843 F.2d 1070,
1086 (8th Cir. 1988) (emphatically reject[ing] argument that
attorneys own communications attempting to obstruct grand jury
investigation were shielded by attorney-client privilege); In re
Subpoena Addressed to Murphy, 560 F.2d 326, 336 n.19 (8th Cir.
1977) (a court may conclude that opinion work product is not
immune if it contains inculpatory evidence of the attorney's own
illegal or fraudulent activities); United States v. GordonNikkar, 518 F.2d 972, 974-75 (5th Cir. 1975) (finding
unprivileged an attorneys suggestion to a non-client that the
non-client perjure herself to aid the clients defense). Indeed,
even without Christensens criminal purpose, Pellicanos criminal
purpose by itself was enough to satisfy the crime-fraud
exception. See In re Grand Jury Empaneled Oct. 18, 1979, 663
F.2d 282, 290 (3d Cir. 1980) (opinion of Gibbons, J.) (where
attorneys investigator conducted interviews as attorneys agent,
one showing that the government could have made to overcome
the protection afforded by the work-product doctrine is that
the agent was engaged in criminal activity).
272
existed was vitiated by counsels clandestine recording of

conversations with witnesses.
Id. at 1271-72.
If, as Parrott
held, an attorneys unethical but noncriminal taping of others

conversations is sufficient to trigger the crime-fraud exception
even without his clients wrongful intent being proven, then a
fortiori Christensens employment of Pellicano to conduct a
criminal wire interception is sufficient.
Given the weight of
authority and the consequences of Christensens contrary

approach, this Court should rule likewise.
In arguing against the rule of the cases above, Christensen
seizes on loose dicta in Ninth Circuit opinions discussing an
entirely different question.
This Court has frequently held
that, where a client intends to use his lawyer to commit a crime,

the lawyers lack of criminal intent or knowledge does not
prevent application of the crime-fraud exception to the guilty
client.
In other words, when determining whether the crime-fraud
exception applies, the clients criminal intent is a sufficient

condition, making the lawyers criminal intent not a necessary
condition.
That is the meaning of the cases cited by Christensen.194
In
In re Grand Jury Proceedings, 87 F.3d at 381 (cited at COB 46),
194
(See COB 46 (citing Bauer, 132 F.3d at 509 (The

exception applies even where the attorney is unaware that his
advice may further an illegal purpose.))).
273
for example, the investigations targets were suspected of using

their counsel to convey fraudulent statements to federal
immigration authorities regarding an application to legalize a
workers employment.
Id. at 382.
Although the government
established a prima facie case that the clients used the lawyers
to further the clients ongoing tax and immigration crimes, id.
at 379-80, the clients argued that the crime-fraud exception
could not apply because, inter alia, [lawyer] Roe and [lawyer
[Doe] were not aware of the incriminating facts or scheme, id.
at 380.
The Court rejected that argument, holding that the
attorneys innocent mind could not block application of the

crime-fraud exception where there was sufficient evidence that
the client had knowingly used the attorney to further the
clients fraud.
Given the clients guilty intent, [t]he
attorney need know nothing about the clients ongoing or planned

illicit activity for the exception to apply.
Id. at 382.
That
is the context in which the Court disregarded the attorneys

knowledge, state of mind or actions, and instead focused, quite
properly, on the client.
Id. at 381; see also id. (To trigger
the crime-fraud exception, the government must establish that

the client was engaged in or planning a criminal or fraudulent
scheme when it sought the advice of counsel to further the
scheme.).
In making this decision about applying the crime-
274
exception to communications made by a guilty client to lawyers

who were in the dark about the clients illegal conduct, id. at
382, the Court never considered whether the crime-fraud exception
could operate against a culpable lawyer who had an innocent
client.
Chen, 99 F.3d at 1504, likewise relied on the clients
guilty intent to find that the lawyers innocence does not

preserve the attorney-client privilege against the crime-fraud
exception,195 but said nothing about the converse situation.
The Ninth Circuit cases cited by Christensen, therefore,
hold that the clients illegal intent in hiring the lawyer is
sufficient to apply the crime-fraud exception even if the lawyer
is innocent.
They do not hold that the clients lack of
knowledge shields the lawyer from the consequences of the

lawyers criminality.
Nothing in Ninth Circuit law prevents this
panel from adopting the overwhelming consensus view, as

represented by In re Impounded Case and similar authorities.
Christensens contrary rule would defy the logic of the
privileges.
Lawyers are no more entitled to privacy or
protection than any other person, and [a]n attorney should not
be able to exploit the privilege for ends outside of and
195
See id. (it is the clients knowledge and intentions

that are of paramount concern to the application of the
crime-fraud exception; the attorney need know nothing about the
client's ongoing or planned illicit activity for the exception to
apply. It is therefore irrelevant . . . that [the lawyers] may
have been in the dark).
275
antithetical to the adversary system any more than a client who

attempts to use the privilege to advance criminal or fraudulent
ends.
Moody, 654 F.2d at 800.
Indeed, attorneys -- who are
schooled in the law and held to a particularly high ethical

standard -- would be especially undeserving beneficiaries of a
rule that immunized their own misdeeds because of their clients
innocence.
Even if such a rule could be defensible for attorney-client
communications (which are privileged for the clients sake), it
would make no sense for work-product.
A lawyer who violates his
clients wishes by converting a sought-after legal relationship

to one where the lawyer uses illegal means against the clients
wishes can no longer be said to be acting as a legal counselor to
the client.
Rather, he is on a particularly reprehensible frolic
and detour, and does not deserve the confidentiality that the
work-product rule otherwise extends.
The purpose of the work
product privilege is to further the integrity of the adversary

process -- and the integrity of the adversary process is not
furthered by protecting a lawyer who steps outside of his role as
an officer of the court.
Id. at 800.196
196
Since Christensen was
Cf. United States v. Talao, 222 F.3d 1133 (9th Cir.

2000) (refusing a lawyers attempt to use the rule against
contact with represented parties to hide his misdeeds, which came
to light when his client approached the governments lawyer: It
would be an anomaly to allow the subornation of perjury to be
(continued...)
276
seeking to invoke privileges not to protect his client or

protect the legal system, but, instead, to protect his own
personal interest, it would not serve the privileges purposes
to apply them here.
(C.R. 1046, at 3; GER--).
In any case,
regardless whether Kerkorian could have asserted the privileges

based on his purported innocence, a basic principle of standing
holds that the party intending crime or fraud cannot invoke the
work product doctrine.
411.
In re Grand Jury Subpoena, 561 F.3d at
Since the only people asserting the privileges here are the
ones shown to be engaged in the crime and fraud, that rule bars
them from benefitting from work-product privileges.
The contrary rule Christensen advocates would lead to
unacceptable consequences.
!
Consider the following:
C1, the defendant corporation in a discrimination case,
hires lawyer L1 to defend it by lawful means.
Unbeknownst to C1,
L1 emails his paralegal instructions to alter and destroy key

documents.
On Christensens theory, those communications from L1
to the paralegal would not be discoverable in the civil case, nor

could they be used in a criminal prosecution of L1.
!
C2, the client in a divorce case, hires lawyer L2 to
minimize his child-support payments by legal means.
196
L2 instead
(...continued)
cloaked by an ethical rule, particularly one manifestly concerned
with the administration of justice.).
277
decides to accomplish the goal by hiring a hit-man to kill C2's

child something C2 never asked for or intended.
On
Christensens theory, the documents and recordings in which L2

planned and carried out his scheme would be privileged, and the
crime-fraud exception would not apply.
!
C3, a wealthy suspect, hires L3 to defend him in a
potential criminal case.
Without C3s permission or
encouragement, L3 leaves a voicemail instructing his investigator

to bribe or threaten key witnesses into blaming an innocent man,
X3, for the crime.
The investigator does so, and, because of the
bribed witnesses statements, X3 is charged with the crime.
On
Christensens theory, X3 would not have access to L3s voicemail

when attempting to prove his innocence -- even if C3, horrified
by his lawyers crimes, did not object.
Immunizing a lawyer who acts criminally against his clients
wishes makes even less sense than immunizing him for acceding to
his clients criminal desires.
The governments contrary rule,
on the other hand, serves both social and judicial goals: where
so-called work-product is in aid of a criminal scheme, fear of
disclosure may serve a useful deterrent purpose and be the kind
of rare occasion on which an attorney's mental processes are not
immune.
In re John Doe Corp., 675 F.2d 482, 492 (2d Cir. 1982).
Thus, even if this Court finds that the district court committed
278
clear error in finding that there was reasonable cause to

believe that Kerkorian was a knowing participant in the criminal
wiretapping scheme, this Court should follow the Third, Fourth,
Fifth, Eighth, and D.C. Circuits in holding that the attorneys
criminal intent is sufficient to invoke the exception.
d.
The District Courts Earlier Ruling Did Not

Irrevocably Taint Its Later Rulings Applying the
Correct Zolin Analysis
Christensen also argues that, because the governments

initial submission and the district courts initial ruling failed
to cite and apply Zolin, the courts later rulings properly
applying Zolin were irrevocably tainted.
Christensens argument fails.
This Courts precedent
confirms that the district court acted correctly by reanalyzing

the case under correct procedures when it realized its first
analysis was erroneous.
Analogous re-analyses are commonplace in
federal courts, and the alternatives (which would involve getting

a new judge every time the first judge learned something that she
could not consider) would be unworkable.
In any case, since
Christensen never met his burden to establish with specificity

the privileges applicability in the first place, thus making the
crime-fraud analysis ultimately unnecessary, any errors in
implementing it were harmless.
279
When the district court realized that it had initially erred

in analyzing the crime-fraud issue without the Zolin process, it
held a hearing to determine what to do next.
It ultimately
decided to reanalyze the crime-fraud issue under Zolin.
That was
precisely the right thing to do under Ninth Circuit precedent.

In Chen, 99 F.3d at 1503, the prosecutor, seeking a ruling
on the crime-fraud exception, made an initial submission that
violated Zolin by including the potentially privileged material
in the initial submission before the court had first made a prima
facie ruling based on other evidence.
received the entire submission.
The district court
When the judge recognized that
there was an incorrect submission which included material he was

not yet supposed to have, he did not dismiss the case or recuse.
Id.
Rather, in his ruling he expressly said he was
disregarding the potentially privileged information, and based

his decision instead purely on the information that would have
been acceptable to proffer under Zolin Step One.
Id.
This Court affirmed, finding that the governments error in

its initial submission was harmless, because the judge
disregarded the incorrectly submitted attorney-client
communications and instead relied on properly submitted
materials that met the Zolin Step One exception.
Id. at 1504.
Chen disproves Christensens proposition that a district judge
280
who incorrectly becomes knowledgeable about the contents of

privileged communications cannot be trusted to follow her
judicial oath when she says she will not rely on that material in
making her Zolin Step One decision.
Chen directly supports the
district courts decision here.

The district courts procedure is further confirmed by this
Courts decision in de la Jara, where the privilege claim
involved a letter to the defendant from his lawyer.
Like the
court in Chen, the district court in de la Jara inappropriately

skipped Zolins Step One, by reviewing the letter without a prior
Step One showing to allow in camera review.
On appeal, this
Court found the error harmless, because of the clients implied

waiver.
But this Court also explained what it would have done if
there had not been implied waiver:

Were we not to uphold the district courts decision to admit
the letter on other grounds, we would be required to remand
the case to the district court to determine in the first
instance[] whether [the government] has presented a
sufficient evidentiary basis for in camera review, and
whether, if so, it is appropriate for the district court, in
its discretion, to grant such review.
973 F.2d at 749 n.1.
Under de la Jara, if the district court here had never
realized its Zolin mistake and the issue was first presented on
appeal, then this Courts response would be to remand for the
same trial judge to make a Zolin Step One decision in the first
281
instance.
Id.
That proves the emptiness of Christensens
complaint. If it would have been fine for the same judge to

revisit her decision and undertake a new Zolin inquiry on remand
from this Court, then no plausible reason can be invented to say
it was improper for her to do the same thing immediately.197
Christensens contrary argument posits that judges are
either so incompetent or so untruthful that this Court cannot
take them at their word when they commit to re-analyze a question
without reference to previously encountered improper materials.
Such a rule has no precedent in the law.
Judges routinely learn
information that the law requires them to disregard.

197
A judge
Christensen (COB 45-46) erroneously claims that the

district courts reanalysis under Zolin Step One must have
considered the recordings, because the reanalysis made reference
to arguments that were not in the governments original motion.
That argument is baseless. By the time of the reanalysis, the
court also had access to the governments additional briefing in
response to the defenses motion. Nothing prohibited the court
from considering those additional arguments, just as it
considered the arguments from Christensen that it had not had
during its earlier decision. If Christensen wants to prove that
the courts reanalysis was faulty, he should point to particular
statements from the recording that the district court relied on - something Christensen has not done and cannot do.
Similarly, Christensen proves nothing by noting that the
court cited pages from the record where both extrinsic evidence
and summaries of the recordings were contained on the same page.
The district courts job was not to rip pages out of the
governments submission; instead, it was to disregard assertions
from a particular source. (When a court has heard a witness
testimony containing both admissible and inadmissible portions,
the court need not disregard all of the witness testimony -- it
must simply refrain from relying on the inadmissible part.)
Christensen points to no portion of the district courts Step One
analysis that relied on communications prohibited under Zolin.
282
hearing a Fourth Amendment challenge to an executed warrant will

already know the substance of the evidence that defendant seeks
to suppress.
On Christensens theory, the judges knowledge of
what was found in the search would irrevocably taint her decision
on whether there was probable cause for the search -- and might
also taint that judges decisions at trial and sentencing.
In
bench trials, Christensens theory would require a cases

transfer to a new judge whenever the first judge heard evidence
that the judge later deemed inadmissible.
Christensens argument
not only denigrates judges integrity and ability; it would be

grossly unworkable.198
Indeed, what the district court did here -- that is, putting
aside its knowledge of what was on the tapes, so that it could
base its Zolin Step One analysis only on the other materials in
the record -- is no different from what this Court is doing now.
By the time this Court decides this case it will be well aware of
what was on the recordings in question -- presentation of this
appeal to this Court requires the parties to include the facts
for both steps of the Zolin analysis in the same brief to the
same panel.
Christensens theory -- that knowledge of what is on
198
In revisiting its analysis to make clear what it would

have done under the proper procedure, the district court was
doing something that this Court requires district judges to do
every time a case is remanded for further procedures and the
judge is told to disregard on remand certain factors that it had
considered in his earlier opinion.
283
the tapes makes it impossible for judicial officers to ignore the

tapes contents and impartially and fairly perform the Step One
analysis -- would logically require this Court to constitute
separate panels for each step of the Zolin inquiry, so that the
evaluation of the Step One evidence was never tainted by
knowledge of the recordings contents.
Such a rule might have
attraction for those seeking delay and distraction in a merry-goround of judges; it has no place in a system of fair and
efficient adjudication.
There are yet other reasons why the district courts initial
missteps were harmless here.
Zolin is a procedure that applies
only to a district courts analysis of the crime-fraud exception.

As shown above, even apart from the crime-fraud exception, the
privileges were inapplicable because Christensen failed to
demonstrate the privileges elements, and failed to press his
privilege claim with specificity.
As a result, even if the
district courts reanalysis under Zolin would otherwise have been

inadequate, that would still be harmless error, since Christensen
never established his entitlement to the privilege in the first
place.
Next, Zolins requirement that the party seeking in camera
review make a threshold showing that review is appropriate rests
on the recognition that examination of the evidence, even by
284
the judge alone, in chambers might in some cases jeopardize the

security which the privilege is meant to protect.
491 U.S. at
570 (quoting United States v. Reynolds, 345 U.S. 1, 10 (1953)).

In light of the ultimate determination of the district court
(which is correct for the reasons given here) that the privilege
did not extend to the attorney-client communications at issue,
the governments premature disclosure of the communications to
the court could not have jeopardized any interest that the
privilege was designed to protect, confirming that any initial
missteps were harmless.
In short, regardless of what Zolin
requires in its efforts to protect privileged material, once the

character of the material is known, no purpose at all is served
by shielding definitively unprivileged material.
Third, Christensens challenges to the district judges
impartiality have already been considered and resolved by an
independent authority, based on strong reasoning that this Court
should adopt.
When Christensen filed a motion to recuse the
original district judge, the motion was referred to a new

district judge (the Honorable A. Howard Matz) for an independent
decision.
(CR 836).
Judge Matz denied the motion for recusal,
finding that having the original judge rule on the validity of

her previous crime-fraud determination raised no concerns of bias
or the appearance of bias (GER 635-37).
285
As Judge Matz reasoned,
[j]udges are frequently placed in [the] position of being

asked to reconsider a prior ruling.
(GER 637).
Indeed, judges
have the responsibility of ruling on post-conviction petitions

challenging the verdicts and sentences they have imposed, and
judges rule[] on motions to dismiss or suppress wiretapped
evidence that they themselves had authorized while functioning as
duty judge -- situations where appellate decisions have deemed
analogous recusal motions unjustified.
(GER 637-38 (citing
United States v. Giordano, 442 F.3d 30, 48 (2d Cir. 2006))).

Moreover, Judge Matz reasoned, the Supreme Court, in Liteky v.
United States, 510 U.S. 540, 544-45 (1994), made clear that
judicial rulings alone are [a]lmost invariably not proper
grounds for recusal.
Nor, according to Liteky, do opinions
formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior
proceedings form a basis for recusal unless they display a
deep-seated favoritism or antagonism.
Id.
Since Christensens
complaints about the district judges deciding Christensens

motion contained no allegation that the judge held an opinion
that derives from an extrajudicial source, and no allegation of
such a high degree of favoritism or antagonism as to make fair
judgment impossible, id., Christensens request for temporary
recusal was properly denied.
286
Judge Matz reasoning is convincing.
There being no
statutory basis for recusal, the district judge was right to

reconsider her prior decision and issue new orders based on a
proper Zolin process -- as this Court had encouraged in its Chen
287
and de la Jara decisions.199
Indeed, it is hard to see what else
the judge could have done.

D.
NO BASIS EXISTS FOR DISMISSING THE INDICTMENT
199
Additionally, although Christensen now claims that the

proper remedy in district court would have been for the
government to submit a new motion -- devoid of reference to the
recordings themselves to a different judge untainted by the
[previous] improperly submitted materials (COB 46), that is not
what he asked for at the district court. At the district court,
Christensen asked for a new judge to hear his motion to dismiss
the indictment. (GER 565). Christensen therefore asked for the
new judge to be empowered to award substantially different
relief, since dismissal of the indictment was a more drastic
remedy than an order declining to declare the materials
unprivileged. Christensen also asked for the new judge to
consider different arguments, since a judge ruling on
Christensens motion would obviously be considering Christensens
arguments, rather than just the governments. Although
Christensen may have rethought the matter for appeal, he cannot
now complain that the district court should have sua sponte
invented the more limited option for which he now advocates.
Moreover, because of the remedy Christensen requested,
recusal at the district court would not have solved the concern
Christensen points to of having a judge make Zolin Step One
findings while already aware of the recordings content. If
Christensens recusal motion had been granted in the district
court, that means that Christensens pleadings in support of his
motion to dismiss the indictment would have been forwarded to the
new judge to decide that motion. But those pleadings included
the content of the recorded calls: Christensen included the
governments entire crime-fraud application, including the
declarations quoting and summarizing the calls, as exhibits to
the sealed declaration that he submitted with his motion to
dismiss and asked the court to review them. (See CR 826 at 26;
GER (discussing CR 923 at 3)). In short, if Christensen had
gotten what he asked for - reassignment of his motion to dismiss
to a new district judge -- that judge still would have had to
make a Zolin Step One decision after already knowing the content
of the calls at issue. If that result was acceptable to
Christensen, then there was nothing wrong with Judge Fischer
making the Step One decision herself, and any conceivable error
must additionally be considered harmless.
288
It is well established that a district court may dismiss an

indictment either on due process grounds or pursuant to its
supervisory authority in exceedingly rare circumstances to
address only the most intolerable government conduct.
United
States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991).
Equally
well established is the high burden of proof that a defendant

must satisfy before a court properly may dismiss an indictment
based on government misconduct.
United States v. Nobari, 574
F.3d 1065, 1081 (9th Cir. 2009).
Both before the district court and on appeal, Pellicano

falls well short of establishing misconduct, much less misconduct
of the type or kind sufficient to warrant dismissal.
Instead,
Pellicano cites: (1) a withdrawn allegation of a Massiah

violation that he abandoned after being instructed by the court
of the basic proof thresholds he would have to satisfy, which led
him to concede that he did not believe he ha[d] any chance of
prevailing; (2) unfounded Brady claims that, even if true,
properly could be addressed by measures short of dismissal; (3)
and facially insufficient claims of vindictive prosecution and
alleged misconduct that he raises for the first time before this
Court and which therefore have been waived.
(POB 32-37).
Fundamentally deficient claims like these exemplify Pellicanos
289
pattern before both the district court and this Court of

manufacturing misconduct accusations of misconduct that have no
basis in fact or law.
Because there was neither outrageous
government conduct nor misconduct warranting exercise of the

courts supervisory powers, Pellicanos dismissal request must be
rejected.
1.
Standard of Review
Outrageous government conduct claims involve defects in the

institution of the prosecution itself and, under Federal Rule of
Criminal Procedure 12(b) and (e), must be brought before trial
because district courts often must conduct a hearing with
respect to any disputed issues of fact.
United States v.
Mausali, 590 F.3d 1077, 1080 (9th Cir. 2010) (quoting United
States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980).
Otherwise, such claims are waived.
See id. at 1080-81.
Claims
that are properly raised before the district court are reviewed
de novo.
2011).
United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.
When reviewing such claims, this Court view[s] the
evidence in the light most favorable to the government and . . .

accept[s] the district courts factual findings unless they are
clearly erroneous.
United States v. Gurolla, 333 F.3d 944, 950
(9th Cir. 2003).
290
A district courts election to grant or deny a timely motion

to dismiss under its supervisory powers is reviewed for abuse of
discretion.
Stinson, 647 F.3d at 1209.
As with outrageous
government conduct claims, this Court views the evidence in the

light most favorable to the government and accepts the district
courts factual findings unless they are clearly erroneous.
Gurolla, 333 F.3d at 950.
2.
An Indictment May Be Dismissed for Outrageous

Government Conduct Only If the Defendant Establishes
Conduct So Grossly Shocking and So Outrageous as to
Violate the Universal Sense of Justice
A defendants ability to move for dismissal of an indictment

based on government misconduct arises from a dictum in United
States v. Russell, 411 U.S. 423, 431 (1973), in which the Court
left open the possibility that it may some day be presented with
a situation in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the
government from invoking judicial process to obtain a
conviction.
This Court has acknowledged, however, that the due
process channel which Russell kept open is a most narrow one.

United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976); see
also Stinson, 647 F.3d at 1209 (finding that the outrageous
government conduct doctrine is limited to extreme cases in which
the governments conduct violates fundamental fairness); United
291
States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988) (describing
dismissal of indictment as a disfavored and drastic remedy).
Outrageous government conduct is not a defense, but rather
a claim that government conduct in securing an indictment was so
shocking to due process values that the indictment must be
dismissed.
United States v. Montoya, 45 F.3d 1286, 1300 (9th
Cir. 1995).
An indictment will be dismissed for outrageous
government conduct based on a due process violation only where

the governments conduct is so grossly shocking and so
outrageous as to violate the universal sense of justice.
It is the defendant who bears the
burden of affirmatively establishing the due process violation,

which this Court repeatedly has stated represents an extremely
high standard.
Nobari, 574 F.3d at 1081; United States v.
Smith, 924 F.2d 889, 897 (9th Cir. 1991).

The outrageous government conduct doctrine is not to be
applied subjectively based on a courts notions of appropriate
government behavior, but rather must be applied objectively in
recognition of the limits that bind judges in their judicial
function.
United States v. Simpson, 813 F.2d 1462, 1466-67
(9th Cir. 1987) (quoting Rochin v. California, 342 U.S. 165, 170
(1952)).
This Court has recognized only two types of conduct
that would support a viable outrageous government conduct claim:
292
(1) where the government has engineered and directed the

criminal enterprise from start to finish; and (2) in that slim
category of cases in which the police have been brutal, employing
physical or psychological coercion against the defendant.
United States v. Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004)
(internal quotations and citations omitted); see Smith, 924 F.2d
at 897 (The Governments involvement must be malum in se or
amount to the engineering and direction of the criminal
enterprise from start to finish, and must be repugnant to the
American system of justice.) (internal quotations and citation
omitted).
Indeed, in its more than 200-year history, the Supreme
Court never has held that an indictment should be dismissed for

outrageous government conduct, and this Court has done so only
once.
See Greene v. United States, 454 F.2d 783 (9th Cir.
1971);200 see also United States v. Simpson, No. CR 09-1040-PHX200
In Greene, a government undercover agent initiated

contact with the defendants after they had been arrested for
selling illegal whiskey and offered to provide the equipment,
site, and operator for an illegal still. The government then
supplied a large quantity of sugar at a wholesale price, urged
the beginning of production, and was the defendants sole
customer over several years. This Court concluded that dismissal
was appropriate because the government had not attached itself to
an ongoing operation for the purpose of closing it down and
prosecuting the operators, but rather had served to re-establish
and sustain a criminal operation that had ceased with the first
convictions. Greene, 454 F.2d at 784-87. Greene predated
Russell and its analysis did not discuss due process or
outrageous government conduct; therefore, it is more properly
viewed as an entrapment case. See United States v. Wiley, 794
(continued...)
293
MHM, 2010 WL 1611483, *6-8 (D. Ariz. Apr. 20, 2010) (Murguia, J.)
(surveying nine published decisions of this Court finding no
outrageous government conduct).
Demonstrating the severely limited applicability of the
outrageous government conduct doctrine, this Court has upheld a
wide range of law enforcement tactics against due process
challenges.
For example, this Court has found that the following
law enforcement actions did not rise to the level of misconduct

necessary to dismiss an indictment on due process grounds: (1) an
agent threatened a witness to a RICO prosecution that the witness
could be indicted and receive the death penalty absent an
agreement to serve as a cooperating witness, Stinson, 647 F.3d at
1209; (2) an undercover agent encouraged a teenage patient in a
drug treatment center to distribute drugs, Smith, 924 F.2d at
897; (3) agents permitted an informant to use cocaine with a
defendant on several occasions, United States v. Barrera-Moreno,
951 F.2d 1089, 1092 (9th Cir. 1991); (4) agents assisted and
encouraged a prisoner to escape from prison, United States v.
Williams, 791 F.2d 1383, 1386-87 (9th Cir. 1986); (5) an agent
200
(...continued)
F.2d 514, 516 (9th Cir. 1986) (noting Greene to be of limited
application as it was decided prior to the Supreme Courts
decision in Russel, which held that entrapment is not of
constitutional dimension, leaving only the most shocking and
extreme conduct, of undefined specificity, open to constitutional
inquiry.).
294
supplied the defendant with counterfeit credit cards and

initially raised the idea of a counterfeit credit card scheme,
United States v. Citro, 842 F.2d 1149, 1153 (9th Cir. 1988); (6)
an agent, in order to identify a prison distribution network,
introduced drugs into a prison, which ended up being used by
inmates, Wiley, 794 F.2d at 515-16; (7) an agent illegally shot
animals in order to maintain the credibility of his undercover
role, United States v. Hugs, 109 F.3d 1375, 1379 (9th Cir. 1997);
and (8) an agent utilized a heroin-using prostitute informant
who, with the agents knowledge, engaged in regular sexual
intercourse with the defendant during the investigation.
Simpson, 813 F.2d at 1465.
3.
A Defendants Burden to Establish Entitlement to

Dismissal Under a Courts Supervisory Powers Is Almost
Equally as Stringent
A district court may exercise its supervisory powers to

dismiss an indictment in response to misconduct that falls short
of a due process violation.
Fernandez, 388 F.3d at 1239.
Under
United States v. Hasting, 461 U.S. 499, 505 (1983), a district

court may exercise its supervisory powers to dismiss an
indictment [(1)] to remedy the violation of recognized [i.e.,
constitutional or statutory] rights, [(2)] to deter illegal
conduct and [(3)] to preserve judicial integrity by ensuring
that a conviction rests on appropriate considerations validly
295
before the jury.
United States v. Garza-Juarez, 992 F.2d 896,
905 (9th Cir. 1993) (quoting Hasting).
The preservation of
judicial integrity cannot justify dismissal of an indictment

based on out-of-court executive procedure in the absence of a
constitutional or statutory violation.201
Id. (quoting
Barrera-Moreno, 951 F.2d at 1092).

To justify dismissal for one of the three Hasting reasons,
the defendant must establish misconduct that is: (1) flagrant and
(2) causes substantial prejudice to him.
at 1239.
See Fernandez, 388 F.3d
This is a high standard, limiting the availability of
the defense to extreme cases, and even in some of the most

egregious situations it has not been met.
United States v. Doe,
125 F.3d 1249, 1257 (9th Cir. 1997); see United States v. Tucker,
8 F.3d 673, 674 (9th Cir. 1993) (circumstances under which courts
can exercise supervisory power are substantially limited).
Absent flagrant misconduct causing substantial prejudice to
the defendant, dismissal of an indictment pursuant to a courts
supervisory powers is an abuse of discretion.
at 655.
Jacobs, 855 F.2d
Dismissal of an indictment under a courts supervisory
power also is inappropriate where lesser remedial action is

201
In United States v. W.R. Grace, 526 F.3d 499, 511 n.9

(9th Cir. 2008) (en banc), this Court held that a district court
could exercise supervisory powers to remedy a discovery violation
by ordering the government to disclose its witness list before
trial. Because Pellicano is seeking the ultimate sanction of
dismissal, W.R. Grace is uninformative.
296
available.
Doe, 125 F.3d at 1257; see also, United States v.
Kohring, 637 F.3d 895, 913-14 (9th Cir. 2011) (affirming denial
of dismissal under courts supervisory powers and noting we have
previously observed that the appropriate remedy for a
Brady/Giglio violation will usually be a new trial); Tucker, 8
F.3d at 674-75 (deterrence is inappropriate basis for dismissal
under supervisory powers where means more narrowly tailored to
deter objectionable prosecutorial conduct are available).
4.
Pellicanos Withdrawn Massiah Claim Failed to Establish

Misconduct -- Much Less Grave Misconduct Warranting
Dismissal
In Massiah v. United States, 377 U.S. 201, 206 (1964), the

Supreme Court recognized that, once a defendants Sixth Amendment
right to counsel has attached, he may be denied that right when
federal agents deliberately elicit incriminating statements
from him in the absence of his lawyer.
To establish a Massiah
violation, a defendant must establish that (1) he possessed a

legitimate Sixth Amendment right to counsel; (2) the government
intentionally created a situation likely to induce him to make
incriminating statements without counsels presence; and (3) a
government agent stimulated conversation about the specific
charge to which the Sixth Amendment right to counsel had
297
attached.
See, e.g., Kuhlmann v. Wilson, 477 U.S. 436, 458-59
(1986); United States v. Henry, 447 U.S. 264, 270 (1980).

Before trial, Pellicano moved to suppress statements he had
made to his girlfriend, Sandra Carradine, alleging that the
government had deliberately elicited them in a manner akin to
that proscribed by Massiah.
(CR 807.)
Subsequently, Pellicano
moved to dismiss the indictment202 both under the outrageous

government misconduct doctrine and pursuant to the courts
supervisory powers based on the government having purportedly
withheld Brady information when defending the search warrants
executed at PIA and based on . . . the declarations and briefs
filed in support of his motion[] pursuant to . . . Massiah.
839: 2.)
(CR
The government contested every aspect of Pellicanos
claims, explaining how they were based on factual allegations

that either were false or misleading and legal analysis that was
fundamentally flawed.
(CR 880, 1028.)
Before the district court
could hold an evidentiary hearing on the Massiah claim, however,

Pellicano elected to proceed pro se.
202
(RT 1/9/08: 27.)
At the time this motion was filed, the Fourth

Superseding Indictment was the operative indictment. While it
was pending, the Fifth Superseding Indictment was returned. As
the substantive issues raised by Pellicanos motion to dismiss
applied equally to the new indictment, the parties agreed that
the motion should be applied as if filed against the Fifth
Superseding Indictment. (12/18/07 RT 8; JER 994).
298
After granting Pellicanos request to represent himself, the

court advised him that the first thing that he would have to
establish at an evidentiary hearing was that he actually was
represented by counsel on October 26, 2005, when the initial
three-count wiretapping indictment was filed and that he could do
so by presenting testimony, subject to cross-examination, from
any of the several attorneys he claimed were representing him at
the time.
(1/9/08 RT 29-30, 33.)
After receiving this
advisement, Pellicano withdrew his Massiah claim, stating, to be

quite honest with you, your Honor, I dont have any chance of
prevailing, and I dont want to take up the Courts time.203
(1/28/08 RT 7; GERT 210).
Because Pellicano withdrew his Massiah claim before the
district court had the opportunity to hold an evidentiary hearing
and rule on it, his current request to have this Court review his
allegation is waived and, moreover, meritless even if not waived.
(POB 32-34).
a.
Pellicanos Massiah Claim Is Waived
203
Pellicano also alluded that he did not think that he had

enough time to prepare for the motion. (1/28/08 RT 7-8, GERT
210-11). At the governments request, the district court advised
Pellicano that it would afford him the time necessary to properly
proceed with the motion. (Id.) Pellicano, who was expressly
advised at his Faretta hearing that, should he proceed pro se, he
personally would have to conduct the evidentiary hearing on his
Massiah motion, maintained his desire to withdraw the motion.
(1/28/08 RT 8, GERT 211).
299
Pellicano waived his Massiah claim when he withdrew it (and

never re-raised it) pre-trial.
Under Federal Rule of Criminal
Procedure 12(b) and (e) and this Courts decision in Mausali, 590
F.3d at 1080, misconduct-based requests for dismissal like
Pellicanos must be brought before trial.
are waived.
See id.
If they are not, they
By withdrawing his request that the court
resolve his Massiah claim, Pellicano waived it.

Pellicano attempts to sidestep his waiver by arguing that
the Massiah claim can be considered because his Massiah motion
was independent from his motion for dismissal due to
outrageous government conduct, the latter of which he did not
withdraw and the court resolved (finding no merit to it).
32 & n.14, 34).
(POB
This argument is unfounded.
Pellicanos dismissal motion did no more than incorporate

his Massiah motion by reference.
The dismissal motion simply
summarized the Massiah claim in a single paragraph and

acknowledged that it was based on the declarations and briefs
filed in support of his detailed Massiah motion.
10.)
(CR 839: 2,
Moreover, Pellicano withdrew his Massiah claim after the
district court resolved his other claims.
In other words, he
withdrew it when it was the only claim he had outstanding.

Particularly under those circumstances, he cannot now bootstrap
the claim into the claims that he pressed to resolution.
300
Cf.
United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002)
(holding that ground for suppression not included in pre-trial
motion to suppress was waived under Rule 12); Restrepo-Rua, 815
F.2d at 1329 (Just as a failure to file a timely motion to
suppress evidence constitutes a waiver, so too does a failure to
raise a particular ground in support of a motion to suppress.).
Additionally, at the time Pellicano withdrew his Massiah
claim, the district court had already committed itself to holding
an evidentiary hearing on it.
(CR 947 at 5).
By withdrawing his
Massiah claim, Pellicano deprived the district court of the

opportunity to resolve the many disputed factual (and legal)
issues that the court necessarily would have had to resolve
before it grant him relief: (1) whether he was represented by
counsel at the relevant time; (2) whether the government should
have known as much; (3) whether Carradine ever deliberately
elicited information from him; and (4) if information related to
then-pending charges had been deliberately elicited, whether he
suffered substantial prejudice.
Because one of the policies
underlying this Courts waiver rule in this context is that

pretrial assertion of the claim permits the trial court to
conduct a hearing with respect to any disputed issues of fact,
Mausali, 590 F.3d at 1080 (quoting Nunez-Rios, 622 F.2d at 1098),
Pellicanos Massiah claim is waived.
301
b.
Even if Not Waived, Pellicanos Massiah Claim Is

Meritless
(1)
The Alleged Massiah Violation
Sandra Carradine originally was a PIA client who retained

Pellicano to develop evidence that she could use to prevail in an
ongoing child support dispute against her former husband, actor
Keith Carradine.
(4/1/08 RT (A.M.) 51-52).
In connection with
this matter, Pellicano wiretapped Keith Carradine and discussed

information he learned through this wiretap with Sandra Carradine
on telephone calls that Pellicano recorded.
(4/1/08 RT (A.M.)
56, 61-72, 74-86).

Despite knowing that the computer media containing the
encrypted recordings on which he and Carradine discussed
wiretapping had been seized by the FBI, Pellicano allowed Sandra,
who he was dating at the time,204 to go before the grand jury in
October 2004 and to commit perjury to protect him.
(A.M.) 90-91, 103, 106).
(4/1/08 RT
Carradine did just that, testifying
that she had no knowledge whether Pellicano either had the

capacity to wiretap and/or wiretapped anyone on her behalf.
(4/1/08 RT (A.M.) 90-91).
Subsequently, the government obtained de-crypted copies of
the recordings in which Pellicano and Carradine discussed
204
Pellicano and Sandra Carradine dated intermittently from

December 2001 through January 2006. (4/1/08 RT (A.M.) 90).
302
wiretapping and played them for her and her counsel in July 2005.
(CR 880 at 17).
Upon hearing the recording, Carradine admitted
to perjuring herself before the grand jury.
(CR 880 at 17).
Subsequently, Carradine entered into a cooperation plea agreement

pursuant to which she would plead guilty to two counts of
perjury, which she did on January 6, 2006.
(CR 880 at 18, 20;
4/1/08 RT (A.M.) 91-92, 94-96).

As Pellicanos girlfriend, Carradine regularly visited
Pellicano at FCI-Taft, having done so approximately 40 times
before she was confronted with and pleaded guilty to perjury.
(CR 880 at 19 n.19; CR 1028 at 41-60).
She continued to do so
before and after Pellicano was first charged in this case on

October 26, 2005, with three discrete wiretapping offenses.
880 at 19 n.19; CR 1028 at 41-60).
(CR
Aware that Carradine remained
committed to her relationship with Pellicano, that she intended

to continue to visit and communicate with him, and that another
judge of the Central District of California had dismissed an
indictment after the government instructed a cooperating
defendant who was the love interest of the targeted defendant not
to communicate with that targeted defendant,205 the government
unequivocally advised Carradine that she was not authorized to
meet with Pellicano on its behalf, that any interaction that she
205
United States v. Leung, 351 F.Supp.2d 992, 993, 995,

997-98 (C.D. Cal. 2005).
303
had with him would be of her own doing, and that she would
receive no sentencing benefit from any interactions that she
might have with Pellicano going forward.
51).
(CR 880 at 18-19, 150-
Carradine acknowledged her understanding of, and agreed to,
these terms.
(CR 880 at 18-19, 150-51).
For all relevant time periods, Pellicano was proceeding pro

se.206
(CR 880 at 12-14).
This included a brief period between
October 26, 2005, when he was subject to the initial three-count

wiretapping indictment, and December 12, 2005, when Pellicano
provided the government with written notice confirming that he
was pro se.
(CR 880 at 12-14).

(2)
Pellicanos Withdrawn Massiah Claim Is

Meritless
206
The government was aware from multiple sources that

Pellicano was pro se in the period before the RICO charges were
filed in February 2006. These sources included, but were not
limited to, discussions with Pellicanos former counsel Don R,
communications that Pellicano had with attorneys representing
civil litigants, and intercepted communications between Pellicano
and Chicago Outfit member Jerry Scalise. (CR 880 at 12-14; 1028
at 34). Notably, on December 12, 2005, R, at the governments
request, confirmed this fact in writing when he wrote,
[p]ursuant to your request, I have informed [Pellicano] of your
interest in speaking with him. [Pellicano] has informed me that
he is representing himself with respect to this investigation,
and he has informed me that I am not authorized, and no other
lawyer is authorized, to speak on his behalf. (CR 880 at 13,
46; JER 841). Pellicano met with members of the prosecution team
to discuss his potential cooperation in the governments ongoing
investigation on December 15, 2005. (CR 880 at 13-14). During
this brief meeting, Pellicano acted as his own counsel -- a fact
that he has never disputed and for which he tellingly never has
claimed a Sixth Amendment violation.
304
Even if not waived, Pellicanos claim that the indictment

should have been dismissed based on a Massiah claim that he
withdrew as meritless is itself meritless.
Pellicano bore the
burden of establishing that a Massiah violation had occurred.

Kuhlman, 477 U.S. at 458-59.
Instead of doing so, he advanced a
series of unfounded allegations and watched as the claim crumbled

upon its false foundations before he withdrew it.
Nonetheless,
Pellicano now attempts to revive his withdrawn and failed claim

here on appeal.
As a threshold matter, in asserting that the government
use[d] Carradine as an operative into the Pellicano defense camp
from July 29, 2005 to February 6, 2006 (POB 34), Pellicano omits
that the district court had significantly narrowed Pellicanos
Massiah claim based on its legal finding that his Sixth Amendment
right to counsel did not attach until October 26, 2005, when he
first was indicted on the discrete wiretapping counts.207
(CR 947
at 2-3, 970 at 3 n.4).

In any event, construing the evidence in the light most
favorable to the government, as this Court must, see Barrera207
In fact, Pellicanos opening brief fails to cite, or

even mention, the district courts written order setting forth
the grounds on which it denied his motion to dismiss, his incourt admission that he knew Carradine to be a cooperating
defendant and therefore fed her misinformation, and his in-court
admission that he was withdrawing his Massiah motion because he
believed that he could not succeed on the merits. (CR 970;
1/9/08 RT 36, 1/28/08 RT 7).
305
Moreno, 951 F.2d at 1091, the evidence established that: (1)

Pellicano was pro se throughout the entire time between his
initial indictment on select wiretapping charges on October 26,
2005 through when he confirmed this fact to the government on
December 12, 2005; (2) approximately six weeks before these
wiretapping charges were filed, the government, through written
correspondence, instructed Sandra Carradine that: (a) the
cooperation contemplated in her plea agreement could not and did
not include efforts by her to facilitate a plea with defendant,
(b) the government would not provide her with any cooperation
credit for such actions, (c) she was not authorized to meet with
Pellicano on the governments behalf, and (d) she and her
attorney had been advised of these terms and had agreed not to
engage in any affirmative actions on the governments behalf; (3)
the government did not have Sandra Carradine deliberately
elicit information relating to the charged wiretapping offenses
(or any subsequently charged offense);208 and (4) the initial RICO
208
By his own admission, Pellicano knew of Sandra

Carradines January 6, 2006, plea and telephonically confronted
her about her status as a cooperator when they next spoke on June
9, 2006. (CR 807 at 15). Pellicano further admitted that he
knew of Carradines status as a cooperating defendant as far back
as at least September 2005, which predated the filing of all
indictments in this case: There are other conversations that I
had with Ms. Carradine, who I knew was operating as a government
informant throughout that period of time [September 2005], and
the -- to assume for one moment that I was telling her the truth
during those period of times, as the government is the
(continued...)
306
indictment was not filed until February 1, 2006, a date well

after Pellicano, by his own admission, was aware of Carradines
status as a cooperating defendant.
(CR 38).
Simply stated,
Pellicanos Massiah motion, as Pellicano conceded when he

withdrew it, lacked a legitimate factual and legal foundation.
Thus, even if not waived, it serves no basis for dismissal.
Pellicanos claim also fails, because even if he could
establish a Massiah violation, he has not met and cannot meet his
extremely high burden of establishing that this violation
constituted the type of grave misconduct that would qualify as
outrageous government conduct.
Morrison, 449 U.S. at 668-69
(citing past Supreme Court precedent where Sixth Amendment

violations did not warrant dismissal of the indictment and
explaining that such violations typically can be remedied through
lesser sanctions such as suppression of the tainted evidence).
Specifically, Pellicanos Massiah claim does not support a
finding that the government engineered and directed the criminal
enterprise from start to finish or that it utilized undue
physical or psychological coercion against Pellicano; instead, it
is premised on Pellicanos sweeping, but unsupported, claim that
208
(...continued)
governments mistake. So whatever I said to Ms. Carradine during
that period of time, they can take with the same grain of salt
that they took everything else. (1/9/08 RT 36). When Pellicano
made this admission, the district court noted that his Massiah
claim might be moot. (Id. at 37).
307
the alleged Massiah violation served as the basis for the RICO
charges that were brought against him.
(POB 34).
This claim is
both ludicrous and legally insufficient.209

The only RICO-based information Pellicano claims that Sandra
Carradine deliberately elicited from him was that he was
concerned that the government might bring RICO charges.
(Id.).
Pellicano, however, does not explain how his relaying

nonsubstantive information regarding his personal fear of RICO
charges to an individual who was conversing with him not as a
government agent but rather as a girlfriend falls within the
exceptionally limited universe of misconduct that is so shocking
to the conscience that dismissal of the indictment is warranted.
Moreover, as Pellicano acknowledged
in his Massiah motion and as is self-evident from both the

indictment and the evidence presented at trial, the governments
RICO charges were not cobbled together in response to Pellicanos
discussion with Sandra Carradine regarding his concern that such
charges might be filed but rather were the end product of a
209
It also is yet another example of Pellicanos internally

contradictory arguments on appeal. For example, Pellicano
asserts: (1) as part of his Massiah claim, that the government
had been building toward RICO charges since 2002; (2) as part of
his challenge to the sufficiency of the evidence that the RICO
charges were brought to add sizzle that would appeal to the
media; and (3) as part of his vindictive prosecution claim, that
the RICO charges were brought to punish him for his refusal to
cooperate. (POB 34, 36-37, 50-51).
308
multi-year grand jury investigation in which hundreds of

witnesses were interviewed, sophisticated computer analysis was
conducted, crime-fraud issues were litigated, and tens-ofthousands of pages of documents were acquired.
While Pellicano
has not and cannot establish that his comments to Sandra

Carradine regarding his personal views regarding the filing of
RICO charges factored even nominally into the governments
charging decision, had he done so, his claim still would fall far
short of the kind of conduct that this Court previously has
considered and found not to have constituted outrageous
government.
Thus, Pellicano has failed to establish outrageous
government conduct.
United States v. Stringer, 535 F.3d 929, 941
(9th Cir. 2008) (finding that, to establish outrageous government

conduct based on an alleged Sixth Amendment violation, defendant
must show a deliberate intrusion causing actual and substantial
prejudice).
Similarly, even if Pellicano could show a Massiah violation,
he has failed to show that the district court abused its
discretion in concluding that any such violation could be
addressed properly through suppression of the tainted evidence
instead of dismissal.
(CR 970).
The district courts ruling is
consistent with this Courts prior precedent and certainly cannot

be said to be: (1) illogical, (2) implausible, or (3) without
309
support in inferences that may be drawn from the facts in the

record.
2009).
United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.
This is particularly true given that to the extent that
any misconduct occurred, it comparatively was not as severe as

other instances of misconduct that this Court has found did not
to constitute flagrant misconduct.
See, Barrera-Moreno, 951
F.2d at 1089 (utilizing past precedent as a comparative baseline

and noting that the governments passive tolerance of informants
criminal conduct did not rise even to the level of misconduct
that previously drew a rebuke, but not dismissal of the
indictment).
Finally, Pellicano has not and cannot establish that he was
substantially prejudiced by the alleged misconduct.
The
prejudice Pellicano claims but does not describe with any

meaningful particularity is that RICO charges were filed against
him.
(POB 34).
However, as discussed above, the RICO charges
were not founded on Sandra Carradines communications with

Pellicano but rather on a paintstaking, multi-year investigation
into the wide array of criminal conduct committed by the criminal
enterprise that he headed.
Furthermore, Pellicano has not and
cannot establish under any standard of review, much less the

applicable one, that any information provided by Pellicano to
Sandra Carradine caused substantial prejudice to him at trial.
310
The record shows that Sandra Carradines trial testimony

focused on her percipient knowledge of the criminal conduct
committed in connection with her retention of PIA in her child
support proceedings and was devoid of information that Pellicano
may have shared with her regarding his personal concerns about
the governments RICO charges.
(4/1/08 RT 50-110).
Thus, as
Pellicano has failed to establish flagrant misconduct causing

substantial prejudice, his claim fails.
5.
Pellicano Has Not and Cannot Establish That the

Indictment Should Be Dismissed Based upon SA Ornellas
Having Once Provided Arneson with a Legitimate Lead
Regarding Possible Drug Dealing in Arnesons LAPD
Division
a.
As already discussed, SA Stanley Ornellas was the affiant on

the first two search warrants at PIA and was one of several case
agents who investigated the offense conduct that resulted in the
charges that were filed against Pellicano and his co-defendants
that now are the basis of this consolidated appeal.
(P.M.) 112-13, 118).
witness.
(4/16/08 RT
Arneson called SA Ornellas as a trial
(Id. at 111-12).
Among the broad range of topics
addressed by Arnesons counsel during his examination of SA

Ornellas was a past instance in which SA Ornellas provided
Arneson with a lead involving potential drug dealing.
RT (A.M) 45).
311
(4/18/08
SA Ornellas testified that he first met Arneson when SA

Ornellas was distributing flyers relating to James Whitey
Bulger at LAPDs Pacific Division, where Arneson was a sergeant.
(4/16/08 RT (P.M.) 120).
At a later date, Arneson called SA
Ornellas, advised him that there had been a reportedly Bulger

sighting, and requested SA Ornellas assistance in surveilling
the Venice restaurant where Bulger had been seen.
(A.M.) 44).
(4/18/08 RT
While at the Pacific Division station for this
purpose, SA Ornellas advised Arneson that he suspected that there

was ongoing drug dealing at a location approximately one block
from his home, which was located in a neighborhood patrolled by
the Pacific Division, and provided Arneson with a license plate
number that he believed was connected with the drug dealing.210
210
Arnesons testimony regarding this incident is

illustrative of the perjury the district court found to have
permeated his testimony. When questioned by his counsel, Arneson
testified that SA Ornellas, despite having met Arneson on only a
handful of work-related occasions, called and asked Arneson to
conduct a database inquiry on a neighbor who SA Ornellas
considered an asshole. (4/11/08 RT (A.M.) 105). During this
testimony, Arneson stated that he personally conducted the
inquiry but then, as was his habit, further embellished his
testimony by claiming that he later instructed a female officer
under his command to conduct a second inquiry while SA Ornellas
was at Pacific Division, despite her reluctance to do so. (Id.
at 105-07). Notably, while Arneson presented testimony from
multiple law enforcement officers as part of his defense, none
testified to assisting Arneson in this regard. Furthermore,
while testifying on cross-examination that he could not identify
any of the more than 2,500 inquiries that he conducted for
Pellicano during work hours, Arneson volunteered that he did have
a specific recollection of the one inquiry that he conducted for
(continued...)
312
(Id. at 44-46).
As the information simply was passed along so
that an officer from the Pacific Division could investigate the

matter, SA Ornellas was not provided with the results of the
database inquiry.
(Id. at 46).
When asked by Arnesons counsel
why he had provided the information to Arneson, SA Ornellas

testified that there were school kids going by this house every
day, and I was concerned.
years.
I lived in that neighborhood for 30
Thats what I was doing.211
(4/18/08 RT 46).
210
(...continued)
SA Ornellas (I just dont recall what I did for Mr. Pellicano. I
recall what I did for Stan Ornellas on duty but not for
Pellicano.) (Id. at 103-04, 133-34). Moreover, when asked on
direct examination whether SA Ornellas had access to law
enforcement databases, Arneson testified through the FBI, yes,
while on cross-examination, when asked why SA Ornellas would ask
Arneson to conduct an illicit inquiry when he had access to the
same databases that Arneson did, Arneson testified If you want
me to assume, I can assume. I dont know what he has access to.
(Id. at 107, 134).
211
SA Ornellas, a long time investigator with the FBIs

Organized Crime Squad, testified that he provided the information
to Arneson because the FBI did not handle low level drug dealing
by street level dealers, but rather left such investigations to
local authorities such as the LAPD. (4/18/08 RT (A.M.) 85). By
providing this information to Arneson, a senior sergeant at
Pacific Division, he expected that officers from the Pacific
Division would investigate the matter because it fell within the
purview of Pacific Division. (Id. at 45, 85-86). As frequently
occurred throughout trial, Arneson sought to cloud issues before
the jury by implying that SA Ornellas could have had the inquiry
conducted by LAPD Officer Mike Howard, with whom SA Ornellas
worked more closely than Arneson. (Id. at 224). As SA Ornellas
explained, however, Howard was stationed in downtown Los Angeles,
while Arneson worked at LAPDs Pacific Division, the precinct in
which the drug dealing was based. (4/18/08 RT (A.M.) 85-86,
238).
313
Pellicano claims that given Ornellas unlimited access to

the FBI database, his self-serving explanation for Arnesons
run was simply implausible,212 and that the district court
should have dismissed the indictment sua sponte based on this
dark[] example of hypocrisy.
(POB 33-35).
Pellicanos claim
is so patently frivolous as to be in bad faith.

b.
Pellicano Waived this Claim
Pellicano filed motions to dismiss the indictment both preand post-trial.
(CR 839, 2429).
In neither of these motions did
Pellicano claim that the indictment should have been dismissed

because SA Ornellas provided Arneson with information regarding
potential drug dealing that Arneson then used for purposes of
conducting a law enforcement database inquiry.
As Pellicano
failed to raise the claim before the district court, it is

waived.
Cf. Mausali, 590 F.3d at 1080-81.
212
It is Pellicanos claim that is implausible. As Arneson

demonstrated during both his government proffer and at trial, a
law enforcement officer can shield illicit inquiries with
relative ease through lies asserting that they are part of
legitimate law enforcement investigations for which no
independent corroboration exists or through lies in which the
inquiries are blamed on another officers misuse of his password
(e.g., when explaining the inquiries done on himself, his wife,
his daughter and family friends, Arneson testified theres only
one explanation, which was that someone else conducted the
inquiries). (4/11/08 RT 102-04). Had SA Ornellas wanted to
conduct a database inquiry for illicit reasons, logic dictates
that he would have done it himself or had it done through a
partner or other close associate and not an LAPD officer he
barely knew.
314
c.
Pellicanos Claim Has No Basis in Fact or Law
Even if not waived, Pellicanos claim is so facially

deficient when considered against the applicable legal standards
for dismissal and the well developed body of caselaw within this
Circuit applying these standards that Pellicano could not have
entertained a good faith basis in the merits of this claim.
In
fact, it is the embodiment of frivolous claim.

First, Pellicano ignores the applicable standard of review.
The standard is not whether a defendant alleges a witness
testimony to be implausible or an even darker example of
hypocrisy.
(POB 33, 35).
Instead, the standard of review as
set forth by this Court is that the evidence must be viewed in

the light most favorable to the government.
950.
Gurolla, 333 F.3d at
Simply stated, the evidence when properly viewed
establishes that SA Ornellas did precisely what our society asks

of its law enforcement officers and law-abiding citizens: when an
individual observes evidence of a potential crime, that
individual should report it to the law enforcement agency that
has jurisdiction over the matter so that it can properly be
investigated.
Such an act does not and could not qualify as
misconduct.
Second, Pellicano has ignored the entirety of this Courts
precedents setting forth the boundaries of what constitutes
315
outrageous government conduct.
Specifically, Pellicano flatly
ignores that the doctrine of outrageous government conduct only

applies to the most intolerable government conduct that is so
grossly shocking and so outrageous as to violate the universal
sense of justice.
While it may be
grossly shocking to Pellicanos sensibilities that law

enforcement officers, like SA Ornellas, access law enforcement
databases in connection with legitimate law enforcement
investigations rather than in response to bribes, it is a
universal sense of justice that controls.
Given that SA
Ornellas conduct was both lawful and appropriate, it simply does

not approach the realm of what constitutes misconduct.
However,
even if SA Ornellas acted for personal reasons as alleged by

Pellicano, this singular instance of misconduct would not fall
within the limited universe of misconduct that would warrant
dismissal of an indictment under the parameters set forth by
prior precedent of this Court.
Third, Pellicano brazenly ignores that it is his burden to
provide evidence that meets the extremely high threshold for
establishing outrageous government conduct or the almost equally
as high threshold for establishing flagrant prejudice causing
substantially prejudice.
Pellicano does not even attempt to
explain how SA Ornellas providing a lead to Arneson so that
316
Arneson could investigate the matter surpasses either standard,

citing only to what he alleges is a hypocritical act.
As
discussed above, viewed in the light most favorable to the

government, it cannot credibly be stated that providing
information to a local law enforcement officer who could act on
that information constitutes misconduct, much less flagrant
misconduct.
In addition, even if Pellicanos unfounded
assertions were credited and the database inquiry that resulted

from SA Ornellas request to Arneson constituted misconduct, it
was misconduct that occurred completely outside the course of the
investigation and prosecution of this case.
As such, it would
fall beyond the proper scope of this courts ability to use its
supervisory powers to address misconduct occurring in matters
before it.
Garza-Juarez, 992 F.2d at 905.
Pellicano also does
not attempt to establish that he was prejudiced, much less

substantial prejudiced by this act as he: (1) had no involvement
whatsoever in this particular database inquiry; (2) the database
inquiry was wholly separate from the investigation that resulted
in charges against Pellicano and his co-defendants and,
therefore, was not part of the governments evidence presented
against Pellicano; and (3) SA Ornellas was subject to examination
by defendants, including Pellicano, in the RICO/wiretapping trial
on this issue, and the jury was free to consider his testimony on
317
this issue as they saw fit.
See, e.g., Hugs, 109 F.3d at 1379
(finding that alleged misconduct must relate to the charged

offenses); Owen, 580 F.2d at 367-68 (finding that defendant
cannot claim prejudice generally but rather must actually incur
prejudice from misconduct);
Stinson, 647 F.3d at 1209 (no
prejudice when matter brought to attention of the jury at trial).

As Pellicano did not even attempt to satisfy any of the
multiple burdens necessary to secure the dismissal of an
indictment under either the outrageous government conduct
doctrine or pursuant to the courts supervisory powers, it is
evident that this particular claim is simply another in a long
line of what the district court long ago referred to as the now
de riguer attacks on the credibility of agent Ornellas.
Trial
evidence demonstrated how Pellicanos relentless efforts to

discredit his investigative adversaries in pursuit of victory was
unbounded by either ethics or concern that his conduct would
subvert the judicial process.
This simply is an example of
Pellicano carrying these tactics over to this case and should be

recognized for what it is a baseless attempt to discredit SA
Ornellas in an effort to manufacture an aura of misconduct that
can bolster a Franks claim that this Court previously rejected.
6.
Pellicano Has Not and Cannot Show That He Was the

Subject of Vindictive Prosecution
a.

318
Pellicano claims that the indictment should have been

dismissed as he was the subject of a vindictive prosecution in
which charges allegedly were added and penalties purportedly
increased as punishment for his refusal to cooperate.
37).
(POB 36-
Pellicano cites three circumstantial facts that he claims
evince vindictiveness: (1) the government did not charge

Pellicano with RICO until after he refused to cooperate; (2) SA
Ornellas served as the affiant on the complaint in People v.
Anthony Pellicano and Alexander Proctor, Superior Court of the
State of California, County of Los Angeles, case number BA285351,
which charged Pellicano and Proctor with conspiring to, and
making, criminal threats against reporter Anita Busch in
violation of California Penal Code Sections 182(a)(1) and 422;
and (3) the government sought to maximize Pellicanos time in
custody by waiting to arrest him until the 30-month sentence
imposed in United States v. Anthony Pellicano, No. CR 02-1278DT,213 expired in February 2006, even though the new indictment
[had been] pending since October 2005.
(POB 36).
Pellicanos
vindictive prosecution claim fails as it is both legally and

factually unfounded.
213
In 2003, Pellicano pleaded guilty mid-trial to one

felony count of possession of unregistered firearms (two
improvised explosive devices, specifically, modified grenades),
in violation of 26 U.S.C. 5861(d), and one felony count of
possession of a plastic explosive (C-4) lacking the legally
mandated detection agent, in violation of 18 U.S.C. 842(n)(1).
319
b.
Pellicano Waived this Claim
As with his frivolous claim of misconduct against SA

Ornellas, Pellicano did not raise vindictive prosecution as a
basis for dismissal in either of the motions that he filed before
the district court.214
waived.
(CR 896, 2429).
The claim, therefore, is
Mausali, 590 F.3d at 1080-81; United States v. Jones,
713 F.2d 1316, 1323-24 (9th Cir. 1983) (vindictive prosecution

claim is waived unless raised before the district court).
c.
Pellicanos Vindictive Prosecution Claim Has No

Basis in Fact or Law
Even if not waived, Pellicanos claim still fails as it is

factually and legally meritless.
Pellicano does not cite any
precedent to support his vindictive prosecution claim.
This
omission is not surprising as controlling caselaw from both the
214
In his initial motion to dismiss, Pellicano included a

footnote stating that the government charged multiple offenses
that were meaningless under the sentencing guidelines and
manufactured a RICO case from predicate acts that also carry
low guideline offense levels. (CR 839). In other words,
Pellicano claimed that he was overcharged, which is materially
different from his current claim. Notably, in responding to this
claim, the government expressly hi-lighted that Pellicano had not
alleged a constitutional violation, such as vindictive
prosecution, but rather had claimed that the government
effectively had abused its discretion in deciding how to charge
the case. (CR 896). The district court, in denying Pellicanos
claim, found that the government acted within its discretion in
bringing the charges and further stated if Pellicano believed
that the RICO charges were improperly brought, he was free to
move for the charges to be stricken or dismissed. (CR 970).
Pellicano never did so before the district court and should not
be permitted to do so for the first time on appeal.
320
Supreme Court and this Court make plain that Pellicanos claim of
vindictive prosecution is unsupported in the law.
It is well established that the Executive Branch has
extremely broad latitude as to the criminal charges that it seeks
to pursue and the timing of when such charges are filed.
The
Supreme Court has long recognized that in our system, so long as

the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.
Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1977); see also United States v.
Nixon, 418 U.S. 683, 693 (1974) (the Executive Branch has
exclusive authority and absolute discretion to decide whether to
prosecute a case).
The Supreme Court also has ruled that since
discretionary judgments in the charging process lie at the

heart of the criminal justice system, exceptionally clear
proof is required before it can be infer[red] that the
discretion has been abused.
McCleskey v. Kemp, 481 U.S. 279,
297 (1986); Nunes v. Ramirez-Palmer, 485 F.3d 441 (9th Cir.

2007)(same); see also United States v. Goodwin, 457U.S. 368, 382
(1982) (rejecting claim that timing of indictment evinced
vindictiveness and noting that a prosecutor should remain free
before trial to exercise the broad discretion entrusted to him to
321
determine the extent of the societal interest in prosecution [and

an] initial decision [as to what offenses to include in an
indictment] should not freeze future conduct).
In assessing claims of vindictive prosecution, this Court
repeatedly has found a lack of vindictiveness when additional
and/or more serious charges were filed by the government after a
defendant either rejected a plea agreement or refused to
cooperate.
In doing so, this Court consistently has held that:
as a matter of law, the filing of additional charges to

make good on a plea bargaining threat [. . .] will not
establish the requisite punitive motive, however, in
the give-and-take of plea bargaining, there is no such
element of punishment or retaliation so long as the
accused is free to accept or reject the prosecutions
offer.
Id. at 914 (citing Bordenkircher, 434 U.S. at 363); see also
United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.
2001) (finding that prosecutors, as part of plea negotiations,
may threaten additional charges and carry through on this
threat, and that the filing of additional charges after a
defendant refuses to plead guilty does not raise a presumption of
vindictiveness); United States v. Noushar, 78 F.3d 1442, 1446
(9th Cir. 1996) (same).
For example, approximately one year ago,
this Court rejected a vindictive prosecution claim when a
322
prosecutor filed an information pursuant to 21 U.S.C. 851 that

doubled the mandatory minimum sentence from five to ten years
after the defendant declined to sign a cooperation agreement but
otherwise expressed a willingness to plead guilty to the existing
charges, stating we hold that a prosecutor, who, in the plea
negotiation context, threatens enhanced charges to induce a
defendants cooperation as an informant may carry out that threat
if the defendant declines to cooperate, regardless of the
defendants willingness to plead guilty unconditionally to the
lesser charges.
Cir. 2011).
United States v. Kent, 649 F.3d 906, 914 (9th
As the Kent Court explained, a due process violation
will be found only if the evidence establishes that the

prosecutor acted solely to punish a defendant for exercising a
constitutional or statutory right.
Id. at 912.
A defendant claiming vindictive prosecution bears the

initial burden of establishing a prima facie case of
vindictiveness.
Id..
This Court has held that a defendant may
establish vindictive prosecution (1) by producing direct evidence

of the prosecutors punitive motivation or (2) by showing that
the circumstances establish a reasonable likelihood of
323
vindictiveness.215
Id. at 912-13 (internal citations omitted).
Pellicano has not and cannot make either showing.

The crux of Pellicanos vindictive prosecution claim is that
the government added charges and increased his sentence by
approximately three months in retaliation for his refusal to
cooperate.
(POB 37).
Just as he does not cite to any
controlling caselaw, Pellicano fails to provide any record cites

in support of his allegations.
should be rejected.
On this basis alone, his claim
Ninth Cir. Local R. 28-2.8.
However, should
this Court consider Pellicanos claim, it can be quickly rejected

as Pellicano has failed to provide any direct evidence of a
vindictive motivation by the prosecutors and the circumstantial
facts that Pellicano cites do not come close to establishing a
reasonable likelihood of vindictiveness as required to satisfy
his initial burden.
The principal fact cited by Pellicano is that the
government purportedly threatened him with RICO charges if he did
215
As Pellicano has not and cannot establish a presumptive

case of vindictiveness, the government need not show that the
RICO charges did not stem from a vindictive motive, or [were]
justified by independent reasons or intervening circumstances
that dispel the appearance of vindictiveness. Garza-Juarez, 992
F.2d at 906. Nevertheless, it respectfully submits that the
evidence presented at the eleven-week RICO/wiretapping trial more
than adequately demonstrated that the filed RICO charges against
Pellicano, Arneson, and Turner were not filed to vindictively
punish Pellicano but rather were the end-product of a multi-year
racketeering investigation into the broad array of criminal
conduct committed by these individuals.
324
not agree to serve as a cooperating defendant and then followed

through on this threat when he refused to cooperate.
(POB 37).
Even if this unsupported claim was accurate, it could not satisfy

Pellicanos burden of establishing a presumption of
vindictiveness in light of the long line of controlling precedent
holding that, as a matter of law such conduct cannot establish
the requisite punitive motive absent an accompanying showing that
the new charges were solely motivated to retaliate against the
defendant.
See, e.g., Kent, 649 F.3d at 914, Noushar, 78 F.3d at
1446.
Furthermore, Pellicanos claim is inaccurate.
While it is
true that the RICO charges were filed in February 2006, which
postdates the December 15, 2005 meeting when Pellicano confirmed
that he would not cooperate, the record is replete with evidence
that Pellicano simply ignores that the RICO charges were not
brought solely to punish [Pellicano] for exercising a
constitutional or statutory right.
For example, the RICO
indictment was not even the first indictment filed after the
December 15, 2005 meeting.
In January 2006, the grand jury
returned the First Superseding Indictment, which added two

additional substantive wiretapping counts to which Pellicano
ascribes no vindictive motive.
(CR 38).
In addition, as
discussed above, the governments investigation had long been
325
focused on bringing RICO charges, as such charges were necessary

to capture the full scope of the criminal conduct committed by
Pellicano and his associates.
Also, as noted above, Pellicano
conceded in other arguments that he advanced throughout his

opening brief that the RICO charges were not brought solely to
punish him for his refusal to cooperate, as he would have to show
to establish a claim of vindictive prosecution.216
37, 50-51).
(POB 34, 36-
Thus, the claim fails. See Frega, 179 F.3d at 802
(since the defendant has shown no likelihood that the second

superseding indictment would not have been returned absent
hostility or a private animus towards him for exercising a
right, the decision to charge the RICO conspiracy was not
vindictive).
Pellicano also cites as circumstantial evidence of
vindictiveness the fact that the government did not arrest him in
this case until after his existing federal sentence on the
explosives charges expired, which he claims was done to increase
his sentence by approximately three months time.
claim fails on near identical grounds.
(POB 37).
This
Legally, while it was not
what occurred here, this Court has affirmed that the government
216
Pellicano personally advised the district court that he

knew in September 2005 one month before the initial indictment
was filed and more than two months before the government met with
him to discuss potential cooperation that the government
intended to file RICO charges against him. (1/9/08 RT 36).
326
may increase the term of imprisonment a defendant receives should

that defendant elect not to cooperate.217
Kent, 649 F.3d at 913-
15 (finding vindictiveness not implicated by filing enhancement

that doubled sentence following the defendants refusal to
cooperate and reiterating due process does not in any sense
forbid enhanced sentences or charges, but only enhancement
motivated by actual vindictiveness toward the defendant for
having exercised guaranteed rights.).
Factually, Pellicano has
not and cannot show that his sentence was increased solely as
punishment for having exercised a statutory or constitutional
right.
On the contrary, the record plainly shows that the
government did not delay bringing charges until Pellicanos

explosives sentence had expired but rather that the impending
expiration of this sentence forced the government to advance its
charging date.
It is facially apparent from the initial
indictment, filed on October 26, 2005, and the First Superseding

Indictment, filed on January 4, 2006, that each was a placeholder
indictment that alleged wiretapping counts that were quickly
approaching their respective statute of limitations dates.
217
(CR
Pellicano assigns clairvoyance to the prosecutors. At

the time when the RICO charges initially were filed, there was no
way of knowing how Pellicano would elect to resolve the charges
when brought to court to stand trial on the charges, how the
district court would view the charges, and whether the district
court would provide Pellicano credit for time served on the
explosives charges.
327
1, 15).
The Second Superseding Indictment, which added several
dozen counts, including the RICO charges, and set forth the core
charges on which the government would proceed, was filed on
February 1, 2006, just days prior to Pellicanos scheduled
release date but before the government had completed its
investigative and charging decisions.
(CR 38, 46). Should there
be any question as to this fact, this Court need only look to the
Third Superseding Indictment, which was returned exactly two
weeks later and which added a new defendant and new charges,
namely the wiretapping charges against Christensen.
(CR 119).
The final circumstantial fact cited by Pellicano as

evidence of vindictiveness is that SA Ornellas served as the
affiant for the criminal threats complaint filed by the Los
Angeles District Attorney (LADA).
Pellicano completely fails
to explain how the filing of state charges in June 2005 could

qualify as a vindictive response directed solely to punish
Pellicano for his refusal to cooperate when the filing of this
state complaint predated both the filing of any and all charges
in this case and the December 2005 meeting in which Pellicano
declined to cooperate with the ongoing federal investigation by
approximately a year.218
Pellicano also fails to explain how a
218
As discussed earlier, the threat against Busch

initially was brought federally only to be dismissed due to a
perceived jurisdictional defect, at which time the matter was
(continued...)
328
decision by the LADA, a state governmental agency, to charge

Pellicano and Proctor with violations of state law that are
factually and legally supported and, in fact, resulted in pleas
by the two charged parties, can constitute vindictive conduct by
the United States warranting dismissal of separately filed
federal indictments simply because a federal agent who
investigated the matter served as the affiant to the criminal
complaint.
Pellicano does not attempt to explain these issues
because he cannot.
Instead, this is simply another specious
attack on SA Ornellas credibility and yet again reflects the

hollowness of the defendants concerted effort to discredit SA
Ornellas in an attempt to advance the previously rejected Franks
claim.
Pellicanos claim of vindictive prosecution is facially
deficient.
Pellicano failed to etablish a presumption of
vindictiveness, misconduct, outrageous government conduct and/or

flagrant misconduct causing substantial prejudice.
218
Thus, it does
(...continued)
turned over to state authorities for potential prosecution. The
state criminal threats case followed. The timing of the states
filing shows nothing more than the state, as it is permitted to
do, used the statutorily allotted period of time to assess
whether to bring charges. Presumably, if Pellicano thought that
the timing of the filing somehow represented legitimate
misconduct by state officials, he could have litigated the matter
in his state court proceedings. Instead, he pled to the criminal
threats charge and was sentenced to 36 months imprisonment.
329
not provide a legitimate basis on which to dismiss the

indictment.
7.
Pellicano Has Not Shown and Cannot Show That the

Indictment Should Be Dismissed Due to Alleged Brady
Violations
Pellicano also claims that the indictment should be

dismissed because of purported Brady violations committed by the
government.
(POB 35).
This, too, is unfounded as Pellicano
cannot establish underlying misconduct, much less the

extraordinarily grave misconduct that this Court has found would
justify dismissal of the indictment under either the outrageous
government conduct doctrine or this Courts supervisory
authority.
As discussed more fully later, the government did not commit
the claimed Brady violations.
In fact, the district court twice
found that the claimed misconduct did not violate Brady and was
not misconduct at all.
(CR 970, 2452).
These findings are not
clearly erroneous and thus, should not be disturbed by this

Court.
Barrera-Moreno, 951 F.2d at 1091.
Thus, Pellicano again
has failed to carry his burden and his motion should be denied.
In addition, this Court repeatedly has recognized that: (1)
the drastic remedy of dismissing an indictment should only be
undertaken if no remedial measures exist; (2) in the case of
Brady violations, a remedial measure exists in the form of
330
reversal of the conviction with remand for a new trial; and (3)
the remedy of dismissal should be applied only when presented
with particularly egregious Brady violations.
See, e.g., United
States v. Kearns, 5 F.3d 1251, 1253-54 (9th Cir. 1993) (finding

that flagrant misconduct requires intentional acts, not gross
negligence, and absent flagrant misconduct causing substantial
prejudice, suppression is the appropriate remedy).
Therefore,
even if this Court were to conclude that a Brady violation did

occur, the government respectfully submits that it would not rise
to the level of misconduct warranting dismissal but rather
properly could be addressed through less punitive sanctions.
8.
There Is No Basis to Dismiss the Indictment on

Cumulative Error
Finally, the alleged instances of misconduct, each of which

is unfounded, do not cumulatively support dismissal of the
indictment.
There was no outrageous government conduct, no
constitutional or statutory violation, no flagrant misconduct,

and no substantial prejudice to Pellicano, either individually or
in the aggregate.
Thus, there is no basis on which to justify
application of the extreme sanction of dismissal of the

indictment.
See Barrera-Moreno, 951 F.2d at 1092 (dismissal
appropriate under supervisory powers only when no lesser

remedial action is available.); see also United States v.
Morrison, 449 U.S. 361, 365-66 & n.2 (1981) (even assuming
331
constitutional violation, dismissal inappropriate absent

demonstrable prejudice).
E.
THE DISTRICT COURT DID NOT ERR IN DECLINING TO DISMISS THE

IDENTITY THEFT COUNTS BECAUSE MEANS OF IDENTIFICATION IS
STATUTORILY DEFINED TO INCLUDE NAMES AND TELEPHONE NUMBERS
Before trial, Turner moved to strike the racketeering acts
and dismiss all counts (including the RICO counts) charging him
with identity theft, arguing that the indictment was defective
because the statutory term means of identification in 18 U.S.C.
1028(a)(7) does not include names and telephone numbers.219
843).
(CR
The district court denied the motion, finding that [t]he
clear text of the statute refuted Turners claim.

152).
Turner renews his argument on appeal.

1.
(CR 967; JER
(TOB 39-53).
Standard of Review
The sufficiency of an indictment is reviewed de novo.

United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).
The district courts interpretation of a statute is reviewed de
219
Count one of the indictment charged Turner with five

racketeering acts of identity theft involving the transfer,
possession and use of the names and telephone numbers of Erin
Finn, Bo Zenga, Heidi Gregg, Johnny Friendly, and Anita Busch.
(JER 3971-72). Heidi Gregg was the ex-wife of deceased Pellicano
target Aaron Russo, and Johnny Friendly was the alias under
which Sylvester Stallone listed his telephone service. (4/1/08
(P.M.) RT 57-58; 4/10/08 (A.M.) RT 125). Counts 59 through 62
charged the last four of the above racketeering acts as
substantive counts of identity theft (the act involving Erin Finn
being time-barred). (JER 3985). All five individuals named in
the identity theft counts were proven and found to have also been
victims of Pellicanos and Turners illegal wiretaps.
332
novo.
United States v. Gamboa-Cardenas, 508 F.3d 491, 495 (9th
Cir. 2007).
Where properly preserved, a claim that a statute is
void for vagueness is also reviewed de novo.
Rodriguez, 360 F.3d
at 958.
2.
The Plain Statutory Language Defines Means of

Identification to Include Both Names and Telephone
Numbers
Title 18, United States Code, section 1028(a)(7) makes it a

crime to knowingly transfer[], possess[], or use[], 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.
The term means of identification is
defined in section 1028(d)(7) as:

any name or number that may be used, alone or in
conjunction with other information, to identify a
specific individual, including any(A) name, social security number, date of birth
. . . . [or]
(D) telecommunication identifying information or
access device (as defined in section 1029(e)).
18 U.S.C. 1028(d)(7) (emphases added).
Section 1029(e)(11), in
turn, defines telecommunication identifying information as

electronic serial number or any other number or signal that
333
identifies a specific telecommunications instrument or account.

18 U.S.C. 1029(e)(11) (emphases added).
Thus, the plain statutory language makes clear that names
and telephone numbers constitute means of identification within
the meaning of the statute.
Turners contention that the
statute is at best ambiguous whether a means of identification

includes a land-based telephone number (TOB 44) is without
merit:
the statute draws no distinction between land-based or
mobile numbers, but rather expressly includes any . . . number

. . . that identifies a specific telecommunications . . .
account.
18 U.S.C. 1029(e)(11) (emphasis added).
Similarly,
Turners claim that Congress omitted the term telephone

number from the statute is meaningless, as a telephone number
is unquestionably a number that identifies a specific
telecommunications account and therefore falls directly within
Congress language.
See United States v. Geeslin, 236 Fed. Appx.
885, 886 (5th Cir. 2007) (unpublished) (definition of means of

identification in 1028(d)(7) surely . . . includes a personal
telephone number).
Turner contends that names and land-based telephone numbers
do not constitute means of identification because they does not
identify a specific individual as required by section
1028(d)(7).
(TOB 41-43).
As noted above, however, the statutory
334
definition of means of identification includes any name or

number that may be used, alone or in conjunction with any other
information, to identify a specific individual.
1028(d)(7) (emphasis added).
18 U.S.C.
Even if, on its own, a name or
telephone number does not identify a specific individual, such

information can be used in conjunction with other information
(such as an address, social security number, date of birth, or
subscriber information) to identify a specific individual.
Indeed, that is precisely what occurred in this case:
the means
of identification transferred, possessed and used by Turner and

Pellicano were combined with information obtained from other
sources (including Arnesons inquiries of law enforcement
databases) to identify and obtain information on specific
investigative targets.
Because the statutory language is unambiguous, Turners
reliance on the rule of lenity is misplaced.
The rule of lenity
only applies . . . where there is a grievous ambiguity or

uncertainty in the language and structure of the [statute], such
that even after a court has seize[d] every thing from which aid
can be derived, it is still left with an ambiguous statute.
United States v. Carona, 660 F.3d 360, 369 (9th Cir. 2011)
(alterations in original, internal quotations and citation
omitted).
The phrases means of identification and
335
telecommunication identifying information do not contain any

grievous ambiguity or uncertainty that would make it
unreasonable to apply to a defendant who uses names and telephone
numbers of individuals in order to commit computer fraud
involving the accessing of their personal information.
See id.;
United States v. Nader, 542 F.3d 713, 721 (9th Cir. 2008) (rule
of lenity requires that no individual be forced to speculate, at
peril of indictment, whether his conduct is prohibited).
There
can be no serious contention that Turner did not know that his
conduct was unlawful,220 and the rule of lenity has no application
here.
Turner also claims that, if read according to its plain
language to include a telephone number, section 1028(a)(7) is
unconstitutionally vague.221
(TOB 47-50).
Because Turner raised
no constitutional challenge to the statute in the district court,
220
(See, e.g., 3/28/08 (A.M.) RT 25-27 (Turner told Wright

to lie to the FBI and tell them that the checks he gave her were
for her mother); 3/13/08 (A.M.) RT 109-15 (Turner and Pellicano
discussing their concern that a former FBI employee would rat
[them] out for the illegal stuff they did)).
221
In addition, Turner appears to claim that the statute is

unconstitutionally overbroad. (TOB 45). Outside of the limited
context of the First Amendment, however, a criminal statute may
not be attacked as overbroad. Schall v. Martin, 467 U.S. 253,
268 n.18 (1984). Turner raises no First Amendment claim, and
this argument must therefore be rejected.
336
his claim is reviewed for plain error.222
Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).
For this
Court to find plain error, a defendant must demonstrate that:

(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected the
appellants substantial rights, which in the ordinary case means
it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
United States v. Wright,
625 F.3d 583, 607-08 (9th Cir. 2010) (quoting United States v.
Marcus, 130 S. Ct. 2159, 2164 (2010)).
Furthermore, although Turner attempts to raise a facial
challenge to the statute, claims of statutory vagueness that do
not implicate the First Amendment must be examined in the light
of the facts of the case at hand.
United States v. Mazurie, 419
U.S. 544, 550 (1975); see Rodriguez, 360 F.3d at 953 (vagueness
challenges outside of First Amendment context are on as applied
basis only).
A statute is unconstitutionally vague as applied if
it (1) does not give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited, and (2) does
provide explicit standards for those who apply it.
222
See CR 967 at 2; JER 152

[Turners] motion is whether names
phone numbers constitute means of
federal identity theft statute, 18
337
Pest
(The only issue presented by

of individuals and personal
identification under the
U.S.C. 1028(a)(7).)
Committee v. Miller, 626 F.3d 1097, 1111 (9th Cir. 2010); see
Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (vagness claim
rests on lack of notice and may be overcome in any specific case
where reasonable persons would know that their conduct is at
risk).
As shown above, the challenged statute is not even
ambiguous, let alone unconstitutionally vague, as to what

constitutes a means of identification, and a reasonable person
would know from the plain language of the statute that names and
telephone numbers come within its ambit.
Finally, Turner contends that his conduct does not
constitute identity theft.
(TOB 50-53).
This argument, which
also was not raised in the district court, relies on broad,

sweeping pronouncements about [t]he clear import of section
1028 (without any reference to legislative history) and the
facts of almost all identity theft prosecutions (which Turner
supports
with citation to a single case).
(TOB 51-52).
The
plain statutory language of section 1028(a)(7) makes clear that

one who knowingly transfers, possesses, or uses someones name or
telephone number with the intent to commit, or to aid or abet, or
in connection with, any federal crime or state felony commits the
crime of identity theft.
That is precisely what Turner did here
when he possessed, used, and transferred to Teresa Wright the

names and telephone numbers of specific individuals with the
338
intent to commit, or to aid and abet, the federal crime of

computer fraud and the state crime of unauthorized access to
computer data.
(See JER 3971-72, 3985).
Contrary to Turners
claim, this is hardly a unique fact pattern for identity theft.

See, e.g., United States v. Craig, 383 Fed. Appx. 445, 446 (5th
Cir. 2010) (unpublished) (defendant provided names and social
security numbers contained in Marine Corps computer database in
exchange for money); United States v. Suarez, 2010 WL 4384209, *1
(S.D. Fla. Oct. 28, 2010) (defendant paid hospital employee to
provide names, addresses, telephone numbers, and diagnoses of
patients).
F.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING

DEFENDANTS MOTION FOR SEVERANCE
Prior to trial, Arneson moved for severance on the ground
that he would be prejudiced by Pellicanos choice to proceed pro

se at trial.
(CR 1050).
in Arnesons motion.223
Turner, Kachikian, and Nicherie joined
(CR 1086, 1087, 1091).
223
The district
In a three-sentence argument without citation to the

record or case law, Pellicano claims that he too was prejudiced
by a joint trial because the government argued that two of his
co-defendants had lied on the stand. (POB 47). Pellicano never
sought severance on this basis: rather, he requested severance
in connection with his opposition to a trial continuance in
October 2006 (CR 413) and joined in Turners request during trial
based on Kachikians testimony about how Telesleuth was
apparently used. (4/24/08 AM 77-78). Pellicanos unpreserved
and unsupported argument should be rejected.
339
court denied severance.224
(JER 196-98).
Various defendants
renewed motions for severance based on particular evidence

introduced during trial:
those motions were denied.
(See JOB
71).
1.
Standard of Review
A district courts decision on a motion for severance is

reviewed for an abuse of discretion.
United States v. Pitner,
307 F.3d 1178, 1181 (9th Cir. 2002).
The test for abuse of
discretion is whether a joint trial was so manifestly prejudicial

as to require the trial court to exercise its discretion in but
one way, by ordering a separate trial.
297 F.3d 845, 855 (9th Cir. 2002).
United States v. Johnson,
The defendant must prove that
prejudice from the joint trial was so clear, manifest or undue

that he was denied a fair trial.
United States v. Throckmorton,
87 F.3d 1069, 1071-72 (9th Cir. 1996).

2.
The District Court Did Not Abuse Its Discretion in

Denying Severance and Holding a Joint Trial
Codefendants jointly charged are normally to be jointly

tried.
United States v. Mariscal, 939 F.2d 884, 885 (9th Cir.
1991).
This presumption in favor of a joint trial expedites the
administration of justice, reduces the congestion of trial
224
The district court granted Christensens separate

motion for severance of counts 106 and 107 (JER 202), as well as
the subsequent motion of Arneson, Turner, Kachikian, and Nicherie
to sever Pellicano as to those two counts (JER 210).
340
dockets, conserves judicial time, lessens the burden upon

citizens to sacrifice time and money to serve on juries, and
avoids the necessity of recalling witnesses who would otherwise
be called upon to testify only once.
563 F.2d 1352, 1355 (9th Cir. 1977).
economy are a dominant concern.
United States v. Gaines,

The interests of judicial
United States v. Polizzi, 801
F.2d 1543, 1553 (9th Cir. 1986); see Richardson v. Marsh, 481
U.S. 200, 210 (1987).
Accordingly, in bringing a motion to sever under Federal
Rule of Criminal Procedure 14, the defendant bears a heavy
burden of showing prejudice from a joint trial.
United States
v. Sitton, 968 F.2d 947, 961 (9th Cir. 1992); see United States
v. Davis, 663 F.2d 824, 832 (9th Cir. 1981) (severance is proper
only when defendant carries difficult burden of demonstrating
prejudice).
It is not enough for a defendant to show that a
severed trial would offer him a better chance of acquittal.
See
United States v. Hernandez, 952 F.2d 1110, 1116 (9th Cir. 1991).
Nor is it enough to show that some prejudice may result;
[s]ince some prejudice is inherent in any joinder of defendants,
if only some prejudice is all that need be shown, few, if any,
multiple defendant trials could be held.
United States v.
Vaccaro, 816 F.2d 443, 448 (9th Cir. 1987), overruled on other
grounds, Huddleston v. United States, 485 U.S. 681 (1988).
341
Rather, to justify severance, a defendant must demonstrate that

a joint trial is so manifestly prejudicial that it outweighs the
dominant concern with judicial economy and compels the exercise
of the courts discretion to sever.
F.2d 920, 926 (9th Cir. 1980).
United States v. Doe, 655
[B]road allegations of prejudice
are insufficient to require severance.
Richey v. United States
Internal Revenue Svc., 9 F.3d 1407, 1409 (9th Cir. 1993)

(citation omitted).
Where, as in this case, defendants are charged in an
indictment with a conspiracy or joint scheme, the preference for
joint trials is even more compelling.225
See United States v.
McGuire, 608 F.2d 1028, 1031 (5th Cir. 1979); United States v.
Goble, 512 F.2d 458, 465-66 (6th Cir. 1975).
Because evidence of
the scheme is directly relevant to all defendants, severance is

especially disfavored.
See United States v. Patterson, 819 F.2d
1495, 1502-03 (9th Cir. 1987).

The district court did not abuse its discretion in denying
the pretrial motion for severance based on Pellicanos pro se
status.
See United States v. Atcheson, 94 F.3d 1237, 1244 (9th
Cir. 1996) (no abuse of discretion in declining to grant
225
Pellicano, Arneson, and Turner were jointly charged in

the RICO and RICO conspiracy counts; Pellicano, Turner, and
Kachikian were jointly charged in the wiretapping conspiracy and
substantive counts; and Nicherie was jointly charged in his
wiretapping count with Pellicano, Turner, and Kachikian.
342
severance of pro se defendant absent showing of manifest and

unfair prejudice); United States v. DeMasi, 40 F.3d 1306, 1313
(1st Cir. 1994) (co-defendants pro se representation is not in
itself ground for severance); United States v. Tracy, 12 F.3d
1186, 1194 (2d Cir. 1993) (same).
The court concluded that a
series of precautionary measures recommended by the Second

Circuit in United States v. Sacco, 563 F.2d 552, 556-57 (2d Cir.
1977), would effectively guard against the speculative prejudice
raised in Arnesons motion (JER 196-97), and it conscientiously
implemented those measures prior to and throughout the trial.
See, e.g., 1/9/08 RT 22, 26 (warning Pellicano that he would be
held to same rules as lawyers and that pro se status could be
terminated if he did not conduct himself appropriately); 1/28/08
RT 5-6 (offering Pellicano advisory counsel); 3/5/08 (A.M.) RT
21, 3/5/08 (P.M.) RT 47 (explaining to jurors that Pellicano
would refer to himself in third person when acting in role as
attorney); 3/5/08 (P.M.) RT 47 (instructing jurors that
statements or arguments made by Pellicano when acting as attorney
are not evidence); 4/29/08 (A.M.) RT 24 (instructing jurors prior
to summation that nothing lawyers (including Pellicano) say is
evidence); see also United States v. Veteto, 701 F.2d 136, 139
(11th Cir. 1983) (steps set forth in Sacco are suggestions, not
343
requirements, and failure to follow each of them is not an abuse

of discretion).226
Nor have defendants shown that the district court abused its
discretion in failing to grant their severance requests during
trial.
The specific instances of testimony cited in defendants
opening brief (JOB 71-74) were either non-inculpatory of

Pellicanos co-defendants, were admissible against them
regardless of joinder, or were stricken from the record, and
defendants make no showing of manifest prejudice resulting from
any of them227
See Johnson, 297 F.3d at 855.
The district court
226
The district courts confidence in Pellicanos ability

to represent himself without prejudicing his co-defendants was
borne out. In denying Arnesons motion for a new trial, the
court noted that, based on its own observations, Pellicano
conducted himself in a consistently responsible and professional
manner and exercised his right to self-representation in the
most effective manner that he could. (JER 477).
227
As discussed further below, Adam Senders brief

testimony regarding Pellicanos offer to kill Aaron Russo (which
came in without contemporaneous objection) was stricken as to all
defendants (4/1/08 (P.M.) RT 25-26; 4/3/08 (A.M.) RT 16-17), and
Anita Buschs testimony regarding threats against her was found
by the court to be admissible against Pellicanos co-defendants
and a fair response to Arnesons line of questioning (4/9/08
(A.M.) RT 116-18). George Kaltas testimony that Pellicano said
he had contacts within the phone company was elicited (without
objection) not only by Pellicano, but by the government on direct
and by Turners counsel on cross. (4/3/08 (P.M.) RT 136, 163,
167). Tarita Virtues testimony about the threat she and her
father received from Pellicano was first elicited not by
Pellicano, but (without objection) by counsel for Kachikian.
(3/11/08 (P.M.) RT 108-12). Virtues testimony about her close
personal relationship with Pellicano did not implicate or
otherwise prejudice any of the co-defendants. Finally, the
(continued...)
344
diligently gave limiting instructions both when requested and sua

sponte throughout the trial and reminded the jury of its
obligation to follow those instructions at the end of the case.
(3/7/08 (A.M.) RT 9, 67; 3/13/08 (P.M.) RT 6; 3/25/08 (A.M.) RT
11; 3/25/08 (P.M.) RT 4, 111; 4/2/08 (P.M.) RT 139; 4/16/08
(A.M.) 126-27; 4/16/08 (P.M.) RT 4; 4/29/08 (A.M.) RT 25).
See
United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (jury
is presumed to have followed district courts limiting
instructions).
At defendants request, the court instructed
jurors that they were not to draw any inference from other
defendants counsel communicating with or assisting Pellicano
during trial.
(4/16/08 (P.M.) RT 64-65; 4/29/08 (A.M.) RT 27).
The jury was further instructed that it was to consider each

count against each defendant separately.
(4/29/08 (A.M.) RT 22-
23).
Finally, the jurys verdicts after two weeks of
deliberations amply demonstrate that it carefully evaluated the
evidence as to each individual defendant.
Pellicano was
acquitted of one count; Turner was acquitted of four counts; and

Kachikian was acquitted of nine counts.
227
(GER [VERDICT FORMS]).
(...continued)
district courts admonishment to Pellicano on which defendants
rely not to tell any further witnesses that you love them
involved events occurring outside the presence of the jury.
(3/18/08 (P.M.) RT 69-70).
345
As to the RICO charge, the jury found that five of the

racketeering acts alleged against Pellicano and Arneson had not
been proven.
(Id.).
See United States v. Unruh, 855 F.2d 1363,
1374 (9th Cir. 1987) (The best evidence of the jurys ability to
compartmentalize the evidence is its failure to convict all
defendants on all counts.).
Accordingly, the district court did
not abuse its discretion in denying severance.

G.
THE RACKETEERING ACTS ALLEGING THE GIVING AND RECEIVING OF

BRIBES IN VIOLATION OF CALIFORNIA PENAL CODE 67 AND 68
WERE TIMELY
As part of its special verdict on count one (the substantive
RICO count), the jury found that Pellicano, in violation of

California Penal Code 67, paid Arneson each of the ten bribes
charged in racketeering acts 70-79 and that Arneson, in violation
of Penal Code 68, had accepted each of the ten bribes charged
in racketeering acts 80-89.228
(CR 1607, 1608.)
Pellicano,
Arneson, and Turner argue that the jurys findings as to these

racketeering acts should be vacated as they purportedly were
228
The Fifth Superseding Indictment listed these bribes as

racketeering acts 93-112. (CR 959; JER 923-86.) During trial,
the government dismissed select counts and racketeering acts to
allow for a more efficient presentation of its case. (4/10/08
(A.M.) RT 4-6; GERT 5064-66.) By the parties agreement, the
indictment presented to the jury was renumbered to remove
reference to the dismissed counts and racketeering acts. (CR
1439; JER 3955-4003; 4/10/08(A.M.) RT 6-8; GERT 5066-68.)
Likewise, the verdict forms reflected the renumbered indictment.
For consistency with the verdicts returned by the jury, the
racketeering acts are identified as found on the verdict forms.
346
brought outside RICOs five-year statute of limitations period

and impermissibly broadened the pre-existing substantive RICO
charge.229
(POB 57, AOB 24-25.)
This claim is unfounded.
Three separate, equally conclusive, grounds establish that

the Fifth Superseding Indictment was timely.
First, as the court
correctly found, the Fifth Superseding Indictment was returned

approximately one month after the district court issued its order
striking racketeering act 93 of the Fourth Superseding
Indictment, was based on substantially the same facts as the
prior indictments, and therefore fell squarely within the sixmonth savings period set forth in 18 U.S.C. 3288 and 3289.
(CR 965; JER 143-50.)
Second, the Fifth Superseding Indictment
related back to the Second Superseding Indictment (as well as the

Third and Fourth Superseding Indictments), which was timely
brought.
Specifically, the Fifth Superseding Indictment charged
the same offenses charged in the prior indictments, with the

singular difference being that, in count one, the prior
indictments charged as part of its pattern of racketeering
229
As discussed below, Pellicano waived this claim by

failing to raise it below. Turner was not a participant to these
specific racketeering acts. However, as the bribery-based
racketeering acts served not just as evidence of the pattern of
racketeering engaged in by Pellicano and Arneson but also as
evidence of the enterprise and how it conducted its affairs, it
also was evidence introduced against Turner. Except as set forth
below, the legal arguments apply equally to Arneson and Turner
(Pellicano as well) and for purposes of streamlining this
section, the claim will be referenced as Arnesons.
347
activity a dual-object bribery conspiracy in which Pellicano paid

and Arneson accepted bribes in violation of Penal Code 182,
67, and 68, while the Fifth Superseding Indictment, as part of
its pattern of racketeering activity, alleged ten separate
instances -- all of which previously were alleged as overt acts
to the bribery conspiracy racketeering act -- in which Pellicano
paid and Arneson accepted a bribe in violation of 67 and 68.
Third, the jurys verdict moots Arnesons statute of limitations
claim.
The jury found Arneson to have committed 51 racketeering
acts involving honest services fraud and identity theft beyond

the ten bribery racketeering acts challenged here.
Only one of
these racketeering acts has to be within the five-year limit for

the RICO charge to be timely.
satisfy this requirement.
Dozens of these racketeering acts
Therefore, the fact that the bribery
racketeering acts at issue occurred more than five years before

the Fifth Superseding Indictment is immaterial to the statute of
limitations.230
1.
Standard of Review
As Arneson filed, and Turner joined, a motion to strike

these racketeering acts, their statute of limitations claim is
subject to de novo review.
United States v. Jenkins, 633 F.3d
230
Should this Court vacate all of the honest services

fraud and identity theft racketeering acts, this analysis
obviously would differ.
348
788, 797 (9th Cir. 2011).
The district courts factual findings
in its order denying Arnesons motion are reviewed for clear

error.
Id.
The district courts application of 18 U.S.C.
3288 and 3289 is reviewed de novo.
United States v. W.R.
Grace, 504 F.3d 745, 751 (9th Cir. 2007).

Pellicano never moved to strike these racketeering acts and
further never joined in Arnesons motion.231
waived this claim.232
Therefore, he has
See United States v. Lo, 231 F.3d 471, 480-
81 (9th Cir. 2000) (statute of limitations is an affirmative

defense that must be raised before appeal and is waived when not
raised either pretrial or at trial).
2.
Bribery as Charged in the Indictments
On February 1, 2006, the grand jury returned the Second

Superseding Indictment, which was the first charging instrument
231
To ease the burden on the court reporter, the parties

agreed that a trial objection by one defendant would count as an
objection by all. Pretrial and post trial motions were addressed
under the prevailing rules governing joinder.
232
Pellicanos pro se status provides no basis for

vitiating the waiver. The Fifth Superseding Indictment, which
was obtained specifically to add the bribery racketeering acts
that underlie this claim, was returned several weeks before
Pellicano filed his pro se request and over one month before he
was granted pro se status. (CR 959, 976, 1045; JER 923-86.)
Moreover, the issue of pending motions was raised at Pellicanos
Faretta hearing and Pellicano was advised that he would be
obligated to address pending motions and all future litigation on
his own and that his failure to do so could result in waiver.
(1/9/08 RT 8-9, 22-23, 27.) Should, however, this Court find
that this claim is not waived, the arguments applicable to
Arneson would apply equally to Pellicano.
349
to allege RICO and RICO conspiracy violations against Pellicano,

Arneson, and Turner.
(CR 38.)
Count one, which charged the
substantive RICO violation, expressly alleged that the

racketeering enterprise utilized bribery to advance its interests
and further alleged that the pattern of racketeering activity
included bribery.
(Id.)
Specifically, count one alleged that a common purpose of the

enterprise was to generate income through an array of criminal
activity that included bribery, identity theft, wire fraud, and
the unauthorized access of protected computer databases.
(Id.)
In discussing the means and manner by which the enterprise

members participated in the enterprises affairs, count one
alleged that Pellicano paid bribes to corrupt public officials,
including defendant Arneson, . . . for purposes of obtaining
confidential and proprietary information regarding the
Enterprises investigative targets.233
(Id.)
It further
specified:
Defendant ARNESON solicited, and defendant PELLICANO
provided to defendant ARNESON, payment for obtaining
and providing criminal history and other law
enforcement information. In particular, defendant
233
Allegations of the enterprises involvement in bribery

were not limited to Pellicano and Arneson. Craig Stevens, a
Beverly Hills police officer, also was identified as someone whom
Pellicano bribed to further the enterprises interests: Stevens
solicited, and defendant Pellicano provided to Stevens, payment
for obtaining and providing criminal history and other law
enforcement information. (Id.)
350
PELLICANO made payments to defendant ARNESON by means

of Pellicano Investigative Agency, Ltd. business checks
in at least the following amounts in return for
obtaining and providing criminal history and other law
enforcement information:
Year
1997
1998
1999
2000
2001
2002
Minimum Payment
$8,875
$47,915
$38,325
$34,500
$32,250
$27,500
Defendant ARNESON solicited and received from defendant

PELLICANO additional payments in cash in order to
conceal these additional payments received from
defendant PELLICANO.
(Id.)
Count one further alleged 91 racketeering acts that
comprised the pattern of racketeering activity.234
(Id.)
Racketeering act 91 alleged that Pellicano and Arneson conspired

to commit bribery in violation of California Penal Code Sections
182, 68, and 67.
(Id.)
Specifically, racketeering act 91 stated
234
Several dozen of the alleged racketeering acts involved

conduct occurring more than five years before the filing date for
the Second Superseding Indictment. (CR 38.) This was never
challenged, nor could a successful challenge have been made, as
only a single racketeering act need occur within the statutory
period for the substantive RICO count to be timely. United
States v. Wong, 40 F.3d 1347, 1366-67 (2d Cir. 1994). The only
additional time restriction is set forth in 18 U.S.C. 1961(5),
which presumes the occurrence of racketeering acts outside the
five-year statutory period by dictating that the pattern of
racketeering activity can include any racketeering act provided
that it occurs within ten years of the next to last racketeering
act.
351
that Pellicano and Arneson, in violation of Penal Code 182,

conspired to:
a.
knowingly give and offer bribes to an executive

officer of the City of Los Angeles, with intent to
influence that officer in respect to an act as
such officer, to wit, the use of proprietary law
enforcement databases to obtain criminal history
and other law enforcement information for nonofficial use, in violation of California Penal
Code 67; and
b.
knowingly ask, receive, and agree to receive a

bribe to an executive officer of the City of Los
Angeles, upon an agreement and understanding that
the officers action upon matters then pending and
that might be brought before him in his official
capacity, to wit, the use of proprietary law
enforcement databases to obtain criminal history
and other law enforcement information for nonofficial use, would be influenced thereby, in
violation of California Penal Code 68.
(Id.).
Racketeering act 91 also alleged that the bribery
conspiracys objects would be accomplished by: (1) Pellicano

paying bribes to Arneson, consisting of a $2,500 monthly retainer
supplemented by additional cash and check payments to induce
Arneson to obtain and to provide to Pellicano confidential law
enforcement information; and (2) Arneson receiving bribes from
Pellicano for using Arnesons official position to obtain for
Pellicano confidential law enforcement information. (Id.)
Finally, racketeering act 91 alleged 70 overt acts in furtherance
of the charged bribery conspiracy, each of which represented a
payment made between February 1997 and November 2002 that
352
constituted the giving by PELLICANO and receiving by ARNESON of

bribe payments.235
(Id.)
The Third and Fourth Superseding Indictments were returned

on February 15, 2006, and February 14, 2007, respectively.
119, 508.)
(CR
From the Second through the Fourth Superseding
Indictments, count one remained unchanged with one exception: the

Fourth Superseding Indictment alleged two additional honest
services fraud racketeering acts which, in turn, caused the
racketeering act alleging the bribery conspiracy to be renumbered
as racketeering act 93.
(CR 38, 119, 508)
On September 17, 2007, just before the limitations date but

over 19-months after he first was charged in count one with
substantive RICO, Arneson filed a motion to strike racketeering
act 93 from count one of the Fourth Superseding Indictment
because it violated Whartons Rule, which in certain instances
precludes a conspiracy charge when the target offense can be
committed only by the two charged parties.
(CR 766.)
Arneson
also moved to strike all references to bribes or bribery from

count one on the basis that the continued inclusion of these
235
PIA employees and Arneson, himself, admitted that he

started working with Pellicano in the mid-1990s. Bank records,
however, only could be retrieved through 1997. Payments to
Arneson stopped in November 2002, which coincided with the FBIs
execution of the initial search warrant at PIA and the seizure of
evidence documenting an illicit relationship between Pellicano
and Arneson.
353
phrases would be unduly prejudicial in the event that

racketeering act 93 was stricken.
(Id.)
The district court granted Arnesons motion, in part.236
In
an order dated October 29, 2007, the district court struck

racketeering act 93 from the Fourth Superseding Indictment with
leave to amend based on its finding that the California state
courts interpretation of Whartons Rule rendered this
racketeering act legally defective.
(CR 965; JER 143-50.)
The
district court, however, left intact count ones discussion of

the broader role that bribery played within the enterprise,
including allegations that Pellicano paid and Arneson accepted
almost $200,000 in bribes from 1997 through 2002 so that
Pellicano could secure from Arneson criminal history and other
law enforcement information.
(Id.)
As it stated it would, the government sought and the grand

jury returned a Fifth Superseding Indictment, which was filed on
December 6, 2007.
(CR 959; JER 923-86.)
The Fifth Superseding
Indictment was identical to the Fourth Superseding Indictment

236
The district court relied on the California Supreme

Courts ruling in People v. Keyes, 284 P. 1096, 1100-01 (Ct. App.
1930) (opinion denying petition for rehearing), which the court
acknowledged (1) was inconsistent with the United States Supreme
Courts more recent analysis of Whartons Rule in Iannelli v.
United States, 420 U.S. 770 (1975), and (2) would not have
brought racketeering act 93 within the scope of this arcane rule.
(CR 965: 1-4.) The court did so because it was not convinced
that the California Supreme Court, which is the court whose view
controls on this issue, would adopt Iannellis analysis. (Id.)
354
with the only exception being that, in count one, it replaced the
stricken bribery conspiracy racketeering act alleging that
Pellicano and Arneson conspired to give and receive bribes in
violation of Penal Code 182, 68, and 67 with racketeering acts
70-79 (which charged ten instances when Pellicano paid bribes to
Arneson in violation of 67) and racketeering acts 80-89 (which
charged the same ten instances when Arneson received bribes from
Pellicano in violation of 68).
The bribes alleged in these
racketeering acts constituted 10 of the 70 individual instances

of giving and receiving bribes that previously had been alleged
as overt acts 27, 31, 38, 41, 51, 55, 57, 62 , 63, and 64 to the
bribery conspiracy racketeering act charged in the Second, Third,
and Fourth Superseding Indictments.
(CR 38, 119, 508, 959; JER
923-86.)
Arneson then moved to strike racketeering acts 70-89 on
statute of limitations grounds.
(CR 1039, 1109.)
The government
opposed, citing both the sixth-month savings period set forth in

18 U.S.C. 3288 and 3289 and the relation back doctrine.
(CR
1093.)
The district court denied Arnesons motion.
6-10.)
(CR 1117; ASER
In doing so, the district court found that the Fifth
Superseding Indictment was timely because it had been brought

within the statutory six-month savings period and relied on
355
approximately the same facts as the Fourth Superseding

Indictment.237
3.
(Id.)
The Fifth Superseding Indictment, Which Included

Racketeering Acts 70-89, Was Timely
a.
The Applicable Statute of Limitations
The statute of limitations for RICO offenses is five

years.238
See Agency Holding Corp. v. Malley-Duff, 483 U.S. 143,
155-56 (1987).
In determining the limitations date for a RICO
defendant, courts traditionally use the date of the most recent

racketeering act by that individual.
Persico, 832 F.2d at 714.
Provided that a single racketeering act occurs within the fiveyear statutory period, the substantive RICO offense is timely.
See Wong, 40 F.3d at 1366-67 (noting that RICO is a continuing
237
The district court did not find it necessary to rule on

the governments alternative argument that the Fifth Superseding
Indictment related back to the earlier indictment. (CR 1117;
ASER 6-10.) Its factual findings, however, are equally
supportive of this argument. (Id.)
238
Arneson does not appear to challenge the RICO conspiracy

charge on statute of limitations grounds. (AOB 23-26.) Such a
challenge would be meritless in any event. While the statute of
limitations for RICO conspiracy also is five years, the
limitations period is based not on the last racketeering act
committed by a given defendant but rather the date when the
purposes of the conspiracy either have been completed or
abandoned. United States v. Persico, 832 F.2d 705, 713 (2d Cir.
1987) (citations omitted). Provided that the government has
established the conspiracys existence, it is presumed to run
into the limitations period without the jury having to find
proved the timely commission of an overt act, alleged or
unalleged. United States v. Salmonese, 352 F.3d 608, 620 (2d
Cir. 2003).
356
offense that remains ongoing until the crime is complete and

finding that jurisdiction over a single RICO predicate act
confers jurisdiction over other predicate acts, including some
that could not be prosecuted separately).
b.
The Fifth Superseding Indictment Was Brought

Within 18 U.S.C. 3288s Six-Month Savings Period
Title 18, United States Code, Sections 3288 and 3289

establish identical savings provisions permitting the government
to obtain a superseding indictment to cure defects When a federal
indictment is dismissed for any reason, the government has six
months in which to obtain a new indictment whether the five-year
limitations period has already expired, see 18 U.S.C. 3288
(after the period prescribed by the applicable statute of
limitations has expired), or will expire within six months of
the dismissal, see 18 U.S.C. 3289 (before the period
prescribed by the applicable statute of limitations has expired,
and such period will expire within six calendar months of the
date of the dismissal of the indictment or information).239
239
The
In 1988, the former language in both statutes allowing for

reindictment where the dismissal was for any error, defect, or
irregularity with respect to the grand jury was replaced by
language imposing the six-month savings period where the
dismissal was for any reason. Pub.L. No. 100-690, Title VII,
7081(a), (b), 102 Stat. 4407. In explaining the amendment,
then-Senator Joseph Biden, who was the Chairman of the Senate
Judiciary Committee, stated: The reason a charge is dismissed
(unless the reason for the dismissal would independently bar
further prosecution such as a dismissal on grounds of double
(continued...)
357
purpose of the six-month statutory savings period is to extend

the statute of limitations so that a defendant charged under a
faulty indictment should not escape because the fault was
discovered too late to indict him again.
United States v.
Macklin, 535 F.2d 191, 193 (2d Cir. 1976) (discussing 3288s
predecessor, 18 U.S.C. 578); see United States v. Wilsey, 458
F.2d 11, 12 (9th Cir. 1972) ( 3288 assur[es] that the continued
running of the statute of limitations will not permit the
defendant to escape through technicality before correction can be
secured); see also Shipsey, 363 F.3d at 970 ( 3288s purpose
was to discourage defendants from delaying their motions until
after the statute of limitations has run).
To achieve this
purpose, this Court has found that, where a valid indictment

could have been timely brought absent some legal error in the
charging instrument, the six-month grace period merely allows
239
(...continued)
jeopardy or a dismissal with prejudice under a statute) should
not determine whether the government is given additional time to
bring a new prosecution. 134 Cong. Rec. 32,704 (1988). Thus,
in their amended forms, 3288 and 3289 apply where dismissal of
the first indictment is due to a legal defect, as well as where
it results from defects or irregularities in the grand jury.
United States v. Charnay, 537 F.2d 341, 355 (9th Cir. 1976); see,
e.g., United States v. Shipsey, 363 F.3d 962, 971 (9th Cir. 2004)
(reindictment permissible within six-month savings period where
indictment was dismissed without prejudice for Speedy Trial Act
violation after expiration of statute of limitations); United
States v. Clawson, 104 F.3d 250, 252 (9th Cir. 1996)
(reindictment permissible within six-month savings period where
conspiracy count was dismissed because charged overt acts all
occurred outside the limitations period).
358
the government to do what it had a right to do in the first

place.
Clawson, 104 F.3d at 252; see also Charnay, 537 F.2d at
354 (Allowing a second indictment to remedy legal deficiencies

present in the first is the very purpose for which 3288 was
enacted); Macklin, 535 F.2d at 193 ([W]e conclude that 3288
was meant to apply whenever the first charging paper was vacated
for any reason whatever, including lack of jurisdiction.
The
only statutory requirement is that the prosecutor obtain a new

indictment within the six-month time limit.).
An indictment that is obtained during the savings period
need not state precisely the same charges.
In Charnay, this
Court directly considered and expressly rejected the defendants

claim that 3288 only applied to instances when the same offense
is charged in the superseding indictment.
Stating we find
nothing in the cases cited [. . .] or the language of 3288 to

require this conclusion, this Court instead held that a
superseding indictment under 3288 is proper when essentially
the same facts were used to charge almost identical offenses.
Charnay, 537 F.2d at 354.
As it further explained, the correct
interpretation of 3288 was stated by this Court in Mende v.

United States, 282 F.2d 881, 883-84 (9th Cir. 1960): the
underlying concept of 3288 is that if the defendant was
359
indicted in time, then approximately the same facts may be used

for the basis of any new indictment.
Id.
Likewise, focusing on the substantial similarity of the

underlying factual allegations, this Court and others have upheld
under 3288 superseding indictments realleging the same
overarching offense previously dismissed but revised to include
new means of proving the offense.
See, e.g., W.R. Grace, 504
F.3d at 751-754 ( 3288 allowed for superceding indictment

brought after the expiration of the limitations period that added
language to overt acts to cure defect relating to previously
stricken object of the conspiracy);240 Clawson, 104 F.3d at 251-52
(upholding superseding indictment curing defect in prior
dismissed indictment that failed to state a claim by alleging the
same offense with new overt acts falling within the statutory
240
In W.R. Grace, 504 F.3d at 753, this Court, while

addressing timeliness under 3288, cited Clawson for the
proposition that as long as the original indictment is filed
within the statute of limitations and charges the same crime,
based upon approximately the same facts charged in the
superseding indictment, 3288 allows the government to file a
superseding indictment within six months. This does not require
that the new indictment charge the same statute previously found
to contain the defect, nor could it given: (1) the absence of any
such requirement in 3288s language, which plainly contemplates
the existence of charging defects that would preclude a new
charge being brought under the same statute; (2) prior precedent
within this Circuit (Charnay) upholding a new indictment under
3288 that alleged different offenses, which W.R. Grace cited in
the very same discussion of timeliness; and (3) the Clawson
decision itself which, when setting aside the defendants
prejudice claim, cited Charnay approvingly and simply noted that
the defendant had been charged with the same offense as before.
360
period); United States v. Italiano, 894 F.2d 1280, 1284-86 (11th

Cir. 1990) (upholding under 3288 a new indictment alleging a
money and property fraud object instead of an honest services
fraud that, post-McNally, was dismissed for failure to state a
claim because approximately the same facts were used as the
basis of both indictments).
The Fifth Superseding Indictment was timely under 3288.241
The district court struck racketeering act 93 from count one on
October 29, 2007.
The Fifth Superseding Indictment was returned
on December 6, 2007, approximately one month later.
Therefore,
it was brought well within 3288s six-month savings period.242

241
Arnesons statute of limitations arguments (AOB 23-24)

do not mention 3288 or 3289, even though the district court
based its ruling on its application of these provisions. See
10/29/2007 RT 19-27; JER 902-10.
242
The last racketeering act alleged against Arneson in the

Fourth Superseding Indictment was the bribery conspiracy, which
extended through November 21, 2002. The statute of limitations
on this count, therefore, was November 22, 2007. See United
States v. Tawab, 984 F.2d 1533, 1534 (9th Cir. 1993) (date from
which limitations period commences is excluded when calculating
the period). The district court struck racketeering act 93 on
October 29, 2007 -- approximately one month before the
limitations date. (CR 965; JER 143-50.) Accordingly, 3289
applied at the time the district court considered this motion.
At the time of verdict, however, the last racketeering act
found to have been committed by Arneson was dated September 4,
2002. (CR 1608, 1607, 1609). Because the dismissal of
racketeering act 93 occurred more than five years after this
date, 3288 controls this Courts analysis. Regardless which
statutory provision is used to calculate the savings period,
however, the result is the same because the Fifth Superseding
Indictment was brought within six months of when the district
(continued...)
361
Moreover, the district court did not clearly err in finding that
the Fifth Superseding Indictment was based on approximately the
same facts as the Fourth Superseding Indictment.
6-10.)
(CR 1117; ASER
The record establishes that it was brought on precisely
the same facts.

Specifically, both the Fifth Superseding Indictment and the
Fourth Superseding Indictment charged a substantive RICO count
that was identical in all respects but one: the Fifth Superseding
Indictment replaced the legally defective racketeering act of
conspiracy to commit bribery in violation of Penal Code 182,
67, and 68 with legally valid allegations of giving and receiving
bribes in violation of 67 and 68.
(CR 508, 959; JER 923-88.)
Each of the ten instances of giving and receiving bribes alleged

in count one of the Fifth Superseding Indictment had been alleged
as overt acts in the the Fourth Superseding Indictments stricken
bribery conspiracy racketeering act (overt acts 27, 31, 38, 41,
51, 55, 57, 62 , 63, and 64).243
(Id.)
Thus, the facts by which
the bribery would be proved were identical.

Because count one of the Fifth Superseding Indictment was
brought within six months of the district courts striking of the
242
(...continued)
court struck racketeering act 93 from count one.
243
This also holds true for the Second and Third

Superseding Indictments.
362
racketeering act alleging Pellicano and Arnesons bribery

conspiracy and used essentially the same facts in charging an
almost identical offense, it was timely under 3288.
Therefore, Arnesons statute of limitations claim fails and
should be rejected.
c.
The Fifth Superseding Indictments Inclusion of

Racketeering Acts 70-89 Also Was Timely Under the
Relation Back Doctrine
The return of an indictment tolls the statute of limitations

of the charges it contains.
297, 305 (9th Cir. 1990).
United States v. Pacheco, 912 F.2d
A superseding indictment that replaces
a pending timely indictment relates back to the original

indictment and inherits its timeliness, so long as the later
indictment does not substantially amend or broaden the original
charges.
United States v. Sears, Roebuck & Co., 785 F.2d 777,
778 (9th Cir. 1986).
To determine whether a superseding
indictment substantially amends or broadens its timely filed

predecessor, the essential question is whether the two
indictments are similar enough that the original indictment gave
the defendant sufficient notice of the charges in the superseding
indictment:
Notice to the defendant is the central policy
underlying the statute of limitations. If the
allegations and charges are substantially the same in
the old and new indictments, the assumption is that the
defendant has been placed on notice of the charges
against him. That is, he knows that he will be called
363
to account for certain activities and should prepare a

defense.
Pacheco, 912 F.2d at 305 (quoting Italiano, 894 F.2d at 1283);
accord Salmonese, 352 F.3d at 622 (No single factor is
determinative; rather, the touchstone of our analysis is
notice, i.e., whether the original indictment fairly alerted the
defendant to the subsequent charges against him and the time
period at issue.); United States v. Schmick, 904 F.2d 936, 940
(5th Cir. 1990) ([N]otice is the touchstone in deciding whether
a superseding indictment substantially changes the original
charges.).
Because the relation back doctrines focus is notice, an
indictment that relates back to a prior indictment, like an
indictment brought under 3288, need not state precisely the
same charges that were alleged in the initial indictment.
For
example, in Sears, Roebuck & Co., 785 F.2d at 778-79, this Court
held that a superseding indictment (1) replacing twelve 18 U.S.C.
542 (entry of goods by false statements) counts with twelve 18
U.S.C. 1001 (false statements) counts, (2) stripping the
conspiracy count of all references to 542, and (3) adding new
factual allegations to the conspiracy count properly related back
to the prior timely indictment.
Id.
In so ruling, this Court
found that the superseding indictment did not substantially amend

the prior indictment because the substantive charges were
364
sufficiently similar in kind and the factual additions to the

indictment were consistent with the governments theory
throughout the pendency of the case, thereby providing the
defendant with adequate notice.
Id.
Notably, this Court further
found that the potential for imposition of a greater penalty

under section 1001[244] does not render the charges in the
superseding indictment broader than those in the original
indictment.
Id.
Other courts similarly have found that, when adequate notice

is present, an indictment charging new offenses or modifying the
manner in which previously charged offenses can be proved will
relate back to the prior timely indictment.
As the Tenth Circuit
has noted, an indictment is not amended impermissibly by a

superseding indictment . . . [that] contains a slightly different
mix of closely related statutory violations as objects of the
conspiracy, provided that the essential nature of the conspiracy
alleged in the first indictment remains the same.
United States
v. Davis, 953 F.2d 1482, 1491 (10th Cir. 1992) (conspiracy charge
in superseding indictment related back to prior indictment even
though it added new objects based on violations of new statutes
244
Because 542 is punishable by a maximum of two years

imprisonment, 18 U.S.C. 542, and 1001 is punishable by a
maximum term of five years imprisonment, 18 U.S.C. 1001(a),
the superseding indictment increased the defendants potential
sentence from 24 to 60 years.
365
because the newly alleged objects fell within the general scope
of the prior charge).
Arneson does not dispute that count one of the Second,
Third, and Fourth Superseding Indictments was timely.
From the
moment he first was charged with substantive RICO in the Second

Superseding Indictment and ever since, Arneson unquestionably has
been on notice that he would have to defend against allegations
that Pellicano paid and he received bribes, including the ten
bribes alleged in racketeering acts 70 to 89 of the Fifth
Superseding Indictment.
This notice took many forms, each of
which independently suffices to establish that count one of the

Fifth Superseding Indictment related back to the substantive RICO
count charged as count one of the Second, Third, and Fourth
Superseding Indictments.245
First, as already discussed, count one of the Second, Third,
and Fourth Superseding Indictments included a racketeering act
alleging (1) a dual-object bribery conspiracy in which Pellicano
paid and Arneson accepted bribes in violation of Penal Code
182, 68, and 67 and (2) seventy overt acts consisting of
individual payments representing separate times that Pellicano
paid and Arneson accepted bribes.
245
(CR 38, 119, 508.)
Included
The Second Superseding Indictment, which first set forth

the substantive RICO count, technically serves as the charging
instrument that tolled the statute of limitations for this count.
Sears, Roebuck & Co., 785 F.2d at 778.
366
among the seventy listed payments were overt acts 27, 31, 38, 41,
51, 55, 57, 62 , 63, and 64, the ten payments that later were
alleged in racketeering acts 70-89 of the Fifth Superseding
Indictment as separate instances of Pellicano paying and Arneson
receiving bribes in violation of Penal Code 67 and 68.
38, 119, 508, 959; JER 923-86.)
(CR
Therefore, long before both the
the statute of limitations expiration and the issuance of the

Fifth Superseding Indictment, Arneson had notice that the
government intended to use the specific payments comprising
racketeering acts 70-89 as evidence of the bribery between him
and Pellicano.
Second, the district courts order striking racketeering act
93 from the Fourth Superseding Indictment, which was issued
almost two years after Arneson first was apprised of both the
RICO charge and the accompanying allegations of bribery, did
nothing to affect Arnesons notice.
To the contrary, the
district courts order simply struck a single racketeering act

based on a legal technicality and left intact extensive language
broadly describing the role that bribery played within the
enterprise.
(CR 965; JER 143-50.)
For example, the Fourth
Superseding Indictment continued to allege that bribery was one

of the criminal acts that the enterprise used to achieve its
objective of generating income.
(CR 508.)
367
Moreover, the means
and manner section of count one continued to advise Arneson of

the briberys role in the enterprise, stating that: (1)
Pellicano paid bribes to corrupt public officials, including
defendant Arneson, . . . for purposes of obtaining confidential
and proprietary information regarding the Enterprises
investigative targets; (2) Arneson solicited, and defendant
Pellicano provided to defendant Arneson, payment for obtaining
and providing criminal history and other law enforcement
information; (3) Pellicano paid Arneson for this information by
checks totaling $8,875 in 1997, $47,915 in 1998, $38,325 in 1999,
$34,500 in 2000, $32,250 in 2001, and $27,500 in 2002;246 and (4)
Arneson solicited and received from defendant Pellicano
additional payments in cash in order to conceal these additional
payments received from defendant Pellicano.
(Id.)
Therefore,
even after the district court struck the bribery conspiracy

racketeering act, Arneson remained charged in count one of the
Fourth Superseding Indictment with a substantive RICO violation
in which Pellicanos bribes to Arneson, including those initially
alleged as overt acts to the stricken bribery racketeering act,
would continue to be evidence of the enterprise, the manner in
which it conducted its affairs, and its pattern of racketeering
activity.
See, e.g., United States v. Matera, 489 F.3d 115, 120
246
The ten payments of $2,500 alleged in racketeering acts

70-89 were selected from this much larger quantity of payments.
368
(2d Cir. 2007) (uncharged murders committed by other enterprise

members properly admitted as enterprise evidence and noting that
its ruling was consistent with numerous prior rulings of this
court in which criminal acts of non-defendants, including
killings, were received to prove the existence of the criminal
RICO evidence in which the defendant participated).
Third, before the statute of limitations expiration, the
government expressly advised Arneson, both through counsel and on
the record, that if his motion to strike was successful, the
government would seek a superseding indictment adding to count
one specific instances of giving and receiving bribes in
violation of Penal Code 67 and 68.
25; JER 906-08.)
(CR 1093; 10/29/07 RT 23-
In fact, Arnesons actual notice of the
governments intent to add racketeering acts involving

substantive bribery readily can be seen through his briefing in
support of his motion to strike.
Arnesons initial brief
contained an entire section asserting that substantive bribery

counts would be defective because his conduct did involve an
official act as defined in 67 and 68.247
(CR 766.)
Similarly,
Arnesons reply characterized the governments opposition to his

motion as a last ditch effort to avoid seeking a superseding
247
Arneson cited Valdes v. United States, 475 F.3d 1319

(D.C. Cir. 2007), in support of this argument. (CR 766.) For
the reasons stated later, Arnesons reliance on Valdes, a case
analyzing the federal gratuity statute, is misplaced.
369
indictment despite knowing that racketeering act 93 is defective

under California law.
(CR 838.)
Because Arneson had actual
notice that count one would be superseded to replace the stricken

bribery conspiracy racketeering act with racketeering acts
alleging substantive acts of bribery, his statute-of-limitations
claim fails.
Sears, Roebuck & Co., 785 F.2d at 779 (new
allegation that defendant made attempts to avoid dumping duties

was not substantial change where government previously advised
defendant that this was an issue it intended to pursue).
Simply stated, the Fifth Superseding Indictment did not
substantially amend or broaden count one.
As with the Second,
Third, and Fourth Superseding Indictments, it alleged: (1) the

exact same substantive violation ( 1962(d)); (2) the exact same
enterprise; (3) the exact same language outlining the means and
methods through which the enterprise conducted its affairs, which
included bribery; (4) the exact same racketeering acts involving
honest services fraud and identity theft; and (5) in racketeering
acts 70-89, an exact subset of the very bribes previously alleged
in the stricken bribery racketeering act.
Given the substantial
similarity between both the substantive RICO count as alleged in

these indictments and the underlying facts on which the
substantive RICO charge was based, Arneson plainly was on notice
throughout this case that he was charged with substantive RICO
370
and that state-law bribery in the form of payments by Pellicano

and accepted by Arneson, including the ten specific payments
initially alleged as overt acts and later as racketeering acts
70-89, was part of how the alleged enterprise achieved its
objectives, conducted its affairs, and engaged in a pattern of
racketeering activity.
As such, he well knew that he would have
to defend against both the RICO charge and specific evidence that
Pellicano paid and he received bribes, including the ten bribes
at issue here.
Arneson nevertheless asserts that the Fifth Superseding
Indictment substantially broadened count one insofar as the new
bribery predicate acts required proof of different elements than
the original conspiracy charge and confer RICO liability through
mere proof of the acceptance of a bribe.
(AOB 23-24.)
However,
it is not the existence of identical charges or an identical

means of establishing liability that dictates whether a
superseding indictment substantially amends or broadens a prior
indictment; it is notice.
See, e.g., Sears, Roebuck & Co., 785
F.2d at 778-79 (superseding indictment alleging different charges

based on substantially the same facts related back to prior
indictment); Charnay, 537 F.2d at 354 (superseding indictment
proper if essentially the same facts were used to charge almost
371
identical offenses.).248
Because Arneson does not, and could not
credibly, claim that he lacked adequate notice until being

charged in the Fifth Superseding Indictment that he would have to
defend against evidence that Pellicano paid and that he accepted
the payments alleged as bribes in racketeering acts 70-89, his
claim fails.
The Fifth Superseding Indictment did not substantially amend
or broaden the substantive RICO count set forth in count one.
Instead, it relates back to the Second, Third, and Fourth
Superseding Indictments and, thus, was timely.
4.
The Jurys Verdict Moots the Statute of Limitations

Claim
Following a conviction at trial, the statute of limitations

for an offense is to be calculated in light of the jurys
verdict.
The RICO statute requires that only a single
racketeering act be within the five-year statutory period for the

entire count to be timely.
Persico, 832 F.2d at 714.
Provided
that there is a single racketeering act within statute, conduct

contributing to the pattern of racketeering under 1962(c) can
extend back decades with the only time restriction being that the
last racketeering act must occur within ten years of the next to
248
The government recognizes that Charnay specifically

addresses 3288. However, its holding effectively read the
relation back doctrine into 3288, which itself places no
limitation on a superseding indictments scope.
372
last act of racketeering activity.
18 U.S.C. 1961(5); Wong, 40
F.3d at 1366-67 (a defendant may be liable under substantive

RICO for predicate acts the separate prosecution of which would
be barred by the applicable statute of limitations, so long as
that defendant committed one predicate act within the five year
limitations period).
Arnesons special verdict form included jury findings that
he committed 61 racketeering acts on behalf of the enterprise,
consisting of 44 acts of honest services fraud (racketeering acts
1-44), seven acts of identity theft (racketeering acts 49 and 5358), and ten acts of bribery (racketeering acts 80-89).249
1608.)
(CR
For the reasons stated later, the jurys verdict
regarding the racketeering acts charging honest services fraud

and identity theft should be affirmed.250
Arneson does not
dispute that the honest services and identity theft racketeering

acts were timely; nor could he, as several dozen of the charged
249
The jury found that Pellicano committed 73 racketeering

acts, consisting of 46 racketeering acts involving honest
services fraud (racketeering acts 1-46), 18 racketeering acts
involving identity theft (racketeering acts 49 and 53-69), and 10
racketeering acts involving the giving of bribes (racketeering
acts 70-79). (CR 1607).
250
Pellicano, Arneson, and Turner do not contest the

sufficiency of the evidence as to any particular racketeering
act; rather they claim that the theories on which the
racketeering acts were based were legally deficient. Therefore,
this Courts sufficiency rulings will result in all honest
services and identity theft racketeering acts either being upheld
or vacated.
373
acts were committed within five years of February 1, 2001, when

the Second Superseding Indictment first alleged the substantive
RICO count.251
Therefore, provided that this Court finds
sufficient evidence to support either the honest services fraud

or identity theft racketeering acts,252 the substantive RICO count
was timely.253
As such, the fact that the ten specific instances
of giving and receiving a bribe alleged as racketeering acts 70

to 89 occurred more than five years before the date when the
Fifth Superseding Indictment was brought is immaterial to the
statute of limitations determination; by statute, these acts can
be included as part of the pattern of racketeering activity
provided they occurred no more than 10 years before the date when
the next to last racketeering act was committed, which they all
did.254
See, e.g., United States v. Gigante, 982 F. Supp. 140,
251
Should this Court find Pellicanos claim not to be

waived, the same analysis would apply insofar as the jury found
that he committed several dozen acts of honest services fraud and
identity theft. (CR 1607.)
252
A fallacy in Arnesons argument is that it presumes that

the types of racketeering acts are severable. The indictment
alleges a single pattern of racketeering activity comprised of
diverse crimes, of which bribery is one.
253
Arneson does not appear to dispute this fact, arguing

that count one is untimely to the extent that it was predicated
on bribery. (AOB 23.)
254
The earliest racketeering act found by the jury to have

been committed by Arneson that did not involve bribery occurred
in January 1999. (CR 1604, 1608.) The ten racketeering acts
(continued...)
374
154-55, 159-64 (E.D.N.Y. 1997) (dismissing post verdict on

statute of limitations grounds a free-standing murder conspiracy
count but upholding an identically charged racketeering act as
well as several other racketeering acts that, like the freestanding murder conspiracy count, were not charged until more
than five years after the underlying conduct occurred because
there were other racketeering acts falling within the five-year
statutory period and noting that a RICO offense is timely if a
single racketeering act occurs within the five-year statutory
period and the remainder occur within ten years of the next to
last racketeering act).
H.
THE TRIAL EVIDENCE WAS SUFFICIENT TO SUPPORT EACH COUNT OF

CONVICTION
1.
Standard of Review
This Court reviews de novo a district courts denial of a

motion for judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29.
1218 (9th Cir. 2008).
United States v. Chapman, 528 F.3d 1215,

A defendant need not state specific
grounds to support a Rule 29 motion; however, when a Rule 29

motion is made on a specific ground, other grounds not raised are
waived.
United States v. Graf, 610 F.3d 1148, 1166 (9th Cir.
2010) (internal quotations and citations omitted).

254
This Court
(...continued)
involving bribery took place between June 29, 1999 and May 10,
2002. (Id.)
375
may review a waived ground for acquittal only to prevent a

manifest miscarriage of justice.
Id. (quoting United States v.
Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000)).

This Court employs a two-step inquiry when reviewing
preserved sufficiency of the evidence challenges under Jackson v.
Virginia, 443 U.S. 307 (1979); United States v. Nevils, 598 F.3d
1158, 1164 (9th Cir. 2010) (en banc).
First, a reviewing court
must consider the evidence presented at trial in the light most

favorable to the prosecution, which means that a court may not
usurp the role of the finder of fact by considering how it would
have resolved the conflicts, made the inferences, or considered
the evidence at trial.
318-19).
Id. at 1164 (citing Jackson, 443 U.S. at
Rather, when faced with a record of historical facts
that supports conflicting inferences a reviewing court must

presume even if it does not affirmatively appear in the record
that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.
Id.
(quoting Jackson, 443 U.S. at 326, and citing McDaniel v. Brown,

130 S. Ct. 665, 673-74 (2010)).
Because [a] jurys verdict is not to be disturbed lightly,
United States v. Begay, 673 F.3d 1038, 1043 (9th Cir. 2011) (en
banc), and is afforded great deference, United States v.
Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011), after viewing
376
the evidence in the light most favorable to the prosecution, the

reviewing court must [next] determine whether this evidence, so
viewed, is adequate to allow any rational trier of fact [to
find] the essential elements of the crime beyond a reasonable
doubt.
Nevils, 598 F.3d at 1164 (quoting Jackson, 443 U.S. at
319 (emphasis in original)).
At this second step . . . a
reviewing court may not ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt, only whether any rational trier of fact could have made
that finding.
2.
Id. (quoting Jackson, 443 U.S. at 318-19).
The Evidence Was Sufficient to Establish the Enterprise

Element for the RICO and RICO Conspiracy Charges
Through special verdicts on the RICO and RICO conspiracy

counts (counts one and two), the jury found beyond a reasonable
doubt that the enterprise consisted of Pellicano, Arneson,
Turner, and PIA (each of the charged parties),255 and that the
enterprise conducted its affairs through a pattern of
racketeering activity that included honest services wire fraud,
identity theft, and bribery (each type of charged racketeering
act).
(CR 1607-09).
Pellicano, Arneson, and Turner
255
The indictment also identified as associates former BHPD

officer Stevens and SBC employee Wright, both of whom previously
had pleaded guilty to enterprise-related offense conduct. (CR
1604).
377
challenge the sufficiency of the evidence in support of the

enterprise element for both RICO charges, arguing that the
evidence, at most, established multiple enterprises.
85-86).
(JOB 81,
This claim is meritless because the evidence
establishing a single enterprise and each individuals

association with the enterprise, was beyond overwhelming, such
that any rational trier of fact could and would have made such a
finding.
a.
Title 18, United States Code, Section 1962(c)
Title 18, United States Code, Section 1962(c) (substantive

RICO) makes it unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprises affairs through a pattern of racketeering activity.
Boyle v. United States, 556 U.S. 938, 943 (2009).
For a
substantive RICO offense to have been committed, there must be

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).

(1)
The Enterprise Element
Congress defined the term enterprise as any individual,

partnership, corporation, association, or other legal entity, and
378
any union or group of individuals associated-in-fact.

1961(4).
18 U.S.C.
The Supreme Court repeatedly has recognized that this
term should be construed broadly to effectuate 1962s remedial

purpose of combating organized crime in its varied forms.
Boyle,
556 U.S. at 944; United States v. Turkette, U.S. 452 U.S. 576,
588, 593 (1981).
As recently as 2009, the Court reiterated that
an associated-in-fact enterprise is simply a continuing unit

that functions with a common purpose.
Boyle, 556 U.S. at 948.
For an enterprise to exist, therefore, there must be: (1) a

purpose, (2) relationships among those associated with the
enterprise, and (3) longevity sufficient to permit those
associates to pursue the enterprises purpose.
Id., 556 U.S. at
946; see also Odom v. Microsoft Corporation, 486 F.3d 541, 552
(9th Cir. 2007) (criteria for associated-in-fact enterprise are
(1) common purpose, (2) ongoing organization, and (3) continuing
unit).
These sub-elements likewise have been construed broadly.
This Court, in addressing the parameters of an associated-in-fact
enterprise, stated that the inquiry is whether the associating
parties have come together to create a vehicle for the
commission of two or more predicate crimes.
Odom, 486 F.3d at
552; see also United States v. Tille, 729 F.2d 615, 620 (9th Cir.
1984) (rejecting insufficiency claim and holding that [p]roof of
379
a defendants association with the illegal activities of the

enterprise is all that is required to establish association with
the organization); United States v. Marino, 277 F.3d 11, 33 (1st
Cir. 2002) (approving instruction that defined association to
include a loose, informal relationship and noting that the
requirement of being associated with in 1962(c) . . . is not
strict [because] the RICO net is woven tightly to trap even the
smallest fish, those peripherally involved with the enterprise).
Similarly, the common purpose sub-element simply requires that
there be a unifying purpose that joins the participants to the
enterprise, which can be either legal or illegal.256
Turkette,
452 U.S. at 578; Odom, 486 F.3d at 552 (common purpose of

increasing the number of people using internet service through
fraudulent means); United States v. Cagnina, 697 F.2d 915, 921
(11th Cir. 1983) (record established common purpose of making
money from repeated criminal activity).
256
Finally, as to the
Defendants cite United States v. Griffin, 660 F.2d 996,

1000 (4th Cir. 1992), for the proposition that proof of a common
purpose is critical to the existence of an associate-in-fact
enterprise. (JOB 75). That recognition, however, does not
change the fact that, because of the acknowledged difficulties in
establishing a single agreement or common objective in organized
crime groups engaged in highly diverse crimes by apparently
unrelated individuals, Congress defined the term enterprise to
be broader and thereby easier to prove than a traditional
conspiracy, as Griffin also recognized. Griffin, 660 F.2d at
1000. In other words, Griffin holds that the common purpose of
the enterprise can be established exactly as set forth in
Turkette.
Id.
380
requirement that the enterprise function as a continuing unit,

the focus is on whether the associates behavior consists of
ongoing, as opposed to isolated, activity.
948; Turkette, 452 U.S. at 583.
Boyle, 556 U.S. at
To that end, this Court has
found that it is not necessary that every enterprise associate be

involved in each racketeering act, that the predicate acts be
interrelated in any way, or that the membership in the
organization remain constant over time.
Odom, 486 F.3d at 551-
52; see also United States v. Eufrasio, 935 F.2d 553, 577 (3d
Cir. 1991) (citing United States v. Rastelli, 870 F.2d 822, 92728 (2d Cir. 1989) for the proposition that it is not necessary
that a RICO defendant have specific knowledge of every member and
component of the enterprise; rather it is sufficient that the
defendant know of the general nature of the enterprise and know
that the enterprise extends beyond his individual role);
Cagnina, 697 F.2d at 922 (Although the evidence did not show
that every member of the enterprise participated in or knew about
all of its activities, such evidence was not necessary to prove
the existence of the enterprise.).
As the Supreme Court plainly has instructed, an associatedin-fact enterprise is proved by evidence of an ongoing
organization, formal or informal, and by evidence that the
various associates function as a continuing unit.
381
Boyle, 556
U.S. at 945 (citing Turkette, 452 U.S. at 583).
It is well
settled that such evidence can be either direct or

circumstantial.
See, e.g., Boyle, 556 U.S. at 951 (holding that
the existence of the enterprise may be inferred from the

evidence showing that persons associated with the enterprise
engaged in a pattern of racketeering activity); United States v.
Elliott, 571 F.2d 880, 903 (5th Cir. 1978) (finding that a RICO
enterprise can be found wholly on circumstantial evidence and
stating [w]here, as here, the evidence establishes that each
defendant, over a period of years, committed several acts of
racketeering activity in furtherance of the enterprises affairs,
the inference of an agreement to do so is unmistakable).
b.
Title 18, United States Code, Section 1962(d)
Title 18, United States Code, Section 1962(d) (RICO

conspiracy) states, in pertinent part, that it shall be unlawful
for any person to conspire to violate any of the provisions of
subsection . . . (c) of this section.
While 1962(d)
incorporates the law of 371 general conspiracies, Congress

designed 1962(d) to be broader in scope.
Salinas v. United
States, 552 U.S. 52, 63-65 (1997) (The RICO conspiracy offense
. . . is even more comprehensive than the general conspiracy.).
As the Fifth Circuit explained:
We are convinced that through RICO, Congress intended
to authorize the single prosecution of a multi-faceted,
382
diversified conspiracy by replacing the inadequate

wheel and chain rationales with a new statutory
concept; the enterprise.
* * *
RICO helps to eliminate this problem (diverse crimes by
apparently unrelated individuals) by creating a
substantive offense which ties together these diverse
parties and crimes... The gravamen of the conspiracy
charge in this case is not that each defendant agreed
to commit (a specific crime), it is that each agreed to
participate, directly and indirectly, in the affairs of
the enterprise.
Elliott, 571 F.2d at 902.
Congress, likewise, designed 1962(d) to be broader than
1962(c).
Under 1962(d), it is the agreement to commit RICO
that constitutes the criminal offense.
It therefore it only need
be proved that had the conspiratorial agreement been completed as

contemplated, the enterprise would be established, the defendant
would be associated with the enterprise, and the enterprise or
its activities would affect interstate commerce.
U.S. at 65.
Salinas, 552
In addition, unlike 1962(c), 1962(d) does not
require proof that each defendant personally committed or aided

and abetted the commission of two or more racketeering acts, but
rather simply requires that the defendant agreed that, at some
point during the life of the conspiracy, a co-conspirator would
commit at least two racketeering acts on behalf of the
enterprise.
Id.
As the Supreme Court stated in Salinas:
383
A conspiracy may exist even if a conspirator does not

agree to commit or facilitate each and every part of
the substantive offense. The partners in the criminal
plan must agree to pursue the same criminal objective
(here the operation of the RICO enterprise) and may
divide up the work, yet each is responsible for the
acts of each other. See Pinkerton v. United States,
328 U.S. 640 (1946). If conspirators have a plan which
calls for some conspirators to perpetrate the crime and
others to provide support, the supporters are as guilty
as the perpetrators.
Id. at 63-64.
The agreement to participate in a RICO conspiracy can be
proved either through direct or circumstantial evidence
establishing: (1) an agreement on an overall objective or (2)
that the defendant agreed personally to commit predicate acts.
United States v. Abell, 271 F.3d 1286, 1299 (11th Cir. 2001);
Elliott, 572 F.2d at 904 ([D]irect evidence of agreement is
unnecessary: proof of such an agreement may rest upon inferences
drawn from relevant and competent circumstantial evidence,
ordinarily the acts and conduct of the alleged conspirators
themselves).
As with 1962(c), there is no requirement that a
charged defendant know the full scope of the conspiracy or even

the identity of all the conspirators.
Fernandez, 388 F.3d at
1230 (affirming RICO conspiracy conviction of wife of Mexican

Mafia member who collected money on behalf of her husband and who
facilitated three-way mailings between enterprise associates
because the evidence established that the defendant was aware of
384
the essential nature and scope of the enterprise and intended to

participate in it); United States v. Zichetello, 208 F.3d 72, 99
(2d Cir. 2000) (the government must prove only that the
defendants know the general nature of the conspiracy and that the
conspiracy extends beyond their individual roles).
Moreover, as
is the case with general conspiracy law, once a conspiracy is

established, only slight evidence is needed to tie coconspirators to the RICO conspiracy.
United States v. Candoli,
870 F.2d 496, 511 (9th Cir. 1989) (applying principle to 371
conspiracy); United States v. Morrow, 914 F.2d 608, 613 (4th Cir.
1990) (applying principle to 1962(d) conspiracy); Elliott, 571
F.2d at 903 (same).
c.
The Enterprise as Proved
The enterprise pleaded in the indictment and established at

trial was the textbook embodiment of an associated-in-fact
enterprise; one which was far more structured and sophisticated
than the Boyle Court found necessary under the statute.
556 U.S. at 948.
Boyle,
It was an ongoing organization: the evidence
established that Pellicano, Arneson, and Turner, working through

PIA, had associated together to commit an unbroken stream of
racketeering acts from at least the mid-1990s through when PIA
was shuttered at the end of 2002 following the execution of the
two federal search warrants that first exposed the massive scope
385
of its past and ongoing criminal conduct.257
It operated as a
continuing unit: the enterprise was structured to allow its

members to effectively and efficiently engage in criminal
activity on its behalf with each associated party or entity
having a clearly designated role258 that allowed the enterprise to
repeatedly acquire legally protected confidential information
that it needed to service PIAs high-paying clients on both a
257
Even after these search warrants were executed,

Pellicano, Arneson, and Turner each sought to conceal evidence
relating to the existence of the enterprise, with: Pellicano
ordering Kachikian to destroy his copies of the Telesleuth
wiretapping program (4/24/08 (A.M.) RT 99-102; GERT 6973-76) and
directing a threat to PIA employee Tarita Virtue in connection
with her testimony before the grand jury investigating this case
(3/11/08 (P.M.) RT 108-12; GERT 1219-23); Arneson lying to both
his employers and the FBI regarding his knowledge of and
involvement with the enterprise(4/11/08 (P.M.) RT 82-84, 92;
4/16/08 (A.M.) RT 100-01; 4/16/08 (P.M.) RT 28-29; GERT 54985500, 5508, 5661-62, 5731-32); and Turner also lying to the FBI
regarding his knowledge of and involvement with the enterprise
(4/4/08 (P.M.) RT 88-89; GERT 4518-19). Turners lie resulted in
a 1001 conviction. (CR 1609). Pellicanos spoilation
contributed to the obstruction enhancement that he received at
sentencing. (12/15/08 RT 65; GERT 14014). Arneson likewise
received an obstruction enhancement, although it was based on his
perjury at trial and his lies to the Probation Office in his
presentence interview. (3/3/09 RT 21-22; JER 4955-56).
258
Arneson and Stevens were PIAs paid sources at the LAPD

and BHPD, while Turner was PIAs paid source at SBC. Turner had
additional sources at SBC, who met specific needs of the
enterprise: Wright (confidential subscriber information and phone
records), Malkin (the cable pair information necessary to
implement a wiretap), and Fannie Mae, the frame worker who
could tap a telephone line on SBCs mainframe. (3/27/08 (P.M.)
RT 38, 88; 4/2/08 (P.M.) RT 38, 45; 4/3/08 (P.M.) RT 31-44;
4/22/08 (A.M.) RT 25; JER 1913, 1963, 2351, 2355; GERT 4152-65,
6321).
386
daily basis and over the course of years.
It had a common
purpose: namely, profiting through the illegal acquisition and

use of confidential information.
See, e.g., Elliott, 571 F.2d at
904 (finding that, as here, the common plan was to associate for
the purpose of making money from repeated criminal activity).
The evidence established that there was a highly profitable
market for illegally obtained confidential information that could
be employed to benefit an interested party -- whether it be a
criminal defendant, a civil litigant, or a scorned spouse -- in
an ongoing prosecution, litigation, or dispute.
The evidence
further established that Pellicano created the enterprise to meet

this market.
Working behind the veneer of legitimacy provided by
PIA, Pellicano, by no later than the mid-1990s, built a network

of sources within police departments and the telephone company.
In return for a portion of the fees generated by PIA, these
individuals provided PIA with confidential information on its
adversaries obtained from restricted-access law enforcement and
phone company databases, including information needed to
implement wiretaps, and in the case of the phone company sources,
assisted in the implementation of wiretaps, through which
additional confidential information, including attorney-client
and doctor-patient privileged communications, would be illegally
intercepted.
Pellicano, serving as the public face and leader of
387
the enterprise, then solicited high-paying clients willing to pay

a premium for this illegally obtained confidential information,
money that was then used to continue funding the enterprises
ongoing efforts over the course of years.259
And profit they did,
with PIA generating over two million dollars in income solely in

matters that resulted in charged racketeering acts.
To give just a snapshot, the evidence included: (1)
testimony from former PIA employees that Arneson and Turner were
paid to steadily supply PIA over the course of years with
confidential information from legally restricted law enforcement
and telephone company databases (3/7/08 (P.M.) RT 139-40, 144;
3/18/08 (P.M.) RT 21-23, 39-44, 55-56, 61, 77; 3/28/08 (P.M.) RT
79-80, 82-83, 95; 4/8/08 (P.M.) RT 14-15; GERT 968-69, 973, 215961, 2177-82; 2193-94, 2199, 2215, 3416-17, 3419-20, 3432, 468283); (2) copies of criminal history, DMV, and phone company
reports that PIA employees testified to having reformatted after
receipt from Arneson and Turner to conceal the source from whom
the confidential information was obtained (3/7/08 (P.M.) RT 11213, 140-44, 146; 3/12/08 (P.M.) RT 36-38, 60; 3/18/08 (P.M.) RT
24-29, 37-38, 66; 3/19/08 (A.M.) RT 58; 3/28/08 (P.M.) 84-85, 97259
Trial evidence established that PIA charged a $25,000

retainer that often quickly escalated into hundreds of thousands
of dollars, and in one case one million dollars, in fees.
(3/20/08 (P.M.) RT 47-48, 72-74; 3/25/08 (A.M.) RT 117-19; 4/1/08
(A.M.) RT 146; 4/4/08 (A.M.) RT 5859, 93-94; GERT 2669-70, 269496, 2824-26, 3637, 4362-64).
388
98; 4/8/08 (P.M.) RT 17; GERT 941-42, 969-73, 975, 1428-30, 1452,
2162-67, 2175-76, 2204, 2326, 3421-22, 3434-35, 4685); (3)
scanned copies of several NCIC criminal history reports
containing Arnesons name that a PIA employ had failed to
reformat (3/7/08 (P.M.) RT 146-147; 3/28/08 (P.M.) RT 99-101;
4/9/08 (A.M.) RT 36; 4/18/08 RT 81; Exh. 176, 207; GERT 975-76,
3436-38, 4845, 6083, GEX 790-800, 841-53); (4) an LAPD audit,
with accompanying victim and FBI testimony, establishing that
Arneson had conducted over 2,500 law enforcement database
inquires on more than 350 PIA investigative targets (4/18/08 RT
254; GERT 6232); (5) recorded calls between Pellicano and Arneson
and Pellicano and PIA clients in which confidential information
obtained from Arnesons illicit database inquiries was discussed
(3/11/08 (A.M.) RT 21-23; 3/18/08 (P.M.) RT 5-7; 3/25/08 (A.M.)
RT 22-23; 4/2/08 (P.M.) RT 34-35; 4/10/08 (P.M.) RT 70-78; Ex.
35A, 36A, 37A; GERT 1009-11, 2143-45, 2778-79, 3935-36, 5220-28,
GEX 1-21); (6) Arnesons admission that he had crossed the line
by accessing restricted law enforcement databases on PIAs behalf
(4/11/08 (A.M.) RT 75-76; GERT 5353-54);260 (7) SBC reports
documenting that Wright had accessed SBC databases on multiple
parties known to have been wiretapped by PIA (3/7/08 (P.M.) RT
260
As discussed later, Arneson made this basic admission

but perjuriously crafted it and the accompanying testimony so
that he legally would not have any liability for his actions.
389
144; 3/18/08 (P.M.) RT 21-23, 40-44; 3/28/08 (P.M.) RT 95; GERT

973, 2159-61, 2178-82, 3432); (8) testimony from Wright that
Turner had paid her to illicitly access SBC databases on hundreds
of occasions to obtain both private subscriber information and
toll data, including in each of the charged wiretap-related
inquiries (3/27/08 (P.M.) RT 132-37; JER 2007-12); (9) testimony
from Malkin that Turner regularly used her to access cable-pair
information, including after Turner retired from SBC (3/27/08
(P.M.) RT 38; 4/2/08 (P.M.) RT 38, 45; JER 1913, 2351, 2355);
(10) a summary of phone records, accompanied by FBI testimony,
documenting phone calls between Turner, Wright, and Malkin in and
around dates when wiretaps were implemented (3/28/08 (A.M.) RT 9;
JER 2042, GEX 3010); (11) recordings between Turner and Pellicano
in which they discuss whether a PIA employee would rat on them
regarding the illegal stuff they had done and further discuss
wiretaps in coded language (3/13/08 (A.M.) RT 109-16; GERT 163542); (12) recordings between Turner and Wright, including one in
which Turner referenced the confidential SBC database information
that Wright had provided Turner on wiretap victim Anita Busch,
discussed how to wiretap, and apologetically told Wright, who
said she had been contacted by the FBI, that he had not expected
that the government would learn of her involvement (3/28/08
(A.M.) RT 28-36; JER 2061-69); (13) bank records reflecting
390
traceable payments in excess of $190,000 from Pellicano to

Arneson and $37,000 from Pellicano to Turner, both of whom
testimony established received additional substantial cash
payments (3/7/08 (P.M.) RT 153; 3/13/08 (P.M.) RT 72-73; 3/18/08
(P.M.) RT 76; 3/19/08 (A.M.) RT 76-77; 4/8/08 (P.M.) RT 11-12,
59, 130; GERT 982, 1719-20, 2214-15, 4679-80, 4727, 4798); (14)
Arnesons admission that Pellicano had advised him that PIA had
multiple sources in the telephone company and that Pellicano had
developed a wiretapping program that used external hard drives
and that he had rented apartments for the use of this wiretapping
program (4/11/08 (P.M.) RT 93-94; GERT 5509-10); and (15) PIA
employee testimony regarding the extensive measures that
Pellicano employed to conceal the information received from
Arneson and Turner, as well as describing an incident in which
Arneson and Turner hid together when a client was present at PIA
(3/7/08 (P.M.) RT 150-151; 3/11/08 (A.M.) RT 14; GERT 980-81,
1002).
The evidence relating to PIAs investigation of film
producer Aaron Russo is one example of many presented at trial of
how the multiple facets of the enterprise worked in unison to
achieve its common purpose.
Hedge fund manager Adam Sender lost
1.1 million dollars in two investments with Russo.

(A.M.) RT 111-15; GERT 3602-06).
(4/1/08
Sender sued Russo to recoup
391
this money, and at his attorneys recommendation, Sender retained

PIA in March 2001.
(4/1/08 (A.M.) RT 116-18, 120, 129; 4/8/08
(P.M.) RT 33; GERT 3607-09, 3611, 3620, 4701).

A recorded telephone call between Sender and Pellicano from
April 2001 established that Sender retained PIA to: (1) help
secure a favorable resolution of Senders civil lawsuit against
Russo; and (2) to make [Russos] life as miserable as possible.
(4/1/08 (A.M.) RT 128-31; GERT 3619-22).
Sender paid PIA
approximately $500,000 to cover the costs incurred in achieving

these two objectives.
(4/1/08 (A.M.) RT 143-46; GERT 3634-37).
In return, Sender received the services of the enterprise:

Pellicano, PIAs employees, its corrupt phone company contacts,
and its corrupt law enforcement contacts.
Specifically, the trial evidence showed that almost
immediately after PIA was retained, Turner, on PIAs behalf, used
Wright to obtain subscriber information for Russos companion
Heidi Gregg (racketeering act 67), and that shortly thereafter,
an illegal wiretap was installed (counts 67 and 73).
(3/27/08
(A.M.) RT 114; 3/27/08 (P.M.) RT 144-45; Exh. 503; GERT 3324, JER
2019-20, GEX 2487).261
Two days later, Pellicano had BHPD officer
261
Sender testified that Pellicano played for him

wiretapped calls involving Russo 10 to 15 times. PIA employee
Tarita Virtue testified that she listened to more than 1,000
wiretapped calls involving Russo, including attorney-client
privileged calls between Russo and his attorney in which they
(continued...)
392
Stevens access law enforcement databases to acquire NCIC reports

on four members of the Russo family (racketeering acts 60-64).
(4/8/08 (A.M.) RT 39-40; GERT 4579-80).
Pellicano, who had been
seeking to locate Russo in order to execute service of the Sender

civil suit,262 then intercepted a telephone call in which Russo
discussed a haircut appointment that he had scheduled for April
21, 2001, at Giuseppe Franco Salon in Beverly Hills.263
(3/11/08
(A.M.) RT 94-95; 4/1/08 (A.M.) RT 126-28, 4/1/08 (P.M.) RT 67-68;

GERT 1082-83, 3617-18, 3706-07).
Using this information,
Pellicano and two PIA employees, Tarita Virtue and Denise WardHarvey, executed service of the Sender lawsuit on Russo as he
left the salon.
(3/11/08 (A.M.) RT 94-97; 4/2/08 (A.M.) 108-110;
GERT 1082-85, 3865-67).
261
(...continued)
discussed strategy related to the Sender lawsuit. (3/11/08
(A.M.) RT 92-94; GERT 1080-82). Written reports reflecting
Virtues notes of wiretapped calls involving Russo, which were
recovered from PIA computers, also were introduced into evidence.
(3/11/08 (A.M.) RT 98-122; Exh. 160; GERT 1086-1110, GEX 656).
262
Trial evidence established the importance of the issue

of service. Sender testified that Russos success at evading
service caused him to replace his initial attorney which, in
turn, led to Pellicanos retention. (4/1/08 (A.M.) RT 115-17;
GERT 3606-08).
263
Pellicano made specific reference to having intercepted

this call in a subsequent recorded conversation that he had with
Carradine. (4/1/08 (A.M.) RT 59-60; GERT 3550-51). Virtue
confirmed that the information was obtained through the Russo
wiretap. (3/11/08 (A.M.) RT 94-95; GERT 1082-83).
393
Russo denied that he properly had been served and litigated

the issue as part of his defense to the Sender civil suit.
On
Thursday, March 14, 2002, Patrick Theohar and Alex Green,

hairstylists at the Franco salon, submitted declarations on
Russos behalf in which they stated that the purported service of
Russo consisted of two women (Virtue and Ward-Harvey) identifying
themselves not as process servers but rather as fans of Russo who
wanted Russo to review a script, which Russo declined to accept.
(3/20/08 (P.M.) RT 58; 4/2/08 (A.M.) RT 57-58; Exh. 610; GERT
2680, 3814-16; GEX 2634).
Pellicano, upon learning of the existence of these
declarations, set out on multiple fronts to secure retractions.
On Friday, March 15, 2002, Pellicano contacted salon owner
Giuseppe Corsara, a/k/a Giuseppe Franco (Franco).
In this
recorded call, an irate Pellicano: (1) confirmed that Theohar and

Green were Francos employees, (2) reminded Franco that you know
who I am, who our friends are, and that he (Pellicano) was
told a long time ago to protect you and look ov- after you, (3)
advised Franco that he has been trying to keep Francos name out
of this thing . . . out of respect for you, and caring for you
as, as a member of the family, and (4) instructed Franco that
they gotta give me a statement that, that, [the March 14
394
affidavits were] not true.
(4/2/08 (A.M.) RT 50-55; Exh. 60;
GERT 3807-12; GEX 228).

At 12:50 p.m. that day, Arneson, who just one day before had
received a $2,500 bribe from Pellicano (racketeering acts 77 and
87) (4/16/08 (P.M.) RT 26; GERT 5729), conducted DMV, criminal
history, and warrant database inquiries on both Theohar and Green
(4/16/08 (A.M.) RT 55-59; GERT 5616-20).
Arnesons inquiries
revealed that Theohar had an outstanding warrant from 1998 for

failure to fully complete his probation following his conviction
for possession of one-tenth of one gram of cocaine.
(A.M.) RT 56; GERT 3813).
(4/2/08
Also that same day, David Moriarty, an
attorney who represented Sender in the civil lawsuit, faxed

Theohars attorney, Martin Marcus, a copy of Theohars
declaration, and followed up with a telephone call in which
Moriarty advised Marcus that Pellicano was very upset about the
declarations, that Pellicano wanted Theohar to recant, and that
if he did not, Pellicano could make things very difficult for []
Mr. Theohar.
(4/2/08 (A.M.) RT 78-81, 93-94; GERT 3865-3838;
3850-51).
On Saturday, March 16, 2002, Arneson, using an address that
he had obtained from having accessed the LAPDs restricted law
enforcement databases, directed two LAPD officers under his
395
supervision to arrest Theohar on the four-year-old warrant.264

The officers attempted to effectuate Theohars arrest but failed
to do so because Theohar no longer lived at the residence.
Theohar learned of LAPDs attempt to arrest him and contacted
Marcus.
Based on his conversation with both Theohar and
Moriarty, Marcus then prepared a new affidavit in which Theohar

would retract material portions of his March 14 declaration.
(4/2/08 (A.M.) RT 61-64, 82, 90, 92; GERT 3818-21, 3839, 3847,
3849; Exh. 611; GEX 2636).
On Monday, March 18, 2002, Marcus spoke with Moriarty and
Pellicano, at which time he told Pellicano to leave Theohar alone
and that Theohar was prepared to resolve the matter to Senders
264
At his 2003 proffer, Arneson stated that he did not

recognize Theohars name, did not recall conducting any database
inquiries relating to Theohar, and did not recall anything
relating to the attempted arrest of Theohar. (4/16/08 (A.M.) RT
58-59; GERT 5619-20). Similarly, during the governments casein-chief, Arnesons counsel asked questions of LAPD Detective
Helen Lim that called into question whether Arneson had any
involvement in the attempted arrest of Theohar. (3/14/08 (A.M.)
RT 117-18; GERT 1919-20). When the circumstantial evidence of
his involvement mounted, however, Arneson, as was his established
practice, then changed course and lied to provide a quasilegitimate explanation for his actions. Arneson testified that
he first learned of Theohars outstanding warrant from Pellicano.
Arneson further testified that, once he confirmed the existence
of the warrant and saw that Theohar had resided at an area within
the Pacific Divisions jurisdiction, he was all but compelled to
act on the arrest warrant. (4/11/08 (A.M.) RT 44-46; GERT 432224). Arneson, however, was unable to explain why he also
conducted warrant checks of Green (and numerous other PIA targets
throughout the years), if his warrant check of Theohar was
predicated on specific warrant-related information received from
Pellicano. (4/16/08 (A.M.) RT 55-59; GERT 5616-20).
396
benefit.
(4/2/08 (A.M.) RT 81; GERT 3838).
That same day,
Marcus faxed to Moriarty a revised declaration that retracted the

majority of Theohars March 14 declaration, including his prior
assertion that Russo had refused to accept service.
(4/2/08
(A.M.) RT 80-82; Exh. 611; GERT 3837-39, GEX 2636).
No
additional efforts were made to have Theohar arrested on the

outstanding warrant.265
(4/11/08 (P.M.) RT 44-46; GERT 4322-24).
Similarly, after Russos son Max verbally confronted Sender

at a Beverly Hills restaurant, Pellicano advised Sender that he
was going to use his connections to get Max arrested.
(P.M.) RT 18; GERT 3657).
(4/1/08
To that end, Pellicano had Russo file
a complaint with the BHPD, which Pellicanos paid source in the

BHPD, Craig Stevens, presented for prosecution.266
Stevens also
conducted NCIC criminal history inquiries of Max Russo for PIA

(racketeering acts 45).
Stevens, like Arneson, received a bribe
265
Arneson testified that the matter was no longer in his

jurisdiction. (4/11/08 (P.M.) RT 44-46; GERT 5460-62). However,
despite knowing of a party with an outstanding warrant that he
claimed to be of a type that compelled him to act, Arneson did
not pass along the existence of this warrant to other local
authorities who could have executed the warrant successfully,
including the BHPD, which could have arrested Theohar at his
known workplace. Instead, Theohar remained free until officers
responded to a domestic violence incident involving Theohar,
discovered the existence of the outstanding warrant, and arrested
him. (4/2/08 (A.M.) RT 65; GERT 3822).
266
Sender and Stevens were cross-examined extensively. No

defendant challenged the evidence relating to Pellicano having
orchestrated the arrest of Max Russo. (4/1/08 (P.M.) RT 26-56;
4/8/08 (A.M.) RT 49-85; GERT 3665-95, 4589-4625).
397
payment from Pellicano for this confidential information. (4/1/08

(P.M.) RT 17-18; 4/8/08 (A.M.) RT 35-36, 41-42; GERT 3656-57,
4575-76, 4581-82).
In a January 30, 2002, recorded telephone
conversation, Pellicano advised Sender that Max Russo would be

fingerprinted, booked, and arrested the following day and
further stated:
Well we got him, this kid- this kid- this kid has a
record for doing this. You know, itll never go off
his record. You know, even if, even if hes found
innocent, its still on his record, so he still has a
record of, of threat, a terrorist threat -- little
cocksucker.
(4/1/08 (P.M.) RT 19-23; GERT 3658-3660).
Sender responded
approvingly, noting the whole point of it was . . .

a pain in the ass.
just to be
(4/1/08 (P.M.) RT 23; GERT 3660).
The record was replete with similar instances of the

enterprise operating in unison to achieve its goals.
Whether it
be PIAs investigation of Anita Busch, its investigation of Erin

Finn,267 or any of the other PIA client representations for which
267
Businessman Robert Pfeifer retained PIA in July 2000 to

secure a retraction from Erin Finn, a former Pfeifer girlfriend,
who provided an accurate, but damaging, sworn statement in a
civil deposition regarding Pfeifers past drug use. Pfeifer paid
PIA approximately $200,000 (3/25/08 (A.M.) RT 92, 98, 103; Exh.
417, 427; GERT 2799, 2805, 2810, GEX 2443, 2481). The evidence
established that on July 20, 2000 (racketeering acts 73 and 83),
Pellicano paid Arneson a $2,500 bribe and that on August 2, 2000,
Arneson accessed restricted law enforcement databases to acquire
criminal history and/or DMV information on Pfeifer, Finn, and
multiple friends and associates of Finn (racketeering acts 2122), which he then provided to Pellicano (3/25/08 (P.M.) RT 61(continued...)
398
evidence was presented, the totality of the evidence, when viewed

in the light most favorable to the government, overwhelmingly
established the existence of an enterprise.
See Boyle, 556 U.S.
at 945 (enterprise proved by evidence of an ongoing

organization, formal or informal, and by evidence that the
various associates function as a continuing unit).
Any rational
juror considering this evidence would have to conclude that the

enterprise element had been proved.
See, e.g., Boyle, 556 U.S.
at 945-48 (enterprise can be evidenced by the pattern of

racketeering in which it engages); Fernandez, 388 F.3d at 1226-27
(conspiratorial agreement evidenced by the generalized, coherent,
and consistent scheme).
Defendants, however, challenge this conclusion, claiming
that the evidence, at most, establishes the existence of multiple
separate enterprises.268
(JOB 81, 85-86.)
Their argument
267
(...continued)
65; 4/16/08 (P.M.) RT 25; Exh. 400; GERT 2896-97, 5728, GEX
2113). That same day, Wright, at Turners instruction, accessed
SBCs Boss database to secure confidential subscriber information
on Finn (racketeering act 65), and later that same day, a wiretap
was initiated (counts 67-68), as documented in the call summaries
prepared by PIA employee Virtue (3/27/08 (A.M.) RT 110-11; Exh.
501; GERT 3320-21, GEX 2485).
268
Pellicanos closing argument was that he was the Lone

Ranger who orchestrated the entirety of the criminal conduct,
that Arneson and Turner did not know of the activities of the
other, and that there was, therefore, no enterprise. (4/30/08
(A.M.) RT 56; GERT 7846). In addition to being a legally
incorrect argument, see Kushner Promotions v. King, 533 U.S. 158,
(continued...)
399
requires this Court to suspend the standard of review, discard

controlling precedent, and ignore the record, which it obviously
cannot do.
As a preliminary matter, defendants effectively ask this
Court to excise Pellicano and PIA from their sufficiency
challenge, focusing solely on what Arneson and/or Turner
purportedly knew and did.
(JOB 80-83.)
This is a tacit
acknowledgment that Pellicano lacks a legitimate sufficiency

challenge to the enterprise element, as defendants do not and
cannot credibly argue, that Pellicano, the enterprises creator
and the head of PIA during the entirety of the enterprises
existence, did not know the full scope of the enterprises
activities when, with the assistance of PIA employees, he
directed them all.
Thus, this Court can summarily reject
Pellicanos sufficiency claim.
Kushner, 533 U.S. at 163.
While Pellicano lacks a facially viable claim, his conduct

cannot be removed from consideration as to whether there was an
enterprise that involved Arneson and Turner, since Pellicanos
and PIAs actions served as the core of this criminal operation.
268
(...continued)
163 (2001), Pellicanos argument was flatly contradicted by the
record and rejected by the jury. Turners claim that he never
engaged in any illegal conduct of any kind and Arnesons
arguments, which are similar to those raised in his opening
brief, also were directly contradicted by the record and rejected
by the jury.
400
When Pellicanos and PIAs conduct is considered alongside that

of Arneson and Turner, it is clear that there was a single
enterprise involving Pellicano, PIA, Arneson, and Turner.
Tille,
(proof of a defendants association with the illegal activities

of the enterprise is all that is required to establish
association with the organization).
In an attempt to cloud the issue, Arneson and Turner raise a
series of claims that do nothing to alter the finding that a
rational juror could have found a single, associated-in-fact
enterprise.
Instead, their claims consist of multiple recastings
of the base claim that an enterprise member must know all the
other individuals who are associated with the enterprise, have
full knowledge of their activities, and directly participate in,
all of the activities of the enterprise.
law expressly rejects this claim.
Well established RICO
Castro, 89 F.3d 1443, 1451 (11th Cir. 1996) (finding that

government need not to prove that each conspirator agreed with
every other conspirator, knew of his fellow conspirators, was
aware of all the details of the conspiracy, or contemplated
participating in the same related crime); Rastelli, 870 F.2d at
827-28 (to require each member of a RICO conspiracy to have
specific knowledge of every member and component of the
enterprise . . . would be unrealistic in organized crime cases;
401
All that we require is that the defendant agree to commit the

substantive racketeering offense through agreeing [that a member
of the conspiracy would commit two racketeering acts269] and that
he know the general nature of the conspiracy and that the
conspiracy extends beyond his role).
Arnesons and Turners claims are also factually
unsupported, particularly when the evidence is viewed in the
light most favorable to the government, as it must be.
Their
initial claim -- that there was no evidence that they were ever
involved in or aware that the enterprise earned income through
the conduct of diverse criminal activities is so demonstrably
false as to be disingenuous.
(JOB 81.)
By simply considering
their own conduct, Arneson and Turner knew this to be true.
The
evidence established that Arneson and Turner were frequent

visitors to PIA and close with Pellicano,270 understood that PIA
was a private investigative agency, and further understood that
they were being paid to assist PIA by illegally acquiring
269
Rastelli predated the Supreme Courts holding in United

States v. Salinas, 522 U.S. 52, 65 (1997), and incorrectly cited
the need for each conspirator to commit two racketeering acts.
Otherwise, it is good law.
270
The relationship was suitably close that Arneson advised

Pellicano of an ongoing LAPD undercover operation of PIA client
Leo Portocarrero (4/16/08 (P.M.) RT 109-24; Exh. 55; GERT 581227; GEX 309), and a PIA employee who had an ongoing physical
relationship with Turner testified that Turners visits to PIA
were always to see Pellicano -- not her (4/8/08 (P.M.) RT 23;
GERT 4691).
402
confidential information that could be used to the benefit of

PIAs high paying clientele.
Therefore, when Arneson accepted
monthly bribes totally over $190,000 over five years in return

for conducting over 2,500 restricted-access law enforcement
database inquiries to secure confidential information on more
than 350 PIA investigative targets in violation of multiple
federal and state laws, including several of which he was
convicted of in this case, he knew from personal experience that
the enterprise earned money through the conduct of diverse
criminal activities.
(4/16/08 (P.M.) RT 14; 4/18/08 RT 254; Exh.
902; GERT 5717, 6232, GEX 2966).271
Turner, who likewise was paid
tens of thousands of dollars to acquire confidential SBC customer

data and to assist in wiretapping (3/28/08 (A.M.) RT 5-6; Exh.
903; JER 2038-39; GEX 2969),272 also well knew from his own
271
Even if Arnesons sufficiency challenges to select

racketeering acts were to succeed, Arneson admitted that he knew
that his conduct in accessing and disseminating confidential
information from restricted law enforcement databases violated
numerous state statutes that were not charged as racketeering
acts, thereby still leaving him as an enterprise member who
committed several thousand criminal offenses on behalf of the
enterprise. (4/11/08 (A.M.) RT 74-75, 124-25; 4/16/08 (P.M.) RT
69-73; GERT 5352-53, 5402-03, 5772-76). This admission alone
establishes the baselessness of Arnesons claim.
272
Turner notably has not challenged the sufficiency of the

evidence in support of his conviction for conspiring to wiretap,
five substantive wiretapping convictions, and his false statement
conviction that was premised on his assertion that he never
assisted Pellicano by providing phone company information or by
wiretapping.
403
conduct that the enterprise earned money through diverse criminal

activities.
(CR 1609).
Arneson and Turner next claim that they were not aware of
each other or the activities performed by the other.
is not what the law requires.
Again, this
Moreover, the direct and
circumstantial evidence, as well as the reasonable inferences

that were present for the jury to make, undermine Arneson and
Turners claim.
The two were regularly at PIA, and in one
instance, were both deliberately hidden in the same room within

the office so that they would not be observed by a PIA client
(3/7/08 (P.M.) RT 150-51; 3/11/08 (A.M.) RT 14; GERT 979-80,
1002).273
Furthermore, Arneson admitted that Pellicano had more
273
Virtue, the former senior-PIA employee who the evidence

established was exceptionally close with Pellicano, testified to
this fact. While defendants claim that Virtue was heavily
impeached (JOB 13-14), the record only establishes that the
defendants sought, without any meaningful success, to impeach her
for hours -- not that she was impeached in any meaningful manner.
In fact, Virtues testimony was among the most corroborated in
the entire trial, whether it be through other PIA employees
confirming that Arneson was PIAs LAPD source, that Arneson
received cash payments that supplemented the monthly payments
that he received from Pellicano, that Turner was involved in
PIAs wiretapping, or that Virtues notes of wiretapped calls
recovered during the search of PIA were, in fact, notes of actual
telephone calls between the parties identified in the notes.
(3/18/08 (P.M.) RT 9-10, 21-23, 37-38, 40-44, 47, 57-60; 3/19/08
(A.M.) RT 76-77; 3/20/08 (A.M.) RT 71-91; 3/25/08 (P.M.) RT 5786; 3/28/08 (P.M.) RT 22-23, 95-96, 101; 4/1/08 (P.M.) RT 71-80;
4/25/08 (A.M.) RT 95; GERT 2147-48, 2159-61, 2175-76, 2178-82,
2185, 2195-98, 2344-45, 2586-2606, 2893-2922, 3359-60, 3432-33,
3438, 3710-19, 7215). In any event, under the governing standard
of review, defendants sweeping assertions challenging Virtues
(continued...)
404
than one source at the phone company who provided him with
subscriber activity and calling information and showed him the
Telesleuth wiretapping program, described how it used removable
drives, and explained how he rented apartments for the purpose of
wiretapping in which he would utilize this program.274
(P.M.) RT 93-94; GERT 5509-10).
(4/11/08
These admissions unequivocally
establish that Arneson had an understanding of the broader scope

of the enterprise and its activities, regardless whether he knew
Turner specifically to be the phone company source and wiretap
facilitator.275
Elliott, 571 F.2d at 903-04 ([S]ecrecy and
273
(...continued)
credibility must be rejected. Such credibility determinations,
particularly with the presence of corroboration on numerous
material points, must be drawn in the governments favor. See
Nevils, 598 F.3d at 1170 (this Court is not free to second-guess
the jurys credibility assessment).
274
Arneson claims that the only direct evidence of his

knowledge of the enterprises wiretapping were his admissions.
Arneson ignores that admissions like his have been used as highly
probative evidence in support of convictions of criminal
defendants since the founding of this country. Furthermore, to
the extent that his admissions were accompanied by a lie
regarding Pellicanos intended purpose for the wiretapping
program (which itself is not inconsistent with Arnesons
knowledge that Pellicano also used the Telesleuth program for his
own benefit), the jury was free to discount the non-credible
portion of the testimony.
275
It is of no help to Arneson that retired Special Agent

Ornellas testified, and the government acknowledged in closing
argument, that Arneson did not personally participate in
wiretapping. (JOB 83). Arneson was not required to participate
in wiretapping because every enterprise member need not know of
or participate in every activity conducted by the enterprise to
(continued...)
405
concealment are essential features of a successful conspiracy . .

. hence, the law gives room for allowing the conviction of those
discovered upon showing sufficiently the essential nature of the
plan and their connections with it, without requiring evidence of
knowledge of all its details or the participation of others).
Similarly, Turner unequivocally knew that the enterprise was
broader than just his role; he was responsible for recruiting
multiple SBC employees to join its ranks.
Moreover, the jury heard, through the testimony of multiple
former PIA clients (e.g., Williams, Pfeiffer, Maguire, Kalta, and
Carradine) and numerous recorded phone conversations Pellicano
had with clients (e.g., McTiernan, Cohn, McGarry, and Rock),276
that Pellicano was open and even boastful about discussing his
illegal acquisition and possession of confidential law
275
(...continued)
be part of that enterprise.
Moreover, based on Pellicanos admission to Arneson
regarding his wiretapping capabilities and activities, the
government argued that Arneson did knew about the wiretapping.
(5/1/08 (P.M.) RT 70; GERT 8059 ([H]e cant have it both ways.
He cant be this great investigator and at the same time have
wiretapping . . . served up on a platter and not figure it
out.)). Consistent with this argument, it was reasonable for
the jury to find that Arneson knew that the enterprise engaged in
the illegal acquisition of other types of confidential
information -- i.e., wiretapped phone calls -- beyond what he
personally provided.
276
The Pellicano/Christensen calls also would qualify,

although the government did not seek to admit them in the RICO
trial.
406
enforcement reports and his ongoing wiretapping, even though

Pellicano had no prior relationship with and had just been
retained by these individuals.
Therefore, while many of
Pellicanos meetings with Arneson and Turner were in private, the

jury certainly was entitled to make the very reasonable inference
that Pellicano was as open with longtime associates Arneson and
Turner as he was with new clients.
Finally, Arnesons and Turners claim that they performed
different tasks also does not advance their cause.
See, e.g.,
United States v. Connolly, 341 F.3d 16, 28 (1st Cir. 2003)

(finding existence of designated roles as supporting existence
and structure of the enterprise).
It is precisely because
Pellicano and PIA had access to different platforms of

confidential information that Arneson and Turner, and all of
Turners phone company contacts, were brought into and helped
complete the enterprise.
Although their individual contributions
involved different forms of confidential information, it all

flowed together to advance the enterprises common purpose of
generating income through the illegal acquisition of confidential
information, which benefitted the entirety of the membership.
Furthermore, Arnesons and Turners claims that their
contributions to the enterprise did not overlap is demonstrably
false.
The Russo matter shows this, as did numerous other forms
407
of trial evidence that showed Arneson and Turner effectively

being tasked by PIA in tandem, as well as the evidence
establishing that Arneson accessed restricted law enforcement
databases to acquire confidential information on individuals
targeted by PIA solely because they were either referenced or
intercepted on a wiretap of a PIA adversary.
RICO was enacted to
address just this type of seemingly diverse, but actually

unified, conduct.277
The evidence established that Pellicano, Arneson, and
Turner, along with PIA, together were part of an associated-infact enterprise.
Cagnina, 697 F.2d at 922 (A single enterprise
engaged in diversified activities fits comfortably within the

proscriptions of the RICO statute.).
The sufficiency challenge
to the enterprise element of counts one and two fail.278
277
Neither severance nor limiting instructions were

necessary or appropriate, given that the evidence was admissible
evidence against Pellicano, Arneson, and Turner jointly as
associates-in-fact.
278
In explaining their multiple enterprise theory,

defendants analogize the situation to the multiple conspiracies
theory. (JOB 81). While it does not appear that they are
actually advancing a multiple conspiracies theory, such an
argument also would fail. Evidence sufficient to support a
single enterprise under 1962(c) necessarily is sufficient to
support a similar finding under 1962(d), as the enterprise need
not be actualized under 1962(d). This is particularly true
given that only a slight connection is necessary to tie either
Turner or Arneson what unquestionably was an existing enterprise
conspiracy between Pellicano and PIA.
408
3.
The Evidence Was Sufficient to Support the Jurys

Findings that Pellicano Paid, and Arneson Accepted, the
Ten Bribes Set Forth in Racketeering Acts 70-89279 in
Violation of Penal Code 67 and 68
Pellicano claims that the district court erred in finding

that Arnesons restricted-access law enforcement database
inquiries properly fell within the scope of 68 and further
argues that the evidence presented at trial failed to support the
district courts analysis.
(POB 56-57).
Pellicano further
claims that his payments to Arneson could not constitute bribery

because the payments did not relate to an open or ongoing police
investigation pending before Arneson at the time of the
payments.
(POB 57).
Arneson, in turn, claims that the evidence
establishing his acceptance of more than $190,000 from Pellicano

including the ten $2,500 payments charged as racketeering acts
80-89 in return for conducting restricted-access database
inquiries on PIAs investigative targets and providing the
confidential law enforcement information that he obtained from
such inquires to Pellicano was insufficient to support a 68
violation because such conduct purportedly did not constitute an
act performed on a matter then pending, or that may be brought
before him in his official capacity, but rather was simply a
279
The same ten payments were charged as separate instances

of giving a bribe, in violation of Penal Code 67 (racketeering
acts 70-79), and receiving a bribe, in violation of Penal Code
68 (racketeering acts 80-89). (CR 1604).
409
misuse of the LAPD database for non-official purposes that fell

outside the scope of 68.
(AOB 15-17).
Pellicanos and Arnesons challenges to the sufficiency of

the evidence in support of the jurys findings as to racketeering
acts 70-89 fail on multiple levels.
As a preliminary matter,
Pellicano and Arneson waived these claims when they elected not
to include them as part of their Rule 29 motions.
at 1166.
(CR 1652, 2022).
Graf, 610 F.3d
Even if not waived, Pellicanos
sufficiency challenge fails because it is premised on a factually

and legally flawed analysis of the sufficiency of the evidence
under 68, when the jurys findings against him were based on
his having violated 67.
Similarly, even if not waived,
Arnesons claim fails because the evidence establishing Arnesons

acceptance of monthly $2,500 payments from Pellicano to access
restricted law enforcement databases on PIAs behalf was more
than sufficient to establish a 68 violation under multiple
recognized theories (payment accepted in return for agreement to
violate a legal duty, payment accepted in return for agreement to
violate a duty of the office, payment accepted to influence an
act taken in the officers official capacity), each of which
independently supports affirmance of the jurys findings.
Simply
stated, when the evidence is viewed in the light most favorable

to the government, there can be no credible dispute that a
410
rational juror could have found that Pellicano paid, and Arneson
accepted, each of the $2,500 bribes alleged in racketeering acts
70-89.
a.
California Law Governs the Sufficiency

Determination
When assessing the sufficiency of the evidence of a jury

finding regarding a racketeering act that alleges a violation of
state law, state law controls.
Turkette, 452 U.S. 576, 586 (1981) (noting that Congress

specifically intended when enacting the RICO statute to have
state law violations included as racketeering acts); Frega, 179
F.3d at 806 (using California law to analyze the sufficiency of
the evidence in support of racketeering acts that were based on
violations of the California bribery statutes).
Racketeering
acts 70-89 alleged separate instances of giving and receiving

bribes in violation of Penal Code 67 and 68.
(CR 1604).
Therefore, California law applies to Pellicanos and Arnesons

sufficiency challenges to these racketeering acts.280
280
Arneson asserts that the bribery predicate acts are

invalid under federal and California law. (AOB 23). This claim
appears to be referencing Arnesons Skilling-based claim that
state law bribery no longer falls within the scope of 1346.
Even if this claim were to have merit in that limited context,
the Skilling decision did nothing to alter 1962 or to displace
the prior precedent holding that state law controls when a state
offense is charged as a racketeering act. Federal law simply has
no applicability to this Courts sufficiency determination
because the charged bribery racketeering acts all involved
(continued...)
411
b.
Penal Code 67 and 68
Penal Code 67 and 68 are complimentary statutes.

v. Hallner, 277 P.2d 393, 395 (Cal. 1954).
People
Together, these
statutes proscribe the giving of bribes to, and the solicitation,

acceptance, or receipt of bribes by, executive officers,
including police officers.281
People v. Pacheco, 69 Cal. Rptr.
822, 823 (Ct. App. 1968) (the term executive officer in the
bribery statutes has long been held to include police
officers); People v. Matthews, 268 P.2d 31 (Cal. Ct. App. 1954)
(an LAPD officer is an executive officer under Penal Code 67);
People v. Markham, 30 P. 620, 621 (Cal. 1883) (police officer
qualifies as an executive officer under 68).
California law
defines a bribe as [a]nything of value or advantage, present or

prospective, or any promise or undertaking to give any, asked,
given, or accepted, with a corrupt intent to influence,
unlawfully, the person to whom it is given, in his or her action,
vote, or opinion, in any public or official capacity.
Cal. Pen.
Code 7(6).
Penal Code 67 makes it a felony to give[] or offer[] any
bribe to any executive officer of this state, with intent to
280
(...continued)
violations of California law.
281
Section 68 is broader than 67 in that it also applies

to ministerial officers. Cal. Pen. Code 68.
412
influence him in respect to any act, decision, vote, opinion or

other proceeding as to such officer.
The elements of a 67
offense are that: (1) the defendant gave or offered a bribe to an

executive officer; and (2) the defendant acted with the corrupt
intent to unlawfully influence that officers official act,
decision, vote, opinion or conduct in another proceeding.
CALCRIM No. 2600; (4/29/08 RT (A.M.) 47).
Section 67 focuses
exclusively on the action and intent of the party offering the

bribe.
It, therefore, is well established that once the offer is
made with the requisite intent, 67 has been violated.
People
v. Finklestein, 220 P.2d 934, 941 (Cal. Ct. App. 1950).
This is
true even if the promised payment is never made, the executive

officer refuses to accept the bribe, and/or the executive officer
is not influenced in the manner intended by the party offering
the bribe.
See People v. Brigham, 163 P.2d 891, 893-94 (Cal. Ct.
App. 1945) (no act or agreement by an executive officer is

required for a 67 offense as the mere offer, with the corrupt
intent, completes the offense).
As this Court explained in
rejecting a defendants sufficiency challenge to racketeering

acts alleging bribery under California law, it misapprehends the
law [to focus on whether the bribed party acted based on the
offered bribe]: there is no requirement under the California
bribery statutes that [the party who was offered the bribe] act,
413
let alone act improperly, in response to a bribe.
Frega, 179
F.3d at 806.
Penal Code 68 makes it a felony for either an executive or
ministerial officer to ask[], 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 which
may be brought before him in his official capacity, shall be
influenced thereby.
The elements of a 68 offense are that:
(1) the defendant was a ministerial or executive officer; (2) the

defendant requested, took, or agreed to take a bribe; (3) when
the defendant requested, took, or agreed to take the bribe, he
represented that the bribe would influence his official act,
decision, vote, or opinion (the representation may have been
express or implied); and (4) the defendant acted with the corrupt
intent that his public or official duty would be unlawfully
influenced.
CALCRIM No. 2603; (4/28/08 RT (A.M.) 49).
Similar
to 67, 68 focuses on the actions and intent of the party

soliciting or receiving the bribe and not the actions or intent
of the solicited party.
See People v. Gaio, 97 Cal. Rptr. 2d
392, 398 n.8 (Ct. App. 2000) (Section 68s reference to an

agreement cannotes not the extrinsic agreement with the giver
but rather the recipients own intent); see also Brigham, 163
P.2d at 894 (finding that a 68 offense is complete when the
414
executive officer asks, receives or agrees to receive any bribe.

No action on the part of the victim, such as payment, delivery or
otherwise, is necessary to complete the offense.).
The California Supreme Court, in the seminal Markham case
made clear that 68 should be interpreted broadly.
Specifically, Markham, 30 P. at 621, held that the scope of the
definition of bribery is as broad as the duties of the officer
who accepts the bribe.
Building on this decision, the
California state courts have provided additional context

regarding the breadth of the statute, finding that 68
encompasses payments solicited or accepted in return for: (1)
breaching a statutorily imposed duty, Markham, 30 P. at 621-23;
(2) breaching a duty imposed by the executive or ministerial
office to which the officer is assigned, Gaio, 97 Cal. Rptr. 2d
at 401-02;282 and/or (3) engaging in conduct in an official
capacity that falls outside the offices jurisdiction,283 People
v. Lips, 211 P. 22, 24 (Cal. Ct. App. 1922).
Likewise, both this
282
Gaio, 97 Cal. Rptr. 2d at 402, involved attempts to

influence an LASD Food Services Department employee with respect
to matters of bidding and purchasing that were part of his job
duties. See also People v. Megladdery, 106 P.2d 84, 102 (Cal.
Ct. App. 1940) (expressly finding that it was immaterial whether
the duty breached was one imposed by statute).
283
In a definition akin to the concept of acting under

color of law, the California Court of Appeals explained that an
officer acts in his official capacity by performing an act that
properly belongs to the office and is intended by the officer to
be official. Lips, 211 P.2d at 24.
415
Court and the California courts have found that bribery under
California law generally and under 68 particularly:
does not require that a specific official action be
pending when the bribe is given, or that there be proof
that the bribe was intended to influence any particular
such act. Rather, it is sufficient that the evidence
reflect that there existed subjects of potential action
by the recipient, and that the bribe was given with the
intent that some such action be influenced.
Gaio, 97 Cal. Rptr. 2d at 399; Markham, 30 P. at 622 (the phrase
may be brought requires only that the act be one that the
executive officer conceivably could be asked to discharge at some
future point, regardless of whether the act ever comes to
fruition);284 Frega, 179 F.3d at 805 (finding linkage between a
payment and a specific official decision is not required under
California bribery law as a bribe can be intended to influence
future actions with respect to matters that may, but need not,
ever come before [the party receiving the bribe]).
c.
The Statutory and Professional Restrictions

Designed to Protect the Confidentiality of
Information Maintained in Law Enforcement
Databases
(1)
The statutory Framework
The United States and the State of California have mandated

that their respective Departments of Justice create and maintain
databases comprised of information compiled largely through
284
This includes actions that would assist law enforcement

agencies from other jurisdictions, including but not limited to,
the execution of warrants. Lips, 211 P. at 25-26.
416
compelled interactions with the citizenry (e.g., information

obtained from vehicle stops, arrests, criminal prosecutions,
custodial and/or non-custodial post-conviction proceedings).
U.S.C. 534; Cal. Pen. Code 11077, 11101, 11105.
28
These
include the FBIs NCIC database operated by the FBI and the
California Department of Justices California Law Enforcement
Telecommunications System (CLETS) database.285
Each of these
databases, in turn, contains multiple subdatabases that aggregate

information relevant to a wide array of criminal justice
concerns, including but not limited to criminal history,
terrorism, wants and warrants, and Secret Service protective
services data.
As intended, these databases provide law
enforcement officers with access to an equally wide array of

personal identifying information on millions on individuals,286
including an individuals name, aliases, residential address,
285
The California DOJ Less Than Full Access Operator

Proficiency Exam that Arneson completed in 2002 described NCIC
as a nationwide computerized information system that stores
vast amounts of criminal justice information that could best be
described as a computerized index of documented criminal justice
information concerning crimes and criminals of nationwide
interest. (4/11/08 (P.M.) RT 21; Ex. 316). A trial stipulation
acknowledged that NCIC is owned and operated by the FBI and that
the data contained in the database is the property of the United
States government. (4/9/08 RT (A.M.) 49-50).
286
In 1989, the NCIC database contained criminal history

information on more than 24 million people. United States v.
Reporters Committee For Freedom of the Press, 489 U.S. 749, 752
(1989).
417
date of birth, physical identifiers, social security number(s),

immigration status, fingerprint classification data, and a unique
numeric code that federal, state, and local law enforcement use
to identify that individual (e.g., CII and FBI numbers).
This
information is designated confidential and may not be accessed

or disseminated except in the limited circumstances authorized by
law.
28 U.S.C. 534(b); Cal. Pen. Code 11075-77, 11105;
(Exs. 316-17); see also Reporters Committee, 489 U.S. at 752

(rejecting medias FOIA request for NCIC criminal history
information of organized crime members engaged in public
corruption, which was premised on the argument that the majority
of the underlying information was publicly available, and finding
that the requested information statutorily had been protected as
confidential since the 1950s).287
287
A dominant, essentially nullification-based, theme

advanced by Pellicano and Arneson at trial and again on appeal is
that there was no real harm caused by their conduct because the
information Arneson was paid to provide to PIA could be acquired,
at least in part, through public source materials. (3/14/08 RT
(A.M.) 87-88, 121-22). Pellicano and Arneson did not acquire
this information from public sources, however, they acquired it
from restricted-access federal and state government databases
that maintained the confidentiality of this information. As the
Supreme Court expressly found,
the very fact that federal funds have been spent to
prepare, index, and maintain these criminal-history
files demonstrates that the individual items of
information in the summaries would not otherwise be
freely available either to the individuals who have
access to the underlying files or to the general
(continued...)
418
Specifically, 28 U.S.C. 534(a)(4) limits access to NCIC to

select statutorily designated parties, including state officials,
solely for the official use of that party.
Section 534(b)
provides that access authorization can be revoked if the

accessing party disseminates the information obtained to third
parties who are not lawfully entitled to access these records.
28 U.S.C. 534(b).
Accompanying regulations mandate, upon
penalty of access revocation, that NCIC criminal history records

be used solely for the official purpose identified by the
authorized user when accessing this information.288
20.33(b) & (d).
28 C.F.R.
These regulations further mandate that states
that access NCIC criminal history information enact legislation

and/or impose regulations that establish security standards
restricting access to authorized organizations and personnel
287
(...continued)
public. . . .[as] plainly there is a vast difference
between the public records that might be found after a
diligent search of courthouse files, county archives,
and local police stations throughout the country and a
computerized summary located in a single clearinghouse
of information.
Reporters Committee, 489 U.S. at 764.
is specious and must be rejected.
288
Thus, defendants argument
In addition to being password protected, NCIC requires

users to input a code designating the authorized purpose for
which criminal history information is being sought. (3/14/08 RT
(A.M.) 99-100).
419
and that protect against the unauthorized disclosure or

dissemination of this information.
28 C.F.R. 20.21(f).289
The State of California has a series of statutes and

regulations that together restrict access to NCIC and CLETS and
define the parameters regarding the lawful use and dissemination
of the confidential information obtained from these databases.290
Penal Code 502 proscribes the unauthorized access of government
agency computers.
Penal Code 15153 states that the CLETS
system shall be used exclusively for the official business of

the state . . . [or city] agency.291
Pursuant to Penal Code
289
As the Supreme Court has found, these statutes and

regulations, taken as a whole, evidence a Congressional intent to
protect the privacy of rap-sheet subjects, and a concomitant
recognition of the power of compilations to affect personal
privacy that outstrips the combined power of the bits of
information contained therein. Reporters Committee, 489 U.S. at
765. In establishing a bright line rule prohibiting public
disclosure of criminal history information under FOIA, the Court
further found that [w]hen the subject of such a rap sheet is a
private citizen and when the information is in the governments
control as a compilation, rather than as a record of what the
government is up to, the privacy interest [of the citizen] . . .
is in fact at its apex, while the FOIA-based public interest in
disclosure is at its nadir. Id. at 780.
290
Penal Code 11077 required Californias Attorney

General to establish regulations to assure the security of
criminal offender record information from unauthorized access and
disclosures and to assure that this information is disseminated
only in situations in which it is demonstrably required for the
performance of an agencys or officials functions. Cal. Pen.
Code 11077(a) & (b).
291
Trial testimony established that LAPD accessed NCIC

through a CLETS interface. (4/8/08 (P.M.) RT 68-72).
420
11105 and 11 C.C.R. 703,292 statutorily authorized parties,

including police officers, may access CLETS or NCIC for criminal
history information only if two preconditions are met: (1) the
officer has a right to know (i.e., is a sworn law enforcement
officer who has received the requisite training regarding the
limited circumstances under which these databases lawfully can be
accessed and has been provided with the dual passwords required
to access the databases); and (2) the officer has a need to
know the information in the course of the officers duties
(i.e., a compelling requirement for the information [that is]
directly related to the official duties and/or responsibilities
of the person or agency initiating the request.).
317).
(GEX **/Ex.
In addition to restricting access to these databases,
Penal Code 11142 and 13303 proscribe the dissemination of

records obtained therefrom by a party who is in legal possession
of these materials to a party who is not authorized to possess
them, while 11143 proscribes the purchase, receipt, or
possession of such materials by a party who is not legally
authorized to possess them.293
292
Penal Code 13300 extends these access restrictions to

criminal history data compiled by local law enforcement agencies.
293
DMV information is similarly protected. Vehicle Code

1808.45 proscribes the acquisition or use of DMV information
for non-law enforcement purposes and further proscribes the
dissemination of this information unless such dissemination was
authorized when the inquiry was made. Consistent with this
(continued...)
421
(2)
LAPD-imposed Restrictions
The LAPD has well-established policies and procedures that

compliment this statutory framework.
100, 116-17).
(4/8/08 (P.M.) RT 93-94,
For example, the LAPD requires that officers who
seek to be designated as having a right to know successfully

complete an initial training course and thereafter complete
supplemental bi-annual training in which the restrictions on
access to the NCIC and CLETS databases and the prohibition
against use and distribution of confidential information obtained
from these databases are addressed, including the requirement
that the officer have a need to know (i.e., official
investigative need) before he is authorized to access CLETS or
NCIC.
(4/8/08 (P.M.) RT 90, 100-02).
Moreover, the LAPD
requires its officers who qualify to access these databases to

regularly sign operator security statements that provide yet
additional notification that: (1) records and reports obtained
from these databases are confidential; (2) these databases may be
accessed only in the proper scope of employment, i.e., by those
employees who possess both the right to know and the need to
know; (3) all requests to conduct database inquiries on behalf
of third-parries who are not authorized to receive this
293
(...continued)
requirement, the results of all DMV database inquiries are
accompanied by the advisement DMV record for law enforcement use
only. (4/8/08 (P.M.) RT 77).
422
information must be reported to a supervisor; and (4)

unauthorized access or disclosure of confidential information
obtained from these databases violates the LAPD code of conduct
and multiple statutes, and can result in disciplinary action or
prosecution.294
(3/14/08 RT (A.M.) 25; Ex. 316).
The LAPD Manual, which sets forth the LAPDs policies and
procedures governing employment, further reinforces the
fundamental principles that automated systems, and information
obtained from them, shall be used for official purposes only,
and that criminal history information shall be obtained only by,
and provided only to, those officers with the right to know and
the need to know that is directly related to official duties
and/or responsibilities.
(Ex. 317).
The LAPD Manual further
instructs that the improper accessing and/or disclosure of the

confidential information from these databases violates both LAPD
policy and criminal law and could result administrative action
and/or prosecution.295
(4/8/08 (P.M.) RT 97; Ex. 317).
Finally,
294
The operator security statements identify the primary

Penal Code sections that criminalized, both as felonies and
misdemeanors, the unauthorized access, use, and dissemination of
information obtained from these databases. (/EX 316).
295
LAPD Detective Helen Lim, who conducted the Internal

Affairs investigation of Arneson, testified that an officer who
properly accessed and acquired criminal history information as a
result of having both the right and the need to know the
information could not share this information with an officer who
did not similarly possess the right and need to know. (3/14/08
RT (A.M.) 27). Paula Weissman, who conducted training and audits
(continued...)
423
to ensure that its officers were reminded of access restrictions

and the limitations on dissemination of information obtained
through such access, the initial screen on the LAPDs computer
terminals through which both NCIC and CLETS were accessed
prominently notified the accessing officer that the use of this
system for other than official police business is prohibited.
Any violation of federal, state or department policy will result
in discipline up to and including discharge and/or criminal
prosecution.
d.
(4/8/08 (P.M.) RT 98; Ex. 319).

The Trial Evidence
The jury received myriad forms of evidence establishing

Pellicanos payment and Arnesons acceptance of bribes, including
the ten bribes alleged as racketeering acts 70-89.
Former
employees and clients testified that Pellicano was the head of

PIA, an immensely profitable private investigation firm that was
renowned for resolving high profile and/or seemingly intractable
disputes, often with the aide of illegally acquired confidential
295
(...continued)
addressing restricted law enforcement database access and usage
through her work in LAPDs Security Administration Unit,
testified that private citizens, including private investigators
and law enforcement sources, would not possess the requisite need
to know and right to know this information and thereby could not
be provided with this information. (4/8/08 (P.M.) RT 91, 94-95).
424
information regarding its clients adversaries that Pellicano

obtained from paid sources within law enforcement agencies and
telecommunication companies.
PIA employee testimony, physical exhibits, and Arnesons own
admissions296 established that Arneson was Pellicanos source
within the LAPD who routinely secured confidential information on
PIAs investigative targets from restricted-access law
enforcement databases.
The evidence further established that
Arnesons services were purchased at a substantial sum.
Bank
records established that, from February 1997 to May 2002,297

Pellicano paid Arneson over $190,000, primarily through monthly
296
Given the overwhelming evidence that he accessed

restricted law enforcement databases so to acquire confidential
information on PIAs investigative targets, Arneson conceded this
general proposition. Contrary to Arnesons claims, however, he
has never came close to accepting responsibility for this
conduct. At every stage of the proceedings, Arneson grossly
minimized his conduct and advanced a series of lies that were
designed to absolve him from criminal liability: i.e., claiming
that entries on the audit were the result of others using his
serial number and password, claiming that PIA directed inquiries
were done as part of LAPD investigations, asserting that his
actions in victimizing hundreds of citizens was done in
furtherance of the greater good of law enforcement, and couching
his concession of having crossed the line as an understanding
that he formed after the fact. Rather than accept
responsibility, Arneson, as the district court found, obstructed
justice as he lied almost from the moment he took the stand and
throughout his testimony, including about the fact that he was
not responsible for many of the charged NCIC and CLETS inquiries.
(3/3/09 RT 21).
297
Pellicanos last payment to Arneson was in November

2002, just before when the FBI executed its search warrant at PIA
and Arnesons relationship with Pellicano first was identified.
(Ex. 902).
425
checks of $2,500.298
(CR ***; 3/7/08 (P.M.) RT 152, 3/18/08
(P.M.) RT 57-58; GEX ***/ Exs. 400, 902).
Senior PIA employees
further testified that these payments were supplemented by cash

payments.
(3/7/08 (P.M.) RT 112, 152-53, 3/11/08 (P.M.) RT 31-
32, 3/18/08 (P.M.) RT 9-10, 58-60, 3/19/08 RT (A.M.) 76-77,

4/3/08 RT (A.M.) 18-19, 61-62).
The jury also received multiple forms of direct and
circumstantial evidence establishing that Pellicanos payments to
Arneson were made so that Arneson would both violate the law and
his professional duties as a sworn LAPD officer to: (1)
investigate PIAs adversaries by searching restricted-access
federal and state law enforcement databases like NCIC and CLETS
for information on these individuals; (2) obtain the confidential
information that the federal and state governments had compiled
on these individuals; (3) act on existing warrants if
advantageous to PIAs interests; and (4) disseminate the reports
obtained through his investigation to Pellicano, who legally was
not entitled to possess these materials, so that the confidential
information contained therein could be used to benefit the
investigative and/or litigative interests of PIAs high-paying
298
This included the representative sampling of 2,500

payments charged as violations of Penal Code 67 and 68. (CR
1604).
426
clients.299
In addition, multiple PIA employees, including the
bookkeeper who issued Arnesons monthly $2,500 checks, testified

that these checks were payment for the criminal history and DMV
information that Arneson provided to PIA, while Craig Stevens,
PIAs contact within the Beverly Hills Police Department
(BHPD), confirmed that the payments he received from Pellicano
exclusively were for having conducted restricted-access inquiries
for PIA.300
299
Consistent with his chameleonesque practice of

transforming his story to meet the present state of the charges
and known facts, Arneson, after being charged testified
incredibly and conveniently that the $2,500 monthly check
payments from Pellicano - including the ten $2,500 payments
charged as racketeering acts - ensured that Arneson was
available to assist Pellicano 24 hours a day, seven days a week,
in whatever way was necessary to assist PIA with one claimed
exception: the payments were not for the thousands of NCIC,
CLETS, and DMV database inquiries that Arneson conducted on
several hundred PIA investigative targets (which the evidence
established constituted the overwhelming majority of the work
that Arneson performed for PIA) as Arneson purportedly had told
Pellicano that I cant accept money for that and I could never
be paid for running names or - - - anything through the LAPD
computer base. (4/11/08 RT (A.M.) 83, 108). Arnesons
testimony that he was not paid by Pellicano to investigate PIAs
adversaries by conducting restricted-access law enforcement
database inquiries was among the many aspects of Arnesons
testimony that the district court found to be perjurious at
Arnesons sentencing. (3/3/09 RT 22).
300
Pellicano did not challenge this assertion through

cross-examination, while Arneson affirmatively elicited that
Stevens was paid in cash, as Arneson unsuccessfully sought to
equate bribery with cash payments. (4/8/08 RT (A.M.) 60, 84,
4/30/08 RT (A.M.) 33, 37, 44). Arneson also testified that
Pellicano expressly had offered to pay him for accessing law
enforcement databases, which Arneson perjuriously claimed to have
declined. (4/11/08 RT (A.M.) 83, 108).
427
Trial evidence also included recorded conversations between

Pellicano and PIA clients in which Pellicano personally
acknowledged that part of the clients fees were being used to
cover payments to sources (i.e., Arneson/Stevens) who provided
PIA with confidential information from restricted-access law
Most notably, in a recorded conversation
with PIA client Mark Cohn, Pellicano advised Cohn, who was a
defendant in a federal fraud prosecution,301 that: (1) Pellicano
had just received criminal history information on Cohns codefendants and victims;302 (2) Pellicano was not supposed to have
these records so Cohn could not mention this to a soul; (3)
the criminal history reports were extremely expensive and cost
a tremendous amount of money; (4) the reports showed that Cohns
co-defendants almost all had extensive criminal histories or used
301
This particular prosecution was brought by the District

of Maryland. (4/8/08 (P.M.) RT 125; Ex. 616). At the time of
this recorded conversation, Cohn was on bond and traveling to Los
Angeles to conduct business and to further discuss with Pellicano
the ongoing illegal acts that PIA was conducting in Los Angeles
on his behalf. (4/9/08 RT (A.M.) 16-18). Cohn later engaged in
a Los Angeles-based Ponzi scheme investigated by Los Angelesbased federal law enforcement agents resulting in his prosecution
in Los Angeles. (4/8/08 (P.M.) RT 125-26).
302
Cohn noted during this conversation that he had a search

firm conduct background checks on his associates which failed to
identify the criminal history information Pellicano possessed.
In response to Cohns statement that the average background
search or background search firm isnt going to pick up what you
picked up, Pellicano, who noted that he had access to the same
computer databases used by the government, stated of course
not. (4/8/08 RT (A.M.) 25, 33; GEX ***/Ex. 62A).
428
aliases,303 which Pellicano explained negatively impacted Cohns

ability to be portrayed at trial as an unwitting dupe; (5) the
reports reflected that one co-defendant had been flagged by the
FBI,304 which presented obstacles to PIAs abilities to access
confidential information on him; and (6) while Cohn already had
spent a tremendous amount of money,305 he had to send more
money which nevertheless was justified because the thing that
I'm trying to get across is, I am finding everybody.
understand?
You
All of these, these, these ah, ah, you know,
complainants and everything.306
(4/9/08 RT (A.M.) 16-35).
303
Pellicano advised Cohn that he had not confirmed the

true identity of a Cohn co-defendant, but that he was utilizing
the FBI[s] fingerprint classification information contained
in the criminal history reports (provided by Arneson) in an
attempt to confirm whether this co-defendant used an alias under
which he had sustained additional criminal convictions. (4/9/08
(A.M.) RT 37-40; GEX ***/Ex. 63A). While this criminal history
report, in its entirety, is confidential under the law, testimony
further established that biometric information like this could
not be obtained through public source materials. (3/14/08 (P.M.)
RT 13).
304
Pellicano explained that this meant that the FBI wanted

to be informed of all database inquiries involving this
individual and stressed I cant let anybody in the world know
that I am accessing this information. (4/9/08 RT (A.M.) 31-32;
GEX ***/Ex. 62A).
305
Cohn, through his company, Four Star Financial Services,

LLP, already had paid Pellicano $100,000. Approximately three
weeks after this call, Cohn paid Pellicano an additional $50,000.
(4/8/08 (P.M.) RT 124-27; GEX ***/Ex. 420).
306
That Arneson was the source of this tremendous[ly]

expensive criminal history information was documented by the LAPD
audit, which established that the day before and the day of this
(continued...)
429
Similarly, in a recorded conversation with Jan Leo

Portocarrero, a PIA client who was the subject of an ongoing LAPD
bookmaking investigation conducted by Arneson and several
undercover officers under Arnesons direction, Pellicano notified
Portocarrero of evidence recovered by the LAPD during arrests of
Portocarreros associates, explained that several of these
associates were cooperating with the LAPDs case against
Portocarrero, advised Portocarrero, a fugitive, to stay where
the fuck you are, and instructed him that he would need to pay
Pellicano a hundred grand in cash, to start out with because
[Pellicano had] to get into government, you know, bases and
everything else . . . to find out what the whole story is here.
(***; GEX/Ex. 76A).
Pellicano further explained that while his
fee was high, most of this is not going into my pocket and
explained to Portocarerro that it was imperative to know who the
rats are and what the fuck theyre gonna say.307
(****; GEX
306
(...continued)
call, Arneson spent several hours conducting more than 200
database inquiries on Cohns co-defendants and victims. (GER***:
GEX ***; Exs. 30**/616). In addition, scanned criminal history
reports bearing Arnesons name that matched several of the
inquiries reflected in the audit were recovered from PIAs
computers. (GEX ***/Exs. 175-77). Bank records further
established that Pellicano paid Arneson $2,500 on the very day of
this call (racketeering acts 78 and 88). (GEX ***/Exs. 420,
902).
307
On cross-examination, Arneson conceded that he advised

Pellicano of the existence of the LAPDs investigation of
Portocarerro, including the LAPDs ongoing use of undercover
(continued...)
430
**/Ex. 76A).
The following day, the two men spoke again, at
which time Pellicano advised Portocarrero that he could make an

initial payment of $25,000 and reiterated that these are
expenses I have to pay out, this is not going in my pocket.
Well talk about my pocket later down the line.308
(**** ; GEX
**/Ex 77A).
The evidence further established that Arneson repeatedly
violated his statutory and professional duties by conducting
investigations of PIAs adversaries by accessing restricted law
enforcement databases like NCIC and CLETS to obtain for, and to
provide to, PIA confidential information on these individuals.
As discussed throughout this brief, Arneson served as PIAs
primary law enforcement contact, who on an almost daily basis
answered Pellicanos call to provide PIA with unfettered access
to the confidential information contained in restricted law
enforcement databases like NCIC and CLETS.
PIA employee
testimony addressing how Arneson regularly was tasked with
307
(...continued)
officers in this investigation.
(4/16/08 (P.M.) RT 104).
308
Almost identically, in an April 11, 2002, call with

Michael Sportelli, an Organized Crime figure who was a target of
a bookmaking investigation in which Arneson participated,
Pellicano first confirmed that Sportelli was speaking on a good
phone and then advised Sportelli that Sportelli needed to
provide him with a $25,000 payment, explaining that the money
doesnt go in my pocket and was like an insurance policy
because anytime your name comes up, they tell me, and I can warn
you. (4/16/08 (P.M.) RT 4-9; GEX ***/Ex. 79).
431
conducting database inquiries of PIA investigative targets as

well as their families, friends, and associates was
corroborated by, among other items, (1) reformatted criminal
history and DMV information matching database inquiries conducted
by Arneson; (2) copies of criminal history and DMV reports
containing Arnesons name and serial number that a PIA employee
scanned instead of reformatted in violation of PIA policy; (3)
victim testimony confirming that Arneson had conducted NCIC,
CLETS, and/or DMV inquiries on them at a time when they had no
contact with law enforcement but were investigative targets of
PIA; (4) testimony that the FBIs review of Arnesons LAPD audit
resulted in the conservative identification of at least 345
victims on whom Arneson had conducted several thousand database
inquiries; (5) and recorded telephone calls between Pellicano and
Arneson in which Pellicano instructs Arneson to conduct database
inquiries and/or Arneson reports the results of inquiries that he
conducted, including confidential information relating to the
deceased victim in the pending LADA manslaughter prosecution
involving PIA client Kami Hoss.
Finally, PIA documents and employee testimony established
the concerted efforts that Pellicano and Arneson implemented to
conceal from potential law enforcement discovery the fact that
Arneson was accepting bribes.
For example, Pellicano and Arneson
cloaked Arnesons monthly payments in a veneer of legitimacy by
432
using business checks and supplemented these payments as

necessary with untraceable bulk cash payments.
In addition, PIA
employees, including Virtue, LeMasters, Campau, and Palazzo,

testified that Pellicano sought to conceal Arnesons role as his
paid LAPD source through tactics like reformatting reports,
hiding Arneson when he was present at PIA at the same time as PIA
clients, leaving Arnesons name off of PIAs phone logs, and
ordering a day-long mass shredding of Arneson-related documents
at a time when Pellicano believed that a state search warrant
would be executed at PIA and reveal how Arneson had provided PIA
with criminal history and DMV information relating to the ongoing
LAPD/LADA John Gordon Jones rape prosecution.
(3/7/08 (P.M.) RT
144-46; 3/18 (P.M.) RT 21-27; 3/28/08 (P.M.) RT 97-99; 4/8/08

(P.M.) RT 5).
Arneson, likewise, falsified his daily activity
reports, failed to identify the true nature of the work he

conducted for PIA on his work permits, concealed and/or lied to
his employers about his relationship with Pellicano, and
cautioned at least one PIA employee to carefully handle the faxed
criminal history reports that he sent to PIA because his name was
on the documents -- all in an effort to shield his illegal work
from being discovered.
(3/11/08 (P.M.) RT 51-52 ; 3/18/08 RT
(P.M.) 24-29; 3/28/08 RT (P.M.) 97-98.)

e.

Findings as to Racketeering Acts 70-79
433
If not waived, Pellicanos sufficiency challenge fails on

the merits.
The evidence, when viewed in the light most
favorable to the government, was sufficient for a rational juror

to find that Pellicano paid Arneson over $190,000 in bribes,
including the ten $2,500 payments alleged as racketeering acts
70-79, as proscribed by Penal Code 67.
Pellicano, without a single reference to California case
law, claims that the evidence was insufficient to establish that
he bribed Arneson because it purportedly failed to support the
district courts finding that Arnesons accessing of restricted
law enforcement databases to secure confidential information on
PIAs investigative targets constituted short investigations of
innocent individuals conducted by Arneson in his capacity as an
executive officer.
(POB 56).
This claim is legally meritless,
particularly so as to Pellicano.309
309
It also is factually inaccurate. The district courts

finding that Arnesons NCIC and CLETS inquiries constituted short
investigations was not clearly erroneous. (JER 898). In fact,
it was exactly right and was supported by overwhelming evidence.
By way of example, extensive testimony established that access to
CLETS and NCIC was restricted to LAPD officers with the right to
know and the need to know, i.e., only to those officers with an
ongoing investigation for use as an investigative tool in
furtherance of that investigation. LAPD Officer Hsyini Lo, on
questioning from Arnesons counsel, provided context to this
testimony, explaining how the LAPDs undercover team conducting
the Portocarrero bookmaking investigation identified potential
suspects by performing law enforcement database searches using
license plate numbers observed at a known Portocarrero bookmaking
location to identify those individuals whose backgrounds would
support an association with this criminal operation. (4/18/08
(continued...)
434
The district courts finding cited by Pellicano, although

correct, has no bearing on this Courts sufficiency
determination.
The finding in question was made in response to a
pre-trial motion that sought to preemptively preclude the
309
(...continued)
(A.M.) RT 174-75).
Arneson similarly testified, albeit falsely, that it was
through conducting and reviewing information that he obtained
from restricted-access database inquiries on the victims in the
John Gordon Jones rape prosecution that he determined that the
women Pellicano identified as party girls (i.e., escorts) were
not involved in prostitution and need not be further investigated
by him in his capacity as a Sergeant assigned to LAPDs Pacific
Divisions vice squad. (4/11/08 RT (A.M.) 108-11).
Recorded calls between Pellicano and Arneson further support
this finding. In one, Arneson reports to Pellicano that his
initial law enforcement database inquiries allowed him to
identify the whereabouts of a PIA investigative target (just to
let you know that I did find him, hes been booked in Vegas
area for an ex-con with a firearm) but that he has to
investigate the issue further (tap into his FBI shIt) to gain a
more definitive understanding of this individuals criminal
history (I cant figure out where the felony conviction is).
(4/2/08 (P.M.) RT 34-35; GEX ***/Ex. 37). In another call that
related to PIAs representation of manslaughter defendant Kami
Hoss, Pellicano, who two weeks earlier had paid Arneson $2,500
(racketeering acts 75 and 85), tells Arneson that he wants
everything that [he] can get on [decedent Sandra Rodriguez].
Arneson, in turn, reports that theres not going to be any city
stuff, county may have a little more, Im looking at her
state thing right now, but Im gonna pull her, the other
[federal] sheet while discussing with Pellicano the import of
the confidential criminal history inform contained in the CLETS
report that he was reviewing. Pellicano then provides Arneson
with the names of five female prospective witnesses to
investigate, which Arneson did by conducting NCIC/CLETS searches
on each later that day. (4/10/08 (P.M.) RT 58-62, 70-78; GEX
12/Ex. 36). Finally, recordings between Pellicano and several
clients, such as the Cohn and McGarrry calls, are replete with
discussions regarding the essential role that this confidential
information played in PIAs investigative efforts, including its
ability to frame successful legal strategies and undermine
litigative adversaries.
435
government from seeking a superseding indictment that alleged as

racketeering acts violations of Penal Code 68 through a
judicial finding that the $2,500 payments from Pellicano to
Arneson, as a matter of law, did not violate this statute.
766).
(CR
The district court denied this motion, finding that the
conduct fell within the scope of 68.310
(JER 896-99).
Important for purposes of this appeal, however, is that: (1) the

district courts finding solely addressed 68, while the
racketeering acts against Pellicano alleged violations of 67, a
statute that focuses exclusively on the conduct of the bribe
310
To the extent that Pellicano misframed his argument and

actually intended to challenge the district courts denial of
Arnesons pre-trial motion, his claim still fails. Arnesons
motion was filed before the return of the Fifth Superseding
Indictment -- the indictment that first charged racketeering acts
70-89 -- and therefore, the district courts ruling on this issue
effectively was an advisory opinion. California Bankers Assn
v. Shultz, 416 U.S. 21, 64 (1974). Moreover, both Arnesons
motion and the district courts order were limited to the
application of 68, not 67, the section under which Pellicano
was charged. Furthermore, when the Fifth Superseding Indictment
was returned and Arneson moved to strike these racketeering acts
(a motion that Pellicano elected not to join), he did so
exclusively on statute of limitations grounds. (CR 1039).
Pellicano, therefore, has waived his current claim by failing to
timely challenge the racketeering acts in count one of the Fifth
Superseding Indictment that charged him with paying bribes in
violation of 67. Fed. R. Crim. P. 12(b)(3). Even if not
waived, Pellicanos claim is unfounded because the racketeering
acts in question set forth facially cognizable charges under
Penal Code 67 and, thus, there would have been no basis for
dismissal of these racketeering acts had an appropriate pre-trial
motion been filed. United States v. Boren, 278 F.3d 911, 914
(9th Cir. 2002).
436
giver (Pellicano) and not that of the bribe receiver (Arneson),311

Brigham, 163 P.2d at 894; and (2) even as to the 68 offenses,
the district courts finding never was presented to the jury312
and could not have factored in any way into the jurys findings
that Pellicano violated 67 when he paid Arneson each of the ten
bribes alleged in racketeering acts 70 through 79.
In any event, the question before this Court is whether the
evidence, when viewed in the light most favorable to the
government, was sufficient such that any rational juror could
find that Pellicano gave or offered a bribe to an executive
officer (Arneson) and, in doing so, acted with the corrupt intent
to unlawfully influence Arnesons official act, decision, vote,
opinion, or conduct in another proceeding.313
As a preliminary
matter, it was uncontested that Arneson, a sworn officer with the
311
It also did so in the limited context framed by

Arnesons motion and did not profess to address all theories
under which Arnesons conduct could violate 68. (JER 896-99).
312
The bribery instructions tracked the applicable model

California criminal jury instructions for each offense. (4/29/08
RT 47-50).
313
Although there were no racketeering acts charged based

on Pellicanos payments to BHPD officer Stevens, the indictment
alleged and the trial evidence established that Pellicano paid
Stevens over $10,000 in bribes to access restricted law
enforcement databases to secure for PIA confidential information
on its adversaries. (CR 1604; 4/8/08 RT (A.M.) 35-37). Both the
payments and their purpose were completely uncontested at trial.
Standing alone, these payments are sufficient to establish the
requisite acts of bribery necessary to uphold Pellicanos RICO
conspiracy conviction.
437
LAPD from June 1974 through October 2003,314 was an executive

officer as defined in Penal Code 67 and 68 and that Pellicano
paid Arneson each of the $2,500 payments charged as bribes.
(3/14/08 RT 69; GEX ***Ex. 316).
Thus, there was no dispute that
Pellicano paid a thing of value to an executive officer as set

forth in racketeering acts 70-79.
Therefore, the sufficiency
determination as to Pellicano is limited to the singular question

whether Pellicano acted with the requisite intent.
on this element was not simply sufficient.
The evidence
It was overwhelming.
As discussed above, the evidence established that Pellicano

knew that he could not legally access or possess the criminal
history, DMV, and other confidential information compiled by the
FBI in the NCIC database and the California Department of Justice
in the CLETS database.
The evidence further established that
this confidential information served as an integral component of

PIAs representation of its clients, so much so that Pellicano
sought to acquire it on all investigative targets in all cases
pursued by PIA.
To ensure that PIA had reliable sources for this
information, the evidence established that Pellicano sought out

senior members of police departments like Arneson, who could use
restricted-access law enforcement databases without meaningful
oversight from others.
Furthermore, the evidence established
314
The jury expressly was instructed that a police officer

is an executive officer as defined in 67 and 68. (4/29/08 RT
48-49).
438
that Arneson faced statutory and professionally mandated

restrictions that precluded him from accessing these databases
without proper legal authorization and further barred him from
distributing the confidential information obtained from these
inquiries to non-law enforcement personnel, including Pellicano.
Finally, the evidence established that to induce Arneson to
violate both the law and his offices duties as a sworn law
enforcement officer, Pellicano paid Arneson substantial sums of
money, including the ten payments alleged as racketeering acts
70-79, and then implemented procedures to conceal the illegal
conduct.
Under any light, but particularly when the evidence is
viewed in the light most favorable to the government, there was

more than sufficient evidence for a rational juror to find that
Pellicano intended each of these payments to bribe Arneson within
the meaning of Penal Code 67.
Through a footnote, Pellicano raises the additional claim
that to constitute bribes, the payments to Arneson had to result
in database inquiries that were conducted by Arneson as part of
open or ongoing police investigation[s].
(POB 57).
Pellicano
then claims that, since the charged payments related-back to PIA

matters arising from civil proceedings, they could not be bribes.
(Id.).
As with his primary sufficiency argument, this claim is
both legally and factually unfounded.
439
Legally, Pellicanos claim again incorrectly focuses on

Arnesons behavior when this Court previously has found that
basing a sufficiency attack on how the bribed party acted, or
could have acted, misapprehends the law: there is no requirement
under the California bribery statutes that [the party who was
offered the bribe] act, let alone act improperly, in response to
a bribe.
Frega, 179 F.3d at 806.
Pellicano further ignores
that the statutory language requiring that a matter be then

pending applies to 68, not 67, that the plain language of
68 incorporates not just matters that are then pending but
further extends to matters that may be brought before [the
executive officer] and that California Supreme Court precedent
established almost 140 years ago that, under 68, the matter
need not be open or ongoing for a bribe to have been made; all
that is required is that the matter be one that conceivably could
be brought before the executive officer.
Cal. Pen. Code 68;
Markham, 30 P. at 622.
Factually, Pellicanos claim that the charged bribe payments
all related to ongoing civil matters both misframes the true
issue and is demonstrably false.
First, the indictment and the
evidence overwhelmingly established that the ten bribes alleged

as racketeering acts 70-79 were representative payments made in
furtherance of an ongoing bribery scheme.
440
(CR 1604).
Under
California (and federal)315 law, there was no need to tie this

payment to any particular instance in which Arneson accessed
restricted law enforcement databases on PIAs behalf because the
individual payments served as the continued inducement to ensure
that Arneson would be available to conduct any investigative
inquiry requested by Pellicano, including inquiries on behalf of
PIA clients involved in federal and state criminal proceedings.
Gaio, 97 Cal. Rptr. 2d at 399.
Second, Pellicano overlooks the
fact that every time Arneson, in return for payment from

Pellicano, investigated an individual by accessing restricted law
enforcement databases to secure whatever confidential information
the state and federal governments had compiled on this
individual, there was a matter that was then pending before
Arneson.
Third, even if this were not the case, there was
abundant proof that Pellicano paid Arneson to investigate

individuals involved in ongoing criminal proceedings, including
matters that either were LAPD-based or conceivably could be
brought before Arneson in his official capacity.
By way of
example:
315
See United States v. Kincaid-Chauncey, 556 F.3d 923, 944

n. 15 (9th Cir. 2009) (finding that in an ongoing bribery scheme,
the quid pro quo need not be linked with a specific official act
and noting that it is sufficient if the official has been put on
a retainer with the understanding that the official will act when
asked to do so).
441
Pellicano paid and Arneson accepted a $2,500 bribe on
June 29, 1999 (racketeering acts 70 and 80).
The following
month, Arneson conducted a series of inquiries of PIA

investigative target Dennis Sidhoun, an informant who notified
the LAPD of a hit that had been put on LADA investigator George
Mueller by PIA client Christopher Rocancourt, a defendant in a
passport fraud case brought by the LADA.316
84-85, 88, 91, 93-97, 101-02).
(3/20/08 (P.M.) RT
That same month, Arneson
conducted NCIC database inquiries of PIA investigative target

Monika Zsibrita, a model who had filed a police report with the
BHPD regarding a sexual encounter with comedian Chris Rock, a PIA
client, and who was engaged in ongoing efforts to extort Rock,
who resided in Los Angeles, through a false paternity claim;317
316
Acting on Pellicanos behalf, Arneson previously had

conducted database inquiries on Mueller (including DMV
inquiries), two government informants, two cooperating
defendants, and a private investigator retained by one of
Rocancourts victims. (3/20/08 (P.M.) RT /GEX***/Exs. 30*).
Notably, Mueller testified that Sidhoun was able to immediately
identify him when the two met with LAPD investigators as Sidhoun
had seen Muellers DMV photograph when Rocancourt disseminated it
in connection with the hit. Mueller, who had never previously
met Arneson, further testified that Arneson was not part of the
Rocancourt investigative team or the LAPD team that investigated
Sidhouns threat report. (3/20/08 (P.M.) RT 86, 90, 102).
317
Pellicano and Rock participated in a recorded call in

which Pellicano read Rock portions of Zsibritas police report,
during which Pellicano stressed to Rock that Im not supposed to
have this thing and secured Rocks assurance that he would not
discuss this information with anyone, including Rocks attorney.
(4/4/08 RT (A.M.) 26-27; Ex. 67).
442
March 14, 2002 (racketeering acts 77 and 87).
The next day,
Arneson conducted criminal history and warrant database inquiries

on PIA investigative target Patrick Theohar, who had submitted a
declaration adverse to PIA client Adam Sender.
58-61, 91; 4/16/08 RT (A.M.) 55-59).
(4/2/08 RT (A.M.)
Arneson, who testified that
these database inquiries were predicated on Pellicanos

advisement of the existence of the potential outstanding warrant,
sent two LAPD officers under his command to execute a four-year
old probation warrant in Theohars name.
Theohar, who was not at
the residence and therefore not arrested, quickly submitted a

revised declaration favorable to Sender, after which Arneson made
no additional efforts to effectuate his arrest or the provide
information regarding Theohars new residence or place of
employment to a neighboring law enforcement agency so that they
could execute the warrant.
On March 18 and 21, 2002, Arneson,
again at PIAs direction, conducted criminal history inquiries on

the minor victim, as well as the victims parents and boyfriend,
in the LAPD/LADA sexual assault prosecution of George Kalta.
(4/4/08 RT (A.M.) 31-35);
!
May 10, 2002 (racketeering acts 79 and 89).
The following week,
Arneson conducted NCIC criminal history and DMV database

inquiries and further requested a DMV photograph of PIA
443
investigative target Anita Busch.
Almost exactly one month
later, Busch was the subject of the threat that involved the dead
fish, the rose, the STOP sign, and the puncture hole to Buschs
car windshield.
This criminal act initially was investigated by
the LAPDs Organized Crime and Vice Division (OCVD).
While the
investigation was ongoing, Arneson submitted an application to

join this unit, which he withdrew only after his contact
information was discovered in Pellicanos address book during the
November 2002 search of PIA.318
(4/11/08 (P.M.) RT 81-82).
Furthermore, that a portion of PIAs clients were involved

in civil does nothing to change the analysis.
Trial evidence
established that these civil proceedings were highly divisive

matters in which wiretapping, witness intimidation, threats,
break-ins, and trumped-up criminal charges were strategically
used by the civil litigants to gain tactical advantages against
their adversaries.
Any of these acts would be sufficient to
trigger police interaction and would qualify as matters that

conceivably could be brought before Arneson in his official
capacity as a police officer.
In fact, Arneson showed just how
conceivable it was that these matters could come before him when,
318
Arneson falsely testified that FBI SA Ornellas sought

Arnesons transfer to OCVD. (4/11/08 RT (A.M.) 126-29). Not
only was this statement wholly uncorroborated, it was directly
undercut by his own counsels questioning of Ornellas: At some
point did you learn as a result of that [October 2002] that Mr.
Arneson was invited by LAPD to be -- to go on loan to OCVD?
(4/16/08 (P.M.) RT 124-26).
444
in an attempt to create reasonable doubt as to whether a

particular NCIC or CLETS database inquiry was conducted by him
for a legitimate law enforcement purpose or for PIA, Arneson
attempted to coopt several PIA-directed inquiries by claiming
that they were LAPD matters he personally investigated.
Among
the most obvious examples of this include the John Gordon Jones
and Busch inquiries already discussed, as well as the following:
!
Pellicano payed and Arneson accepted a $2,500 bribe on
July 20, 2000 (racketeering acts 73, 83).
Within two weeks of
this payment, Arneson conducted NCIC criminal history inquiries

of PIA investigative target Erin Finn, a high priced Los Angeles
escort who had provided damaging testimony in a civil deposition
regarding PIA client Robert Pfeifers drug use, and later that
same month conducted an NCIC criminal history inquiry of PIA
investigative target Paul Rusconi, the hustler husband of PIA
clients Freddy DeManns daughter.
Arneson perjuriously
testified that the Finn database inquiries were conducted as part

of an investigation that he opened into Finns local, national,
and international prostitution business as an LAPD vice squad
sergeant319 and that the Rusconi inquiries also were conducted in
319
Arneson, who the district court found to have engaged in

a level of perjury not previously seen in her 11 years on the
bench (3/3/09 RT 21-22), embellished this lie by claiming without
any substantiation that his investigation of Finn progressed to
the point where he had sought and was denied approval for a strip
permit, which would allow a male undercover officer to be naked
(continued...)
445
the legitimate course of his enforcement duties as Rusconi was an

active prostitute and an individual we would target.320
(4/11/08 (P.M.) RT 43-44; 3/27/08 RT (P.M.) 121-28).
Pellicanos claim, therefore, fails on every level.
be rejected.
It must
Simply stated, the evidence was sufficient for a
rational juror to find that the ten $2,500 payments set forth in
racketeering acts 70-79 that Pellicano made to Arneson
constituted bribes under Penal Code 67.
Moreover, because
these ten racketeering acts independently establish the requisite

pattern of racketeering, Pellicanos RICO and RICO conspiracy
convictions likewise should be affirmed, as should the RICO
conspiracy convictions of Arneson and Turner.321
f.

Findings as to Raketeering Acts 80-89
If not waived, Arnesons claim likewise fails on the merits.

Although the elements of the offense conduct differ, the direct
and circumstantial evidence establishing that Arneson accepted
319
(...continued)
in Finns presence before arresting her on prostitution charges.
(5/1/08 RT (A.M.) 16).
320
Arneson notably had no explanation as for the numerous

database inquiries that he conducted (1) on Finns friends and
associates who had no involvement in her escort business but
whose relationship to Finn was known through Pellicanos having
wiretapped her or (2) on Rusconis parents, for whom there was no
evidence of any involvement in Rusconis prostitution business.
321
This obviously is dependent on a similar sufficiency

finding as to enterprise element.
446
bribes from Pellicano largely mirrors the evidence establishing

that Pellicano paid these bribes to Arneson and therefore is
incorporated herein.
Reiterating some of the most salient facts
viewed in the light most favorable to the government: Arneson was

an executive officer who accepted over $190,000 in payments from
Pellicano over an approximately five-year period, including the
ten $2,500 payments alleged as racketeering acts 80-89, and that
in return for this money, Arneson repeatedly and knowingly
violated the law and the LAPD code of conduct by accessing
restricted law enforcement databases to acquire confidential
information on hundreds of PIAs investigative targets that he
then provided to PIA, again in violation of the law and of his
duties as a sworn LAPD officer.
(Exs. 401; 902).
When viewed in
the light most favorable to the government, the evidence was far
more than sufficient for a rationale juror to find that the over
$190,000 in payments that Arneson accepted from Pellicano,
including the ten $2,500 payments alleged as racketeering acts
80-89, constituted bribes under Penal Code 68.
In fact, the
evidence was so overwhelming that it established Arnesons

receipt of bribes under several, independently sufficient,
theories of liability recognized under California law.
It is not subject to legitimate dispute that Arnesons
conduct violated multiple legally imposed duties.
Every time
Arneson accepted a $2,500 payment from Pellicano, he did so
447
knowing that, in return, he would be asked to violate, and that

he would in fact violate, the most fundamental duty imposed on a
police officer -- the duty to uphold the law.
Uncontradicted
trial evidence established that multiple statutes made it illegal

to access the NCIC and CLETS databases without lawful
authorization and to disseminate the confidential information
obtained from these databases to individuals who lacked the
need and the right to know.
Arneson further admitted knowing of these laws.322
When
asked by his counsel: [d]id you know at the time that you were
322
Whether introduced for nullification purposes, or as

Arneson claimed, to show how his knowledge of the potential
criminal penalties credentialed his asserted desire to serve the
greater good by providing Pellicano with confidential reports
on PIAs criminal history targets in return for tips that
allegedly served as the genesis of much of Arnesons professional
success from 1999 through 2002, Arneson admitted unredacted
copies of the LAPD operator security statements, which noted that
certain (but not all) of the statutes that Arneson violated were
punishable as misdemeanors.
Arneson now asserts on appeal that he believed that his
violations were misdemeanors. (AOB 20 n.8). This was not
established at trial, and none of the record cites that Arneson
provides establishes otherwise. Rather, the transcripts that he
cites merely establish that Arneson knew that he could be
subject to state level criminal prosecution. (4/11/08
(P.M.) RT 124-25). While the one 1989 operator security
statement that Arneson cites references the unauthorized access
of an LAPD computer system as being a public offense under
Penal Code 502 and the disclosure of criminal history
information as being a misdemeanor under 11142 and 13303 (AER
178), another more recent one -- in fact the one Arneson signed
most recently before the first charged bribery racketeering act - clearly explains that certain subsections of Penal Code
502(c) are felonies. (4/11/08 RT (P.M.) 20-23; Exh. 316; GEX
2081).
448
[accessing the LAPD computer systems to conduct database inquires

for Pellicano] that this was illegal conduct?, Arneson smugly
testified Let me put it this way.
I knew I could be subjected
to departmental administrative action and the possibility of

state court.
(4/11/08 (A.M.) RT 74-75).
Having accepted
payment to violate a legal duty, Arnesons conduct constitutes

bribery in its most classic form.
within the scope of 68.
Such conduct falls squarely
See Markham, 30 P. at 621.
Separately, Arnesons conduct also violates 68 because

Arneson agreed to violate his offices duties when he accepted
the monthly 2,500 payments from Pellicano.
Multiple forms of
trial evidence, including admissions made by Arneson himself,

established that Arneson was well versed in the LAPDs code of
conduct, including its established policies prohibiting employees
from accessing NCIC and CLETS for other than official
investigative purposes and barring the dissemination of the
confidential information obtained from these databases to members
of the public, including private investigators and/or sources.323
323
Trial evidence established that Arneson had attended the

required NCIC-specific training for over two decades, received
successive copies of the LAPD Manual including in each of the
four years (1999 to 2002) during which he conducted the database
inquiries underlying the charged offense conduct, and signed
numerous operator security statements, including in both April
1998 and August 2002, which effectively bracketed the offense
conduct and expressly informed Arneson that the unauthorized
accessing and/or the wrongful dissemination of the confidential
materials contained within law enforcement databases could be
(continued...)
449
Therefore, every one of the thousands of times Arneson

investigated a PIA adversary by accessing these databases without
and conducting an inquiry to acquire confidential information on
the search subject for dissemination to Pellicano, he willfully
violated for profit established LAPD policies knowing that he
could be subjected to departmental administrative action -i.e., suspended and/or fired, for having done so.
falls squarely within the scope of 68.
Such conduct
See Markham, 30 P. at
621 (The scope of the definition of bribery is as broad as the

duties of the officer who accepts the bribe.).
Separately yet again, the evidence was sufficient to support
a 68 violation because, even had Arnesons conduct not violated
duties imposed by both the law and his office, the evidence
established that he was acting in his official capacity when he
accepted these bribes.
Under California law, a party acts in his
official capacity by performing an act that properly belongs to

the office and is intended by the officer to be official.
211 P.2d at 24; accord Guillory, 3 Cal. Rptr. at 417.
Lips,
The
evidence established that Arneson performed an act that properly

belonged to the office.
It was exclusively by virtue of his
office that Arneson (as opposed to Pellicano or PIA) had access

to, and was able to conduct inquiries on, the LAPDs restricted-
323
(...continued)
punished as a felony.
(GEX 2081-82).
450
access law enforcement databases.
The evidence likewise
established that Arneson intended that these inquiries be

official.
Arneson well knew the legal and professionally imposed
proscriptions that governed access to, and dissemination of

materials obtained from, restricted law enforcement databases
like NCIC and CLETS.
Arneson therefore represented each time
that he entered an LAPD station, sat at an LAPD computer terminal

to which access was limited to LAPD officers conducting official
law enforcement investigations, reviewed the initial screen
reminding him that the computer could be used solely for
official police business, input his two unique passwords that
the LAPD had assigned him for the limited purpose of conducting
inquiries that were designed to further official law enforcement
investigations (and in the case of an NCIC database inquiry, an
explanation of the law enforcement purpose for which the
information was sought), accessed the CLETS and/or NCIC databases
to obtain confidential law enforcement records on private
citizens, and printed these records at his LAPD terminal so that
he would be in physical possession of the confidential
information contained, that he had both the right to know and
the need to know, the information obtained -- in other words,
that he was conducting official LAPD business.
In fact, absent
such a tacit representation, Arneson, like Pellicano, legally

would have been barred from accessing these databases and
451
possessing the confidential information contained therein.
Thus,
like the law enforcement officer in Lips who, while exceeding

lawful authorization, used the legitimacy of his office to secure
a bribe, Arnesons conduct was corrupt to the core.
Arneson, however, advances four separate challenges to the
sufficiency of the jurys findings that he accepted bribes in
violation of 68.
Each is an alternative argument regarding why
his conduct purportedly did not constitute a matter then

pending, or that may be brought before [him] in his official
capacity.
(AOB 15-17).
Each is meritless.
Arnesons principal argument is that the record purportedly

is devoid of evidence that he was acting in his official capacity
when he accepted Pellicanos monthly $2,500 payments.324
15).
(AOB
Arneson attempts to support this argument through his claim
that he purportedly refused to provide Pellicano with information

from LAPD cases and once instructed Pellicano to destroy
information that Arneson had provided in the ongoing LAPD/LADA
Jones rape prosecution.
(Id.).
This argument is unfounded in
both fact and law.
324
In district court pleadings, Arneson argued differently,

conceding that he had acted within his official capacity: while
Arnesons alleged use of law enforcement databases and disclosure
of such information to Pellicano were acts within his official
capacity; the government fills pages . . . arguing that
Arnesons use of law enforcement databases occurred in his
official capacity as a police officer. Arneson does not dispute
this. (CR 838).
452
Arnesons factual support provides no support at all.
As a
preliminary matter, Arneson attempts to create a distinction not

found in the law.
As discussed, 68 does not require that the
matter involve an ongoing LAPD proceeding; instead, it must only

be one that conceivably could be brought before Arneson in his
capacity as a police officer.
See, e.g., People v. Anderson, 216
P. 401, 401-02 (Cal. Ct. App. 1923) (officer guilty of 68

violation for accepting bribe in connection with corrupt
enforcement of what he believed to be an out-of-state warrant).
Moreover, the sole basis for Arnesons claim that he would not
provide information on LAPD matters is his own uncorroborated,
self-serving testimony.
But because Arneson was shown to be an
inveterate liar, his testimony on this point must be discarded.

United States v. Lindsey, 634 F.3d 541, 552 (9th Cir. 2011)
([V]iewing the evidence in the light most favorable to the
government mandates that we not consider the plausibility of
exculpatory constructions advanced by the defendant.); United
States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974) ([A] trier of
fact is not compelled to accept and believe the self serving
stories of vitally interested defendants.
Their evidence may not
only be disbelieved, but from the totality of the circumstances,

including the manner in which they testify, a contrary conclusion
may be drawn.).
This is particularly true given that the
evidence, when viewed in the light most favorable to the
453
government, unequivocally establishes that Arneson did provide

Pellicano with confidential information involving parties to
either ongoing LAPD matters (e.g., the John Gordon Jones and
Kalta sexual assault cases, the Theohar oustanding warrant, and
the Mueller death threat investigation), matters that quickly
came before the LAPD (e.g., the Busch threat), and matters that
conceivably could be brought before the LAPD, including several
that Arneson claimed had come before the LAPD (e.g., the Rock
extortion and Finns and Rusconis prostitution).
Arnesons additional claim that he told Pellicano to destroy
the confidential criminal history reports that Arneson provided
to PIA on identified victims and witnesses in the Jones LAPD/LADA
rape case after Arneson purportedly discovered that he had
provided Pellicano with information regarding an ongoing LAPD
matter is not only self-serving and wholly uncorroborated, it is
flatly contradicted by the testimony of multiple witnesses, whose
testimony must be credited over Arnesons.
Arnesons claim, legally, also is directly refuted by the
record.
As discussed, trial evidence established that Arneson
was acting in his official capacity when, for payment, he

acquired for PIA confidential information from restricted-access
law enforcement databases.
Thus, this claim fails.
Arneson next claims that his conduct could not be on a

matter brought before him in his official capacity because
454
although he was authorized to use the LAPD database by virtue of

his office, he was not required to exercise discretion when
conducting inquiries.325
(AOB 15-16).
This claim also is legally
and factually meritless.

Legally, the plain language of 68 contradicts Arnesons
claim that this statute is limited to payments influencing
discretionary acts.
Section 68 expressly proscribes the
acceptance of bribes by executive or ministerial officers.

Cal. Pen. Code 68.
Ministerial officers are, by definition,
those individuals employed in positions in which the duties to

be performed [are defined] with such precision and certainty as
to leave nothing to discretion.
People v. Strohl, 129 Cal.
Rptr. 224, 232 (Ct. App. 1976) (distinguishing between

ministerial and executive officers based on the level of
discretion present in the overall position as opposed to the
325
Arneson claims that the non-discretionary nature of the

conduct precludes it from being capable of determining the
outcome of any particular matter. (AOB 15). Section 68
does not include any language that the bribe must determine an
outcome. Moreover, to the extent that this terminology has
been used by the California courts, it has been in the context of
explaining that a matter need not be pending at the time a bribe
is received. People v. Diedrich, 31 Cal.3d 263, 276 (1982)
(interpreting Penal Code 165); Giao, 97 Cal. Rptr. 2d at 402.
Instead, the focus must be on the payments ability to influence
the receiving party (thereby determining the outcome) in the
event that a matter that conceivably could become the bribed
party in fact did come before the bribed party. See, Gaio, 97
Cal. Rptr. 2d at 402. ([I]t is the payment or the agreement to
provide payment, that constitutes the criminal act [as opposed to
the specific object of the bribe].).
455
level of discretion demonstrated in carrying out a particular

act); see also; Finklestein, 220 P.2d at 942-43 (noting that 68
extends to bribes received by ministerial officers).326
Because
it is immaterial under 68 whether the object of the bribe

involves discretionary or non-discretionary acts, whether
Arnesons actions were discretionary should have no impact on
this Courts sufficiency determination.
326
Arneson cites five California cases to support his claim

that an act must be discretionary to qualify under 68 as a
matter brought in an officers official capacity. (AOB 16). Of
these, only one -- Markham -- addresses 68 and its holding -finding that the scope of the definition of bribery is as broad
as the duties of the officer who accepts the bribe and
encompassed the conduct of a police officer who accepted a
regular stipend in return for agreeing to systematically not
arrest any one of a class of offenders -- runs counter to
Arnesons claim. The other four decisions did not involve 68,
but 67, for which California law is clear that no action by the
bribed party is required. Not only do these cases offer no
support for Arnesons claim, Hallner, 277 P.2d at 395-96,
directly undercuts it when it expressly explains that, while 68
initially was limited to executive officers, in 1933, the
California Legislature broadened 68s scope to include
ministerial officers, who lacked discretion in the performance of
their duties.
456
Arnesons actions, however, were discretionary.327
Every
time that Arneson was presented with a $2,500 payment from

Pellicano, he exercised discretion in accepting the payment
knowing that, in return, he would be called on to violate
established legal and professional duties imposed upon him as a
sworn LAPD officer.
Every time Arneson received a request from
Pellicano to investigate PIAs adversaries by conducting

restricted-access database inquiries to secure confidential law
enforcement information on these individuals, Arneson exercised
discretion in electing to divert his time and attention away from
the criminal investigations that he was assigned to conduct and
instead use that time to investigate PIAs adversaries.
Every
time Arneson sat down at an LAPD terminal to conduct a Pellicanodirected inquiry on CLETS or NCIC, Arneson, having accepted
payment from Pellicano, exercised discretion in electing to
violate the law, LAPD policy, and the privacy rights of the
individual he was investigating by accessing these databases
327
In addition to being directly refuted by the evidence,

Arnesons claim is contrary to his testimony. Arneson testified,
albeit perjuriously, that he accessed restricted law enforcement
databases without legal authorization and provided the resulting
confidential reports to Pellicano even though he knew that doing
so violated the law, LAPD policy, and the privacy rights of the
hundreds of individuals on whom he conducted thousands of
inquiries because he decided that the law enforcement tips that
he received and used to build cases in return served LAPDs
greater good. (4/11/08 RT (A.M.) 80-81). While inherently
false, even his own explanation of his conduct reflects the
central role that discretion played in his actions.
457
without the requisite authorization and knowing that by doing so,

he could be, in his own words, subjected to departmental
administrative action and the possibility of state court.
(4/11/08 (A.M.) RT 74-75).
Every time Arneson conducted each of
the thousands of illicit database inquiries that Pellicano paid

him to perform and thereby investigated hundreds of indiviuals
on PIAs behalf, he exercised discretion as to the particular
database to access and whether, based on the information
generated, any follow-up investigation should be conducted
through additional database inquiries.328
Every time that Arneson
reviewed the confidential information contained in an NCIC or

CLETS-generated report, Arneson exercised discretion as to
whether and to what extent he further should act on PIAs behalf
based on the information contained therein and whether he should
disseminate the information to PIA, again knowing that by doing
so, he was violating LAPD policy and state law for which he could
be subjected to departmental administrative action and the
possibility of state court.
(4/11/08 (A.M.) RT 74-75).
And
every time Arneson sought to conceal his activities with

Pellicano by misrepresenting or omitting information -- whether
by falsifying his daily progress reports, failing to report that
an outside party was seeking confidential information and/or
328
This was plainly shown through the Pellicano/Arneson

call relating to the Hoss manslaughter prosecution.
458
lying to superior officers about the nature of his professional

relationship with Pellicano -- Arneson exercised discretion in
violating the LAPDs code of conduct.
Stated simply, every
aspect of Arnesons corrupt behavior was infused with discretion.

Therefore, even had there been a requirement under California law
that his actions be discretionary, it easily would have been met.
Citing the California Court of Appeal decision in Lips,
Arneson next claims that his monthly acceptance of $2,500
payments to violate established LAPD policy and state law could
not constitute a 68 violation because whether an officials
conduct falls within his specific jurisdiction has little
bearing on whether the conduct constitutes a bribe.
(AOB 16).
Arnesons position represents a fundamental misreading of the

Lips decision.329
Lips involved a police officer who was convicted of
accepting a bribe in lieu of conducting an arrest.
The defendant
sought reversal of his 68 conviction because, at the time he
329
Arneson effectively turns Lips rationale on its head.

If, as Arneson claims, 68 does not criminalize instances when a
police officer accepts payment to provide confidential law
enforcement information to a third party in violation of either
LAPD policy or his lawful authority, it is not clear what conduct
ever would fall within the scope of this statute. For example,
under this theory, a cartel kingpin would not be guilty of
bribery for paying a law enforcement officer $1,000,000 for
confidential information identifying the name and address of an
informant against whom the kingpin has placed a hit. Nor would a
stalker who paid to access reports that would allow him to
identify a former love interest who changed her identity out of
safety concerns.
459
accepted the bribe, an arrest warrant had not yet issued for the
suspect and he therefore lacked the legal duty to conduct the
arrest.
Lips, 211 P. at 24.
In rejecting the defendants claim,
Lips made clear that 68s scope is not limited to instances

when the conduct properly falls within an officers legal duty -i.e., the officers jurisdiction -- but rather extends to
instances in which the conduct involved was not otherwise
authorized under the law but still was performed by the officer
while acting in his official capacity.
Id. at 25.
Lips then
affirmed the bribery conviction, finding that, despite acting

without legal authority, the officers action in accepting a
bribe in lieu of conducting an arrest was corrupt in the last
degree.
Id. at 26.
Lips therefore undermines, rather than aides, Arnesons

sufficiency challenge.
Instead of narrowing the scope of 68,
it recognized the statutes full breadth and did so in a manner

that encompasses the conduct at issue.
As discussed above,
Arnesons actions directly violated multiple duties imposed upon

him under the law and by his office.
Such conduct fell within
Arnesons jurisdiction and therefore, properly served as a

basis for a 68 violation under Lips.
And even if Arnesons
conduct had not violated an existing legal duty, and therefore,

technically fell outside his jurisdiction, it still would
violate 68 because, while not legally authorized, Arneson acted
460
in his official capacity.
As with the officer in Lips, Arnesons
conduct was corrupt in the last degree and fell squarely within
the scope of 68.
Lips, 211 P. at 26; see also, e.g., Markham,
30 P. at 622 (bribery of a police officer undermines the

administration of justice as the state has an officer corrupted,
and society has lost all protection for its rights, as far as the
as the administration of the law by him is concerned).
Lastly, in a claim founded on a misapplication of the D.C.
Circuits decision in Valdes v. United States, 475 F.3d 1319
(D.C. Cir. 2007) (en banc), Arneson asserts that his conduct did
not violate 68 because this statute does not extend to misuse
of the LAPD database for non-official purposes.330
(AOB 17).
As
discussed later, Valdes is a wrongly decided, non-controlling

decision involving the application of the federal anti-gratuity
statute, which both this Court and the California appellate
330
Although Arneson repeats Valdes references to

moonlighting, he wisely has not characterized his conduct as
such. Trial evidence established that the overwhelming majority
of Arnesons thousands of restricted-access database inquiries
were completed during his work shifts, the very time when he was
being paid by the City of Los Angeles to perform his duties as a
police officer. Moreover, all of the inquiries were conducted at
an LAPD station, using LAPD computer terminals that were
available to be accessed exclusively by LAPD officers exclusively
in the official course of their LAPD investigative duties.
Furthermore, Arnesons own (albeit perjurious) defense was that
he provided the confidential, restricted-access information to
Pellicano because Pellicano would provide him with law
enforcement leads -- a matter directly tied to his office.
Simply stated, Arnesons conduct was the antithesis of
moonlighting. (4/25/08 (P.M.) RT 47-53; GERT 7294-7300).
461
courts expressly have found to be materially distinguishable from

the California bribery statutes, including 68.
at 805-06; Gaio, 97 Cal. Rptr. 2d at 400-01.
Frega, 179 F.3d
Valdes simply has
no applicability here.331
In addition to his misplaced reliance on Valdes, Arnesons
premise is unfounded.
Every instance of bribery involves the
misuse of government resources for technically non-official

purposes for personal financial gain.
This is true whether it be
a police officer who misuses the authority of his position by

accepting payments in return for an agreement not to investigate
a specified category of crime (Markham) or to release an arrestee
(Lips); the judge who, for a fee, misuses his assignment
responsibilities to steer cases to a particular attorney (Frega);
or a legislative aide who accepts money to misuse his access to
lawmakers to advance legislation favoring the bribing party
(United States v. Freeman, 6 F.3d 586, 595 (9th Cir. 1993)).
This is true for Arneson too.332
Like these other individuals, it
was by virtue of Arnesons official authority that he was able to

conduct the inquiries for which he was bribed.
His actions were
331
To the limited extent that Valdes has any impact on the

sufficiency determination, it would support the jurys bribery
findings, not undermine them, as discussed later.
332
Arneson emphasizes that he personally was not involved

in threats (AOB 71), while ignoring that he fed confidential
information to Pellicano, who exploited this information to
intimidate and defeat PIAs adversaries.
462
just as corrupt in the last degree and fell squarely within the
scope of 68.
As with Pellicano, the evidence was far more than sufficient
for a rational juror to find that Arneson accepted each of the
$2,500 bribe payments set forth in racketeering acts 80-89 in
violation of Penal Code 68.
The jurys findings as to these
racketeering acts should be affirmed.
Moreover, because these
racketeering acts independently establish the requisite pattern

of racketeering, Arnesons RICO and RICO conspiracy convictions
should be affirmed.
This, in turn, also would support affirmance
of Pellicanos and Turners RICO conspiracy convictions.

4.
The Jurys Findings as to the Racketeering Acts and

Substantive Counts That Alleged Honest Services Fraud
Should Be Affirmed
a.

1346 Findings
The jury found as part of its verdict on count one (the

substantive RICO count) that the enterprises pattern of
racketeering included each of the honest services fraud
violations alleged against Pellicano (46) and Arneson (44).333
(CR 1607-08).
The jury also found Pellicano and Arneson guilty
of the 17 substantive counts of honest services fraud in which
333
Racketeering acts 1 through 44 charged Pellicano and

Arneson with 1346 violations based on the NCIC inquiries that
Arneson was paid to conduct on PIAs behalf. Racketeering acts
45 and 46 charged Pellicano with additional violations arising
from NCIC inquiries that Pellicano paid Stevens to conduct. (CR
1604).
463
they jointly were charged (counts 3-19) and Pellicano guilty of

the two additional counts in which he individually was charged.
(counts 47-48).334
(Id.).
Neither Pellicano nor Arneson challenged the sufficiency of

the evidence in support of the jurys honest services findings in
their Rule 29 motions.335
(CR 1652, 2022).
Nevertheless, both
now claim that based on the Supreme Courts decision in Skilling

v. United States, 130 S. Ct. 2896 (2010), which narrowed the
scope of honest services fraud by requiring that it be founded on
schemes involving bribery and kickbacks, the evidence was
insufficient to support a 1346 violation.
(POB 52-54; AOB 10-
17).
Pellicano and Arneson waived this claim by failing to raise
it below.336
Graf, 610 F.3d at 1166.
sufficiency challenges are meritless.
Even if not waived, their

Pellicano claims that the
334
A representative sampling of the 1346 violations

alleged as racketeering acts, including the two involving
Stevens, were realleged as substantive 1346 violations. (CR
1604.)
335
Arnesons Rule 29 motion solely challenged the

sufficiency of the evidence in support of select elements of the
substantive RICO count. It did not challenge the sufficiency of
the evidence in support of any racketeering act, the pattern of
racketeering, or any of Arnesons 45 other counts of conviction,
including his 17 honest services fraud convictions. (CR 1652.)
Pellicano did not file a Rule 29 motion, electing instead to join
Arnesons motion. (CR 2022.)
336
Pellicano and Arneson, like Skilling, could have raised

at trial the same legal challenge that they raise now. Their
election not to do so constitutes waiver.
464
1346 offenses were based on the undisclosed self dealing theory

invalidated by Skilling.
(POB 52-53.)
This is demonstrably
false, as the indictment and trial evidence plainly establish

that the honest services fraud was founded on a bribery scheme.
Arneson does not contest that the evidence presented at
trial was sufficient to support each of the jurys 1346
findings at the time of verdict (rather, he contends that, as the
crime of honest services has now been defined in Skilling, the
evidence was not sufficient).337
(AOB 10).
Arneson further does
not contest that the honest services claim was founded on the
theory that he accepted payment in return for providing Pellicano
with confidential law enforcement information, conceding that it
was the lynchpin for the bribery and honest services-based
RICO charge.
(AOB 2).
Instead, Arnesons sufficiency challenge
is premised on the singular claim that his acceptance of monthly

$2,500 payments from Pellicano to access restricted law
enforcement databases to investigate PIAs adversaries and then
to provide the confidential information obtained from these
inquiries to PIA, as a matter of law, did not constitute bribery
337
One of the elements of an honest services violation is

a specific intent to defraud, which the government proves if
it proves that the scheme was reasonably calculated to deceive.
Kincaid-Chauncey, 556 F.3d at 941, 945. Because that element has
not been altered by Skilling, by acknowledging that the evidence
was sufficient to support each of the jurys 1346 findings at
the time of trial, Arneson therefore concedes that the evidence
sufficiently established his specific intent to deceive.
465
as defined either under (1) federal law, which he claims provides

the outer boundaries of 1346 or (2) if Skilling incorporates
state law bribery, under Penal Code 68.
(AOB 10-17).
Section 1346s scope post-Skilling is not defined by the

federal bribery or kickback statutes.
Instead, as held in
Skilling, it is defined by the bribery and kickback schemes that

served as the core of the pre-McNally case law, which included
state law bribery.
Skilling, 130 S. Ct. at 2931.
As described
earlier, the underlying conduct on which both the honest services

charges and bribery racketeering acts were based - Arnesons
acceptance of monthly $2,500 payments in return for accessing
restricted law enforcement databases and providing PIA with the
confidential information obtained therefrom violated Penal
Code 68.
These acts of bribery, which were part of an ongoing
bribery scheme that was co-extensive with the charged honest

services scheme satisfy Skillings requirement that 1346
violation be founded on bribery.
Moreover, even if this Court
were to conclude that Skilling requires the underlying conduct to

satisfy the federal definition of bribery, this would not render
the evidence insufficient because Arnesons conduct would meet
the definitions of bribery set forth in both 201(b)(2)(A)
(acceptance of thing of value to influence an official act) and
201(b)(2)(C) (acceptance of thing of value to be induced to do
or omit to do any act in violation of the officers official
466
duty).
As the 1346 offenses were founded on a bribery scheme,
the evidence, which was sufficient pre-Skilling remains

sufficient post-Skilling.
(1)
Skilling Does Not Alter the Sufficiency

Determination
In Skilling, the Supreme Court rejected a request to

invalidate the honest services statute as being
unconstitutionally vague.
Skilling, 130 S. Ct. at 2925.
Skilling held that, properly construed, 1346 encompassed the

paradigmatic cases of bribes and kickbacks that served as the
core of the pre-McNally case law338 that Congress sought to
reinstate when enacting 1346 but did not extend to
undisclosed self dealing by public or private parties.
2929, 2931, 2933.
Id. at
After expressly acknowledging that 1346 was
a RICO predicate, Skilling further noted that when construed

consistently with its holding, vagueness concerns were not
implicated because whatever the school of thought concerning the
scope and meaning of 1346, it has always been plain as
pikestaff that bribes and kickbacks constitute honest services
fraud.
Id. at 2933.
Section 1346s scope, therefore, is set by
338
In McNally v. United States, 483 U.S. 350, 360 (1987),

the Supreme Court invalidated the intangible rights theory of
mail and wire fraud. Congress enacted 1346 the following year
to reinstate the theory. Skilling, 130 S. Ct. at 2927.
467
the bribery and kickback cases that predated its enactment.339

United States v. Bahel, 662 F.3d 610, 632 (2d Cir. 2011) (finding
that Skilling holds that fraud actionable under Section 1346 is
limited to the nature of the offenses prosecuted in the preMcNally cases (i.e., bribery and kickback schemes)).
(2)
Arnesons Conduct Constitutes Bribery Within

1346s Scope Post-Skilling
Arnesons sufficiency challenge is founded on either

Skilling or the rule of lenity mandating that federal law
defining bribery and kickbacks [serve as] the outer limits of the
reach of honest services wire fraud.
(AOB 10-11).
Arneson then
contends that his conduct in accepting over $190,000 from

Pellicano to violate multiple duties imposed by law and his
office by accessing restricted law enforcement databases to
investigate hundreds of PIAs adversaries and to provide PIA
confidential information obtained from these searches, again in
violation of duties imposed by law and his office, does not fall
within the federal definition of bribery and therefore cannot
serve as the basis of a 1346 offense post-Skilling.
339
(AOB 10-
In determining which cases fell within the honest

services doctrines core, Skilling looked to the substance of
the alleged conduct, not necessarily the theory of liability
asserted. Thus, although the theory of liability in McNally was
nondisclosure of a conflicting financial interest, the Court
characterized McNally as a classic kickback scheme: A public
official, in exchange for routing Kentuckys insurance business
through a middle-man company, arranged for that company to share
its commissions with entities in which the official held an
interest. Skilling, 130 S. Ct. at 2932.
468
11).
Both arguments are unfounded, as they are based on a
fundamental misreading of Skilling.

Skilling incorporates into, rather than excludes from,
1346s scope bribery or kickback schemes that based on state
law.
Although Skilling briefly referenced federal statutes
criminalizing bribes and kickbacks which it identified as

similar crimes when discussing why its holding provided
sufficient clarity for enforcement, it carefully explained that,
while 1346 partially overlapped with these statutes, its reach
extended beyond them: the principle federal bribery statute,
201, for example, generally applies only to federal public
officials, so 1346s application to state and local corruption
and to private sector fraud reaches misconduct that might
otherwise go unpunished.
130 S. Ct. at 2933-34, n.45.
In doing
so, Skilling rendered explicit what was implicit in its holding340

that the core pre-McNally bribery and kickback schemes included
those that were founded in state law violations.
The Fifth Circuit, in United States v. Teel, 691 F.3d 578,
583-84 (5th Cir. 2012), recently considered and rejected a claim,
340
For example, the case identified by Skilling as being

the genesis of the intangible rights theory, Shushan v. United
States, 117 F.2d 110, 114-15 (5th Cir. 1941), involved mail fraud
charges premised on a bribery scheme in which the actions of city
government employees were influenced in the lead-up to a city
bond measure. Likewise, United States v. Lovett, 811 F.2d 979,
980, 984 (7th Cir. 1987), involved a mail fraud charge based on a
state law bribery scheme in which a small town mayor was bribed
in connection with the awarding of a cable television contract.
469
similar to Arnesons -- namely, that Skilling limited 1346 to

bribery and kickback schemes based on federal, rather than state
law, violations.341
In affirming honest services convictions that
were obtained in a trial in which the jury was instructed

regarding bribery under Mississippi law, the Fifth Circuit
explained [a] fair reading of Skilling, however, reveals that
the Court was construing 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 prosecution.
Id. at
584.
The rule of lenity, which is founded in notice, also does
not support Arnesons claim that the federal definitions of
bribery and kickbacks must serve as the outer boundaries of
1346.
The Court specifically considered and applied the rule
of lenity when it set forth its holding in Skilling that 1346s

scope was limited to the bribe-and-kickback core of the preMcNally case law.
Skilling, 130 S. Ct. at 2931, 2934.
Provided
that the conduct involved falls within these parameters, there is

no basis for applying the rule of lenity because, as Skilling
341
The Fifth Circuits earlier decision affirming the

defendants convictions against claims of instructional error,
United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009), was
cited approvingly by Skilling, 130 S. Ct. at 2934.
470
concluded, individuals who engage in such conduct cannot tenably

complain about prosecution on vagueness grounds.
S. Ct. at 2934.
Skilling, 130
Just as it would be plain as pikestaff that
bribes and kickbacks constitute honest services fraud when

premised on a violation of a federal bribery or kickback statute,
it would be equally so if founded on a state bribery or kickback
violation.342
Id. at 2933.
For as Skilling explained, a
prohibition on fraudulently depriving another of ones honest

services by accepting bribes or kickbacks does not present a
problem [with fair notice or arbitrary enforcement], the two
benchmarks of vagueness doctrine.343
This is particularly true in
this Circuit, as this Court previously upheld against a vagueness

challenge to honest services convictions premised on violations
of the California bribery statutes, finding that it is not
unreasonable to conclude that a person of reasonable intelligence
would conclude that the accepting of bribes while [serving as a
342
Notably, Skilling did not include bribery or kickbacks

of any kind. Skilling, 130 S. Ct. 2934. Therefore, the Court
was addressing the bribery and kickback schemes that historically
had served as the basis of honest services mail and wire fraud
violations, which included state bribery violations.
343
While this Court has found the California bribery

statutes to be broader than the federal bribery statutes, Frega,
179 F.3d 805-07, the application of 68 in this case, which
Arneson previously acknowledged to be a classic quid pro quo
money-for-information exchange (CR 766), falls within the scope
of federal law defining bribery.
471
public official] constitutes a criminal offense.344
Frega, 179
F.3d at 803.
Section 1346s scope is, precisely as stated in Skilling,
limited to those violations of the intangible right of honest
services that involve bribery or kickback schemes.
This includes
bribery and kickback schemes founded in state law, including the

bribery scheme underlying the 1346 offenses charged here.
Therefore, provided that this Court finds that the evidence was
sufficient for a rational juror to conclude that Arnesons
conduct violated 68, Arnesons sufficiency challenge fails and
this Court can affirm the jurys findings as to each of the
racketeering acts and counts of conviction that charged Arneson
with having committed honest services fraud.345
344
In a similar vein, Frega, 179 F.3d at 800, addressed the

inclusion of state-law bribery claims in RICO cases and, quoting
United States v. Griffth, 85 F.3d 284, 288 (7th Cir. 1996), found
that bribery of local law enforcement and government officials
is just the sort of corruption connoted by the term
racketeering and targeted by various federal statutes.
Therefore, Arneson had more than adequate notice that he could be
prosecuted under both 1346 and 1962 for acts involving, or
founded upon, state-law bribery.
345
This finding is not dependent on this Courts

determination as to whether the bribery racketeering acts were
timely, since independent bribery counts need not be charged
alongside 1346 violations. See, e.g., Skilling, 130 S. Ct. at
2932 (finding kickback scheme in the general allegations of the
1346 charge). The question is simply whether the evidence
established that Arneson accepted bribes as part of the 1346
scheme.
472
Should this Court conclude, as Arneson contends, that

Skilling requires that the underlying bribery scheme fall within
the definition of bribery under federal law, Arnesons
sufficiency challenge still would fail.346
Section 201 sets forth
three separate paths through which a government official can be

guilty of soliciting or accepting a bribe, two of which apply to
Arnesons conduct and independently dispose of Arnesons
sufficiency challenge.
Most directly on point is 201(b)(2)(C), which proscribes
the corrupt solicitation, receipt or acceptance of a thing of
value in return for being induced to do or omit any act in
violation of the official duty of the officer.
The elements of
bribery under 201(b)(2)(C) are: (1) the defendant was a public

official;347 (2) the defendant solicited, received, or agreed to
receive something of value in return for being persuaded to do or
346
The government notes, however, that the federal code

defines bribery differently not only within a given statute but
across statutes. Compare, e.g., 201 (multiple definitions
discussed herein) with 666 (corrupt solicitation or receipt of
thing of value with intent to be influenced in connection with a
business, transaction, or series of transactions). The
government will confine its analysis to 201, however, as it is
sufficient to dispose of Arnesons arguments.
347
The government recognizes, as Skilling, 130 S. Ct. 2934

& n.45, did, that 201 extends to a statutorily defined universe
of federal officials. It does not appear that Arnesons
definitional argument properly can be read as requiring that he
satisfy this particular element; nor could it, as Skilling
explicitly stated that the 1346s scope extends beyond the
limited reach of this class of public officials. Id.
473
not do an act in violation of the defendants official duty; and

(3) the defendant acted corruptly, that is, intending to be
influenced to do or omit an act in violation of the defendants
official duty.
Cir. 2002).
United States v. Leyva, 282 F.3d 623, 625-26 (9th
As set forth at length earlier, Arnesons acceptance
of monthly payments of at least $2,500 totaling over $190,000

over a five-year period in return for his standing agreement to
access restricted law enforcement databases to conduct what
proved to be thousands of investigative inquiries on hundreds of
PIAs adversaries including those NCIC inquiries alleged as
racketeering acts and substantive counts so that he could
provide the confidential information obtained therefrom to PIA
violated multiple duties imposed upon Arneson by both the law and
his office.
For the same reasons that this conduct violates
68, it also would violate 201(b)(1)(C).
See, e.g., United
States v. Lanci, 669 F.2d 391, 392-93 (6th Cir. 1982) (affirming
201(b)(1)(C) conviction of former FBI clerk who was paid to
provide confidential law enforcement information to a private
party); Parks v. United States, 355 F.2d 167, 168 (5th Cir. 1965)
(affirming bribery conviction of air force employee who sold
confidential information, i.e., the names of all new recruits, to
an insurance salesman and finding that the conduct would violate
both 201(b)(1)(C) and 201(b)(1)(A)).
474
This, in turn, provides
another independent basis for rejecting Arnesons sufficiency

claim.
Similarly, Arnesons conduct also satisfies the definition
of bribery under 18 U.S.C. 201(b)(1)(A), which proscribes the
corrupt solicitation, receipt or acceptance of a thing of value
in return for being influenced in the performance of an official
act.
The elements for this offense are identical to those of a
201(b)(1)(C) offense, with the exception that 201(b)(1)(C)s

duty requirement is replaced by an official act requirement
in the second and third prongs.348
As discussed earlier, Arneson
accepted the $2,500 monthly payments in return for agreeing to

investigate scores of individuals identified by Pellicano by
accessing restricted law enforcement databases available to
Arneson only through his employment as a police officer to
ascertain the confidential information state and federal
governments have compiled on those individuals, again for law
enforcement purposes, and to act on the information if
appropriate.
By accepting payment to be influenced in the
performance of an official act, Arnesons conduct violated

201(b)(1)(A).
348
Section 201 defines official act as any decision or

action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which by law
may be brought before any public official, in such officials
official capacity, or in such officials place of trust or
profit. 18 U.S.C. 201(a)(3).
475
Arneson cites one case the D.C. Circuits decision in

Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en
banc), which interpreted the scope of 18 U.S.C. 201(c), the
federal gratuities statute -- to support his claim that his
conduct fell outside the scope of the federal bribery statute.349
As he does with Skilling, Arneson misapplies Valdes, which
actually undermines, rather than aides, his sufficiency
challenge.
Valdes was a police officer and target of a sting operation
who, at the urging of a confidential informant who Valdes
believed to be a judge, accessed state law enforcement databases
to acquire the names and addresses of four fictitious individuals
for whom Valdes had been provided license plate numbers and to
check whether there was an outstanding warrant for a fifth
fictitious individual.350
Valdes, 475 F.3d at 1321-22.
In
return, Valdes received $450 and subsequently was charged with

three counts of bribery under 18 U.S.C. 201(b)(1)(A).
However,
349
Although not determinative of the actual scope of the

offense, Arnesons trial testimony, if believed, shows that he
subjectively understood that being paid by Pellicano to access
restricted law enforcement databases and to provide the
confidential information obtained therefrom to PIA constituted
bribery. It was the only aspect of the work that Arneson
performed for Pellicano for which Arneson purportedly insisted he
could never be paid. (4/11/08 RT (A.M.) 82-83; GERT 5360-61).
350
As part of the sting operation, the FBI input bogus

information as to each of these fictitious identities in the
databases that would be accessed by Valdes. Valdes, 475 F.3d at
1321-22.
476
in what Valdes acknowledged to be a compromise verdict, Valdes

was convicted of three counts of receiving an illegal gratuity,
in violation of 201(c), a lesser included offense to
201(b)(1)(A).
Id. at 1330.
In reversing these convictions,
Valdes split sharply (7-5) over whether such conduct constituted

an official act under 201(a)(3).
The majority concluded that
it did not in light of both the specific facts presented and its
belief that the Supreme Courts decision in United States v. SunDiamond Growers, 526 U.S. 398 (1999), narrowed the Supreme
Courts prior ruling in United States v. Bidrsall, 233 U.S. 223,
230-01 (1914), that every action that is within the range of
official duty is official action.
Valdes, 475 F.3d at 1323-
29.
In addition to being non-controlling, Valdes holding, which
was based on an unduly restrictive assessment of the breadth of
conduct constituting an official act under 201, is wrongly
decided.
As noted by each of the dissents and in subsequent
decisions of the Eleventh and Fourth Circuits, the Valdes

majority significantly misconstrued Sun-Diamond, as the Supreme
Court did not attempt to alter Birdsalls seminal statement
regarding official acts.
Id. at 1331, 1340-41.
The Eleventh
Circuit expressly rejected the claim that Valdes properly

construed the phrase official act, finding that Birdsalls
broader definition remained controlling precedent.
477
United States
v. Moore, 525 F.3d 1033, 1040-42 (11th Cir. 2008) (affirming

illegal gratuities convictions of corrections officers who had
sex with inmates and finding that acts such as switching shifts,
relaying an inmates message and providing another officer with
an office key to facilitate a sexual rendezvous fell within the
broad definition of official act set forth in Birdsall).
Similarly, the Fourth Circuit, in finding both that the
definition of official act has not changed since Birdsall and
that [t]here is simply no indication that Sun Diamond sought to
undermine Birdsalls holding, stated that Valdes foundation
that the Sun Diamond Court reached its conclusion through the
definition of [official act] -- was a proposition [it was]
unwilling to accept.
United States v. Jefferson, 674 F.3d 332,
354 (4th Cir. 2012).
Specifically, the Fourth Circuit found that
Sun Diamond did not rely on the official act definition to the
exclusion of the rest of the illegal gratuity statute but
[r]ather, the Court merely referenced that definition to defeat
any potential argument that Sun Diamonds narrowing of an illegal
gratuity would be misconstrued as overly inclusive.
Id.
Simply
stated, Valdes limited construction of the scope of official

acts encompassed by 201 is contrary to longstanding controlling
precedent and should be rejected.
In addition, Valdes involved the federal anti-gratuities
statute, not the federal anti-bribery statute -- a distinction
478
that proved critical to its holding.
The Valdes majority
carefully and repeatedly explained that 201s anti-gratuities

provisions were narrower than its anti-bribery provisions.
Valdes, 475 F.3d at 1322, 1327.
As it noted, the federal anti-
bribery provisions, unlike the anti-gratuity provisions, extend

beyond payments received to influence official acts
( 201(b)(1)(A)) to an additional predicate class[] of payments
solicited or accepted to influence an official to violate a
lawful and/or official duty ( 201(b)(1)(C)).
Id. at 1327.
Importantly, while its holding rested on its assessment of the

scope of official acts under 201, the Valdes majority, in an
effort to blunt the dissents searing criticism of its holding,
expressly acknowledged that our decision therefore plainly
continues to allow bribery prosecutions when, for example,
someone offers something of value to induce an official to
provide information in violation of an official duty.
Id.
Moreover, it included 201s anti-bribery provisions among its

list of statutes that were likely violated by Valdes conduct and
expressly conceded that many such Q[uestions]-and-A[nswers],
including perhaps those of [the confidential informant] and
Valdes, however, might qualify as acts in violation of the
official duty of the official, for purposes of the bribery
provision.
Id. at 1324, 1329.
479
A two-judge concurrence (whose votes swung the pendulum in

favor of the Valdes majority), stated even more directly that
Valdes conduct would have violated the anti-bribery statute,
under (b)(1)(C).351
Specifically, along with the five
dissenting judges who found that Valdes conduct qualified as

official action under 201s bribery and gratuities provisions,
a two judge concurrence pointedly noted that: (1) the sharp split
within the en banc Court was a result of the jurys divided
verdict, as well as small but key differences in the textual
scope of the bribery and illegal gratuities statute; (2) the
plain text of the bribery statute actually applies to a broader
range of activities such as disclosing information than
does the gratuities statute; (3) the district court had
properly found at the close of evidence that the evidence
legally sufficed for the jury to find Valdes guilty of bribery
for having disclosed information in exchange for money in
violation of his official duty; and (4) after todays
decision, just as before todays decision, a covered public
official who in violation of an official duty corruptly provides
information in return for something of value commits a federal
crime: bribery. Id. at 1330-31 (Kavanaugh, J., concurring).
351
When added to the five judges who concluded that Valdes

conduct involved an official act, a majority of the en banc D.C.
Circuit actually found that the conduct at issue would constitute
bribery.
480
Therefore, Arnesons contention that it would constitute an

enormous expansion of the anti-bribery statute to encompass
conduct such as his is flatly contradicted by the very case on
which he relies.352
Finally, Arnesons conduct would satisfy even Valdess
erroneously restrictive construction of what constitutes an
official act under 201(a)(3).
The Valdes majority, in seeking
to define parameters between conduct that would meet its

definition of official conduct and conduct that would not, made a
series of factual distinctions that were the product of having a
defendant whose conduct occurred in the context of a wholly
orchestrated sting operation.
Principally, the Valdes majority found that the five
database inquires conducted by Valdes did not constitute
investigative action, which it acknowledged would be deemed an
official act.
While it is far from clear the extent of the
evidence, if any, that was presented on this issue in Valdes, the

trial evidence here established that Arnesons NCIC and CLETS
inquiries constituted investigative action here.
352
In addition,
Arneson cites Valdes discussion regarding

moonlighting and misuse of government resources. (AOB 17).
This discussion occurred in the context of its flawed analysis as
to whether the conduct at issue satisfied the legal definition of
an official act under 201(a)(3). Valdes, 475 F.3d at 1326. As
Valdes simultaneously found that the conduct either did or could
fall within the scope of 201(b)(1)(C), references to this
language, at a minimum, must be confined solely to a
201(b)(1)(A) analysis.
481
the Valdes majority found that accepting payment to initiate,

accelerate, retard, conclude or skew an investigation is
unquestionably conduct prohibited by 201 but was conduct that
was absent in its case.
however.
Id. at 1326.
It was not absent, here,
Whether it was Arneson, at Pellicanos beckoning,
conducting a warrant check and then directing Patrick Theohars

arrest on a four-year-old warrant,353 or Arneson providing
Pellicano with confidential information from restricted access
law enforcement databases on witnesses, victims, and victims
family members to be used by defendants in ongoing criminal
proceedings, such as the Jones rape prosecutions, the Kalta
sexual assault case, the Cohn fraud case, or the Hoss
manslaughter case, Arnesons conduct was designed to initiate,
353
In the very same PIA client matter, Pellicano

orchestrated the filing of a criminal threats case against Max
Russo, the son of PIA investigative target Aaron Russo, by BHPD
officer Stevens, who testified regarding how he conducted
criminal history inquiries on Pellicanos behalf in connection
with the filing of the complaint that initiated the proceeding.
(4/1/08 RT (P.M.) 17-18; 4/8/08 RT (A.M.) 35-36, 41-42; GERT
3656-57, 4575-76, 4581-82).
482
accelerate, retard, conclude or skew an investigation.354
Id.
Furthermore, while acknowledging that conduct that would

have the prospect of bringing about or squelching government
investigation would be sufficient to qualify as an official act
under 201(a)(3), such conduct was not present in its case.
at 1326.
Again, these concerns do not exist here.
Id.
Arneson
repeatedly acted in matters that were being pursued by the LAPD

and other law enforcement agencies, as well as in civil
proceedings that involved criminal and quasi-criminal acts that
certainly could have could, and occasionally did, require law
enforcement intervention.
Moreover, that the information that
Arneson obtained from accessing these restricted law enforcement

databases unto itself could either bring about or squelch a
government investigation was conceded by Arneson, who as
described earlier, falsely testified that he had conducted
database inquiries on individuals like Busch, Finn, Rusconi, and
the victims in the Jones case as part of his investigative
duties.
(4/11/08 RT (P.M.) 39-44; GERT 5455-60).
354
Stevens testified that the database inquiries were a

regular step in the investigative process that, at times, was
determinative as to whether a case would be opened or closed
based on the criminal history of the complainant. (4/8/08 RT
(A.M.) 74-75; GERT 4614-15). Arneson testified, albeit
perjuriously, that it was by conducting restricted access
database inquiries, which he claimed to have done for both law
enforcement and PIA, that he was able to start and finish an
investigation into the party girls referenced by Pellicano, who
in reality were identified victims and witnesses in the Jones
rape prosecution. (4/11/08 RT (AM) 108-11; GERT 4386-89).
483
In return for monthly payments of $2,500 (supplemented by

cash payments), Arneson agreed to violate legal and professional
duties and to conduct official acts by accessing restricted law
enforcement databases to obtain for, and provide to, PIA
confidential information on its adversaries.
Arnesons conduct
represents a classic example of bribery, whether it be defined

under either federal or state law.355
Arnesons sufficiency
challenge, therefore, fails.

iii. Pellicanos fictional sufficiency challenge356
355
Arneson claimed that he provided confidential law

enforcement information to Pellicano, not for money, but for
source information that Arneson could use to advance LAPD
investigations, in what he volunteered was a quid pro quo
exchange. (4/16/08 RT (A.M.) 48; GERT 15609.) This statement -if viewed as an admission -- likely is sufficient, unto itself,
to support the finding that the honest services violations were
founded on a bribery scheme. Given the jurys verdict as to the
bribery counts, the jury obviously found Arnesons testimony on
this issue not credible. However, the jury was certainly free to
accept Arnesons admission of the existence of a quid pro quo
relationship and to credit the overwhelming evidence that the
scheme involved payments, not investigative tips.
356
Pellicanos opening brief includes a general joinder of

Arnesons RICO-based arguments. (POB 59.) This joinder is
insufficient because prejudice and sufficiency arguments are
fact-specific as to each defendant. This is particularly true
here, given that Arnesons arguments focus on the interpretation
and the application of bribery statutes, which differ materially
based on whether one is the party giving or receiving a bribe.
Of course, the elements of offering a bribe also are materially
different than the elements for soliciting or accepting a bribe.
484
If not waived, Pellicanos sufficiency challenge quickly can

be discarded as meritless.
Pellicano, in a misguided attempt to
pigeonhole the honest services offense conduct into the category

of undisclosed self dealing that Skilling held to be outside
1346s scope, asserts that the jurys 1346 findings must be
set aside because the governments closing argument purportedly
consisted of boundless intangible descriptions of something
called honest services that did not include bribery.357
54).
(POB
This is demonstrably false.

As set forth in detail later, and as flatly acknowledged by
Arneson, the lynchpin of the bribery and honest services

charges always has been the theory that Pellicano paid Arneson
357
Pellicano chides the government for referencing in its

closing argument the intangible rights of the LAPD and the
citizens of Los Angeles to have their law enforcement officers
provide honest services. (POB 53-54). It is Pellicano who is
off-base, however. Skilling did not invalidate either the
intangible rights theory of 1346; it simply construed the
statute as limiting violations of intangible rights to instances
when the conduct involved either bribery or kickbacks, as was the
case here. Before Skilling and after, the government remains
obligated to establish that the defendant participated in a
scheme to deprive a designated victim of the right to honest
services and that the defendant acted with the intent to defraud
the designated victim of this right. United States v. Rodrigues,
678 F.3d 693, 696 (9th Cir. 2012). The governments argument was
proper pre-Skilling and remains proper post-Skilling. Moreover,
Pellicano fundamentally misses the point. As Skilling itself
makes clear, whether an invalid theory was pleaded, argued, or
instructed is not the dispositive issue. Instead, the question
is whether there exists sufficient evidence of a bribery or
kickback scheme (or a money and property theory) to uphold the
1346 violation. United States v. Wilkes, 662 F.3d 524, 544
(9th Cir. 2011). There was.
485
and Stevens to investigate PIAs adversaries by accessing

restricted law enforcement databases to acquire confidential
information on PIAs investigative targets for PIAs use.
Moreover, as described, the evidence established that this
conduct, in fact, was bribery.
Therefore, Pellicanos claim is
devoid of merit and must be rejected.

b.
The Jury Instructions Do Not Affect the Validity

of the Jurys 1346 Findings
Pellicano and Arneson failed to object to the district

courts 1346 instructions on the grounds that they needed to
advise the jury that an honest services violation had to be
predicated on either a bribery or a kickback scheme as the
Supreme Court subsequently found in Skilling.
Both now claim
instructional error, however, on this ground.
(POB 52; AOB 17).
This claim, which is subject to plain error review, fails because

the error was not prejudicial.
Through its findings that
Pellicano paid and Arneson accepted bribes -- which were based on

the same underlying conduct as its 1346 findings there can
be no question that the jurys findings on the 1346 offenses
would have been the same had it been instructed in accordance
with Skilling.
In addition, while the jurys findings as to the
bribery offenses is sufficient to resolve the question of

prejudice, a full review of the record independently establishes
this fact.
Given that the Skilling error was not prejudicial,
486
Pellicano and Arnesons substantial rights were not affected and

their claims fail.
Arneson also contends that the 1346 instructions should
have been supplemented to include a good faith advisement.
19).
(AOB
Arneson invited any such error and, thus, this claim is
waived.
Even if he had not done so, the district court did not
plainly abuse its discretion in formulating the 1346

instructions, as this Court repeatedly has found that a good
faith instruction need not be given provided that the specific
intent requirement is accurately and adequately addressed in the
instructions.
Such was the case here.
Moreover, post-Skilling,
the district courts instructional decision stands on even firmer

ground, since Arnesons defense to the bribery scheme on which
the 1346 offenses were founded was not based in good faith but
rather on complete factual innocence, as Arneson claimed never to
have been paid in connection with accessing restricted law
enforcement databases on Pellicanos behalf.
Thus, the district
court accurately and adequately instructed the jury as to the

requisite intent, and no good faith instruction was warranted.
(1)
Standard of Review358
Pellicanos and Arnesons unpreserved claim of Skilling

error is, at most, subject to plain error review.
358
Wilkes, 662
The standards of review for claims of instructional

error are discussed more fully later.
487
F.3d at 544; Pelisamen, 641 F.3d at 404.359
For the inclusion of
a nondisclosure theory to have both affected their substantial

rights -- whether it affected the outcome of the [trial] court
proceedings (prong three of plain-error review) -- and to have
seriously affected the fairness, integrity or public reputation
of judicial proceedings (prong four of plain-error review),
Pelisamen, 641 F.3d at 406-07 (quoting Olano, 507 U.S. at 734),
Pellicano and Arneson must establish that a rational jury would
[not] have found [them] guilty absent the error, Neder v. United
States, 527 U.S. 1, 17-18 (1999).
Arnesons challenge to the district courts formulation of
the honest services instructions, including its decision not to
supplement them instructions with a good faith instruction,
ordinarily would be reviewed for abuse of discretion.
States v. Sarno, 73 F.3d 1470, 1487 (9th Cir. 1995).
United
Here,
however, Arneson invited the errors about which he complains,

meaning that the claims are waived.
359
Even if not waived, they
The 1346 instructions, which Pellicanos counsel

recently conceded were accurate when given (8/13/12 RT 4; GERT
14064), did not advise the jury that 1346 offenses must be
founded on a bribery or kickback scheme because that was not the
law at the time. The first two prongs of plain-error review are
satisfied because the courts instruction was broad enough to
encompass the nondisclosure theory invalidated by Skilling, and
therefore, was error and plainly so at the time of appellate
consideration. Johnson v. United States, 520 U.S. 461, 467-68
(1997) (plainness of error measured at time of appeal);
Pelisamen, 641 F.3d at 405. The briefing, therefore, will be
limited to an analysis of the last two prongs of plain-error
review.
488
would be reviewed only for whether the district court plainly

abused its discretion.
United States v. Vincent, 758 F.2d 379,
380, 383 (9th Cir. 1985) (reviewing claim that district court
gave an improper on the element of specific intent, and that the
court should have instructed that good faith is a defense to
charges of wire fraud for plain abuse of discretion).
(2)
Pellicanos and Arnesons Substantial Rights

Were Not Affected Because the Skilling Error
Was Not Prejudicial
(a)
Skilling Instructional Error
The Supreme Court repeatedly has held that instructional

error, including Skilling error, does not require reversal of a
jurys verdict on an affected count if the error is not
prejudicial.360
See, e.g., Skilling, 130 S. Ct. at 2934
(remanding case for harmless-error review in accordance with

Hedgepeth v. Pulido, 555 U.S. 57 (2008)); Rodrigues, 678 F.3d
695-702 (applying harmless error review to Skilling error claim).
360
That Skilling error does not require reversal is

demonstrated by Skilling itself. Even though the 1346 evidence
presented to the jury rested exclusively on the undisclosed selfdealing theory invalidated by the Supreme Court, the Fifth
Circuit affirmed all of Skillings convictions. United States v.
Skilling, 638 F.3d 480, 483-87 (5th Cir. 2011), cert. denied, 132
S. Ct. 1905 (2012). This included the conspiracy charge that
alleged the 1346 violation as part of a multi-object conspiracy
because the record contained proof beyond a reasonable doubt to
support the jurys verdicts and, therefore, the instructional
error at trial was harmless. Id.
489
As the Court held in Pulido, 555 U.S. at 58,361 instructional

error arising in the context of multiple theories of guilt, like
other instructional errors like the omission or misstatement of
an element of the offense, do not vitiate all of the jurys
findings and therefore are subject to harmless-error review.362
Pulido reversed a ruling of this Court, which had held that where
the jury could have convicted on either a valid or an invalid
theory and returns a general verdict, the conviction must be set
aside unless the reviewing court could determine with absolute
certainty that the defendant was convicted under a proper
theory.
Id. at 59-60, 62.
Now, under Pulido, the conviction
remain[s] valid if it is not open to reasonable doubt that a

reasonable jury would have convicted the defendant on the valid
theory.
Pelisamen, 641 F.3d at 406 (quoting United States v.
Black, 625 F.3d 386, 388 (7th Cir. 2010), cert. denied, 131 S.
Ct. 2932 (2011)); see also Neder, 527 U.S. at 19 (where
instructions omit element of offense, harmless-error test
examines whether the jury verdict would have been the same
absent the error).
361
review.
Pulidos harmless error analysis governs cases on direct

Skilling, 130 S. Ct. at 2934 n.46.
362
Whether Skilling error technically is called

alternative-theory error, misstatement of an element, or omission
of an element is immaterial because Pulido held that all three
types of error are subject to the same harmlessness standard of
review. Pulido, 555 U.S. at 60-61.
490
This Court, in conducting harmless-error review in cases

involving Skilling error, effectively has taken a two-step
approach to resolving the issue.
The first step involves
determining whether there exist independent jury findings

involving bribery or kickbacks that establish that the Skilling
error was not prejudicial.
See, e.g, Wilkes, 662 F.3d at 544
(jurys verdict on independently charged 201 offense

establishes that jurys verdict would have remained unchanged had
the 1346 offense limited the definition of honest services to
matters involving bribery); Pelisman, 641 F.3d at 406-07 (noting
that alternate-theory error is harmless where jury necessarily
found facts establishing guilt on a valid theory); United States
v. Harris, 488 Fed. Appx. 216, 218 (9th Cir. 2012) (affirming
honest services counts where scheme involved bribery and
kickbacks that also were charged separately and for which the
jury returned guilty verdicts); see also Jefferson, 674 F.3d at
362 (freestanding bribery charges based on same underlying
offense conduct establishes harmlessness of error).
Second,
provided that there are no jury findings that address the

underlying bribery or kickback schemes, this Court conducts a
full examination of the record to determine whether a rational
juror would have returned a guilty verdict absent the error.
Rodrigues, 678 F.3d at 695.
(b)
The Jurys Bribery Findings Establish

the Harmlessness of the Skilling Error
491
The Skilling error in this case was not prejudicial.
This
Court need look no further than the verdicts as to Pellicano and

Arneson to conclusively resolve this issue.
As discussed earlier
the jury expressly found that Pellicano and Arneson had engaged
in an ongoing bribery scheme involving conduct that was coextensive with the conduct that served as the basis of the honest
services charges.
(CR 1607, 1608).
Given these findings, it is
not open to reasonable doubt that a reasonable jury would have

convicted Pellicano and Arneson of the honest services fraud
offenses that were founded on this bribery scheme
instructed in accordance with Skilling.
406.
had it been
Pelisamen, 641 F.3d at
Thus, Pellicanos and Arnesons substantial rights were not
affected.
See, e.g., Wilkes, 662 F.3d at 544.

(c)
The Record Further Establishes the Lack

of Prejudice from the Skilling Error
While the jurys bribery findings, standing alone,

dispositively establish that the Skilling error was not
prejudicial, a full consideration of the record reaffirms this
fact.
At every stage in the proceedings, the government pursued
the theory, which it supported with overwhelming evidence, that

Pellicano and Arneson engaged in a classic bribery scheme whereby
Pellicano paid and Arneson accepted bribes so that Arneson, a
sworn LAPD officer, would violate his duty of honest services by
accessing restricted law enforcement databases to acquire
492
confidential information on PIAs investigative targets, in

contravention of both existing law and Arnesons established
duties as an LAPD officer.
It was, as Arneson acknowledges, the
lynchpin of both the honest services and bribery charges.

The indictment addressed at considerable length the
interwoven nature of the conduct that comprised the honest
services and bribery offenses.
For example, the introductory
paragraphs to the RICO and RICO conspiracy charges alleged that:

(1) Arneson was a sworn officer of the LAPD who owed a duty of
honest services to the LAPD, which included faithfully
discharging the obligations of this office and upholding the
LAPDs standards of conduct; (2) the LAPD had access to federal
and state law enforcement databases that could be accessed by
officers, such as Arneson, exclusively in furtherance of official
investigative duties; (3) Pellicano paid bribes to corrupt
public officials, including defendant Arneson . . . for purposes
of obtaining confidential and proprietary information regarding
the Enterprises investigative targets; (4) Pellicano paid
Arneson in excess of $190,000 from 1997 through 2002 for
obtaining and providing confidential criminal history and other
law enforcement information on PIAs investigative targets; and
(5) Arneson, in return for these bribe payments, regularly
provided Pellicano with this confidential information in
violation of his duty of honest services.
493
(CR 1604: 2-3, 7-9).
When setting forth the honest services offenses charged as

racketeering acts and substantive counts, the indictment stated
that Pellicano and Arneson . . . participated in a scheme to
defraud and deprive the LAPD and the citizens of the City of Los
Angeles of their right to defendant Arnesons honest services by
using defendant Arnesons authority and official position as an
LAPD officer to enrich themselves through payments in return for
obtaining and providing criminal history and other law
enforcement information as described [in a preceding paragraph
that set forth the bribe payments Pellicano made to Arneson for
this information].
(Id.)
It then set forth 44 separate
instances, each involving a separate victim, in which Arneson

accessed the FBIs NCIC database to acquire confidential
information on PIAs investigative targets.363
363
The bribery
The indictment alleged and the jury found two additional

racketeering acts and substantive counts against Pellicano based
on database inquiries by BHPD officer Stevens. (CR 1604, 1607).
As discussed earlier, it was undisputed at trial that Pellicano
bribed Stevens, who he paid in excess of $10,000. (4/8/08 RT
(A.M.) 31, 35-37, 40-44, 46, 56, 60, 81-82; GERT 4571, 4575-77,
580-84, 4586, 4596, 4600, 4621-22). The jurys findings on these
1346 charges alone establish beyond a reasonable doubt that the
Stevens-based 1346 offenses were founded in bribery and
therefore should be affirmed. They further add to the
overwhelming quantum of evidence that the Arneson-based 1346
offenses also were founded on bribery and should be affirmed.
Furthermore, the affirmance of the Stevens-based racketeering
acts would provide the requisite pattern of racketeering as to
Pellicano which, in turn, would allow for the affirmance of
Pellicanos 1962(c) and 1962(d) convictions and Arnesons and
Turners 1962(d) convictions.
494
charges, which are discussed at length earlier, also expressly

tied Pellicanos payment and Arnesons receipt of bribes to
Arnesons illicit database inquiries.
The indictment therefore
plainly set forth a bribery scheme that was co-extensive with,

and an integral aspect of, the honest services scheme.
United
States v. Awad, 551 F.3d 930, 936 (9th Cir. 2009) (finding that
[a]n indictment must be read in its entirety and construed with
common sense and practicality.).
The trial evidence and argument also established that the
1346 scheme was founded in bribery and did so overwhelmingly.
In opening statement, the government explained that the
enterprise secured premium profits through its illegal
acquisition and use of confidential information, including
information obtained from restricted access law enforcement
databases, and that Arneson served as Pellicanos paid source
within the LAPD who had received in excess of $180,000 from
Pellicano to illicitly access these databases to conduct
thousands of inquiries and thereby secure criminal history and
other law enforcement information on hundreds of victims who had
the misfortune of being adverse to PIA.
(3/6/08 RT (A.M.) 20-22,
25-27, 41-42, 51; GERT 484-86, 489-91, 505-06, 515).
The
government further explained that the same conduct might violate

multiple laws, one of which was bribery, which was based on the
2,500 checks that were paid so that defendant Arneson would be
495
ready, willing and able to conduct those criminal history and DMV
checks when defendant Pellicano needed the information.
(Id. at
37; GERT 501).

The trial evidence likewise overwhelmingly established that
Pellicano and Arneson engaged in an ongoing bribery scheme in
which Arneson received regular payments in return for his
continued agreement to breach his sworn duties as an LAPD officer
by conducting database inquiries that violated the law and LAPD
policy so that he could obtain for Pellicano confidential
information on PIAs investigative targets.
In summary, this
evidence, included but was not limited to: (1) the testimony of
multiple former PIA employees regarding Arnesons role as PIAs
paid source at the LAPD who was tasked almost daily with
providing PIA with confidential criminal history and related
reports that he obtained from restricted law enforcement
databases; (2) bank records establishing a near unbroken stream
of monthly $2,500, totaling over $190,000, from Pellicano to
Arneson between 1997 and 2002; (3) the LAPD audit showing that
Arneson conducted thousands of NCIC and CLETS database inquiries
on hundreds of PIA investigative targets during the time period
that he was receiving these payments, including each of the NCIC
inquiries charged as 1346 offenses; (4) documents recovered
from PIA, including multiple scanned NCIC criminal history
reports on defendants and victims in the Cohn criminal case that
496
Pellicano described on a recorded call as being extremely

expensive, which corroborate Arnesons running of these
inquiries on Pellicanos behalf; (5) Arnesons ludicrous trial
testimony that the payments from Pellicano covered everything
that he did for Pellicano except the database inquiries;364 (6)
the testimony of convicted BHPD officer Stevens, who accepted
bribes to provide Pellicano with confidential information from
law enforcement databases; (7) law enforcement generated
documents and LAPD employee testimony establishing that it would
be in direct contravention of existing law and LAPD policy to
access NCIC or CLETS for anything other than to further an
official law enforcement investigation and that it likewise would
violate the law and LAPD to disseminate the confidential
information obtained from such inquiries to a private citizens
for any purpose, including money or investigative tips; and (8)
testimony and/or other evidence regarding how efforts were taken
by both Pellicano and Arneson to conceal and/or obfuscate the
payments purpose and the nature of Arnesons services.
364
Arneson was forced to concede that he repeatedly

accepted 2,500 payments from Pellicano in months in which the
only work that he performed for PIA was accessing restricted law
enforcement databases. (4/16/08 RT (P.M.) 21, 24-25; GERT 5724,
5727-28). In addition, trial evidence established that, in those
instances when Arneson actually performed work for Pellicano
beyond conducting databases inquiries, he was paid extra by
Pellicano.
497
The governments closing argument again emphasized

repeatedly that a bribery scheme between Pellicano and Arneson
was at the foundation of the honest services violations.365
At
the outset of the discussion of the 1346 offenses, the

government discussed that the LAPD and the citizens of Los
Angeles had the right to expect that their police officers would
act in accordance with the law without being on the take.
(4/29/08 RT (A.M.) 100; GERT 7628).
Seconds later, the
government argued that the evidence has overwhelmingly shown

that Arneson is a corrupt cop, a dishonest cop; a man who sold
his badge for $2,500 a month.
(Id. at 101; GERT 7629).
When
discussing the victims of the 1346 offenses, the government

noted all of whom defendant Arneson ran through confidential
police databases -- not because they had done anything wrong . .
. .
but because defendant Pellicano wanted dirt and defendant
Arneson was on the payroll.
(Id. at 102; GERT 7630).
In
describing the scheme to deprive, the government explained that

to get the high-paying clients Pellicano needed access to
information.
And one of the ways he got that information was by
having dirty cops on the payroll.
He knew it was illegal, and
further noted that Arneson is kind of like an ATM . . . you put
365
The government acknowledges that its argument also

included references to the invalidated conflict of interest
theory. However, the overwhelming evidence and argument focused
on the still-valid bribery scheme.
498
in [PIAs request for information] and out it spits DMV and

criminal history information.
you have to make a deposit.
Every once in a while I suppose

(Id. at 103-04, 106; GERT 7631-32,
7634).
When discussing the conduct underlying the bribery offenses,
the government continued to connect the payments to Arnesons
accessing of restricted law enforcement databases.
For example,
the government forcefully argued that the evidence established

what
those monthly checks to defendant were for. They were
precisely the same thing as the cash payments to Craig
Stevens were for. For information from confidential
databases. You think Mark Arneson spent hours upon
hours of his time using law enforcement databases for
illegitimate purposes and providing the information to
defendant Pellicano, knowingly violated the law and
LAPD policy day after day for years, risked losing his
job and going to prison as a freebie.
(4/29/08 RT (P.M.) 57; GERT 7707).
The government further stated
that those checks, just like the large envelopes of cash that
were regularly paid on top of them, were bribes to a corrupt
police officer . . . paid for the purpose of keeping him on call
to do defendant Pellicanos bidding by obtaining and turning over
confidential law enforcement information on any one at any time
and then concluded its argument by addressing specific database
inquiries that were conducted following particular payments.
(Id. at 61-63; GERT 7711-13).
499
In sum, the evidence and argument presented at trial

overwhelmingly demonstrated that the 1346 offenses were founded
on an ongoing bribery scheme in which Pellicano paid and Arneson
accepted bribes so that Arneson would violate his duty of honest
services by accessing restricted law enforcement databases to
obtain for, and provide to, Pellicano confidential information on
PIAs investigative targets.
As reflected by both the jurys
findings on bribery charges that were predicated on the same

underlying conduct and a full review of the record, there is no
reasonable doubt that the jury, which found Pellicano and Arneson
had committed each of the 1346 offenses charged, would not have
returned identical findings had the honest services instructions
been limited to bribery and kickbacks.
Thus, as neither
Pellicano nor Arneson can show that their substantial rights have
been affected, the jurys honest services findings -- like the
jurys findings in Skilling, Pelisamen, Wilkes, Rodrigues, and
Jefferson, among others, must be affirmed.
(d)
Arneson Waived Any Claim to a Good Faith

Instruction, Which Was Unwarranted
Anyway366
366
This argument applies exclusively to Arneson even if

this Court were to find Pellicanos joinder adequate because the
instruction that Arneson proposed but then affirmatively
acquiesced to the court not giving was limited to him.
500
Arneson claims that the district court abused its discretion

by not supplementing the honest services fraud instructions with
a good faith instruction.
this claim.
(AOB 20).
Arneson, however, waived
Even absent waiver, Arnesons claim fails because it
was not a plain abuse of discretion for the court not to give a
good faith instruction.
This Court repeatedly has stated that [o]ur case law is
well settled that a criminal defendant has no right to any good
faith instruction when the jury has been adequately instructed
with regard to the intent required to be found guilty of the
crime charged, notwithstanding the normal rules governing theory
of defense requests.
E.g., United States v. Shipsey, 363 F.3d
962, 967 (9th Cir. 2004); Frega, 179 F.3d at 804 (applying
principle to honest services charges).
The district court acted
properly within its discretion in not including a good faith

instruction to the jury charges that addressed the 1346
violations.
The instructions, when considered as a whole,
accurately and adequately defined the specific intent under this

statute.
In fact, the district courts instructions included,
almost verbatim, a significant portion of Arnesons proposed

instruction on honest services wire fraud: required intent,
explained that he needed to possess the intent to deprive the
LAPD and the citizens of Los Angeles of their right to honest
services, and further specified that this required the intent to
501
deceive.367
(CR 1380; 4/28/08 RT (A.M.) 25, 68-69; GER ***; GERT
7383, 7426-27).
necessary.368
No supplemental good faith instruction was
See, e.g., United States v. Shipsey, 363 F.3d 962,
967 (9th Cir. 2004) (finding that describing intent to defraud

as the intent to deceive when addressing the elements of mail
and wire fraud counts correctly defined the specific intent
required and obviated the need for a good faith instruction).
That the jury sent a note addressing this instruction does
not change this fact.
The note stated that there was a single
juror that disagreed with the law, despite being presented with
the evidence and the instructions, and asked for an additional
definition of intent.
8098).
(5/5/08 RT (P.M.) 4-7, 10; GERT 8092-95,
This does not reflect juror confusion over the
instruction but rather juror frustration with a single fellow

jurors recalcitrance.
367
Arneson does not challenge the accuracy of the specific

intent instruction, only its adequacy. (AOB 19-21).
368
In the portion of the instructions that addressed

generally applicable law, the jury was instructed that intent can
be proved circumstantially and that the jury could consider any
statements made or acts committed by a defendant, among other
evidence, that reflected on his intent. (4/29/08 RT (A.M.) 34;
GERT 7562). Arneson forcefully emphasized the concept of good
faith throughout his closing argument, including when he stated,
intent to defraud? You decide that. If you think that Mr.
Arneson had a reasonable belief that he was serving a larger law
enforcement purpose, then he is not guilty of honest services
wire fraud because you evaluate his state of mind. (4/30/08 RT
(A.M.) 33, 44, 47-53; GERT 7823, 7834, 7837-43).
502
The district court, upon receiving this note, requested that

the parties submit proposed responses. (Id. at 10; GERT 8098.)
Arnesons proposal was that the jury should be instructed to
return to the definition of intent as set forth in the
instructions and to use the common meaning of any unclear term or
phrase when reviewing that definition.
4133).
(5/6/08 RT (A.M.) 6; JER
Notably, despite having initially suggested to the court
upon first seeing the note that a good faith instruction might be
warranted (which was the genesis of the courts statement, cited
by Arneson, that a good faith instruction might well be at least
part of the response (5/5/08 RT 7; GERT 8095)), Arnesons
submission stated that the concept of good faith should be
included only if the court believes any additional instruction
on intent should be given.
(5/6/08 RT (A.M.) 7; JER 4134.)
The court did not provide any additional instruction on

intent, and instead, effectively adopted Arnesons proposed
instruction to return to the instructions already given.
7, 9; JER 4134, 4136).
(Id. at
Consistent with Arnesons proposal, the
court did not provide a good faith instruction.
(Id.)
Arnesons
counsel reviewed the proposed instruction and cited his approval,

saying it was appropriate.
(5/6/08 RT (A.M.) 7; JER 4134.)
Therefore, if there was error in failing to provide a good faith

instruction at that time, it was invited by Arneson, which waived
his present claim.
United States v. Perez, 116 F.3d 840, 845-46,
503
n.7 (9th Cir. 1997) (en banc); see also United States v.
Laurenti, 611 F.3d 520, 543-45 (9th Cir. 2010) (instructional
error claim waived where defendant initially objected to
governments instruction, later acquiesced to it, and then
attempted to challenge it on appeal).
Arnesons claim that the nature of his defense mandated
inclusion of a good faith instruction is specious.
(AOB 20).
All good faith defenses are premised on the assertion that the
defendant lacked the requisite intent to commit the offense based
on an honestly held belief.
To the extent that Arnesons good
faith defense differed materially from others, it was in its

disingenuousness.
There is a fundamental distinction between (1)
having a good faith belief that your conduct is lawful, for

example, based upon advice received from an attorney or
accountant and (2) as Arneson concedes (AOB 20), knowing that
your conduct is unlawful and violates your duties engaging in it
anyway based on a purported independently formed belief, shared
for the first time at trial,369 that the action undertaken
369
While employed by the LAPD, Arneson never documented

Pellicano as a source, advised anyone at LAPD that Pellicano was
acting in this capacity, or documented any of the alleged tips
provided by Pellicano, even though he would have been required to
do so if the information was relied upon for any official law
enforcement filing. (4/11/08 RT (P.M.) 85-87; GERT 5501-03)
Instead, when asked by an LAPD Lieutenant regarding his
relationship with Pellicano after Arnesons contact information
was discovered during the search of PIA, Arneson wrote that
Pellicano, at no time provided insight on any case involving
(continued...)
504
advanced what Arneson professed to be the good of a greater

cause of law enforcement.
5492, 5496-97).
(4/11/08 RT (P.M.) 76, 80-81; GERT
In this respect, Arneson, whose own defense
theory was built on acknowledged criminal violations as well as

the intent to deceive both the LAPD and the victims of these
database inquiries, was not truly advancing a good faith claim at
all, but rather a highly imperfect justification defense.
There
was nothing about this claim that warranted supplementing the

accurate and adequate 1346 instruction with a good faith
instruction.
Moreover, while the district courts decision was fully
appropriate when made, it is even more sound now.
Arneson
contends that, post-Skilling, the all-important point is

whether he possessed a good faith belief that what he was doing
was not bribery.
(AOB 20).
Arneson, however, never requested a
good faith instruction as to the bribery offense conduct, as such

an instruction would have been irreconcilable with his theory of
369
(...continued)
criminal activity and that during the sporadic contact that
Arneson had with Pellicano no criminal cases or issues involving
law enforcement were reviewed or discussed. (4/11/08 RT (P.M.)
80-81, 83-84; GERT 5496-97, 5499-5500). Conveniently, Arneson
testified at trial that the lie was not to be found in his
present testimony but rather his statement to the Lieutenant that
Pellicano never served as a source. (4/11/08 (P.M.) RT 82-84;
GERT 5498-5500). When assessing credibility, the jury properly
could consider Arnesons admissions that he lied to others and to
them when determining what portions, if any, of Arnesons
testimony to credit.
505
the defense.370
(CR 1380).
Instead, Arneson emphatically
contended that he had never accepted any money whatsoever from

Pellicano for accessing law enforcement databases to obtain and
provide to Pellicano confidential information on PIAs
adversaries and that the payments he did receive covered
surveillance, bodyguard, and consulting work that he performed
for PIA.
(4/11/08 (A.M.) RT 82-83, 90-91, 93-95, 108; GERT 5360-
61, 5368-69, 5371-73, 5386).
Likewise, the definition of intent
in the bribery instructions corrupt intent which the

instructions further defined as occurring when he or she acts to
wrongfully gain a financial or other advantage for himself or
someone else was wholly incompatible with good faith.
(4/29/08 RT (A.M.) 49; GERT 7577).
Given that (1) there was no
good faith theory of the defense to the bribery offense conduct,

(2) Arneson never requested a good faith instruction as to the
bribery counts, and (3) the bribery instructions fully set forth
the requisite intent, the district court did not plainly abuse
its discretion by not sua sponte supplementing its bribery
instructions with a good faith instruction.
Sarno, 73 F.3d at
1488 (instruction not warranted when no factual foundation

supporting the theory exists within in the record).
5.
The RICO Counts Should Stand Even If Some of the

Predicate Acts Are Insufficient
370
Arneson limited the request to the honest services and

computer fraud offenses. (CR 1380).
506
Pellicano, Arneson, and Turner argue that their RICO and

RICO conspiracy convictions should be vacated if all the
racketeering acts are dismissed on insufficiency grounds. (POB
57; TOB 27.)
While the government agrees, the same would not be
true if only some of the predicate racketeering acts fail.
Even
if this Court were to dismiss a particular class of racketeering

act, defendants 1962(c) and 1962(d) convictions should be
affirmed, as there would no basis for overturning their otherwise
legally sufficient RICO and RICO conspiracy convictions and
defendants have not carried their burden with respect to their
claims of spillover prejudice (AOB 25).
a.
Standard of Review
A defendant bears the burden of establishing prejudicial

spillover.
The defendants burden is high and will only be met
upon a showing of prejudice so pervasive that a miscarriage of

justice looms.
United States v. Lazarenko, 564 F.3d 1026, 1043
(9th Cir. 2009) (quoting United States v. Trainor, 477 F.3d 24,
36 (1st Cir. 2007)); accord United States v. Vebeliunas, 76 F.3d
1283, 1293 (2d Cir. 1996) (quoted with approval in Lazarenko;
defendant must show compelling prejudice).
b.
The Requisite Pattern of Racketeering Exists

(1)
Substantive RICO charge
Under 1962(c), the commission of two racketeering acts by

a charged defendant is necessary to establish the requisite
507
pattern of racketeering activity.
United States v. Fernandez,
388 F.3d 1199, 1221 n.11 (9th Cir. 2004).
The dismissal of
racketeering acts on sufficiency grounds does not undermine a

RICO charge unless there no longer remains the requisite two
racketeering acts necessary to establish a pattern.
United
States v. Coonan, 938 F.2d 1553, 1565 (2d Cir. 1991) (dismissal
of racketeering act involving murder would not require RICO
charge to be set aside as six additional racketeering acts would
remain); Brennan v. United States, 867 F.2d 111, 114-15 (2d Cir.
1989) (striking 1341 racketeering acts but finding that RICO
count not hindered as there remained a sufficient number of
racketeering acts to establish the requisite pattern).
The jury determined, as part of its special verdict
findings, that Pellicano had committed each of the 46 charged
racketeering acts involving honest services wire fraud, 18 of the
23 charged racketeering acts involving identity theft, and each
of the 10 charged racketeering acts involving the giving or
offering of a bribe.
(5/15/2008 RT 11-28; GERT )(CR 1607.)
The
jury found Arneson to have committed each of the 44 charged

racketeering acts involving honest services wire fraud, 7 of the
12 charged racketeering acts involving identity theft, and each
of the 10 charged racketeering acts involving the receipt of
bribes.
(5/15/2008 RT 28-41 ) (CR 1608).
508
The jury found Turner
committed each of the 5 charged racketeering acts involving

identity theft.
(5/15/08 RT 41-49) (CR 1609).
Provided that this Court finds the evidence sufficient to

support any one of these three classes of racketeering acts, the
requisite pattern of racketeering activity for purposes of
1962(c) will have been established as to both Pellicano and
Arneson.371
As to Turner, the government agrees that his RICO
conviction must be vacated if the 1028 racketeering acts are

not supported by sufficient evidence.
However, for the reasons
previously stated, the evidence was sufficient as to each of the

types of racketeering activity (including identity theft) and
thus, the requisite pattern of racketeering exists under
1962(c) as to Turner as well as Pellicano and Arneson.
(2)
RICO conspiracy
Should the Court find the requisite pattern under 1962(c),

then it exists under 1962(d) as well.
United States v. Tille,
729 F.2d 615, 619 (9th Cir. 1984) (Proof of an agreement the
objective of which is a substantive violation of RICO (such as
conducting the affairs through a pattern of racketeering
activity) is sufficient to establish a violation of section
371
Defendants do not challenge the pattern element on

either a purported lack of relatedness or continuity, nor could
they as the evidence overwhelmingly demonstrated that the dozens
of individual racketeering acts that the jury found to have been
committed were conducted repeatedly, almost systematically, and
all directly in furtherance of the enterprises interests.
509
1962(d)).
Under 1962(d), however, no racketeering act need be
pled or proved.
Salinas, 552 U.S. at 65.
Instead, all that must
be shown to satisfy the pattern element is that a defendant

agreed that an associate would commit two racketeering acts
during the course of the conspiracy.
Id.
Therefore, provided
that the requisite pattern of racketeering activity has been

established under 1962(c) as to either Pellicano, Arneson, or
Turner, the pattern requirement would be satisfied under
1962(d) for each of their co-conspirators as well.372
For example, even if this Court were to dismiss the 1028
racketeering acts that are necessary to uphold Turners 1962(c)
conviction, Turner still would be liable under 1962(d) for
having conspired to commit RICO with Pellicano and Arneson, with
the understanding that one of these individuals would commit two
or more racketeering acts, which they did. Salinas, 552 U.S. at
63-64 (finding a person may be liable for a conspiracy even
though he was incapable of committing the substantive offense and
upholding the sufficiency of a RICO conspiracy conviction of a
sheriffs deputy who personally did not commit any racketeering
acts but who facilitated scheme whereby his boss received
multiple kickbacks from a prisoner in exchange for conjugal
visits).
372
If the bribery racketeering acts are dismissed on statute

of limitations grounds, defendants 1962(d) convictions should
stand.
510
c.
Defendants Have Failed To Show Spillover Prejudice

From Any Dismissed Racketeering Acts
Under the doctrine of prejudicial spillover, the presence of

invalidated racketeering acts can result in the vacating of a
RICO conviction if the dismissed racketeering acts poisoned the
jurys consideration of the remaining racketeering act.
See
United States v. Delano, 55 F.3d 720, 728-29 (2d. 1995) (finding

that despite having two valid racketeering acts that would
establish the requisite pattern, prejudicial spillover from
dismissal of seventeen extortion-based racketeering acts, which
represented the core of the governments RICO case, required that
conviction be vacated).
Defendants have fallen well short of
their burden of establishing the pervasive, compelling prejudice

required before the doctrine of spillover prejudice properly can
be invoked.
Instead, they cursorily claim that invalidation of a
single class of racketeering act would render speculative how the

jury would have viewed the case.
(AOB 24-25.)
In Lazarenko, this Court held that the district court had

not abused its discretion in denying a new trial motion based on
prejudicial spillover after the district court dismissed all
counts relating to two of the five schemes charged in the
indictment as well as additional counts where the charged
transfers did not represent proceeds of the remaining schemes.
Lazarenko, 564 F.3d at 1030-33, 1044.
This Court concluded that
although some of the evidence would have been inadmissible

511
without the dismissed counts, there was strong evidence of fraud

and the fact that [t]hat the government was not 100% successful
does not undermine the evidence that was airtight.
Id. at 1045.
Similarly, with respect to the additional counts that Lazarenko

reversed on appeal, this Court found no prejudicial spillover.
Id. at 1047 (The counts we have dismissed fall of their own
weight and those we have affirmed stand on their own.).
Lazarenko identified six factors to consider when assessing
whether the defendants burden has been met when spillover
prejudice is claimed.
These include: (1) the extent of now
inadmissible evidence that was admitted at the underlying trial;

(2) whether the evidence was so inflammatory that it would tend
to cause the jury to convict on the remaining counts; (3) the
degree of overlap and similarity between the dismissed and
remaining counts; (4) a general assessment of the strength of the
government's case on the remaining counts; (5) whether the trial
court diligently instructed the jury; and (6) whether there is
evidence, such as the jury's rendering of selective verdicts, to
indicate that the jury compartmentalized the evidence.
1044-45.
Id. at
Notably, defendants cite Lazarenko but they have not
attempted to address the factors it sets forth, all of which

counsel against a finding of pervasive spillover prejudice.
The first three Lazarenko factors can be considered
together.
As defendants have noted throughout their briefs, the
512
racketeering acts all arise from the same basic conduct:

Pellicanos payment of law enforcement and phone company
employees in return for their agreement to access restricted
databases to acquire confidential information on PIAs
adversaries.
(POB 50-51; AOB 1-2, 12.)
Therefore, even if one
class of racketeering act were stricken, the evidence still would

be admissible in support of the remaining classes of racketeering
acts and as evidence of the existence of, and defendants
association with, the enterprise, the conduct of the affairs of
the enterprise, and (at least with the NCIC runs) the
enterprises interstate nexus.
United States v. Connolly, 341
F.3d 16, 27 (1st Cir. 2003) (evidence of racketeering acts found

by the jury not to have been proved still constituted probative
evidence as to the enterprise).
Thus, the dismissal of
racketeering acts would not create the scenario where the jury
was exposed to massive amounts of inadmissable and/or prejudicial
evidence that would raise the specter of clear prejudice.
With respect to the surviving classes of racketeering acts,
the evidence in support of the jurys findings was overwhelming.
Furthermore, the trial court carefully instructed the jury about
its need to consider each count and each racketeering act against
each defendant separately.
(5/1/08 (A.M.) RT 22, 40-41.)
government likewise stressed this point with the jury.

84.)
The
(Id. at
Finally, the jury in this case, which had several hundred
513
findings that it needed to make, spent two weeks weighing the

evidence as to all the charges and submitting jury notes before
returning split verdicts across charges and across defendants,
which amply demonstrates that the jury carefully evaluated the
evidence and conscientiously deliberated as to each individual
defendant.
(5/1/2008 RT 92; 5/5/2008 (Day 35) RT 4; 5/5/2008 RT
(Day 36) 6-7; 5/8/2008 RT 4; 5/9/2008 RT 4; 5/12/2008 RT 4;

5/13/2008 RT 4; 5/14/2008 RT 4; 5/15/2008 RT 11-49.) (CR 160709).
See United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.
1987) (The best evidence of the jurys ability to

compartmentalize the evidence is its failure to convict all
defendants on all counts.).
I.
THE RICO AND RICO CONSPIRACY COUNTS WERE NOT CONSTRUCTIVELY

AMENDED OR SUBJECT TO A FATAL VARIANCE
1.
The RICO and RICO Conspiracy Charges
Counts one and two of the operative indictment set forth the
substantive RICO and RICO conspiracy charges against Pellicano,
Arneson, and Turner.
These counts together alleged:373
defendants Anthony Pellicano, Mark Arneson, and Rayford

Earl Turner, together with other individuals known and
unknown to the Grand Jury, and the Pellicano
Investigative Agency, Ltd., together with other legal
entities known and unknown to the Grand Jury,
constituted an enterprise, as defined by Title 18,
373
Count two reincorporated and realleged

of count one that addressed the enterprise, its
means and manner through which it conducted its
acts that, at least in part, contributed to the
racketeering activity. (CR 1604.)
514
those paragraphs
purpose, the
affairs, and the
pattern of
United States Code, Section 1961(4), that is, a group

of individuals associated in fact (the Enterprise).
The Enterprise was bound together 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 Enterprise
constituted an ongoing organization whose members
functioned as a continuing unit for a common purpose of
achieving the objectives of the enterprise. The
Enterprise operated primarily in Los Angeles,
California, within the Central District of California.
The Enterprise was engaged in, and its activities
affected interstate commerce.
(Id.)
The indictment further alleged:

The purposes of the Enterprise included:
a.
Enriching the members and associates of the

Enterprise through obtaining private, personal,
and confidential information regarding defendant
PELLICANOs investigative targets and litigative
opponents through illegal means, including but not
limited to identity theft, wire fraud, bribery,
and unauthorized access of protected computer
databases.
b.

Enterprise through using the illegally obtained
information to subvert and corrupt the judicial
process.
c.

Enterprise through using the illegally obtained
information to strengthen and expand defendant
PELLICANOs reputation and ongoing relationship
with lucrative clients, including entertainment
celebrities and executives, attorneys, and law
firms.
d.
Promoting and enhancing the Enterprise and its

members and associates activities.
(CR 1604.)
Count one then addressed the Manner and Means of the
Enterprise, which provided a detailed description of the

515
respective roles and responsibilities of Pellicano, Arneson,

Turner, and others who participated in the conduct of the affairs
of the enterprise.
Specifically, it described how Pellicano was
the leader of an enterprise that utilized payoffs to police

officers and phone company employees to have an established
pipeline for systematically obtaining confidential law
enforcement and telephone company information from proprietary
databases and who, in turn, was responsible for securing clients
with the willingness and means to pay significant sums of money
for information of a confidential, embarrassing, or
incriminating nature that could be tactically used against the
clients adversaries, including in ongoing criminal and civil
litigation.
(Id.)
Arneson specifically was identified as
Pellicanos source at the LAPD who sought and accepted bribes in

the form of cash and check payments and, in return, provided
Pellicano with criminal history and other confidential law
enforcement information that could benefit PIAs clients and/or
be used to the detriment of its investigative targets.
(Id.)
Turner was identified as Pellicanos primary source at SBC who

Pellicano paid to obtain confidential telephone company
information from proprietary phone company databases.
Turner
obtained this information through other contacts who he developed

within SBC, including Wright, who Turner paid using funds
initially obtained from Pellicano.
516
(Id.)
Finally, a section
labeled Conduct of the Affairs of the Enterprise through a

Pattern of Racketeering Activity identified 89 racketeering acts
committed by Pellicano, Arneson, and Turner in furtherance of the
enterprise, all of which arose directly or indirectly from the
unauthorized accessing of confidential information from
restricted access law enforcement and telephone company
databases.374
2.
(Id.)
Jury Instructions
At the time of trial, there were no Ninth Circuit Model

Criminal Jury Instructions addressing the enterprise element
under 1962(c) and (d).375
The governments proposed enterprise instruction essentially
tracked this Courts statement in Odom that, to prove an
associated-in-fact enterprise, the government must have shown an:
(1) ongoing organization, (2) operating with a common purpose,
and (3) as a continuing unit.
(CR 1336.)
Arneson, in turn,
requested that the jury be instructed that

in order for the defendants to be found guilty under
RICO, the government must prove beyond a reasonable
374
Congress did not include 2511 violations in

1961(1)s definition of racketeering activity, and therefore,
acts of wiretapping were not included among the charged
racketeering acts.
375
In 2010, the Ninth Circuit Model Criminal Jury

Instructions added Instructions 8.152 and 8.161, which define the
term enterprise as set forth in 18 U.S.C. 1961(4) and
1962(c), (d) for use in VICAR and RICO cases.
517
doubt that an enterprise existed between defendants

Pellicano, Arneson and Turner, and the Pellicano
Investigative Agency. In addition, the government must
prove that this enterprise constituted an ongoing
organization, and that defendants Pellicano, Arneson
and Turner functioned as a continuing unit.
(CR 1328, 1380).
Arneson argued that any instruction that did
not require the jury to find that the enterprise consisted of

Pellicano, Arneson, Turner, and PIA together would constructively
amend the indictment.
(CR 1327, 1379, 1413).
In response, the
government requested that the instruction include an advisement

that the government need not prove the association of every
charged person or entity provided that the government met its
burden as to a subset of the defendants and entities (e.g.,
Pellicano, Turner, and Arneson, but not PIA).
(CR 1383, 1394).
The district court ruled that Arnesons argument was

incorrect and declined to provide his proposed enterprise
instruction.
(CR 1408, 1429).
The district court prepared an
enterprise instruction that tracked Odoms requirements of

ongoing organization, common purpose, and continuity.
The court
also included language that the jury need not find that the
government had proved all of the charged parties/entities to be
associated-in-fact with the enterprise and all of the listed
purposes in the indictment to be purposes of the enterprise to
find that the government had met its burden on the enterprise
element as to a particular defendant.
(Id.)
To accommodate
Arnesons argument that the enterprise proved must have

518
substantial identity with the enterprise charged in the

indictment, the court included language further explaining that
the jury must find the enterprise to be substantially similar to
that charged in the indictment and that satisfies the three
requirements [ongoing organization, common purpose, and
continuity] that I just read to you.
With respect to this
language, the court engaged in the following colloquy with

Arnesons counsel:376
THE COURT:
Again, I dont know whether the

defense likes [the instruction] the
way it is or prefers to add the
concept of it being similar,
recognizing that [the defense]
objects to whole thing the way it
is.[377]
DEFENSE COUNSEL:
Recognizing that we think it is

wrong legally, I think adding the
phrase substantially similar
should, at a minimum, be [added]
without waiving our objection on
that point.
376
Turner expressly adopted the arguments of Arnesons

counsel and joined in Arnesons objection to the enterprise
instruction; Pellicano tacitly did so by generally expressing his
opposition to any instruction that would allow the enterprise to
be found without a simultaneous finding that all of the charged
defendants and PIA had associated-in-fact. (4/28/08 RT (P.M.)
64).
377
As noted above, Arneson objected to any instruction that

would allow the jury to find the existence of an enterprise that
was not premised on an accompanying finding that Pellicano,
Arneson, Turner, and PIA together associated-in-fact and, thus,
objected to the district courts inclusion of language that the
jury could find the existence of an enterprise comprised of a
subset of the charged defendants and entities.
519
THE COURT:
And do you have any suggestions as

to how to phrase that? So long as
the enterprise and purposes are
substantially similar to that
alleged?
DEFENSE COUNSEL:
Just those changes. Your honor, I

will tell the Court, I do intend to
use the indictment language in my
closing and to say theres nothing
no proof that theyre
substantially similar.
THE COURT:
You can certainly do that.
DEFENSE COUNSEL:
Right. Thats what I intend to do.

I intend to use the language of the
indictment that [the government]
wants to go to the jury.
THE COURT:
And so its all the more important

to add the substantially similar
language in there?
DEFENSE COUNSEL:
Yes.[378]
(4/28/08 RT 21-22).
Regarding the enterprise element, the district court
instructed, in pertinent part:
In order for a defendant to be found guilty of
[ 1962(c)],[379] the government must prove each of the
following elements beyond a reasonable doubt:
378
The substantially similar language also was added to the

RICO conspiracy instruction at Arnesons counsels request.
(5/1/08 RT (A.M.) 3).
379
With respect to count two, the jury was instructed that

the meaning of the term enterprise was the same as defined in
count one; however, it need not find the enterprise to have
existed but rather only need find that had the conspiratorial
agreement been completed as contemplated, the enterprise would
be established. (4/29/08 RT 50-52).
520
First, there was an enterprise consisting of a group of

persons, legal entities or combination thereof
associated together for a common purpose of engaging in
a course of conduct
*
An enterprise is simply the vehicle through which

racketeering acts are committed. The term enterprise
includes any group of two or more individuals or
entities associated in fact although itself not a legal
entity.
An associated-in-fact enterprise exists when
individuals, legal entities, or combinations of the
two, join together for the purpose of engaging in a
common course of conduct.
An enterprise need not be a formal business entity,
such as a corporation, but may be merely an informal
association of individuals or entities that lacks any
ascertainable internal structure.
To establish the existence of an associated-in-fact
enterprise, the government must prove beyond a
reasonable doubt that, one, that there was an ongoing
organization, formal or informal; two, that the
organization acted with a common purpose; and, three,
that the organization acted as a continuing unit.
To be acting as a continuing unit, it is not necessary
that every member be involved in each of the acts of
racketeering . . . that the racketeering acts be
interrelated in any way, or the membership in the
organization remains unchanged over time. Instead, the
focus must be on whether the associates behavior was
ongoing rather than isolated activity.
It is not necessary that the government prove that all
of the parties charged in Count 1 of the indictment
were members of the enterprise or that all of the
purposes listed in the indictment were purposes of the
enterprise. Instead, the government must prove beyond
a reasonable doubt an associated-in-fact enterprise
that is substantially similar to that charged in the
indictment and that satisfies the three requirements
that I just read to you.
521
The enterprise is an entity separate and apart from the

pattern of racketeering activity in which it engages.
While the proof used to establish these separate
elements may be the same, proof of one does not
necessarily establish the other.
(4/29/08 RT 35, 37-38).380
As to both counts one and two, the jury returned special
verdicts finding that Pellicano, Arneson, Turner and PIA
constituted the enterprise and finding that the government had
proven racketeering acts involving honest services fraud,
identity theft, and bribery.
3.
(CR 1607-09).
Standard of Review
a.
The Claim Is Waived
[A] defendant waives the right to appeal if the defendant

considered the controlling law . . . and, in spite of being aware
of the applicable law, . . . accepted a flawed instruction.
United States v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010),
cert. denied, 131 S. Ct. 969 (2011) (quotation marks and citation
omitted).
That is exactly what occurred here.
After the
district court rejected their claim that the government was

required to prove the association of every charged person or
entity, defendants argued that, at a minimum, the district
courts enterprise instruction should include the phrase
substantially similar and Arnesons counsel further agreed with
380
The court provided the jury with copies of the

instructions and the redacted indictment during its
deliberations.
522
the district court that, in light of his intended closing

argument, that its all the more important to add the
substantially similar language in there.
(4/28/08 RT 21-22).
Defendants affirmatively sought inclusion of the substantially

similar language, and, given the pretrial litigation regarding
the jury instructions, no claim can be made here that defendants
were simply operating under a misapprehension of the applicable
law.
Accordingly, the claim is waived.
Laurienti, 611 F.3d at
543-45.
b.
If Not Waived, the Claim Is Reviewed for Plain

Error Only
Although defendants objected to the portion of the

instruction stating that [i]t is not necessary that the
government prove that all of the parties charged in Count One of
the Indictment were members of the enterprise or that all the
purposes listed in the Indictment were purposes of the
enterprise, they did not object to the substantially similar
language.
Nor did they raise a claim of constructive amendment.
United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)
([A] party fails to preserve an evidentiary issue for appeal not
only by failing to make a specific objection, but also by making
the wrong specific objection.).
A claim of constructive
amendment raised for the first time on appeal is at most reviewed

for plain error.
United States v. Mohsen, 587 F.3d 1028, 1031
(9th Cir. 2009).

523
4.
The Instruction Did Not Constructively Amend the

Indictment and Was Not Plain Error
Constructive amendments occur when the prosecutor proves,

or the court instructs the jury to convict on, materially
different facts or substantially different crimes than those
charged in the indictment.
United States v. Driggers, 559 F.3d
1021, 1025 (9th Cir. 2009).
This court has found constructive
amendment of an indictment where (1) there is a complex of facts

presented at trial distinctly different from those set forth in
the charging instrument, or (2) the crime charged in the
indictment was substantially altered at trial, so that it was
impossible to know whether the grand jury would have indicted for
the crime actually proved.
606, 615 (9th Cir. 2002).
United States v. Adamson, 291 F.3d
Here, there was no plain error
because the instruction at most narrowed rather than broadened

the charges; it did not permit the jury to convict based on a
different enterprise than the one charged in the indictment.
Nor, in light of the special verdicts, can defendants demonstrate
an effect on their substantial rights or serious unfairness
warranting notice under the plain error standard of review.
a.
There Was No Plain or Obvious Error
Under Federal Rule of Criminal Procedure 52(b), an error is

plain under the second prong of plain error review if it is
clear or obvious, Puckett v. United States, 129 S. Ct. 1423,
1429 (2009), at the time of appellate consideration, Henderson v.
524
United States, --- U.S. ---, 2013 WL 610203, *10 (Feb. 20, 2013).
[L]ower court decisions that are questionable but not plainly
wrong . . . fall outside the Rules scope.
Id. at *9.
Moreover, rulings that involve matters of degree, not kind, are

not necessarily plainly wrong.
Id.
Here, the substantially similar language in the jury

instruction did not amount to a clear or obvious constructive
amendment of the indictment.
First, defendants constructive
amendment claim is merely a variant of their contention that the

government was required to prove every member and purpose of the
enterprise alleged in the indictment.
However, the courts
instruction accurately set forth the established law regarding

the enterprise element.
The jury need not find all of the
parties or purposes set forth in the indictment, provided that it

finds that the statutory requirements of an enterprise are met as
to a subset of the parties or purposes.
See also United States
v. Bingham, 653 F.3d 983, 993 (9th Cir. 2011) (no constructive
amendment where indictment alleged enterprise that bridged an
internal schism and prosecutor argued during closing that jury
could convict solely on post-schism conduct, as the evidence
supported the finding that one enterprise existed and
governments argument addressed a subset of the enterprises
conduct), cert. denied, 132 S. Ct. 1594 (2012).
Second, both the
Supreme Court and this Court have held that the doctrine of
525
constructive amendment applies only to the broadening, rather

than the narrowing, of indictments, as the latter does not run
afoul of the Grand Jury Clause.
Miller, 471 U.S. 130, 136 (2001); United States v. Wilbur, 674
F.3d 1160, 1178 (9th Cir. 2012).381
The district courts
enterprise instruction, at most, narrowed the indictment.

Defendants effectively acknowledge this, by asserting that the
instruction could result in convictions based on a subset of
parties or common purposes.
(JOB 80).
Third, defendants cite no
authority that clearly establishes the challenged language to be

erroneous.
To the contrary, the D.C. Circuit rejected a claim of
constructive amendment in circumstances similar to those present

here.
United States v. Perholtz, 842 F.2d 343 (D.C. Cir. 1988).
In Perholtz, the D.C. Circuit considered whether the enterprise,

which was structured identically to the indictment in this
case,382 was constructively amended by portions of a jury
instruction that largely paralleled the disputed aspects of the
381
Miller further noted that narrowing an indictment also

would not constitute a fatal variance because no prejudice could
arise from this circumstance as the defendant had the benefit of
knowing the full breadth of charges against which he would need
to defend at trial and, in turn, had an opportunity to adequately
prepare for trial. 471 U.S. at 134-35, 140.
382
The near identical charging language in Perholtz and

this case is not accidental; all RICO indictments are reviewed
and approved by the Department of Justices Organized Crime and
Gang Section (formerly the Organized Crime and Racketeering
Section.) (4/17/08 RT (P.M.) 24.)
526
enterprise instruction in this case.
As here, the enterprise in
Perholtz was described as being comprised of a specific set of

individuals and entities:
defendant Ronald J. Perholtz, defendant Franklin W.
Johnson, [various additional individuals and entities],
and Computer Contemporaries, Inc., constituted an
enterprise, as that term is defined by Title 18, United
States Code, Section 1961(4), to wit, a group of
individuals, partnerships, and corporations associated
in fact to unjustly enrich themselves from the proceeds
of government contracts and subcontracts, for computer
services and equipment, which had been and would be
obtained by means of bribery, fraud, and circumvention
of government contracting procedures designed to secure
for the United States government the benefits of
competition.
Id. at 351 n.12.
Like the district court here, the district
court in Perholtz instructed the jury that it could find the

existence of an enterprise even if it did not find beyond a
reasonable doubt that each of the charged participants was an
associate-in-fact as alleged in the indictment:
The membership need not include every one of the
entities I have listed as long as you find that it was
substantially the same as the enterprise described.
The membership of the enterprise may change over time
but the enterprise must have a continuous organization,
purpose, and core of personnel that remain essentially
unchanged during the period of the indictment.
Id. at 364.
On appeal, the D.C. Circuit held that the indictment
had not been constructively amended by the jury instructions,

finding that the instruction had substantial identity with the
indictment and proof.
In doing so, it further explained that,
provided the requirements of the enterprise element i.e.,
527
ongoing organization, common purpose, and continuity were met,

it was not essential that each and every person named in the
indictment be proven to be a part of the enterprise.
Id.
As in
Perholtz, the district courts enterprise instruction here is

consistent with the law and with framing of the enterprise as set
forth in the indictment.
The district courts instruction did
not constructively amend the indictment.

Defendants reliance on United States v. Weissman, 899 F.2d
1111 (11th Cir. 1990), is misplaced, as that case is easily
distinguished.
The indictment in Weissman described the
enterprise as a group of individuals associated in fact known as

the DeCavalcante Family of La Cosa Nostra.
Id. at 1112.
Although the district court initially instructed the jury that it

had to find the enterprise to be the entity named in the
indictment (the DeCavalcante Family), in response to a jury note,
the district court instructed that it was not necessary for the
government to prove that the enterprise was the DeCavalcante
Family if there was an enterprise proved that meets the
definitions of the term.
Id. at 1113.
The Eleventh Circuit
found that the supplemental instruction constructively amended

the indictment by permitting the jury to convict the defendants
of being involved with an enterprise other than the one charged
in the indictment.
Id. at 1113.
Here, unlike in Weissman, the
instructions substantially similar language did not permit the
528
jury to convict defendants based on an entirely different

enterprise or purpose from that alleged in the indictment;
indeed, the jury was required to find an enterprise
substantially similar to the one charged.383
Cf. Stirone v.
United States, 361 U.S. 212, 217-19 (1960) (finding constructive

amendment where the defendant was indicted only for interfering
with sand imports, but the proof and jury instructions related to
steel shipments); United States v. Dipentino, 242 F.3d 1090, 1094
(9th Cir. 2001) (finding constructive amendment where indictment
charged violation of one work practice standard but jury
instruction permitted conviction for violating a different work
practice standard not charged in indictment); Howard v. Daggett,
526 F.2d 1388, 1390 (9th Cir. 1975) (finding constructive
amendment where indictment charged travel in interstate commerce
for the purpose of inducing two specific women to engage in
prostitution, but supplemental instruction allowed conviction
based on evidence introduced at trial regarding women other than
the two named in the indictment).
b.
Defendants Have Not Shown an Effect on Substantial

Rights
383
The district courts instruction advised the jury that

it is not necessary that the government prove . . . that all the
purposes listed in the indictment were purposes of the
enterprise. (4/29/08 RT( A.M.) 36-37.) This statement makes
plain that the government was required to prove at least one of
the common purposes set forth in the indictment.
529
Nor can defendants demonstrate an effect on their

substantial rights.
Because the jury returned special verdicts
finding that Pellicano, Arneson, Turner and PIA constituted the

enterprise, and further finding that the enterprise engaged in
multiple acts of honest services fraud, identity theft and
bribery, defendants cannot show that any error affected the
outcome of the proceedings.
5.
Defendants Claim of a Fatal Variance in Closing Does

Not Withstand Plain Error Review384
Pellicano, Arneson, and Turner further claim that the

government caused a fatal variance to the RICO and RICO
conspiracy charges when, in closing argument, it stated that the
common purpose of the enterprise was gathering . . . information
regarding defendant Pellicanos investigative targets.
84.)
(JOB
According to defendants, this purportedly led the jury to
wrongly believe that it could properly convict defendants on the

RICO counts if it found the existence of an enterprise that had
the common purpose of simply accessing computer database
information illegally, without finding that wiretapping was also
a purpose.
(Id.)
This appears to be another variant of their
argument that there was not a single enterprise.
384
Pellicano, Arneson,
governments evidence failed
(JOB 80-83). This argument,
sufficiency of the evidence,
addressed later.
Defendants did
and Turner also claim that the

to establish a single enterprise.
properly framed, addresses the
Fernandez, 388 F.3d at 1126, and is
530
not object at trial and now fail to meet any, much less all, of
the four prongs of plain error review.
First, defendants have not and cannot show that this
statement resulted in a clear or obvious prejudicial variance to
the indictment.
The indictment did not charge wiretapping as a
purpose of the enterprise, only as one of the means through which

the enterprise achieved its common purpose of generating income
through the commission of diverse criminal offenses.385
2-19).
(CR 1604:
The governments statement, therefore, was consistent
with the RICO enterprise set forth in the indictment.

Even if there was error, defendants cannot establish an
effect on their substantial rights or that the fairness of the
proceedings was compromised.
The jury was instructed to resolve
385
Defendants also cite the governments acknowledgment in

closing that there were two groups of offenses. (JOB 84.)
Defendants fail to note that the government explained that: (1)
the entire indictment has a common theme, which is gathering
information through illegal means; (2) that one set of counts
addressed gathering information from protected computer
databases while the other addressed illegal wiretaps; (3) that
there was a factual overlap between the two groups of counts; and
(4) that Congress decided what constitutes racketeering activity
and for the purposes of this case and this indictment, the
crimes that Congress has chosen to include as racketeering
activity include wire fraud, identity theft, and bribery. For
whatever reason, Congress didnt include wiretapping as [a
racketeering act] and thats why the wiretapping charges are
separate and apart from the RICO count. (4/29/08 RT (A.M.) 86,
97.) This statement, which simply provided the jury with a
concise overview of the two overarching conspiracies (RICO and
wiretapping) that together encompassed almost the entirety of the
charged offense conduct in a 78-count indictment, was accurate
and did not cause any variance, prejudicial or otherwise, to the
indictment.
531
the case on the evidence presented at trial and the law as

presented by the court, not the argument of counsel (4/29/08 RT
19-20, 24); see United States v. Hugs, 384 F.3d 762, 768 (9th
Cir. 2004), which the split verdicts returned as to each
defendant shows that they did (CR 1607-09), and, in any event,
the governments argument constituted, at most, a permissible
narrowing of the indictment for the same reasons addressed
earlier.
Furthermore, the indictment put defendants on notice that
they would have to defend against RICO charges in which the
enterprise included Pellicano, Arneson, Turner, and PIA, and the
racketeering acts all were founded in the acquisition of
confidential information through accessing restricted law
enforcement and phone company databases.
(CR 1604.)
There is no
question that defendants understood this to be the case.
Exactly
one week before the government made the argument that defendants
now claim caused a variance in the indictment that impeded their
ability to prepare a defense (JOB 83), Arneson filed a brief,
that was joined by Turner and Pellicano, in which Arneson stated:
[T]he allegations in the Indictment clearly set forth
the purpose, manner, and means of the enterprise
centered around Arnesons ability to retrieve law
enforcement information, Turners access to telephone
company information and Pellicanos ability to use this
information for clients of the Pellicano Investigative
Agency and against investigative targets and litigative
opponents.
532
(CR 1413 at 13).
When coupled with the, at most, narrowing
impact of any variance, there was, and could be, no prejudice.

United States v. Castro, 89 F.3d 1443, 1453 (11th Cir. 1996)
(after having reviewed the prosecutors single remark, the
district courts instructions, and the trial in context, finding
neither constructive amendment nor material variance in RICO
prosecution where prosecutors closing and jury instructions
misidentified identity of the enterprise as it properly was
identified through the trial evidence).
Finally, the jury would have returned the same verdicts
absent the governments challenged statement.
The jury found
that Pellicano, Arneson, Turner, and PIA were all associated-infact and engaged in the commission of diverse criminal conduct,
to include bribery, honest services fraud, and identity theft, as
it pursued the acquisition of confidential information on PIAs
investigative targets.
(CR 1607-09.)
The jury also found that
Pellicano and Turner both conspired to wiretap and did wiretap,

again to acquire confidential communications of multiple PIA
investigative targets, including in every instance in which the
jury found that Turner had obtained for PIA confidential
information from SBC databases that served as the basis of the
jurys identity theft findings involving Pellicano and Turner
(racketeering acts 65-69).
(CR 1607, 1609.)
Furthermore, given
the overwhelming evidence that both the wiretapping and the

racketeering acts found by the jury were committed to generate
533
income through the acquisition of confidential information on

PIAs investigative targets, that the wiretapping almost always
overlapped with the charged racketeering activity, Arnesons
admission that he was aware of PIAs wiretapping capabilities,
and established precedent that an associate need not know of
every act undertaken by the enterprise, Arneson, like Pellicano
and Turner, has not and cannot establish either prejudice or a
miscarriage of justice requiring this Courts intervention.
J.
THE DISTRICT COURT DID NOT ABUSE ITS BROAD DISCRETION OR

COMMIT PLAIN ERROR IN ADMITTING THE TESTIMONY CHALLENGED ON
APPEAL, MOST OF WHICH WAS INTRODUCED WITHOUT OBJECTION FROM
ANY DEFENDANT
Defendants claim that the district court erroneously
admitted testimony that was unfairly prejudicial under Rule 403.

(JOB 56-70).
The overwhelming majority of the challenged
testimony that defendants claim to have been so unfairly

prejudicial as to warrant reversal of their convictions was
admitted without objection, much less a Rule 403 objection.
The
district court did not plainly abuse its discretion in admitting

this evidence.
In those rare instances when a Rule 403 objection
was timely raised, the district court did not abuse its
discretion in admitting the evidence.
1.
Standard of Review
A district courts evidentiary rulings during trial are

reviewed for abuse of discretion.
United States v. Hankey, 203
F.3d 1160, 1166 (9th Cir. 2000). A district courts decision to

534
exclude or admit evidence under Federal Rule of Evidence 403 also

is reviewed for abuse of discretion, with considerable
deference being afforded to the district courts wide latitude
in balancing the probative value of evidence against its
prejudicial effect.
Hankey, 203 F.3d at 1167; United States v.
Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009); United

States v. Easter, 66 F.3d 1018, 1021 (9th Cir. 1996).
Such
rulings will result in reversal only if they more likely than not
affected the verdict.
Hankey, 203 F.3d at 1166.
This circuit has adopted a two-part test to determine

objectively whether a district court has abused its discretion.
United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009).
First, this Court must determine de novo whether the [district]
court identified the correct legal rule to apply to the relief
requested.
Id. at 126162.
so, it abused its discretion.
If the district court did not do

Id.
If the district court
identified the correct legal rule, this Court must then

determine whether the trial courts application of the correct
legal standard was (1) illogical, (2) implausible, or (3) without
support in inferences that may be drawn from the facts in the
record.
Id. (quotation marks and citation omitted).
Absent a
finding that the district courts evidentiary ruling falls within

one of these three categories, the district court cannot be found
to have abused its discretion and its evidentiary ruling must be
upheld.
Id.
535
When a defendant fails to object to the admission of

evidence at trial, this Court reviews the district courts
evidentiary rulings for plain error and may reverse only if the
defendant establishes both that the error may well have affected
the outcome of the trial and that it was of a type that
seriously affects the fairness, integrity or public reputation
of judicial proceedings.
United States v. Sine, 493 F.3d 1021,
1038 (9th Cir. 2007); Hankey, 203 F.3d at 1167 (quoting United
States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996)).
In the 403
context, this Court has found that: [i]n view of the inherently
fact-specific nature of the Rule 403 balancing inquiry, and the
special deference to which district courts decisions to admit
evidence pursuant to that Rule are entitled, it is the rare
exception when a district courts decision to admit evidence
under Rule 403 constitutes plain error.
United States v. Rizk,
660 F.3d 1125, 1132 (9th Cir. 2011).

Plain error review also applies when a defendant objects in
district court, but does so on a different ground than asserted
on appeal.
United States v. Tafoya-Montelongo, 659 F.3d 738, 742
(9th Cir. 2011) (applying rule to objections made in sentencing

context); See also United States v. Jawara, 474 F.3d 565, 583
(9th Cir. 2007) (plain error review applied to unpreserved
Confrontation Clause claim as defendant solely lodged hearsay
objection to challenged testimony).
2.
Applicable Law
536
Rule 402 of the Federal Rules of Evidence states that [a]ll

relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority.
Fed. R. Evid. 402.
Relevant
evidence is defined expansively by Federal Rule of Evidence 401

as evidence that has any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable than it would be without the evidence.
Evid. 401.
Fed. R.
Therefore, as this Court has recognized, to be
relevant evidence need not be conclusive proof of a fact sought

to be proved or even strong evidence of the same.
All that is
required is a tendency to establish a fact at issue. . . the fact

to be proved may be ultimate, intermediate, or evidentiary; it
matters not so long as it is of consequence in the determination
of the action.
United States v. Curtin, 489 F.3d 935, 943 (9th
Cir. 2007) (en banc).

In limited circumstances, evidence that is relevant under
Rule 401 can be excluded under Rule 403 if the probative value of
the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
(emphasis added).
Fed. R. Evid. 403
It is well established that a the district
court has broad discretion to admit potentially prejudicial

537
evidence under Rule 403."
Rizk, 660 F.3d at 1132.
Recognizing
the breadth of this discretion, this Court has ruled that Rule
403 favors admissibility and that exclusion of evidence under
Rule 403 is an extraordinary remedy to be used sparingly.
Hankey, 203 F.3d at 1172; United States v. Mende, 43 F.3d 1298,
1302 (9th Cir. 1995).
This Court further has held that the unfair prejudice
addressed by Rule 403 results from evidence that affects the jury
wholly apart from defendants guilt or innocence:
[U]nfair prejudice results from an aspect of the
evidence other than its tendency to make the existence
of a material fact more or less probable, e.g., that
aspect of the evidence which makes conviction more
likely because it provokes an emotional response in the
jury or otherwise tends to affect adversely the jurys
attitude toward the defendant wholly apart from its
judgment as to his guilt or innocence of the crime
charged.
538
United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982);
overruled on other grounds, Huddleston v. United States , 485
U.S. 681 (1988).
As noted by this Court:
relevant evidence is inherently prejudicial, but it is

only unfair prejudice, substantially outweighing
probative value, which permits exclusion of relevant
matter under Rule 403. Unless trials are to be
conducted as scenarios, or unreal facts tailored and
sanitized for the occasion, the application of Rule 403
must be cautious and sparing. Its major function is
limited to excluding matter of scant or cumulative
probative force, dragged in by the heels for the sake
of its prejudicial effect.
Thus, it is well established that Rule
403 does not require a trial court to scrub the trial clean of
all evidence that may have an emotional impact, United States v.
Ganoe, 538 F.3d 1117, 1123-24 (9th Cir. 2008), and that the
greater the degree of probativeness possessed by the evidence,
the greater the showing of unfair prejudice that will be required
to exclude the evidence. Bailleaux, 685 F.2d at 1105.
As the
Second Circuit succinctly stated in concluding that the district

court had not abused its discretion under Rule 403 by allowing
for the admission of evidence of uncharged murders by uncharged
539
members of an enterprise in a RICO prosecution, when a defendant

engages in a criminal enterprise which involves very serious
crimes, there is a likelihood that evidence proving the existence
of its acts will involve a considerable degree of prejudice that
does not run afoul of Rule 403, particularly when such evidence
is of important probative value in proving the enterprise.
United States v. Matera, 489 F.3d 115, 121 (2d Cir. 2007); see
also United States v. Begay, 673 F.3d 1038, 1046 (9th Cir. 2011)
(no plain error under Rule 403 in allowing admission in federal
murder trial of evidence that defendant sought to intimidate
witnesses from cooperating with government investigators and had
instructed a potential witness to blame the murders on other
people); Boyd v. San Francisco, 576 F.3d 938, 944 (9th Cir. 2009)
(finding Rule 403 not violated by admission of rap lyrics
praising murder of police officers in section 1983 action in
which suicide by cop was a defense); United States v.
Hernandez-Vega, 235 F.3d 705, 709-10 (9th Cir. 2000) (finding
admission of video evidence of drug trafficking committed by coconspirators did not run afoul of Rule 403).
3.
The Flawed Premise on Which Defendants Claim Rests
Defendants claim that, under Rule 403, the government should

have been limited in its presentation of evidence to facts
showing that Pellicano obtained confidential information about
[his investigative targets] by using wiretaps and accessing law
(JOB 56).
540
Stated differently,
defendants argue that the government should have been precluded

from presenting evidence beyond what was necessary to establish
the wiretapping counts and the charged
racketeering acts, which
involved the acquisition of confidential information from

restricted access databases, as alleged in the RICO and RICO
conspiracy charges.
This simply is wrong.
Three basic legal principles and one
factual reality should guide this Courts analysis.
Factually,
it is the defendants, not the government, who create the

enterprise and the scope of its activities.
In this case, the
enterprise operated through a private investigators office that

serviced
wealthy or desperate individuals, including criminal
defendants, high stakes civil litigants, and individuals involved

in contentious personal disputes, willing to pay the $25,000
retainer and fees that went quickly into the hundreds of
thousands of dollars
by the enterprise.
for the unique, illegal services provided
It was by the very nature of the enterprise
they created and built that defendants preyed on and profited

from the human misfortune and unseemly behavior that they now
claim has caused them unfair prejudice at trial.
Legally, Pellicano, Arneson, and Turner were charged in
counts one and two of the operative indictment with conspiring to
participate and participating in a racketeering enterprise.
1604).
It is axiomatic that, under 1962(c)
(CR
and 1962(d),
the enterprise element is separate and distinct from the pattern

541
of racketeering element.
Turkette, 452 U.S. at 583.
Moreover,
the Supreme Court repeatedly has recognized that while evidence

of the commission of racketeering acts can constitute evidence in
support of the enterprise element of a substantive RICO or RICO
conspiracy offense, the enterprise element can be, and often is,
established by evidence independent of that used to prove the
enterprises pattern of racketeering activity.
at 947.
Boyle, 556 U.S.
The same holds true with respect to the separate element
of association and, for the substantive RICO count, the element

that the defendant participated in the conduct and affairs of the
enterprise.386
The indictment, likewise, plainly defined an enterprise that
was not just the sum of its racketeering acts.
Specifically, the
indictment unequivocally stated that the enterprises activities

included both legal and illegal conduct.
(CR 1604).
It further
recognized that the enterprise was structured to achieve income

generation and addressed the importance of client development and
satisfaction in this process.
(Id.).
To that end, the
indictment set forth that PIA, primarily through Pellicano, was

responsible for securing clients who were able to pay the premium
fees that it charged, advancing the interests of those clients,
at least in part through the commission of illegal conduct to
386
That defendants have not challenged the sufficiency of

the evidence as to these two elements does nothing to change the
fact that the government was required at trial to provide
evidence proving each element beyond a reasonable doubt.
542
include the conduct alleged as racketeering acts, and promoting

the enterprises successes so as to enhance its reputation with
present and future clients.
(Id.).
As for the illegal conduct
committed by the enterprise, the indictment also stated that the

enterprise engaged in diverse criminal activities of which the
racketeering acts were only a subset, that the information
obtained through the commission of racketeering acts frequently
was used to facilitate further criminal conduct to enrich the
enterprise, including threats, blackmail, and illegal wiretapping
directed against the enterprises investigative targets, and
that the enterprise would commit illegal conduct, at least in
part, to obstruct justice and to subvert and corrupt the
judicial process in furtherance of its clients litigative
interests.
(Id.).
At trial, the governments RICO evidence included, but was

not limited to, testimony, documents, and recordings sufficient
to establish the alleged racketeering acts of bribery, identity
theft, and honest services wire fraud.
But just as an extortion
scheme may supply the pattern of racketeering activity but fail

to fully define a
La Cosa Nostra enterprise, the conduct that
formed the pattern of racketeering activity in this case

evidenced, but did not define, the enterprise.
Instead, the
governments trial evidence provided a full picture of the

enterprise and its activities in a manner that mirrored the
indictment and was consistent with established RICO law, which
543
presumably is why the overwhelming majority of the evidence

defendants now cite as impermissible 403 evidence did not merit
an objection from any
of the five trial defendants.387
Fernandez, 388 F.3d at 1256 (no error in admission of evidence of

two uncharged murder conspiracies, as such evidence served as
proof of the racketeering enterprise); United States v. Miller,
116 F.3d 641, 648 (2d Cir. 1997) (rejecting 404(b) challenge to
admission of evidence of uncharged murders committed by other
enterprise members, as such evidence showed both the existence of
the enterprise and acts in furtherance of the enterprise and
further noting that uncharged acts may be direct evidence of the
conspiracy itself).388
387
Defendants claim that they held back on objections

because they did not want to make it appear to the jury that they
were aiding Pellicano. (JOB 73.) However, at least to the RICO
defendants, the evidence was admissible directly against them and
lodging a proper objection would have had the primary effect of
protecting their own clients interests. Moreover, the claim
rings hollow as the record plainly shows that the district court
allowed the parties to lodge objections outside the presence of
the jury at any time, including weeks after a given question was
asked. The district court also repeatedly instructed the jury as
to both the fact that lawyers are charged with making objections
when they deem it appropriate and no negative inference should be
drawn and further gave a Pellicano-specific instruction regarding
how no inferences should be drawn from the fact that attorneys
communicated with, and provided assistance to, him during the
course of the trial.
388
The joint brief repeats Pellicanos 404(b) notice

argument. This claim misframes the issue, as the evidence that
rests at the heart of their 403 claims is not 404(b) evidence at
all, but rather is evidence of the enterprise and/or evidence
that is inextricably intertwined or necessary to rebut a known
defense. Moreover, while 404(b) notice was not required,
(continued...)
544
At the center of the enterprise was PIA, the renowned

private investigation firm led by Pellicano, which served as the
vehicle through which the enterprise operated.
It was PIA that
allowed the enterprise to maintain the veneer of legitimacy that

shielded its varied illegal actions from law enforcement
scrutiny.
It was PIA, under Pellicanos direction, that provided
this client base with an array of investigative options that

included, but were not limited to, access to bribed law
enforcement officials and the commission of criminal offenses
such as identity theft, wire fraud, wiretapping, and threats that
the enterprise would employ as needed to assist these clients in
defeating their adversaries, even if doing so resulted in
subverting the legal process and the judicial system, as it often
did.
For the evidence plainly showed that the illegal conduct
committed by the enterprise was but the means to the end by which
the enterprise achieved success on behalf of PIAs clients success that enabled the enterprise to generate income millions
of dollars from existing clients and to enhance its reputation,
which, in turn,
increased its future earning potential with
existing and prospective clients.
And to show the enterprise, it
was necessary to show the full breadth of its activities.

388
(...continued)
defendants knew that the governments case would involve conduct
not charged as racketeering acts; in fact, Arneson unsuccessfully
filed a motion to exclude uncharged conduct because the
government had made clear its intent to introduce the full scope
of his enterprise related conduct.
545
Second, in addition to being a RICO prosecution, this case

involved two broad conspiracies, the RICO and wiretapping
conspiracies, both of which were multiple years in duration.
United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011) (The
rule is well established that the government in a conspiracy case
may submit proof on the full scope of the conspiracy; it is not
limited in its proof to the overt acts alleged in the indictment.
This is consistent with our own prior precedent and that of other
circuits.); United States v. Bonanno, 467 F.2d 14, 17 (9th Cir.
1972) (In conspiracy prosecutions, the Government has
considerable leeway in offering evidence of other offenses [not
charged in the indictment].
Evidence of these prior [actions]
would be admissible to show some material facts relating to the

conspiracy charged.
It would also be relevant to show that they
were continuing along the same line in their [actions].)

(internal citations omitted)
As with the RICO statute,
controlling conspiracy law principles permit the government to

admit evidence that reflects the conspiracy as fully realized.
Third, evidence that is inextricably intertwined with the offense
conduct or is necessary to rebut a defense may properly be
admitted, even if not charged in the indictment. Notably, several
defense themes predominated this case, including: (1) Arnesons
coopting of law enforcement database inquiries that he conducted
for PIA as official LAPD business; and (2) no-harm, no-foul
nullification argument premised on the claim that PIA was a
546
quasi-actuarial office that simply acquired information for

information sake and not to put it to use.
Finally, plain error governs the overwhelming majority of
the 403 claims cited by defendants, and given the underlying
factual and legal considerations, this is not one of the rare
exceptions when a district courts decision to admit evidence
under Rule 403 constitutes plain error.
Rizk, 660 F.3d at 1132.
For the pattern that will emerge upon review of these materials
is: (1) no error, as the evidence is probative of the charged
offenses; (2) no plain error, given the absence of clear legal
principles instructing that the admitted evidence in dispute
should categorically be excluded, (3) no affecting substantial
rights and no need to exercise discretion to remedy an error that
seriously affects the fairness and integrity
of the proceedings,
as the jury, after two weeks are careful deliberation, returned

split verdicts across defendants and across charges, including
the RICO charges.
Particularly notable for purposes of this
Courts review is that the jury, rather than being swept up in a
547
tidal wave of prejudice, acquitted defendants on several of the

matters that defendants cite as the most egregiously prejudicial
items of evidence (e.g., identity theft racketeering acts
involving PIA targets Mueller, Jane Does #1 and #2) and a
substantive 1030 count involving PIA client Sender.
5.
Claims of Prejudice Based on Misrepresentations of the

Record
Several of the instances in which defendants claim that the

district court plainly abused its discretion have no foundation
in the record and can be quickly set aside.
a.
The Purported Appeal to the Jury to Right the

Wrongs of Past Acquittals
Defendants claim the government encouraged the jury to

right the wrongs done in the past, when in closing argument
it stated so if any of these lawyers get up here . . . and try
to divert your attention from the evidence against their clients
by making this all about who wasnt charged, I ask you to
recognize it for what it is, which is an invitation to violate
the oath that you took as jurors.389
(4/29/08 (A.M.) RT 85-86).
Defendants did not object on this ground before the district
389
Defendants stated that the government warned the jury

not to fall for any shenanigans of the defense. (JOB 68).
Despite the quotes, the government never used the word
shenanigans.
548
court, presumably because: (1) the portion of the closing

argument defendants cite actually addresses an unrelated issue;
and (2) the government, in fact, never made the argument that
defendants now claim.
The record unequivocally shows that the government was not
in any way addressing the outcomes of past cases or implying that
the jury should right past wrongs when it made the statement
that defendants cite in support of their claim.
Instead, the
quoted statement was a direct response to questioning and

argument advanced by defendants throughout trial that were
designed to encourage jury nullification in this case.
See,
e.g., 4/16/20/08 (P.M.) RT 55-60,113; 4/1/08 RT (P.M.) 56; 4/8/08

(A.M.) RT 71).
The governments actual statement, placed in its
full and proper context, was as follows:

theres been a lot of questioning by defense counsel in
this trial about who was and wasnt charged with what.
And theres been an implied or maybe express suggestion
in questioning that the facts say that a particular
witness wasnt charged with racketeering or with some
other offense, that somehow means that these defendants
arent guilty of the crimes that they are charged with.
Your job, your sworn duty when you go back into that
jury room later this week is to decide whether the
549
government has proved these charges against these

defendants beyond a reasonable doubt. . . .So if any of
these lawyers get up here when its their turn and try
and divert your focus from the evidence against their
clients by making this all about who wasnt charged, I
ask you to recognize it and reject it for what it is,
which is an invitation to violate the oath that you
took as jurors.
(4/29/08 (A.M.) RT 85).
This is precisely what defendants, most notably Arneson,
did.
Specifically, Arnesons counsel argued at length the
purported unfairness that Arneson was standing trial on RICO

charges while others were not.
(4/30/08 (A.M.) RT 39-43).
For
example, addressing the testimony of cooperating defendant Craig

Stevens, Arnesons counsel argued RICO?
Well the governments
decided with respect to Mr. Stevens, no.
You decide for Mr.
Arneson.
And whats the reason for the prosecutorial discretion
with respect to Officer Stevens.
(4/30/08 (A.M.) RT 39).
Similarly, Arnesons counsel provided a list of witnesses who

testified to knowing of criminal conduct committed on their
behalf but who were not charged:
550
Adam Sender. You recall him with respect to the Russo

matter. Uncharged. Alec Gores, wiretapped or said he
wiretapped his wife, brother regarding having an
affair. Uncharged. Susan Maguire testified that she
listened to wiretaps of her husband. Uncharged. Sarit
Shafrir testified that she listened to her ex-husband
on a wiretap. Uncharged. Andrew Stevens, former
actor, in a movie deal involved in a dispute with John
LaViolette, a lawyer, allegedly listened to wiretaps.
Uncharged. Fred DeMann . . . . Uncharged. Susan
Hughes. Married to the founder of Herbalife.
Uncharged.
(4/30/08 (A.M.) RT 40-41).
Arnesons counsel then proceeded to
identify a series of prominent individuals who he implied were

criminally culpable but who were not charged, such as attorney
Bertram Fields and businessman Michael Ovitz, when he argued and
where are the others that reaped the benefits of Mr. Pellicanos
services?
(4/30/08 (A.M.) RT
42-43).
Arnesons counsel
concluded with a final plea for nullification, Everybody else

came in and testified they had a very close relationship with Mr.
Pellicano, used his services, and testified under oath they had
no knowledge, just like Mr. Arneson did.
were prosecuted.
None of these folks
(4/30/12 (A.M.) RT 43).
551
The record is clear that the governments argument was not

expressly or tacitly designed to have the jury set aside their
duties and decide this case on factors other than the evidence
presented at trial.
On the contrary, it addressed the exact
opposite principle, namely, that the jury was to decide the case
based on whether the evidence presented at trial was sufficient
to establish defendants guilt on the charged offenses and not on
improper pleas for nullification.
This was an appropriate
argument addressing a known, albeit improper, defense.
See,
e.g., United States v. Blixt, 548 F.3d 882, 890 (9th Cir. 2008)
(affirming district court order striking jury nullification
argument as improper); United States v. Navarro, 408 F.3d 1184,
1198 (9th Cir. 2004) (en banc) (finding that courts universally
have rejected the idea of advising juries of their ability to
nullify and citing cases reiterating the jurys duty to apply the
law as instructed).
with controlling law.
The governments argument was consistent

Therefore, there was no error, much less
plain error, much less plain error affecting a substantial right,

in the governments argument.
b.
Alleged Exploitation of Mafia Themes
Defendants contend that the government repeatedly invoked

the Mafia in connection with Pellicano.
552
This is ludicrous.
It
was Pellicano who used the word Omerta in wiretapping passwords

(Lisa Bonder Omerta) and again in the hardcoded password
(office322omerta) to the Telesleuth Jr. encryption program
(3/7/2008 (P.M.) RT 127, Ex. 101; 3/18/2008 (A.M) RT 61).
It was
Pellicano who instructed Giuseppe Franco that his employee,

Patrick Theohar, had to change an adverse declaration because
Pellicano had been watching out for him because of the family.
(4/2/08 (A.M.) RT; Exh. 16; GEX 228.)
It was Pellicano who had
Alexander Proctor put a dead fish, a rose, and the word stop on
Buschs car window. (4/9/2008 (A.M.) RT 114).
It was Arneson who
testified that Pellicano would feed him source information on any

group but Italians, whose counsel repeatedly asked Busch about
how the responding LAPD and FBI law enforcement officials were
assigned to their respective organized crime sections, and who
flatly asked Busch And you perceived the fish on the car as an
organized crime message to you, correct?
the Godfather.
And that comes out of
Its swimming with the fishes; isnt that
right? (4/9/08 RT (P.M.) 26, 79, 4/11/08 RT (P.M.) 65-66).
And
it was Arnesons counsel who argued in closing that there was no

enterprise because Pellicanos belief in Omerta kept him from
passing along the information that would be needed for the other
participants to understand the broader enterprises common
purpose.
The government takes the evidence as it gets it.
In this
case, there was an undercurrent of a Mafia theme that Pellicano

553
and Arneson promoted throughout the trial.
There was no
prejudice, much less any unfair prejudice from the governments

admission of this evidence.
Certainly, there was no plain abuse
of discretion.
5.
Search Materials
a.
The District Court Did Not Plainly Abuse its

Discretion in Admitting Select Photographs from
the November 2002 Search of PIA
(1)
Photograph and Summary Testimony Regarding

the Explosives Found During the Execution of
the November 21, 2002, Search Warrant at PIA
The FBIs execution of the initial search of PIA on November

21, 2002 was truncated by several hours as they unexpectedly
encountered a safe that contained, among other items, two hand
grenades, plastic explosives, and a detonator.390
390
(3/7/08 (A.M.)
Pellicano claims that he assisted the agents in

recovering the explosives. (POB 69). This statement is false.
When asked about potential dangers to the searching agents,
Pellicano advised the agents that he had multiple firearms in his
office desk but made no reference to the existence of the
explosives. (RJN 10/8/03 RT 103-05). Moreover, while Pellicano
complied with an order to open the safe that contained
explosives, he again failed to advise the searching agents that
explosives would be found. (Id. at 108-10). Although the
specific issue was not addressed in the RICO trial, FBI SA Agents
David Freihorn and Stuart Turner testified that Pellicano had not
advised them of the existence of the explosives, that they been
discovered by SA Turner, who had no experience handling
explosives and who was not wearing protective gear, and that when
asked after the fact about the explosives, Pellicano claimed to
have forgotten that they were housed in the audio laboratorys
safe. (Id. at 34-36, 80-84).
554
RT 94).
The lost time caused by the evacuation was among the
reasons why the FBI imaged PIAs computer media off-site.

The defendants refused to agree to foundational stipulations
for the computer images and the evidence derived therefrom and
further focused much of their defense on the adequacy of the
governments investigation.
To that end, the government advised
the district court that it would seek to introduce a photograph

from the search that included the explosives with accompanying
testimony addressing how the recovery of these items interrupted
the search and impacted the imaging of the computer evidence.
(3/6/2008 (A.M.) RT 12; 3/6/2008 (P.M.) RT 94-95).
issued a formal objection.391
No defendant
(3/6/08 (A.M.) RT 10-15).
only party who even addressed the issue was Kachikian.
The
After
confirming that all defendants would be contesting the accuracy

of the images and copies made, Kachikians counsel, who was
careful to state that he was speaking only on his clients
behalf, noted that he was concerned that there could be prejudice
from introducing photographs of explosives in what he
characterized as a wiretapping case, and asked whether there
were other photographs that the government could introduce to
391
This is among the items of evidence for which Pellicano

claims a lack of 404(b) notice. (POB 39.) Notably, it was this
very set of explosives that served as the basis of federal
charges that resulted in his trial conviction and imprisonment in
2002. Certainly, if he had not had notice through his first
trial, the discovery in this case, and the governments exhibit
binders, he did at this point and still failed to lodge an
objection.
555
achieve its intended purpose (which it could not, given that the
purpose was to explain how the evacuation impacted the search).392
(3/6/2008 (A.M.) RT 13-14).
The district court ruled that it
would allow introduction of the evidence relating to the

explosives provided that the matter was efficiently addressed.
(3/6/08 (A.M.) RT 15).
It was done through two questions, which
were received without objection.
(3/6/08 (P.M.) RT 83-84.)
An FBI agent introduced and described, in order, 24

photographs that depicted PIA before and after this search.
(3/6/08 (A.M.) RT 83-94).
When it came time to introduce the
single photo containing the explosives, the agent concisely

explained that it showed the contents of a safe located in PIAs
audio lab, which included about $200,000 in cash393, jewelry,
gold bouillon, coins two hand grenades, plastic explosives, and a
392
It is likely that Kachikians counsel noted his

concern rather than making a formal objection because the
discovery of the explosives factored into his clients defense.
Specifically, Kachikian re-introduced the explosives into the
trial when he testified, and his counsel later argued, that it
was only upon learning that explosives had been recovered from
PIA that he began to re-assess the legality of the work being
done at PIA, including the work that Kachikian performed in
developing the Telesleuth software. (4/24/08 (A.M.) RT 62-63, 71,
4/30/08 RT (P.M.) 42).
393
The presence of bulk cash in the forefront of the photo

was highly probative, as numerous clients testified regarding
Pellicanos preference to be paid in cash and witnesses,
including PIA employees Tarita Virtue and Lily LeMasters and
cooperating defendants Craig Stevens and Teresa Wright, discussed
how Pellicano, occasionally through Turner, paid his law
enforcement and phone company sources, in part, with cash.
(3/7/2008 (P.M.) RT 151; 3/18/2008 (P.M.) RT 57, 58; 3/20/2008
(P.M.) RT 41, 42; 3/28/2008 (A.M.) RT 20; 4/8/2008 (A.M.) RT 46).
556
detonator.
(3/6/08 (A.M.) RT 93-94; Exh. 722; GEX 2908).
Later, the agent briefly explained that the FBI was unable to
image the computer media on-site due to both the magnitude of the
task and that the FBI had to suspend its efforts for several
hours while the bomb squad removed the explosives.
(3/6/08 RT
(P.M.) 94-95).
The district court did not plainly abuse its discretion in
admitting the photograph and testimony relating to the explosives
as it was both inextricably intertwined with the search of PIA
and further rebutted multiple defense arguments, including
potential attacks to the imaged computers and the challenge to
the sufficiency of the overall search, which Pellicano did that
day, and the investigation, which was a common trial theme (e.g.,
why there was only one wiretapped recording recovered at a
business engaged in significant wiretapping activities).394
394
Given the brevity and content of the testimony and its

stated purpose, it could not properly be cast, as defendants
attempt to do, as evidence of violence. (JOB 60).
557
(3/6/08 (P.M.) RT 115.)
Therefore, the district courts decision
was neither plainly illogical nor implausible, was founded in the

record, and should be upheld.
(2)
Photo Depicting Items from Pellicanos Office

Drawer
Included among the two dozen PIA search warrant photographs

was one of items found in a drawer of Pellicanos personal desk,
which showed a stack of computer disks, several books, and a
picture of former PIA client Farrah Fawcett, who was scheduled to
testify regarding the wiretapping of former boyfriend James
Orr.395
(3/7/08 (A.M.) RT 83-84, 91; Exh. 715; GEX 2894.)
As it
did with each admitted photograph, the government asked a series

of perfunctory questions to place the photograph in context,
which included a single question referencing the books shown in
the photograph Books including Lost Son and The Family by Mario
395
Fawcetts retention of PIA factored into both the

governments and Arnesons theories of the case. The wiretapping
of Orr was alleged as an overt act to the wiretapping conspiracy
count set forth in the Fifth Superseding Indictment. In
addition, PIA employee Lily LeMasters testified that, in addition
to the wiretapping, PIA obtained criminal history and DMV
information on Orr. (3/18/08 RT (P.M.) 101). The Arnesons
counsel further elicited from several trial witnesses that
Arneson had done limited bodyguard work for Fawcett. (3/8/08 RT
(P.M.) 114, 4/11/08 RT (P.M.) 25-26, 4/18/08 RT (P.M.) 24).
Ultimately, Fawcetts failing health precluded her from serving
as a witness and the government struck, with defendants consent,
the overt act that alleged the Orr wiretapping. (4/3/08 (A.M.)
RT 6, 4/10/08 (A.M.) RT 5-6).
558
Puzo? which, in turn, was answered with a simple yes.
(Id.).
Defendants did not object to either the photograph or the answer.

admitting this photograph, which depicted the lead defendants
office space, including a picture tying him to a witness who was
expected to testify regarding wiretapping.
As to the passing
references to the two books, if there was any error, it certainly

was not plain as there is no case that broadly requires the
exclusion of such evidence and the single question asked did not
delve into the many levels of meaning that defendants ascribe to
it.
Furthermore, defendants cannot meet either prongs three or
four as it cannot plausibly be argued that a single question

referencing book titles and eliciting a one word response would
have the effect of shifting the jurys verdict following a two
month trial and further it would run completely counter to the
interests of the judicial system to upset verdicts in a complex
case such on the question asked.396
396
(JOB 69).
The governments question did not elicit Keriks name

and no evidence was introduced in any form that Kerik was under
indictment in New York. (3/6/2008 (P.M.) RT 77). Therefore, to
the extent that the jury focused on his book cover for the few
seconds it was published, they would have seen Keriks name, his
title New York Citys 49th Police Commissioner, the books
subtitle A life in pursuit of justice, the shield of the New
York Police Department, and a picture of Kerik holding a
toddlers hand. Defendants claim of unfair prejudice as to the
Puzo book stems solely from the fact that Puzo previously wrote
the fictional novel The Godfather, which they claim represented
another instance in which the government repeatedly invoked the
Mafia in connection with Pellicano. (JOB 61).
559
6.
The Enterprises Use Of Threats
The indictment charged and the evidence established that the

enterprise used threats as a means of advancing its interests and
the interests of its clients.
(CR 1604.)
manifested itself in several ways.
This evidence
For example, the evidence
established that Pellicano and PIA cultivated within its

employees and clients the belief that Pellicano would do whatever
was necessary, including committing acts of violence, both to
advance the interests of PIAs clients and to protect the
enterprise.397
As former PIA client Susan Maguire testified,
Pellicano had told her of things that he had done that were
violent and frightening,398 which she believed Pellicano had
conveyed to her to ensure that she would keep silent regarding
the wiretapping and other illegal conduct committed in
furtherance of PIAs representation of Maguire.
(P.M.) 70-71).
(3/20/08 RT
Other clients described how threats were among
397
Pellicano also perpetuated this belief in public forums.

The government included at sentencing a copy of a Vanity Fair
profile of Pellicano entitled The Big Sleazy in which Pellicano
advised the interviewer I am expert with a knife. I can shred
your face with a knife, further asserted [i]f you cant sit
down with a person and reason with them, there is only one thing
left, and thats fear, and described an instance in which he
used a bat to beat a drug dealer who supplied a clients son with
drugs.
398
Neither the question, which specifically addressed

threats nor Maguires answer, was objected to at trial or
subjected to cross-examination. (3/20/2008 (P.M.) RT 70.)
Likewise, defendants have not objected to this testimony on
appeal.
560
the methods employed to intimidate and thereby psychologically

defeat PIAs investigative targets.
Former PIA client Robert
Pfeifer and victim Erin Finn testified regarding the successful

multi-pronged assault directed at Finn consisting of illegal
database inquiries, wiretaps, anonymous threats,399 and multiple
civil lawsuits that together were designed to discredit and
financially destroy Finn so that she would be compelled to recant
an accurate sworn statement that she had provided in a civil suit
that she witnessed Pfeifer using drugs.
Pellicano himself
succinctly discussed the importance of intimidation in securing a

tactical advantage over an adversary, when he explained to PIA
client George Kalta, who was charged with the sexual assault of a
minor, how Kaltas victim could be discredited:
What you do with a witness that you know is lying, is
you find out something about them that they're scared
to death that everybody's gonna find out about. In
other words, I, let's say I found out that she had
three abortions, right? And that she was on LSD and
all that, right? Now, her parents don't know UNT. I
399
Finn, at the time, was a high-end escort. Pfeifer

testified without objection and without subsequent impeachment
that Pellicano, utilizing information that he obtained from
wiretaps, proposed acts of intimidation directed at Finn, such as
sending a soccer ball in advance of an overseas encounter that
Finn had scheduled with a professional soccer player and sending
a horseshoe of black roses during a client encounter that Finn
had planned for a resort in Big Sur. (3/25/08 (A.M.) RT 110-11).
561
start questioning her about that. She gets the shit

scared out of her, you understand? And says to
herself, oh my God, what else do they know about me.
And then I say, well, you know, you're here because
you're accusing this man of something, now isn't this
true, isn't that true. You know what I mean?
(4/3/2008 (P.M.) RT 116-117, Ex. 53).
a.
Threats Against Jude Green
In 2000-01, Jude Green was involved in highly contentious

divorce and civil proceedings with her estranged husband Leonard,
a financier who made his fortune, at least in part, through
accounting fraud and insider trading.400
24).
Leonard retained PIA
(3/19/08 (P.M.) RT 23-
in connection with these proceedings.
(3/19/08 RT (P.M.) 24-25, 48-49, 50, 52-53).
400
Leonard Green sued Jude Green for 25 million dollars for

tortious interference with his business. (3/19/08 (P.M.) RT
24). Jude Green testified on cross-examination that the lawsuit
was designed to shut me up and make me go away as she knew
about Leonard Greens illegal activities. (3/19/08 (P.M.) RT 52 53).
562
Green testified without objection401 to the escalating

harassment that she experienced during that time frame.
Specifically, one week after Arneson conducted more than two
dozen criminal history and DMV inquiries utilizing Greens
married name, maiden names, social security number, and license
plate numbers, Pellicano confronted Greens attorney at a court
appearance and advised him that Green had to settle the case or
deal with him and then thereafter, Pellicano followed her car to
a pet grooming establishment, stood behind her, and pushed into
her back with his crossed arms, at which time Green yelled at
Pellicano to leave her alone and ran from the establishment.
(3/19/08 RT (P.M.) 26-29, 30-33,
37-39,
42-44, 65-76).
Green
then made an in-court identification of Pellicano, testifying

that she was 100 % sure Pellicano was the person who attempted
to intimidate her in May 2001.
(3/19/2008 (P.M.) RT 32).
On
cross-examination by Pellicano, Green again confirmed that

Pellicano had attempted to intimidate her.
(3/19/08 RT (P.M.).
75-76).
401
Arneson made a single hearsay objection to one question

relating to Pellicanos dealings with attorney Robert Naschin.
(3/19/08 RT 37-38). This objection has no effect on the Rule 403
claim presently before this Court as it was to a different
portion of the testimony and otherwise unfounded. See, e.g.,
United States v. Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir.
2012) (A party fails to preserve an evidentiary issue on appeal
not only by failing to make a specific objection, but also by
making the wrong specific objection).
563

admitting this testimony.
This is as plain an example as could
exist of Pellicano using threatening behavior in an attempt to

secure a favorable outcome on behalf of an enterprise client.
The evidence was highly probative enterprise evidence and further
provided necessary context to the database inquiries, namely,
that they were conducted on behalf of Pellicano and not the
LAPD.402
This further supported the inference that Pellicano used
information obtained from the confidential reports provided by

Arneson, which included Greens DMV information, to track down
his investigative targets.
The Court correctly found it to be
admissible.
b.
Anita Busch Threat
The district court did not abuse its discretion in allowing

testimony regarding an encounter Busch had with a Mercedes on the
street in front of her residence on August 16, 2002.
described above, Busch had been targeted by PIA.
As
It started as
it almost always did with Pellicano securing confidential law

enforcement and phone company reports on May 16, 2002 and then
progressed to the fish/rose/note threat on June 20, 2002. Busch
then spent approximately one month away from her residence before
402
Approximately two months prior to Arneson conducting

these inquiries, Green had reported a telephonic threat in which
she was instructed to keep your mouth shut or else. For your
sake and your family, to the LAPD Butler Avenue station, which
was not part of the Pacific Division. (3/19/08 RT (P.M.) 29-30.)
564
returning on August 9,2002.
One week later, she had the incident
with the dirt colored Mercedes in which she almost was hit only
to see a party in the car put fingers to lips in the universal
sign of silence.
And approximately two months after that, her
residential phone line is subject to successive wiretaps.403

The district court did not abuse its discretion in allowing
for the admission of evidence related to the August 16 drive-by.
By the time the government sought to introduce this evidence, the
district court had before it a wealth of evidence showing both
that the enterprise generally, and Pellicano particularly,
performed threats to advance its interests.
In addition, the
timing supported this inference as well, as the event occurred

one week after Busch returned from her temporary flight.
Particularly since the charges set forth a time line that
extended through and beyond this event, the district courts
ruling to admit the testimony was neither illogical nor
implausible and further had support in the record.
It should be
upheld.
c.
Patrick Theohar (Heidi Gregg)
The district court did not plainly abuse its discussion by

admitting evidence of Pellicanos intimidation of Patrick Theohar
403
Pellicano has sustained a federal or state conviction for

every link of this unbroken chain with the exception of the
street drive-by.
565
via Heidi Gregg.
There was considerable testimony regarding the
instance when Arneson, at PIAs behest, conducted a warrants

search of Theohar, who had submitted a declaration adverse to a
PIA clients interest. (4/16/2008 (A.M.) RT 55-59).
Arneson, as
well as several other witnesses testified to the fact that

officers were sent out to effectuate an arrest.
(A.M.) RT 44-46).
(4/11/2008
While the parties differed on why this done,
the testimony established that Theohar felt sufficiently

intimidated that he altered his declaration and provided one that
aligned with Pellicanos clients interests.
(4/2/2008 (A.M.) RT
65.) Therefore, there is no plain error.

d.
George Mueller Threat.
Beginning in 1997, George Mueller, a senior investigator in

the Fraud and Corruption Division at the Los Angeles District
Attorneys Office (LADA), conducted a passport fraud
investigation of Christopher Rocancourt.
86).
(3/20/08 RT (P.M.) 84,
Rocancourt retained PIA in 1998 after being charged.
(3/20/08 RT (P.M.) 90-91).

Subsequent to PIAs retention, Arneson conducted criminal
history and DMV inquiries on fellow law enforcement official
Mueller,
Ali Amghar, a citizen informant who provided the LADA
with evidence of Rocancourts criminal activities, Lilian Pinho,

another Rocancourt informant, Jones and Fuller, who both had
become cooperating defendants, Mitch Selfin, a private
566
investigator retained by a Rocancourt victim, Vanessa Etournea, a

Rocancourt associate, co-defendant Dabany, and Rocancourt
himself.
(3/20/08 (P.M.) RT 92-97).
The Mueller inquiries
included an inquiry of DMV databases.

Mueller testified that Arneson was not involved in the
Rocancourt prosecution and further explained how each of the
individuals who Arneson had conducted database inquiries on were
related to this prosecution.
(3/20/08 (P.M.) RT 89-90, 93-98).
Mueller further testified, without objection, that Pinho, who was

referenced in a magazine article profiling Rocancourt, received a
telephone threat during pretrial proceedings in which a party
identifying himself as calling on behalf of Rocancourt called
Pinho a rat and advised her that she was going to take a very
long nap, after which she received a rat wrapped up in a
magazine (3/20/08 (P.M.) RT 99).
Mueller further testified,
again without objection, that within the week of when this call
was made, Pinho found a rats head along with the magazine
article.
(3/20/08 (P.M.) RT 99-100).
Mueller also testified,
again without objection, that in July 1999, he was notified by

LAPDs Organized Crime and Vice Division that they had an
informant, Dennis Sidhoun, who reported that Rocancourt had put a
contract on Muellers life404 and that Sidhouln had seen a DMV
404
Mueller also had a conversation with Rocancourt in which

he made a veiled threat against Muellers family. (3/20/08
(P.M.) RT 100-01).
567
photograph of Mueller that Rocancourt was circulating.405

(3/20/08 (P.M.) RT 97, 101-03).
Shortly after the meeting at
LAPD in which Sidhouln discussed with Mueller what he knew about

the threat to Muellers life, Arneson, who just a month before
had sought DMV information on Mueller, conducted a series of
database inquiries on Sidhoun, on July 29, 1999.
(3/20/08 (A.M.)
RT 104-05.)
permitting the testimony relating to these threats.
was no error.
First, there
Rocancourts relationship with the enterprise had
been established as had the fact Arneson was supplying Pellicano

on behalf of Rocancourt confidential law information on highly
sensitive individuals, some of whom then were targeted by
Rocancourt.
Moreover, presentation of the underlying facts were
necessary to both show that Arneson performed work for Pellicano

while Pellicano was representing interests adverse to the LAPD,
which was directly applicable to both the bribery racketeering
acts and Arnesons purported good faith defense to the honest
services charges.
For the reasons that there was no abuse of
discretion, it certainly was not plain.
Moreover, it did not
affect defendants substantial rights as the jury did not return
405
After learning of the threat, the LADA had the DMV block
information relating to Mueller and his wife from database
disclosure. (3/20/08 (P.M.) RT 103-04).
568
a beyond a reasonable doubt finding as to this racketeering act.

(CR 1607-08).
e.
Linda Doucett Threat
Linda Doucett was a former PIA investigative target arising

from a 1999 business dispute between PIA client Brad Grey and
Garry Shandling.406
(3/13/08 (P.M.) RT 21, 3/10/08 (A.M.) RT 25.)
In 2003, the FBI interviewed Doucett while its investigation was

in the early stages of grand jury proceedings.
Shortly
thereafter, Doucett received a call in which she was told not to

talk either to Stan [FBI SA Stanley Ornellas] or the press unless
she wanted harm to befall her son.
(3/19/08 (P.M.) RT 93).
Doucetts trial testimony focused primarily on confirming that

multiple entries in the LAPD audit of Arnesons restricted
database inquiries contained her personal identifying information
and that she did not have any interaction with law enforcement,
much less Arneson, during the time when the inquiries were
conducted.
(3/19/08 RT 82-92).
Doucett also briefly testified,
without objection, about the threat that she received and her
belief that it was directed at her potential status as a witness
in this case.
(3/19/08 (P.M.) RT 93-94).
406
Pellicano vigorously
Shandling testified that, following PIAs retention,

Greys defense team, including Pellicano, engaged in a
coordinated campaign of character assassination in which negative
stories regarding his conduct were repeatedly published, which
impacted his resolve to proceed with his lawsuit. (3/1/3/08
(A.M.) RT 22-23, 34-35).
569
and extensively cross-examined Doucett on this topic.
(3/19/08
(P.M.) RT 94-106).
The district court did not plainly abuse its discretion by
not striking this testimony.
There was no error.
The Doucett
threat was predicated solely on her status as a witness who had

been called to testify before the grand jury investigating this
case.
In addition, it was not plain and did not affect
defendants substantial rights.
The district court was aware of
guilty pleas arising from perjury, there already had been

evidence of threats admitted at trial, and several of the trial
defendants faced false statement charges.
f.
Keith Carradine Threat
In April 2001, Sandra Carradine retained PIA to acquire

information that could be used to advance Ms. Carradines claim
in ongoing child support litigation that ex-husband Keith
Carradines domicile was California and not Colorado.
(A.M.) RT 51-53).
(4/1/08
PIA wiretapped Mr. Carradine and while also
acquiring confidential law enforcement information on Mr.

Carradine and his girlfriend Haley Dumond.
Ms. Carradine
testified that Pellicano played for her wiretapped calls between

Keith Carradine and Dumond, Dumond and her parents, and Dumonds
parents and a friend of Keith Carradines who discussed how
Keiths mobile home had been ransacked and that this friend
intended to report to the police his belief that Ms. Carradine
570
had been involved in the break-in.407 (4/1/08 (A.M.) RT 57-60, 6267, 68-69, 71-75, 78, 84-87).
Mr. Carradine further testified, without objection, that in
April 2001, the trailer that he lived in when residing in
California had been broken into and that he had reported the
break-in to the Los Angeles Sheriffs Department, not the LAPD.
(3/28/08 (P.M.) RT 60-61, 67, 72 ).
Mr. Carradine further
testified, without objection, that he and his girlfriend were

being harassed at that time and his girlfriend, Hayley Dumond,
had been aggressively followed by another car during this time
period, that her car tires had been slashed, and that Dumonds
parents were the subjects of repeated telephone hang-up calls.
(3/28/08 (P.M.) RT 60-61).
The district court did not plainly abuse its discretion by
allowing testimony about the break-in to his apartment as the
information was obtained from a wiretapped call and therefore was
direct of a counts 67 ad 74, the wiretapping conspiracy and
substantive wiretapping counts in that address the Carradine
wiretap.
There was no error much less plain error.
Moreover,
the testimony about the Dumond being aggressively pursued and

having her tires slashed was inextricably intertwined with the
wiretapping conspiracy evidence.
407
Pellicano does not challenge the sufficiency of the

evidence on counts 67 and 74, which together alleged the
wiretapping of Keith Carradine.
571
g.
Virtue Threats and Related Testrimony
Virtue provided extensive trial testimony regarding the

overarching enterprise, its structure and membership, and a
multitude of illegal acts committed by PIA, Pellicano, Arneson,
Turner, and Stevens in furtherance of the enterprises interests,
which included the illegal law enforcement and phone company
database inquiries, bribery, and wiretapping.
Virtue also
directly implicated Pellicano, Turner, Kachikian, and Nicherie in

wiretapping.
As Virtue had presented testimony and authenticated exhibits
that implicated each of the trial defendants in at least one, and
often many, of the crimes with which they were charged,
defendants spent approximately two days attempting to undermine
Virtues credibility through cross-examination.
This questioning
frequently focused not on Virtues veracity but rather on smear

tactics, including that Virtue: (1) had entitled a blog entry on
her personal Myspace page addressing her jury service Jury Duty,
Room of Morons and referred to fellow jurors as dipshits; (2)
identified herself on her personal Myspace page as Boobs and
Brains; and (3) included as part of her personal Myspace page
photographs of a Maxim magazine fashion shoot and other selftaken photographs in which she was wearing lingerie or otherwise
was scantily clad photographs that Arnesons counsel repeatedly
referred to in his questioning of Virtue as being compromising
572
in nature.408
(3/11/08 (P.M.) RT 38, 43-46, 48, 105, 3/12/08
(A.M.) RT 113).
Defendants also cross-examined Virtue regarding
long-past alleged drug use, the preposterous proposition that the

government could have subjected her to drug testing based on her
status as a proposed trial witness, and on whether she had to be
instructed to wear court-appropriate clothing when she testified.
(3/11/08 (P.M.) RT 60, 112-14, 3/12/08 (A.M.) RT, 113-15).
In addition, defendants attempted to paint Virtue as a
witness committed to self-promotion rather than the truth.
To
that end, defendants repeatedly elicited the fact that Pellicano

made a call to Virtues father the week Virtue testified in
sealed grand jury proceedings, confronting Dr. Virtue with
Pellicanos awareness and disappointment that his daughter had
testified against Pellicano, which Virtue perceived as a threat
and led to her departure from Los Angeles in 2003.
Defendants
then sought to tear this fact apart by juxtaposing Virtues

stated fear with conduct that defendants questioning implied
could not be reconciled with being afraid for ones security.
Kachikians counsel was the first to enter the fray, directly
asking Virtue whether she had been in hiding in 2003 because you
408
The government unsuccessfully objected to the admission

of these photographs on 401 and 403 grounds. (3/11/08 (P.M.) RT
43). Defendants left the photograph of a half-naked, lingerieclad Virtue on the monitor for the length of time that it took to
complete approximately six transcript pages of testimony, only
removing the photograph when the government raised the issue with
the district court. (3/11/08 (P.M.) RT 41-48).
573
claimed that Mr. Pellicano had threatened you.

RT 108).
(3/11/08 (P.M.)
Kachikians counsel then followed up with a series of
questions relating to the threat, during which Virtue identified

the circumstances surrounding the threat before unequivocally
stating that Pellicanos call to her father was a threat against
my life.
(3/11/08 (P.M.) RT 108-12).
Turners counsel returned
to the topic of Pellicanos threat to Virtue the following day,

highlighting that Virtue had returned to Los Angeles in 2004
(after Pellicano had begun serving his custodial sentence in the
explosives case) and occasionally had been in the public eye
since her return.409 (3/12/08 (A.M.) RT 107-09).
addressed the threat to Virtue at length.
409
Pellicano, too,
(3/12/08 (P.M.) RT 75-
Turner called former PIA employee Patricia Perez to

testify that Perez was present during Pellicanos call to Dr.
Virtue, and that nothing said during this call properly could
have been interpreted as a threat. (4/22/08 (P.M.) RT 31-36).
Dr. Virtue, who Kachikians counsel previously elicited was an
honest man, testified in the governments rebuttal case that this
call was a threat. (3/11/08 (P.M.) RT 108). Explaining the
context of the communication, Dr. Virtue testified that Pellicano
called him at work several days after his daughter testified
before the grand jury in this matter and immediately stated I
understand Tarita has been talking to the feds. (4/25/08 (P.M.)
RT 6-7). When Dr. Virtue told Pellicano that his information was
inaccurate, Pellicano insisted that Tarita Virtue had been in
communication with federal authorities. (4/25/08 (P.M.) RT 7).
Dr. Virtue testified that he denied this once again, at which
time Pellicano stated what a pity, what a shame, reiterated
that Tarita Virtue was talking to the feds, and repeated what
a pity, what a shame before hanging up. (4/25/08 (P.M.) RT 8).
Dr. Virtue testified that, as a result of this conversation, he
feared for his daughters life and called her and implored her to
leave California immediately. (4/25/08 (P.M.) RT 8-10. Dr.
Virtue further explained that he informed the FBI of the threat
that same day. (4/25/08 (P.M.) RT 8).
574
89, 97-98).
For example, Pellicano asked Virtue, if she was
afraid of him, to tell the jury why [she] sent the fax to [him
after she testified before the grand jury professing her loyalty
to him].
In response, Virtue explained that there were two
separate instances during her employment at PIA when employees

left following a dispute with Pellicano.
In each instance,
Pellicano asked Virtue is there anything I need to worry about

Do I need to take care of this?,410 which confirmed to
here?
Virtue that Pellicano would retaliate if crossed by a former

employee.
(3/12/08 (P.M.) RT 77-78).
Virtue further explained
that given that Pellicano always had stressed the need for
loyalty and the importance of never cooperating with law
enforcement, she feared for her life after Pellicano contacted
her father and confronted him with Pellicanos knowledge that she
had betrayed that trust by testifying before the grand jury.
(3/13/08 (A.M.) RT 107) (add more re: trust).
Defendants further sought to exploit the fact that Virtue
had been interviewed by the FBI on 13 separate occasions.
Through multiple lines of questioning, defendants jointly sought
to create the impression that the number of meetings between
410
A recorded call between Pellicano and Turner includes a

near identical discussion, with Pellicano advising Turner that
his former girlfriend Gaye Lynn Palazzo was contemplating filing
a sexual harassment suit against Pellicano in which she might
rat about the illegal stuff they had done, and if she decided
to proceed with the plan, they would need to address the
situation immediately. (3/13/08 (A.M.) RT 110-16).
575
Virtue and the government evidenced that her testimony had been
fed to her and alternatively, to the extent that Virtues trial
testimony included information not previously addressed in a 302,
that such testimony must be fabricated to fit a specific trial
need.
To rebut this claim, the government painstakenly had
Virtue discuss the subject matter addressed in each 302, one-byone, from earliest in time to latest.411
3/13/08 (P.M.) RT 8-31).
(3/13/08 RT(A.M.) 117,
Included among these 302s was the 302
that memorialized Virtues reporting of Pellicanos threat

against her and the follow-up 302 from the same week that
addressed the underlying basis of Virtues belief that Pellicano
could cause her physical harm.
(3/13/08 (P.M.) RT 15-17).
As to
the latter 302, Virtue testified that the interview had consisted
of her relaying to the FBI that she feared for her life because
Pellicano had told her that had killed people when living in
Chicago and further that Pellicano, on the two instances noted
above, had discussed with her whether any action needed to be
taken to ensure silence from former employees.
RT
16-17).
(3/13/08 (P.M.)
No defendant objected to this testimony.
Likewise,
no defendant, including Pellicano, cross-examined Virtue

regarding Pellicano having represented to her that he had killed
people in the past.
411
As exhibited by Kachikians counsels crossexamination, these FBI 302s previously had been produced in
discovery.
576
7.
Standard Client Matters

a.
Taylor Thompson/Pamela Miller
In passing, defendants state that the government introduced

evidence that PIA represented a mother who mistreated her child.
(JOB 64).
Defendants omit the context in which this evidence was
introduced; namely, that it was the inclusion of this information

in a sworn affidavit authored by Pamela Miller, nanny to
billionaire publishing heiress Taylor Thompson, and submitted in
a child custody dispute between Thompson and the childs father
Michael Kolesa.412
(4/4/08 RT 69-71).
It was the production of
this affidavit in the child custody litigation

Thompsons retention of PIA in April 2002.413
that led to
Within 24 hours of
this retention, Arneson conducted state and federal law

enforcement database inquiries on Miller414 and Pellicano is
412
Defendants stated that they objected to this testimony,

which is only partially accurate. Nobody objected to Millers
testimony regarding her concerns about the childs welfare.
Pellicano objected to the testimony about Thompsons response to
Millers expressed concern.
413
In a recorded call between Pellicano and Thompson,

Thompson states I want you to do whatever you can to get
whatever information you need on Pamela, you know what I mean?
Whatever you need to find on her - just do it. Im not gonna ask
any questions. Its like if you need information, just get the
information. (4/4/08 RT 88-89).
414
Among the items recovered during the initial search of

PIA were a scanned copy of a DMV printout that noted that the
inquiry had been made by Sergeant Arneson, as well as the results
of other criminal history and DMV inquiries on Miller, Millers
parents, and Millers brother, who was a minister, that aligned
with restricted database inquiries conducted by Arneson. (4/4/08
(continued...)
577
reporting criminal history information obtained through Arnesons

database inquiries on a recorded call with Thompsons assistant,
Jennifer Magarry, advising her that we did a nationwide ah ah
search for any criminal records, we found her, her drivers
license information from Pennsylvania but that he was not sure
that he was gonna be able to get everything by [Millers
deposition the following day but he would try because you
understand, we need to discredit her, is what we need to do.
(4/4/08 (A.M.) RT 79, 81, 96-103).
On May 16, 2002, in a series
of database inquiries that also included Anita Busch, Arneson

retrieved information on Millers brother, the brothers wife,
and her parents.
b.
Sarit Shafrir/Nicherie
During Sarit Shafrirs direct examination, the government

asked whether she had committed any fraudulent or illegal acts
in connection with or in concert with the Nicheries with respect
to [Ami Shafrirs] businesses.
2556).
(4/4/08 (A.M.) RT 116; JER
Nicheries counsel objected as to form only, the
objection was overruled, and Sarit Shafrir answered

affirmatively.
(Id.).
The following questioning ensued without
objection:
Q.
Did you forge your husbands signature on any

documents?
414
(...continued)
RT 82-86).
578
A.
Yes.
Q.
Did you transfer properties in violation of court

orders?
A.
Yes.
Q.
Did you witness either of the Nicherie brothers forging

your husbands signature on documents?
A.
Yes.
Q.
Did you sign false declarations?
A.
Yes.
Q.
Who provided you with those declarations to sign?
A.
Abner and Daniel.
Q.
Why did you do those things?
A.
They told me that thats what I need to do to protect

my estate.
(4/4/08 (A.M.) RT 116-17; JER 2556-57).

The questioning about the witness involvement in fraudulent
and illegal acts was appropriate to minimize the potential
impeachment value of those acts by placing them before the jury
on direct rather than cross-examination and allowing the witness
to explain her conduct.415
See generally Shorter v. United
States, 412 F.2d 428, 431 (9th Cir. 1969).
Although the single
question about witnessing the Nicherie brothers forging Shafrirs
415
Nicheries counsel did in fact proceed to cross-examine

Sarit Shafrir on these matters. (4/4/08 (P.M.) RT 48-50; JER
2654-66).
579
signature was arguably not directly suited to that goal, neither

was it improper Rule 404(b) evidence, as Nicherie contends.
31-32).
(NOB
Rather, Sarit Shafrirs testimony showed that Nicheries
fraudulent acts directed against Shafrir were part of the same

criminal course of conduct i.e., his campaign to obtain control
of Shafrirs businesses that led to the wiretapping of Shafrir,
and the brief testimony was appropriate to place Nicheries
hiring of Pellicano in its proper context.
Collins, 90 F.3d 1420, 1428 (9th Cir. 1996) (Rule 404(b) not
implicated where evidence of other criminal activity is used to
provide context in which charged crime occurred).
Moreover,
there was no objection to the question, and in light of the

overwhelming evidence against Nicherie (including his two
separate confessions), Nicherie has not shown a reasonable
probability that any error affected the verdict against him.
See
United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004).

Nicherie and his co-defendants also claim error in Sarit
Shafrirs testimony that Nicherie prompted her young daughter to
accuse Ami Shafrir of sexually molesting her.
29-32).
(JOB 64-65; NOB
That testimony, however, was elicited in response to
Pellicanos cross-examination, in which he asked Sarit Shafrir

whether she had ever told the Nicheries that Ami Shafrir had
tried to molest her daughter (a question that Sarit Shafrir
580
answered affirmatively).416
86).
(4/4/08 (P.M.) RT 79-80; JER 2685-
On redirect, the government clarified this issue by
eliciting, in extremely brief questioning, that the allegation

was false and had been prompted by Nicherie.
82-83; JER 2688-89).
(4/4/08 (P.M.) RT
Although Nicherie objected to the question
about whether the allegation was true or false, no defendant

objected to the question of who had prompted the girl to make the
allegation (which elicited the testimony that they now
challenge), nor did any defendant move to strike the witness
answer.
(4/4/08 (P.M.) RT 83; JER 2689).
There was no error
let alone plain error casting doubt on the verdict in the

district court allowing the government to correct the false
impression created on cross-examination about the alleged
molestation.
See United States v. Segall, 833 F.2d 144, 148 (9th
Cir. 1987) (no abuse of discretion in allowing government to

question witness on redirect for purpose of correcting false
impression created on cross-examination); see also United States
v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir. 1991) (redirect
questioning to rebut false impressions arising from crossexamination does not fall within Rule 404(b) and is of heightened
probative value under Rule 403).
416
Defendants wrongly suggest that the court sustained the

governments relevance objection to Pellicanos questioning.
(JOB 65 n.13). In fact, the sustained objection was only to the
next question whether Sarit Shafrir had contacted law
enforcement about the allegation. (4/4/08 (P.M.) RT 80; JER
2686).
581
c.
PIAs Investigation of Timea Zsibrita
In September 2002, PIA was retained by New York businessman

Ivan Kauffman at a fee of $100,000 to secure from Kaufmans
former girlfriend Timea Zsibrita a confidentiality agreement and
an abortion.
(4/2/08 (P.M.) RT 84).
On September 4, 2002,
Arneson, at Pellicanos direction, conducted a series of law

enforcement database inquiries on Zsibrita, the results of which
he sent to PIA.
(4/2/08 (P.M.) RT 77-81).
From September 9
through September 11, 2002, PIA employee Denise Ward-Harvey

surveilled Zsibrita, while Pellicano negotiated the terms of the
confidentiality agreement.
22).
(4/2/08 RT (P.M) 91, (P.M.) RT 121-
On September 12, 2002, Kaufman wired $120,000, which
Pellicano provided to Zsibrita after she executed the

confidentiality agreement and terminated her pregnancy. (4/2/08
RT 82-83).
Rather than object to the limited questioning addressing the
nature of PIAs representation, Arneson and Pellicano embraced
it,417 as they sought to portray Pellicano as a talented mediator
who rescued Zsibrita from an otherwise intractable problem.418
417
Arneson objected twice on vagueness grounds to two

questions that referenced drivers license and other personal
identifying information contained in a PIA report on Zsibrita.
(4/1/08 (P.M.) RT 81-82).
418
This was not an approach unique to Zsibrita. For

example, in cross-examination of PIA client Fred DeMann, who paid
PIA $135,000 to investigate his son-in-law, which investigation
included Arneson database inquiries and a wiretap and resulted in
(continued...)
582
(4/2/08 (P.M.) RT 75-76, 82, 85).
For example, Arnesons counsel
elicited testimony from Zsibrita that Kaufman refused to take

responsibility for the child, for the pregnancy and that Mr.
Pellicano came in, and he actually reached an agreement between
the two of you, correct.
(4/2/08 (P.M.) RT 87-88).
Pellicano,
likewise, elicited from Zsibrita that he successfully had

negotiate[d] a settlement between [Zsibrita] and Mr. Kaufman.
(4/2/08 (P.M.) RT 90).
admitting this evidence.
The testimony served as enterprise
evidence in that it showed the actions of the enterprise separate

and apart from its racketeering activities and further provided
context to the large payments received by PIA, which typically
evidenced wiretapping.
Furthermore, Zsibrita is the sister of
Monika Zsibrita, who Arneson, through questioning of Chris Rock,

tied to an extortion scheme (4/4/08 (A.M.) RT 20-24.)
Through
questioning and later Arnesons testimony, it was apparent than

Arneson intended to recast anything that conceivably could be
characterized as a legitimate law enforcement inquiry into just
that.
The admission of this evidence, therefore was not error,
much less plain error affecting substantial rights.
418
(...continued)
the discovery that the son-in-law was involved in a prostitution
ring, Arnesons counsels only question was Do you consider your
daughter far better off today as a result of Mr. Pellicanos
work? (3/27/08 (P.M.) RT 122-28).
583
8.
Matters Resolved by Curative Instructions

a.
Sender/Russo
As discussed above, PIAs representation of Adam Sender

showed the enterprise in high gear, with restricted access law
enforcement and phone company database inquiries to obtain
confidential information on Russo and his family (4/1/08 (P.M.)
RT 61-65), the wiretapping of Russos companion (4/1/08 (P.M.) RT
70-81, Ex. 160), Arneson conducting a wants and warrants search
at Pellicanos request on PIA investigative target Patrick
Theohar (4/16/08 (A.M.) RT 55-59), Arneson sending officers to
arrest Theohar on a four year old minor drug probation warrant
(4/11/08 (A.M.) RT 44-46), Theohar being intimidated into
providing a favorable declaration at Pellicanos insistence
(4/2/08 (A.M.) 61-65), and the arrest of Russos son, again
orchestrated by Pellicano, by BHPD officer Craig Stevens. (4/1/08
(P.M.) RT 18-19; 4/8/2008 (A.M.) RT 41-42.)
Recorded telephone calls between Pellicano and Sender also
established that PIA offered additional services.
For example,
when Sender advised Pellicano that he wished to proceed with the

planned objective of making Russos life as miserable as
possible, he referred to it as number 4", to which Pellicano
responded so you want to skip one, two and three?
(A.M.) RT 130-31).
(4/1/08
Sender later stated that he wish[ed he]
could do other things.
(4/1/08 (A.M.) RT 140).
584
In response,
Pellicano stated Listen, I, I, Im a hundred percent behind you.

You, you, I dont want you to do anything you are not comfortable
with.
(4/1/08 (A.M.) RT 141).
While Sender did not
specifically recall what services were being referenced as one,

two, and three, he testified that at one point during his
retention of PIA, there was an offer by Pellicano to kill Russo,
which he understood to have been legitimately extended.
(P.M.) RT 25).
(4/1/08
No defendant objected to this line of
questioning.419
Pellicano did not contest that he and Sender discussed
killing Russo.
Instead, through cross-examination, Pellicano
sought to place this conversation in context, asking wasnt the

conversation a little different than that? and werent you
spending a huge amount of money, and Mr. Pellicano said to you
if you feel so badly about this guy, why dont you just whack
him?
Why dont you just get rid of him?
(4/1/08 (P.M.) RT 26-
27).
Sender acknowledged in response to these questions that the
conversation may have taken place in the context set forth by

Pellicano.
(4/1/08 (P.M.) RT 27).
Moreover, the district court did not abuse its discretion in

not sua sponte striking the testimony.
419
It is undisputed that the
The subject matter of this testimony was addressed in

Senders FBI 302 and his grand jury testimony. (4/2/08 (A.M.) RT
8). Turners counsel indicated that defendants had considered
filing a pre-trial motion based on this testimony, but had not
done so. (4/1/08 (P.M.) RT 146-47).
585
conversation of killing Russo was had between Sender and

Pellicano and that this conversation was part of, and fully
consistent with, the escalating criminality that Sender and the
enterprise had engaged in through that point.
The district court
initially indicated that it was considering providing a limiting

instruction restricting the jurys consideration of this portion
of Senders testimony to the RICO charges.
(4/2/08 (A.M.) RT
86). Later, in a proper exercise of its discretion, the district

court chose to strike the testimony after weighing the arguments
of the parties after defendants did object on Rule 403 grounds.420
(4/2/08 (A.M.) RT 4, 4/3/08 (A.M.) RT 7, 16-17.)
The curative
instruction proposed by the defense was accepted by the district

court and read to the jury. There is no reason to believe that
the jury did not adhere to this instruction.
Rousseau, 257 F.3d
at 932 (juries are presumed to follow their instructions).

was no abuse of discretion and no prejudice.
420
There
In fact, the only
The government explained that the testimony was relevant

evidence of the enterprise, as it showed the breadth of diverse
criminal activities offered by the enterprise as described
within the indictment and demonstrated by all the other illegal
conduct done on Senders behalf. (4/2/08 (A.M.) RT 5-6). The
government further explained that this evidence demonstrated how
the enterprise interacted with its clients and the openness with
which Pellicano discussed criminal conduct with them, which in
addition to being affirmative proof of the enterprise also
rebutted defendants; (Arneson, Turner, and Kachikian) claims that
Pellicano did not discuss with them the illegal conduct that he
engaged in on behalf of the enterprise. (Id.). Lastly, the
government noted that the subject matter of the testimony was not
unique to Sender and would be corroborated by other witnesses.
(4/2/08 (A.M.) RT 6.)
586
substantive count in the indictment that Pellicano was acquitted

on was a computer fraud count in which Sender was the identified
victim (count 50).
9.
(CR 1607.)
Prosecutions Where Arneson Adverse to Law Enforcement

a.
PIA Retention by Kami Hoss421
Defendants argue that the district court erred under Rule

403 in admitting, almost always without the benefit of a defense
objection, multiple aspects
of the governments presentation of
proof regarding PIAs representation of criminal defendants Kami
421
In 2001, the LADA filed manslaughter and drug charges

against orthodontist Kami Hoss stemming from the death of Sandra
Rodriguez, who fell to her death from a balcony at the Long Beach
Hyatt following a night of partying with Hoss. In August 2001,
Hoss retained PIA. At a time when the LADA only had provided
names and dates of birth for the decedent Rodriguez and the
states witnesses, Pellicano had Arneson obtain criminal history
and DMV information on these individuals. Trial evidence
included a recorded telephone call between Pellicano and Arneson
from August 24, 2001, which was ten days after Hoss made his
$25,000 retention payment to PIA. On this call, Arneson: (1)
advised Pellicano that Rodriguez had been arrested twice stemming
from a charge of driving under the influence of alcohol/drugs,
which elicited Pellicanos laughter; (2) asked Pellicano do you
want the car plates and stuff? Does that matter to you?, to
which Pellicano responded Absolutely. I want everything I can
get on her; (3) instructed Pellicano that Rodriguez was on
probation at the time of her death, to which Pellicano responded
Oh, thats good shit; (4) told Pellicano that he conducted
searches of state databases on Rodriguez but still had to pull
the other (federal) sheet; and (5) stated lemme jump on em,
when asked by Pellicano to conduct searches on prospective
witnesses Mirella Lavorin, Esther Pina, and Carrie Cagle.
(4/10/08 (P.M.) RT 55, 70-78). The LAPD audit of Arnesons
restricted database inquiries established that Arneson conducted
NCIC database inquiries on each of these individuals that same
day. (4/2/08 (P.M.) RT 70-78). DMV information on each
individual was recovered as part of the search of PIAs computers
587
Hoss.
Defendants state that they objected to the governments
presentation of evidence relating to the Hoss case under Rule

403.
(JOB 57-58).
This claim is, for all intents and purposes,
false.
Defendants did not object to the portion of the governments
opening statement that addressed PIAs representation of Hoss and
further did not object to the testimony of former PIA employee
Denise Ward-Harvey, who was the first trial witness to testify
regarding the Hoss matter.422
On the contrary, when defendants
raised the 403 objection to which they now cite, six weeks had
elapsed from opening statements and one week had passed from when
Ward-Harvey testified.
(4/9/08 (A.M.) RT
4.)
Moreover,
defendants Rule 403 objection was not directed towards striking

past argument or testimony but rather focused on limiting the
scope of the upcoming testimony of LBPD Detective Hector Nieves
and was based on information contained in an FBI report detailing
Nieves knowledge of the circumstances surrounding Rodriguezs
death and the LADAs subsequent prosecution of Hoss.
(4/9/08
(A.M.) RT 4, 7).
Defendants also misstate the record as to the district
courts response to this objection, which they characterize as an
admonishment not to discuss Rodriguezs death.
422
(JOB 57-58).
In
Arneson did make a single, general objection to a

question regarding Pellicanos payments to witnesses, which is
addressed below.
588
fact, the government expressly advised the district court that

Detective Nieves would testify that Rodriguez had fallen to her
death, that charges were brought against Hoss, and that Arneson
had no involvement in the investigation or prosecution of this
case.
(4/9/08 (A.M.) RT 4-7).
In response, the district court
stated that such information appeared to be relevant and that it

would rule on the objections [to the actual testimony] if and
when they are made.
(4/9/08 (A.M.) RT 7).
No objections were
made to the governments brief questioning regarding Rodriguezs

death, including the single question and answer that explained,
in basic clinical terms, that Rodriguez died of blunt force
trauma from a fall from one of the upper floors.
(P.M.) RT 44).
(4/10/08
Thus, as there was no 403 objection to any actual
trial argument or trial testimony presently before this Court,

plain error review applies.
There is no error as the district court did not abuse its
discretion by not sua sponte excluding the introduction of
testimony of Kami Hosss manslaughter acquittal for two separate
reasons.
Both undermine defendants claim of unfair prejudice.
First, despite defendants current characterization of the

fact of acquittal as being devastatingly prejudicial, it was
Arnesons counsel who introduced this fact into evidence and did
so for a very specific reason.423
423
Specifically, there was in
The government referenced the acquittal in opening

(continued...)
589
evidence a Pellicano-Arneson recording from the Hoss case in

which Arneson discussed his knowledge of the case, including the
fact that he has been tasked by Pellicano with obtaining
confidential law enforcement information on a crime victim and
potential witnesses to the offense.
To explain the call, Arneson
testified that he performed consulting work with PIA on this case

because he personally disagreed with the charges that had been
filed.
(4/11/2008 (A.M.) RT 111-12).
Consistent with the theme that the case had been wrongly
charged, Arnesons counsel elicited from Denise Ward-Harvey, the
former PIA employee who worked extensively on the Hoss case, that
PIAs objective in the Hoss matter as dictated by Pellicano was
to get Kami Hoss acquitted of all charges; and that Hoss had
been acquitted. (4/2/08 (A.M.) RT 141). Arnesons counsel, in
cross-examining Ward-Harvey, directly built into his questioning
that Rodriguez had fallen to her death and asked a series of
questions that affirmatively elicited that Rodriguez was under
the influence of an intoxicating substance when she died.
(4/2/08 (A.M.) RT 140-41).
Arnesons counsel then directly asked
Ward-Harvey to identify the specific criminal charges that had

been filed against Hoss and further was permitted to ask, over
423
(...continued)
statements because, as will be discussed infra, Pellicano uses
the acquittal to develop enterprise business on a recorded call
with client Kalta. (4/3/2008 (P.M.) RT 103-06; Ex. 53.) It did
ask either of its two witnesses about the acquittal.
590
government objection, whether Ward-Harvey believed that Hoss was

guilty of the charges filed by the LADA.
42).
(4/2/08 (A.M.) RT 141-
Ward-Harvey testified that she believed Hoss was guilty of
the drug distribution charge but not of the manslaughter charge.

(Id.).
Through such questioning, Arneson introduced into the
trial the first actual evidence of the charges filed against

Hoss, that Rodriguez was on drugs at the time of her death, and
that Hoss was acquitted of the charges, including a charge that
Ward-Harvey
opined should have resulted in a finding of guilt.
(Id. at 142.)
Arnesons attempts to exploit Hoss acquittal
extended to his cross-examination of Detective Nieves, when he

again affirmatively elicited the fact of Hoss acquittal and
further asked whether Detective Nieves could testify that
information provided by Arneson to Pellicano caused the
acquittal.
(4/10/08 (P.M.) RT 68-69.)
Second, the fact of the acquittal was enterprise evidence as

it further established that Pellicano affirmatively used Hoss
acquittal to preserve and advance PIAs relationships with
enterprise clients.
Specifically, George Kalta, who had been
charged with the sexual assault of 17-year old Laura Moreno,

retained PIA in October 2001 to investigate and discredit his
minor victim.
(4/3/08 (P.M.) RT 99, 107, 111-13).
In a recorded
April 15, 2002 call between Kalta and Pellicano that was
introduced without objection, Pellicano sought to allay Kaltas
591
doubts about proceeding to trial by referencing Hoss acquittal

and discussing how he beat that case by knowing where to get
the information that was used to beat up the prosecution:
GK:
I don't want twelve people determining my

life.
AP:
That's uh, well, Georgie, listen to me. I'll

let you talk to Dr. Hoss. His whole life he
and his wife, their whole life was on the
line. They were accused of killing this
woman, they didn't do it. You understand?
They did not do it and they took,
they, they waited a year and one week after
this happened to arrest him in his office in
front of his patients.
He went through a
nightmare. He went through, probably pretty
close to a million dollars.
GK:
Yeah
AP:
You understand? You know, and I, and I

believed in him in the beginning and I
believe, and I told him, I said that
everybody was scared to death when the jury
was coming in, I said they're gonna come in
and they're going to acquit you.
GK:
How did you know that?

that?
AP:
Because I know.
GK:
How?
AP:
They're gonna come in and they're gonna

acquit you and they walk out, and even Danny,
even Danny wasn't sure. I said, Danny, I'm
telling you they're gonna fuckin' acquit him.
Walk out acquitted on all charges.
GK:
Anthony, how the fuck did you know that?
AP:
Because I know the case and I know what the

jury was delib, how the jury was deliberating
and on what issues were they concerned about
592
How did you know
GK:
But
AP:
That's why.
GK:
But, you've got to understand.
AP:
You have, listen to me.
GK:
They're not gonna help an Arab American, man.
AP:
Yes, wait a minute, he was, he was Iranian.
GK:
Yeap, but this whole stigma, man, with...
AP:
These, these are balls out fuckin Iranians.

Their mother and father was there and they
couldn't speak English.
GK:
Balls out [laughing]
AP:
They just, what? Well, because, because they

were, they're Arabs.
GK:
Yeah, but, but see who were they against was

the State. This is, I'm just some fuckin
eighteen-year-old fuckin bitch who's got her
hair dyed blond.
AP:
Well, wait a minute, this was a girl who, who

was twenty years-old, who died.
GK:
Oh, that's a little worst (sic).
AP:
Well, I'm telling you. So I'm telling you, I

don't have any doubt. If I can beat that
case, I can beat your case blind-folded.
GK:
Well, how did you beat it?
AP:
Because I knew what to do, I know where to

get the information and I got the information
and I beat them up. And the person that I
found to, to, be a witness for us, was the,
the whole turning point of the case. I mean,
I'd have to sit down with you and go through
detail with you on this, but this was a big,
fuckin win. Cause everybody, everybody.
593
(3/18/08 (P.M.) RT 5-7;
4/3/08 (P.M.) RT 103-06).
Defendants, having introduced and then affirmatively mined

issues related to the Hoss acquittal, cannot legitimately claim
that they were prejudiced, much less unfairly prejudiced, by the
introduction of this evidence.
There was no error, much less
plain error, and this claim, which serves as one of the

cornerstones of defendants overarching 403 argument should be
rejected.
b.
PIA Retention bv John Gordon Jones

(1)
the District Court Did Not Plainly Err in Not

Sua Sponte Excluding DDA Kerlins Testimony
Based on Her Status as a State Prosecutor
Defendants, who called the United States Attorney for the

District of Alabama to discuss the Birmingham Bombings case
contend that Kerlin should have been precluded from testifying
under Rule 403 because, as a prosecutor, the jury was likely to
afford her testimony undue weight.
(JOB 67.)
a prospective trial witness was well known.
Kerlins status as
This fact was
identified through discovery, the governments trial memo, the

governments witness list, and by government counsel the day
prior to her testimony.
(3/11/08 (P.M.) RT 159).
No defendant
objected to Kerlins testimony based on her employment as a

prosecutor either pre-trial or at trial.
applies.
594
Plain error review
The district court did not commit plain error in permitting

Kerlin to testify.
There is no per se rule precluding a
prosecutor employed by a separate sovereign who has no

prosecutorial role in the trial from testifying in such a
proceeding regarding matters that this individual otherwise would
be permitted to testify.424
See also United States v. Tamura, 694
F.2d 591, 601 (9th Cir. 1982) (recognizing that the advocatewitness rule applies solely to those instances when a prosecutor
seeks to testify in an ongoing trial that he/she is conducting
and noting that, even in this instance, a prosecutors testimony
is permissible if a compelling need is shown); United States v.
Fleming, 215 F.3d 930, 939 (9th Cir. 2000) (district court did
not abuse its discretion in admitting over a Rule 403 objection
the testimony of federal district court judge in an obstruction
trial and noting that simply because a witness is credible,
competent, or authoritative does not mandate a conclusion that
their testimony would be unduly prejudicial).
(2)

Not, Sua Sponte, Striking Specific Portions
of Kerlins Testimony to Which Defendants Did
Not Object
424
Defendants reliance on language from United States v.

Edwards, 154 F.3d 915, 924 (9th Cir. 1998) is misplaced. (JOB
67). Edwards involved an instance in which the trial AUSA also
was a witness to the discovery of a critical item of evidence
during trial and continued to try the case, which included the
introduction into evidence of the newly found item of evidence,
which this Court found to be a form of impermissible vouching.
Edwards, 154 F.3d at 924.
595
Similarly, the district court did not commit plain error by

not sua sponte striking a question asked by the government during
the introductory phase of Kerlins direct examination that being
a Deputy District Attorney is basically the equivalent in the
state system of what I do in the federal?
(P.M.) RT 103).
(JOB 67; 3/13/08
Defendants did not object to this question at
trial, presumably because they realized that the government was

parroting a near-identical question previously asked by Arnesons
counsel that simply sought to provide quick context to Kerlins
role in the state criminal proceedings.
Specifically, in cross-
examining Schuman about the underlying criminal proceedings,

Arnesons counsel asked [a]nd by the People, we mean the
prosecutors right?, They represent the People.
Just like in
this case, these folks [the AUSAs] represent the United States of
America?425
(3/12/2008 (A.M) RT 42.)

(3)
The District Court Did Not Plainly Err in

Not, Sua Sponte, Striking Kerlins Testimony
Regarding Whether Pias Involvement Impacted
the Jones Case
Defendants also claim that the district court should have

stricken again sua sponte, as there was no objection Kerlins
425
This was not the only time Arnesons counsel used this
construct. In lead-up questioning designed to elicit information
relating to Jones acquittal, Arnesons counsel addressed the
underlying proceedings by asking Kerlin [a]nd you asked them
questions just as Im asking you questions, correct? and further
asking Jane Doe 8 [a]nd the defense counsel in that case crossexamined you, just as I am cross-examining you now, right?
(3/12/08 (A.M.) RT 42, 3/18/08 (A.M.) RT 84, 3/19/08 (A.M.) RT
116-17).
596
testimony that she could not say that Pellicanos and Arnesons
actions had nothing to do with the guilty verdict (JOB 60).
Conspicuously absent from defendants brief, however, is any
recognition that this question was a direct response to two
questions posed by Arnesons counsel on cross-examination
regarding whether Arneson and Pellicanos actions contributed to
Jones acquittal:426 and you are not testifying, are you, that
the acquittal was caused by anything that Mr. Pellicano or Mr.
Arneson did, is that correct?, and what I want to know is can
you testify under oath before this jury that anything Mr.
Pellicano did caused the not guilty verdicts?427
RT 83-84).
(3/18/08 (A.M.)
It is well established that the government can
respond to opened doors.
This was certainly one.
Thus, there
was no plain error in the admission of this testimony.

Despite having elected not to object to the admission of
Exhibit 605, which is the to do list from the Jones defense
team that references Pellicano to take out Karla Kerkin and
follow up with DDA Dixon and further electing not to object to
any of the questioning or testimony regarding this exhibit,
defendants lamely claim that the prejudicial effect of the
426
The question immediately preceding the question to which

defendants now object expressly referenced back to Arnesons
counsels prior line of questioning. (3/18/08 (A.M.) RT 106-07).
427
Kerlin answered the first question [t]hats not a

conclusion that I can draw. I can tell you about the
difficulties that I had with the case and the second question
no. (3/18/08 (A.M.) RT 83-84).
597
admission of this evidence cannot be overstate[d].
(JOB 69;
3/12/08 (A.M.) RT 13-14, 33-36; 3/18/2008 (A.M.) RT 103.)
To
bolster this position, defendants imply that the phrase take

out references having a hit placed on Kerlin (and presumably DDA
Dixon) and cite an opinion from the 11th Circuit in which that
court concluded following a fact-specific inquiry that the
district court should not have admitted under Rule 403 a four
year old recording in which the defendant, at the initiation of
another party, agreed to provide contact information for a
contact who could carry a hit against a prosecutor in a matter
unrelated to that for which he stood trial but nevertheless found
such error harmless.
This is yet another example of defendants grossly
misrepresenting the record in a misguided effort to advance an
unfounded claim.
The record uniformly establishes that the entry
addressed securing Kerlins removal as trial counsel, not through

having her killed.
Specifically, all of the testimony regarding
the take out reference discussed how the Jones defense,

including Pellicano, had been investigating Kerlins background
with the hope of identifying embarrassing or otherwise
compromising information or photographs that could be use to
effectively blackmail her to abandon the case.428
428
Both Arnesons and Pellicanos cross-examination sought

to establish that Pellicano had attempted to help Kerlin by
warning her of the ongoing investigation into her background.
(continued...)
598
(4)

Discretion by Not Excluding the Victims of
the Charged RICO and RICO Conspiracy Offenses
from Testifying at Trial
Defendants contention that the district court abused its

discretion when it permitted the testimony of July Westby, Jane
Doe 8, and the father of Jane Doe 2 is meritless.
Each of these
individuals had been the subject of database inquiries that

Arneson conducted for PIA and each was a victim to charged
conduct in this case.
Defendants cite to no cases in which the
victim to a crime has been precluded from testifying to basic

facts relating to the crime under Rule 403.
Moreover, defendants
Rule 403 objection was not based on the subject matter of the
witness testimony (none of these witnesses testified to the
specific sexual assault that formed the basis of the state
criminal charges to which they bore witness), but rather on who
the witness was; namely, an identified victim in the Jones rape
prosecution.
There is no prejudice to defendants, much less
unfair prejudice the enterprise, through PIA, willingly

accepted and profited from Jones as a client and it is
indisputible that the enterprises investigation into these
individuals was based exclusively on their involvement in this
case.
Furthermore, the testimony of these witnesses was not
428
(...continued)
Kerlin made clear that, as with other instances in which
Pellicano said one thing and did another, she did not accept his
representations as truthfully made. (3/18/08 (A.M.) RT 103-08).
599
cumulative of Kerlins testimony.
On the contrary, Kerlin could
simply state that the names of numerous individuals listed on the

LAPD audit of Arnesons database inquiries matched with the names
of victims and witnesses in the Jones rape case.
These three
witnesses were able to confirm the accuracy of the various forms

of personal identifying information contained within the reports
generated for the Jones defense, including criminal history, DMV,
and employment data contained in reports generated by PIA that
related to them.
Moreover, Jane Doe 8 was able to provide
testimony and a past drivers license confirming that the photo

at the back of the PIA report was the DMV photo from her
Californias Drivers License and not a random photo, while
Westby also was able to provide testimonial confirmation of this
fact
Defendants assertion that they had offered to enter into a
testimonial stipulation regarding the testimony of these
witnesses does nothing to change the calculus.
(JOB 60).
This
stipulation, as the district court noted, was inadequate.429

(3/14/08 (A.M.) RT 4-11).
In addition, Arneson and Pellicano
argued that there was no real value to the information that

Arneson provided to Pellicano (4/11/2008 (A.M.) 87, 4/11/2008
(P.M.) 50, 76), with Arneson arguing that the rights of the
429
The district court advised defendants that they were

free to renew their 403 objections during testimony if they
deemed it appropriate to do so. (3/14/08 (A.M.) RT).
600
individuals whose confidential information he accessed being

trumped by the alleged greater public good served by keeping
Pellicano a satiated informant.
An ever-present undercurrent to
this argument was that many of the individuals for whom Arneson
conducted illicit inquiries were prostitutes, liars, cheats, or
individuals for whom the jury should not be concerned (4/11/2008
(P.M.) 41,124).
In fact, Kachikians counsel alleged at trial,
despite the complete absence of support in the record and

defendants reallege twice here, that Pellicanos investigation
purportedly established that the identified victims were liars.
Given that the credibility of these individuals factored into the
presentation of the case, the jury was entitled to have the
witnesses present, examine their demeanor, listen to their
testimony, and make its own determination as to whether to credit
their testimony.
Arneson.
Furthermore, these witnesses testified prior to
As described throughout this brief, anytime that
Arneson could attribute a Pellicano-based database inquiry to his

assignment with the Pacific Divisions vice squad, he did.. In
fact, Arneson towed this line with the Jones runs, testifying
that Pellicano initially had advised Arneson that identified
victims were party girls -- i.e., prostitutes.
Ultimately,
however, it was more important to Arneson to distance himself

from the shredding party done at PIA in the Jones case so Arneson
elected to begrudgingly acknowledge that he conducted these
inquiries and then used the fact to in a futile attempt to depict
601
himself as a man of principle who drew strict boundaries with

Pellicano.
(5)
The District Court Did Not Plainly Err in Not

Sua Sponte Striking Testimony Regarding the
Nature of the Litigation Proceedings
Involving Jones
Defendants contention that the government conceded that the

outcome of the nature of the retention was irrelevant.
not true.
This is
The government expressly stated that it was and began
to explain why, including the fact that the nature of the

retention was relevant to whether Arneson legitimately could have
worked on the matter an argument that he repeatedly advanced
throughout trial.
When the district court cut short the
governments explanation and stated that Arnesons conduct is

equally appropriate or inappropriate regardless of the kind of
case he was giving information for the government simply agreed
with this basic concept, which did not address the need of having
to show that Arneson was not on the case and the overarching
enterprises issues.
(6)
(3/1/3/08 (A.M.) RT 6).

Not, Sua Sponte, Striking Testimony and
Argument That Jones Was Acquitted in the
State Court Criminal Proceedings
Defendants claim that they were unfairly prejudiced by the

governments reference to Jones acquittal is meritless.
The
government addressed Jones acquittal without objection in a

single sentence in opening statement and through a single
602
question directed to a single witness, DDA Kerlin.430

(A.M.) RT 45, 3/13/08 (P.M.) RT 111).
delved into the subject.
(3/6/08
Defendants repeatedly
Defendants were the first to introduce
actual evidence of the Jones acquittal and it was a subject that

they affirmatively addressed with three separate witnesses.
Defendants likewise note that they objected to the reference to
the Jane Does as victims, yet ignore the fact that they also made
reference to these individuals as victims.
(3/12/08 (A.M.) RT
32-33, 36).
Defendants state twice within their brief that the
introduction of this evidence was particularly prejudicial
because Pellicanos investigation had truthful information that
the identified victims were lying.
(JOB 58-63).
Counsels
assertions aside, the record is devoid of any such evidence.

What the record does show is that, notwithstanding the
acquittals, at least one Jane Doe #1 succeeded in a civil suit
against Jones.
(7)

Permitting Two Witnesses to Testify under the
Heading of Jane Doe
430
Without citing to a particular evidentiary rule,

defendants objected to that portion of the governments opening
statement addressing PIAs investigation in the Jones prosecution
on March 13, 2008, one week after the opening statement.
(3/13/08 (A.M.) RT 5-7). The district court denied defendants
objection as untimely. (3/13/08 (A.M.) RT 7). It did not abuse
its discretion in doing so, particularly given that defendants
affirmatively had introduced the fact of Jones acquittal into
trial evidence through cross-examination the very day before
defendants made this objection.
603
Defendants claim unfair prejudice due to witnesses from the

Jones criminal proceedings being permitted to testify as Jane
Does which defendants claim emphasiz[ed] that Pellicano and his
associates purportedly were a dangerous group.
(JOB 60).
characterization is flatly contradicted by the record.
This
These
individuals were identified as Jane Does because, as both the

government and Arnesons counsel elicited from Kerlin, California
Penal Code Section 293.5 protects the identity of alleged
victims of sex crimes from public disclosure and permits the
individual to use a fictitious name in related criminal
proceedings.
85).
(3/13/08 (P.M.) RT 105-06, 3/18/08 (A.M.) RT 84-
That the witnesses were to be identified as Jane Does was
of no surprise to defendants: they had been identified as such in

each of the applicable indictments.
Moreover, prior to trial,
the government filed a motion addressing its intent to identify

these individuals as Jane Does, which went unopposed.
(CR 1116).
Furthermore, during trial, when the district court asked whether

defendants had any objection to a witness being referred to as
the father of Jane Doe #2" as opposed to by his actual name so
as not to reveal publicly his daughters identity, Arnesons
counsel expressly stated that we have no objection.
(A.M.) RT 9-12).
(3/11/08
As no other defendant took a position, the
district court authorized the use of a fictitious identity for

this individual.
Having had multiple opportunities in which the

604
issue directly was framed and having either failed to object

and/or state a non-objection, defendants have waived their claim.
K.
THE DISTRICT COURT EXERCISED APPROPRIATE DISCRETION IN

DENYING PELLICANOS REQUEST FOR JENCKS MATERIAL FOR A
DEFENSE WITNESS
Pellicano complains (POB 43-46) about the trial courts
refusal to order the government to turn over grand jury testimony

and other prior statements by a defense witness.
The witness,
Stanley Ornellas, was a retired FBI agent who had investigated

the case before his retirement, and who was retained by the
government during trial to support the case, but whom the
government did not call as a witness.
Because the government never called Ornellas as a witness,
the government did not turn over his written statements or grand
jury testimony during its case in chief, and was under no
obligation to do so.
26.2.
See 18 U.S.C. 3500; Fed. R. Crim. P.
During the defense case, defendant Arneson called Ornellas
as a witness.
(4/16/08 (P.M.) RT 111; GERT 5814).
Arnesons
codefendants requested that the government produce Ornellas

grand jury testimony under Rule 26.2.
6068).
(4/18/08 RT 66; GERT
The trial court tentatively agreed (4/18/08 RT 83, 289;
GERT 6085, 6267), but, after briefing, issued a written opinion

denying the request.
(JER 294-95).
Only Pellicano appeals this decision, and his challenge must

be rejected.
The district courts refusal to allow Pellicano to
605
broaden the scope of discovery through the happenstance of being

in a multi-defendant case was well within the courts
discretion.431
The district court correctly found that Rule 26.2 did not
entitle Pellicano to a discovery windfall from the happenstance
of having a codefendant.
Jencks requirements stem from the
theory that the Government waives any privileges it may have

with respect to documents in its possession by placing the author
of those documents on the witness stand.
Jencks v. United
States, 353 U.S. 657, 675 (1957) (Burton, J., concurring)

(describing majority opinion); see 18 U.S.C. 3500(b) (applying
only to statements by a witness called by the United States);
Fed. R. Crim. P. 26.2(a) (extending waiver theory by requiring
defendant to turn over statements he possesses by any witness he
calls).
The Jencks rule thus has no application when one
codefendant seeks to make the government turn over the statements

of a witness whom another codefendant called.
In arguing the opposite, Pellicano places great weight on
Rule 26.2's statement that a witness prior statements are to be
produced on motion of a party who did not call the witness.
431
As the district court noted, Ornellas written reports

had been previously produced; the defendants sought only to
obtain his grand jury testimony. (JER 294). In addition,
Pellicano does not claim that Ornellas grand jury testimony
contained Brady or Rule 16 information. To the extent any of
Ornellas statements or testimony was covered by Rule 16 or
Brady, those details were turned over earlier in the case and
thus are not implicated in this appeal.
606
Fed. R. Crim. P. 26(a).
But the advisory committee notes make
clear that this language was not devised to allow one codefendant
to force the government to turn over statements of a witness
called by another codefendant.
Rather, this language was
designed to require[] disclosure of statements in the possession

of either party when the witness is called neither by the
prosecution nor by the defense but by the court pursuant to the
Federal Rules of Evidence.
Fed. R. Crim. P. 26.2 adv. comm.
note (1979); see United States v. Duncan, 712 F. Supp. 124, 129
(S.D. Ohio 1988).
And as this Court has recently instructed, in
interpreting the Federal Rules of Criminal Procedure the

construction given by the advisory committee is of weight,
even if does not totally foreclose judicial consideration of a
rules validity and meaning.
United States v. Petri, --- F.3d -
-- 2013 WL 485232, at *5 (9th Cir. Feb. 8, 2013).

It would be particularly inappropriate to apply Rule 26.2 in
a case like this, where the defendants sought the Jencks material
in a cooperative attempt to expand discovery rather than to
impeach one anothers witnesses.
The district court found
persuasive the one reported case on the issue, Duncan.
In
Duncan, as here, the defendants moved to compel production of a

law enforcement officials prior statements after a one of the
defendants called that official to the stand.
Supp. at 126.
Duncan, 712 F.
The court observed that the defendants were acting
607
collaboratively, not at cross-purposes, in their use of the

agent.
The party seeking the witness statements did not seek to
challenge testimony offered in support of any defendants case

(i.e. to impeach).
Id. at 129.
Rather, the defendants sought
to use Rule 26.2 to obtain production of materials that they

were unable to obtain through the rules of discovery.
Id.
Discovery rather than impeachment appears to be the gravamen of

the Defendants requests, as evidenced by the fact that the
defendant who called the witness had joined in the request for
statements. Id.
The same factors apply here.
Throughout this case,
defendants made no secret of their goal of demanding more

discovery than they were entitled to.
As in Duncan, not just the
codefendants, but even the party who called Ornellas was

attempting to get Ornellas statements as putative Jencks
material.432
And although Pellicano now claims that he was
entitled to Ornellas Jencks because Ornellas was someone elses

witness, at trial Pellicano said he intended to call Ornellas as
432
As soon as the jury was chosen, Arensons attorney,

announced that he would eventually be calling Ornellas as a
defense witness, and requested the immediate production of
Ornellas grand jury testimony in words making clear his goal of
getting that material for his own use (not his codefendants) on
direct examination. (3/5/08 (P.M.) RT 70; GERT 646 ([W]e, as
the defense, do intend to call [Ornellas]. If I call him, . . .
every other defendant has a right under Rule 26.2 to request
whats in the Governments possession. We expect those to be
voluminous. I would ask the Government on the record now to
produce those. (emphasis added))).
608
his own witness.
(3/6/08 (P.M.) RT 110; GERT 686 (I do intend
to call Agent Ornellas.)).
Moreover, if Pellicano had called
Ornellas before Arneson did, then there would be no argument that

Rule 26.2 entitled Pellicano to Ornellas prior statements.
Since it was only a matter of happenstance that Arnesons case
came before Pellicanos, Pellicano should not enjoy a senseless
discovery windfall.
Given the substantial weight given to the
advisory committees interpretation, Rule 26.2 is inapplicable,

because [d]iscovery rather than impeachment appears to be the
gravamen of Pellicanos Jencks request.
Duncan, 712 F. Supp. at
129.
Pellicano additionally was not entitled to the statements
and could not have suffered prejudice from their denial because
the subject matter of Ornellas direct testimony for Arneson made
impeachment of Ornellas unnecessary.
Arnesons examination of
Ornellas fell into two categories: topics that were irrelevant to

Pellicanos defense, and topics that aided Pellicano as much as
Arneson.
For neither category did Pellicano need to undercut
Arnesons direct examination by using prior statements to

impeach.
As the district court observed, Arneson counsel primarily
called Ornellas to bolster Arnesons claims that Arneson was a
very knowledgeable and successful vice detective who had been
asked to join a joint task force, (JER 295) part of Arnesons
609
strategy to insinuate that Arneson used Pellicano as a source to

aid legitimate criminal investigations.
Arnesons direct
examination therefore spent substantial time trying to prove that

Ornellas had a high opinion of Arneson and had worked with him in
the past.
(4/16/08 (P.M.) RT 119-27; 4/18/08 RT 37-45, 49; GERT
5822-30, 6039-47, 6051).
As the district court noted, Rule 26.2
limits production to statements that relate[] to the subject

matter about which the witness testified. (JER 295 (quoting
Fed. R. Crim. P. 26.2(a))).
Since, as the district court found,
no party in the case appears to dispute the points Arneson

developed through Ornellas testimony, nor do these claims
adversely impact any co-defendant.
Id.
Because production of
statements on these subjects would have been useless to

Pellicano, there cannot have been prejudice in denying him access
to the material.
Arneson also bolstered his attempt to provide an innocent
explanation for the relationship between Pellicano and Arneson by
eliciting from Ornellas statements that it was possible Arneson
had declared as income money earned from Pellicano, and that
Ornellas had not disproven the possibility that some of that
money was repayment for Arneson providing bodyguarding services.
(4/16/08 (P.M.) RT 129; 4/18/08 RT 18-26; GERT 5832-6020-28).
Arnesons examination also spent substantial time on a subject
where his interests were aligned with all his codefendants
610
stressing the various witnesses who may have participated in but

were not charged with crimes in the case, (4/18/08 RT 49-60; GERT
6051-52), in an attempt to undercut those witness testimony (and
perhaps encourage jury nullification).
He insinuated that the
FBI was sloppy in its investigation something that all

defendants, including Pellicano, viewed as favorable to their
case rather than as something requiring impeachment.
(P.M.) RT 134-37; GERT 5837-40).
(4/16/08
And Arneson tried to undercut
the Anita Busch counts by exploring the possibility that Steven

Seagal, rather than Pellicano, had been responsible for the
attack on Busch (4/18/08 RT 63-65; GERT 6065-67) a line of
inquiry that inured as much to Pellicanos benefit as to
Arnesons.
Arnesons direct examination produced nothing that
Pellicano would have impeached, and the court properly ruled that
Pellicanos attempt to use his codefendants witness as a
springboard to greater discovery was outside the purposes of Rule
26.2.
Even if this Court were to find error, the remedy would be
limited.
First, because only Pellicano has appealed the Rule
26.2 ruling, any error would provide no basis for questioning the
other defendants convictions.433
Second, because the Jencks Act
433
That is particularly so with respect to defendants

Arneson and Christensen. Rule 26.2 provides no right for
Arneson, who called Ornellas, to receive Ornellas statements.
See Fed. R. Crim. P. 26.2(a) (motion for such statements must be
made by a party who did not call the witness, and such
(continued...)
611
and related rules have never been held to require the government
to provide statements for later use at a trial other than the one
where the witness testified, Pellicano had no right to receive
statements by Ornellas for use at his second trial.
Thus, even
if Pellicanos convictions from his first trial were remanded for

further Jencks review by the district court, that would not cast
doubt on his convictions from his second trial.
Third, Jencks violations are subject to harmless error
review, and because the Jencks rule is not constitutionally
required, the fact of harmless error need not be proven beyond a
reasonable doubt.
United States v. Carrasco, 537 F.2d 372, 377
n.3 (9th Cir. 1976).

Pellicano.
A mountain of evidence convicted defendant
Indeed, the severity of the evidence was so lopsided
that, in his closing argument, Pellicano virtually gave up on

trying to save himself, and instead argued for his codefendants
innocence.
(4/30/08 (A.M.) RT 63; GERT 7853 (There was no
criminal enterprise or conspiracy.

responsible.).
None.
Pellicano alone is
Moreover, Pellicanos performance cross-
examining other witnesses pro se gives no reason to believe that

he would have made efficient use of any Jencks material from
Ornellas.
Even after having the opportunity to cross-examine
433
(...continued)
statements are delivered to the moving party). Neither does
Rule 26.2 create a right for Christensen, a non-party to the
first trial, to receive any statements from witnesses called at
that trial.
612
Ornellas during Pellicanos state-case preliminary hearing,

Pellicano provides this Court with nothing from that testimony
casting doubt on his factual guilt.
(POB 46 n.20).
This Court
therefore should reject Pellicanos claim, because of the

extraordinary unlikelihood of prejudice.
Barring that, this
Court should remand the issue to the district court to determine

which statements relate[] to the subject matter of Ornellas
direct testimony, Fed. R. Crim. P. 26.2(a), and whether or not
those statements would have affected Pellicanos verdict.
L.
PELLICANOS COMPLAINT THAT HE RECEIVED INADEQUATE NOTICE

ABOUT OTHER-ACTS EVIDENCE IS WITHOUT MERIT
Pellicanos complaint (POB 38-43) that the government
introduced Rule 404(b) material without adequate notice likewise

falls flat.434
Pellicanos brief barely identifies the evidence he claims
was unnoticed.435
Nor did Pellicano properly preserve the issue
434
The separate question of the admissibility of the

evidence, apart from notice issues, is discussed earlier.
435
The only evidence Pellicano specifically claims not to

have received notice about is (i) Kerlins testimony that she was
threatened by Pellicano (POB 39); (ii) Senders mentioning that
Pellicano offered to have Russo murdered (id.); and (iii)
evidence about the vandalism to Buschs car, dead fish and
bullet holes, and an alleged attempt to run her down (POB 3940). He does not particularly describe that evidence or its
admission and use at trial. This failure to develop the argument
is reason to deny the claim on appeal. See Western Radio Servs.
Corp. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012) (We will
not do an appellants work for it, either by manufacturing its
legal arguments, or by combing the record on its behalf for
(continued...)
613
at trial.
Pellicanos citation to his purported raising of the
issue below does not support his claim that all defendants
expressed their concern as to the introduction of irrelevant and
powerfully prejudicial evidence such as handguns and grenades.
(POB 42 (citing 3/6/08 RT (A.M.) 12-14; GERT 476-78)).
To the
contrary, the cited page shows that the objection was made only
by Kachikian,436 related solely to evidence of handguns and
grenades, and was not based on a lack of notice.
See 3/6/08 RT
(A.M.) 13; GERT 477 (I don't presume to speak on behalf of all

the other clients here -- but at least my client has concerns
about handguns and grenades being introduced in a case that is
about wiretapping.).
That objection, therefore, did not address
Pellicanos current claim at all.
See p. __ n.__, supra (noting
that Pellicanos appellate brief complains that handgun/grenade
(...continued)
factual support.).
Although the same section of Pellicanos brief contains
vague complaints about other evidence (again, without citation),
those are complaints that the evidence was prejudicial not
complaints that notice was defective. (POB 40 & n.16
(complaining generally that the prosecution embedded in the jury
that Pellicano was a thug who threatened violence on
prosecutors (Karla Kerlin), law enforcement investigators (George
Mueller), state and federal witnesses (Tarita Virtue, Linda
Doucett), victims (Jane Does, Laura Moreno, Kissandra Cohen) and
that criminals got off (Kami Hoss, John Gordon Jones, George
Kalta), and complaining about testimony mentioning the hand
grenades, plastic explosives, and . . . detonator found in
PIA).)
436
The government acknowledges that, under the Governments

stipulation an objection by one defendant may be deemed an
objection by all. 3/5/08 RT (P.M.) 76; GERT 462.
614
evidence was prejudicial but does not complain about notice).437

A claim of error in the admission of evidence requires a
contemporaneous objection stating the specific ground.
United States v. Cabrera, 201 F.3d 1243, 1248-49 (9th Cir. 2000);
Fed. R. Evid. 103.
Because the limited objection Pellicano now
relies on mentioned nothing about lack of notice as a ground for

exclusion, and did not mention the specific evidence for which he
now claims the notice was inadequate, the district courts
decision to admit the evidence is reviewed for plain error.
Here, even if there was error, it could not have been plain.
Error is plain when it is clear or obvious under current
United States v. Fuchs, 218 F.3d 957, 968 (9th Cir. 2000).
law.
Without a contemporaneous objection specifically mentioning lack

of notice and alerting the court to inquire as to notice,
inadequacy of notice cannot be obvious to the district court,
because district courts have no way of knowing what notice has
passed between the parties in unfiled discovery letters.
See
United States v. Hieng, 679 F.3d 1131, 1137-38 (9th Cir. 2012)
(because district court had no way to know what provisions were
in proffer agreement unless parties brought it up, there was no
437
Pellicanos cited page likewise fail to support his

claim to have made, before trial, a request for notice of all
Rule 404(b) material. (POB 38 (citing ER 552)). The page
Pellicano cites contains no such request. Because the government
has independently located Pellicanos request elsewhere, however
(ER 568), the government does not contest that Pellicano at some
point made a request for such information.
615
plain error in district courts failure to inquire into whether

detectives testimony about defendants statements violated
agreement).
Pellicano further fails to establish prejudice,
because he does not show that the purportedly inadequate notice

hampered his defense.
And because full documentary support for
the complained of evidence was provided to all defendants well in

advance of trial, any error could not have seriously affected the
fairness or integrity of the proceedings.
On plain error review,
the claim fails.

Indeed, there was no error at all: because this was not Rule
404(b) evidence in the first place, the notice requirements of
Rule 404(b) did not apply.
Rule 404(b) requires notice only for
evidence of other crime[s], wrong[s], or . . . acts.

Evid. 404(b).
Fed. R.
The evidence of which Pellicano complains was not
evidence of other crimes, wrongs or acts.
Rather, under
longstanding precedent, it was evidence of the charged crimes

themselves because it proved the existence of the charged
racketeering enterprise and the charged conspiracies.
An essential element for the Racketeering and Racketeering
Conspiracy counts (ER 3956, 3974) was the existence of an
enterprise that is, a group of persons formal or
informal associated together for a common purpose of engaging
in a course of conduct.
576, 583 (1981).
United States v. Turkette, 452 U.S.
The scope of and evidence of the enterprise
616
went beyond the specifically alleged racketeering acts.

entirely permissible.
That was
The enterprise is not the pattern of
racketeering activity.
Id.
Rather, the enterprise is an
entity separate and apart from the pattern of activity in which

it engages, and the two elements will not necessarily be
established by the same proof.
Id.
Here, the governments case
followed the well settled practice of relying in part on

evidence of uncharged offenses to establish the existence of the
criminal enterprise.
Cir. 2003).
United States v. Baez, 349 F.3d 90, 93 (2d
Since the conduct Pellicano complains about was
direct evidence of the enterprise, it was not other act

evidence at all, and the notice provisions of Rule 404(b)(2)(A)
did not apply.
Evidence of the defendants illegal activities together was
also direct evidence of the conspiracies charged in Counts Two
and Sixty-Seven (ER 3974, 3987) another reason the evidence was
not covered by Rule 404(b).
See United States v. Concepcion, 983
F.2d 369, 392 (2d Cir. 1992) (evidence of one conspirators offer
to kill another conspirators rival was used, inter alia, to
prove the existence of the conspiracy, so was not other-act
evidence within the meaning of Rule 404(b)).438
438
See also, e.g., United States v. Vaccaro, 816 F.2d 443,

452 (9th Cir. 1987) (As to the evidence of specific uncharged
jackpot cheating incidents, admissibility need not hinge on Rule
404(b) because it was admissible as direct evidence of the
conspiracy . . . .), abrogated on other grounds by Huddleston v.
(continued...)
617
Finally, this Court has held that evidence should not be

considered other crimes or other act evidence under Rule
404(b) if the evidence concerning the other act and the
evidence concerning the crime charged are inextricably
intertwined.
United States v. Dorsey, 677 F.3d 944, 951 (9th
Cir. 2012).439
This, too, explains why the evidence Pellicano
assails was not subject to the Rule 404(b) notice rule.
Evidence
of the overall operation of Pellicanos racketeering enterprise

both constitut[ed] a part of the transaction that serves as the
basis for the criminal charge, and was necessary . . . to
permit the prosecutor to offer a coherent and comprehensible
story regarding commission of the crime.
Id.
It helped show
the relationships among coconspirators, and between Pellicano and

those who hired him for investigatory work.
Beckman, 298 F.3d 788, 793-94 (9th Cir. 2002) (evidence deemed
inextricably intertwined, so not subject to Rule 404(b)
analysis where it established a coconspirators relationship to
438
(...continued)
United States, 485 U.S. 681, 685 n.2 (1988); United States v.
Lai, 944 F.2d 1434, 1439 (9th Cir. 1991) (evidence of drug deals
predating the earliest overt act in the indictment was direct
evidence of the conspiracy and not other act evidence),
abrogated on other grounds by LaLonde v. County of Riverside, 204
F.3d 947, 968 n.14 (9th Cir. 2000).
439
See also United States v. Soliman, 813 F.2d 277, 279

(9th Cir. 1987) (under inextricably intertwined doctrine, Rule
404(b) did not apply to governments summary chart listing 102
fraudulent acts, in case where defendant was indicted for only
three).
618
[defendant] and show[ed] that the relationship was ongoing).

It provided the motivation for some of the charged conduct,
since, as the Indictment charged, Pellicano used and sought to
use [the] illegally obtained information to facilitate further
criminal conduct to enrich the Enterprise, including threats,
blackmail, and illegal wiretapping directed against the
Enterprise's investigative targets.
(ER 3965).
It also
explained aspects of the investigation, such as the interruption

in the computer analysis during the execution of the first
warrant.440
And the evidence about Pellicanos attack on Busch
was intimately connected with the evidence that he was

wiretapping her.
Because the additional evidence was
inextricably intertwined with the charged conduct, Rule 404(b)

and its notice requirement did not apply.
Bowie, 232 F.3d 923, 928 (D.C. Cir. 2000) ([t]reating evidence
as inextricably intertwined . . . bypasses Rule 404(b) and its
attendant notice requirement); United States v. Connor, 583 F.3d
1011, 1024 (7th Cir. 2009) (quoting Bowie).
Finally, to whatever extent Rule 404(b)s notice
requirements applied, they were met.
440
Pellicanos only argument
See 3/7/08 RT (A.M.) 45, 59, 105; GERT 737, 751, 797
(testimony that first search was cut short for safety concerns
after explosives found); 3/6/08 RT (A.M.) 12; 476 (explaining
that the need to call the bomb squad after finding the
grenades, the C4 was one reason Pellicanos computers were not
imaged during the first search, resulting in later loss of
evidence).
619
for the inadequacy of the notice is that the governments trial

memorandum did not discuss certain evidence.
(POB 38-39).
But
neither Rule 404(b), nor any other rule or precedent, requires

such notice to be contained in the trial memorandum.
Indeed, the
Federal Rules do not require a trial memorandum at all.

Instead, the government provided notice of any other-acts
evidence via two separate mechanisms.
First, substantive details
of all the evidence at trial was provided by the government in

its pretrial Rule 16 discovery a point Pellicano does not
dispute.441
See United States v. Erickson, 75 F.3d 470, 478 (9th
Cir. 1996) (government satisfied the [Rule 404(b) notice]

requirement by turning over to appellants prior to trial
statements by the witness explaining the eventual other acts
evidence).
Second, any notice requirement was satisfied again
when the exhibits establishing the other acts evidence were noted
in the governments pretrial exhibit list.
(CR 1232).
That
list, filed before trial began, alerted defendants to all of the
441
If Pellicano had properly made his notice-objection

during trial, the government could have provided copies of
appropriate notice and discovery to the trial court all the
more reason why Pellicano, having failed to raise the issue in
the district court, should not be allowed to raise it now.
If Pellicano were able to get over the plain error hurdle,
the need to examine this extra-record evidence precludes
Pellicano from reversal on this ground. The maximum remedy
available would be to remand for district court factfinding on
the adequacy of the documents the government provided defendants
with before trial. Moreover, because Pellicano complains only
about such evidence in his first trial, it has no bearing on
Pellicanos convictions in the second trial.
620
evidence for the governments case-in-chief by listing which of

the previously disclosed photographs, recordings, and documents
the government intended to introduce.
Because Pellicano does not
contend that the exhibit list omitted the evidence of which he

now complains, the list, with the corresponding discovery,
satisfied any notice requirements.
See United States v. Perlaza,
439 F.3d 1149, 1176 n.32 (9th Cir. 2006) (rejecting argument that
log book was improperly noticed 404(b) evidence, where defendant
had access to the log book months before trial and it was on the
Government's trial exhibit list).
Finally, there was no prejudice, and no miscarriage of
justice.
Because the evidence was admissible, earlier notice
would not have aided Pellicano in keeping it out at trial.

Indeed, Pellicano admits (POB 42 n.17) that the governments
opening statement eliminated any doubt about the governments
intent to use the evidence at issue a final factor requiring
affirmance.
See United States v. Begay, 673 F.3d 1038, 1046 (9th
Cir. 2011) (en banc) (on plain error review, declining to reverse
for lack of Rule 404(b) notice, where, inter alia, [t]he
government disclosed the evidence itself and said specifically in
its opening statement that some of it would be introduced).
Rather than explain how purportedly inadequate notice
hindered his trial presentation, Pellicano raises a novel and
621
unusual claim (POB 40-42) that the purportedly inadequate notice

affected his voir dire rights.
Because he did not raise the
voir-dire claim below, it, too, is reviewed for plain error.

novelty of the argument precludes plain error relief.
The
Pellicano
provides no precedent stating that a failure of notice under Rule

404(b) amounts to a denial of adequate voir dire.442
See United
States v. Charles, 581 F.3d 927, 936 (9th Cir. 2009) (Charles
has not presented any controlling authority demonstrating [his
claim].
Accordingly, we conclude that the district court did not
plainly err.).
Moreover, because Pellicano does not propose
additional questions he would have asked in voir dire with more

notice let how those questions would have aided his case the
asserted error cannot have affected substantial rights.
Indeed,
Pellicanos general nonchalance about voir dire precludes any

claim of prejudice he never filed proposed voir dire questions
on any subject, (ER 5594-95, 5598, 5604) (docket), and he by and
442
Pellicanos citations are off-point. Rosales-Lopez v.

United States, 451 U.S. 182 (1981) (cited at POB 41), merely
makes the point that, while voir dire assists in exercising
peremptory challenges, federal judges have been accorded ample
discretion in determining how best to conduct the voir dire. It
does not say that the right to voir dire requires the government
to provide specific information about its case to assist the
defenses voir dire. United States v. Ledee, 549 F.2d 990, 993
(5th Cir. 1977), meanwhile, simply notes that courts a
preference for having voir dire conducted by counsel. Because
neither case addresses Pellicanos claim that purported discovery
and notice problems interfere with voir dire, neither case can
support plain error.
622
large declined to participate in oral voir dire.443
There will
thus be no miscarriage of justice if this Court declines to

exercise its discretionary powers of plain error review.
States v. Young, 470 U.S. 1, 15 (1985).
United
This Court should
affirm.
M.
THE DISTRICT COURT ABUSED NO DISCRETION IN REJECTING

ARNESONS BASELESS CLAIMS OF PROSECUTORIAL MISCONDUCT OR IN
DENYING HIS REPEATED AND UNTIMELY MISTRIAL MOTIONS
Arneson claims that the government engaged in prosecutorial
misconduct in its questioning of an Internal Affairs detective,

in its cross-examination of Arneson, in failing to produce in
discovery material already in Arnesons possession and
impeachment material, and when a single juror overheard one of
the prosecutors say the word perjury to Arnesons counsel as
the juror left the courtroom during a recess in Arnesons crossexamination.
(AOB 27-59).
Because Arneson fails to establish
any actual misconduct, let alone a probability that any

misconduct affected the verdict, reversal is not warranted.
1.
Standards of Review
A district courts rulings on alleged prosecutorial

misconduct are reviewed for abuse of discretion.
United States
v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999).
To obtain
relief, a defendant must show a probability that the misconduct

443
Given the chance to ask oral questions of each group of

jurors, Pellicano asked four of the five groups no questions.
3/508 RT (A.M.) 63, 87-88, 109, 124; 3/5/08 RT (P.M.) 13-14; GERT
315, 339-40, 361, 376, 399-400.
623
materially affected the verdict.
Id.
The district courts
denial of a motion for mistrial is reviewed for an abuse of

discretion.
Id. at 981.
A district courts finding that the defendants Fifth

Amendment rights were not violated is reviewed de novo.
United
States v. Bushyhead, 270 F.3d 905, 911 (9th Cir. 2001).
If a
violation is found, it will be disregarded if it is harmless

beyond a reasonable doubt.
Id.
A district courts discovery rulings under Federal Rule of

Criminal Procedure 16 are reviewed for abuse of discretion.
United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir. 2003).
To justify reversal, the defendant must show a likelihood that
the verdict would have been different had the government complied
with the discovery rules.
United States v. de Cruz, 82 F.3d 856,
866 (9th Cir. 1996).

2.
The Questioning of Detective Lim Regarding Arnesons

Retirement Was Not a Comment on His Constitutional
Right to Silence
In response to government questioning, LAPD Detective Helen

Lim testified that Arneson filed his notice of retirement from
the LAPD on the date that he was to be interviewed by Internal
Affairs Division (IAD), and therefore no interview occurred.
Arneson did not object to this testimony.
69).
(3/14/08 (A.M.) RT 68-
Instead, six days later, he filed a motion for mistrial,
claiming that the government had impermissibly commented on his
624
constitutional right to remain silent.

court denied Arnesons motion.444
(CR 1261).
The district
(JER 240-42).
Although the district court remarked that there may have

been a minor Fifth Amendment violation, the court did not
actually find one.
(JER 241 (emphasis added)).
reason: there was none.
And for good
The governments questioning of
Detective Lim was wholly proper.
In Garrity v. New Jersey, 385
U.S. 493, 500 (1967), the Supreme Court held that statements by
police officers under the threat of losing their jobs were
compelled and could not be use[d] [against them] in subsequent
criminal proceedings.
The following year, the Court extended
Garrity to the situation where a public-sector employee is

discharged for invoking their Fifth Amendment privilege against
self-incrimination.
See Uniformed Sanitation Men Assn v. Commr
of Sanitation, 392 U.S. 280 (1968) (Fifth Amendment violation

when city employees were discharged for invoking privilege);
Gardner v. Broderick, 392 U.S. 273 (1968) (Fifth Amendment
violation when police officer was threatened with and
subsequently discharged from employment if he did not waive his
Fifth Amendment immunity in conjunction with a grand jury
investigation).
As then-retired Justice Powell later explained
444
The courts order directed the government not to refer

to Arnesons failure to appear at the IAD interview in its
closing argument. (JER 241). The court vacated that portion of
its order after Arneson took the stand in his defense. (GER
1226).
625
in summarizing the Supreme Courts Garrity jurisprudence while

sitting with the Fourth Circuit, the right against selfincrimination is not violated by the mere compulsion of
statements, without a compelled waiver of the Fifth Amendment
privilege or the use of the compelled statements against the
maker in a criminal proceeding.
Wiley v. Doory, 14 F.3d 993,
996 (4th Cir. 1994) (Powell, J., retired).

Here, the questioning of Detective Lim did not implicate
Garrity because Arneson was not compelled to waive his Fifth
Amendment privilege and no compelled statements were used against
him.
Instead of proceeding to the IAD interview and either
making compelled statements or invoking his Fifth Amendment

rights (and being fired for doing so),445 Arneson elected to
retire from the LAPD.446
That alone removes Detective Lims
testimony from Garritys purview because Arneson retired before

he was compelled to give statements at the IAD interview and, as
445
There is nothing in the record to suggest that Arneson

would have been fired, which is fatal to his claim. See Chan v.
Wodnicki, 123 F.3d 1005, 1009 (7th Cir. 1997) (Not every
consequence of invoking the Fifth Amendment is considered
sufficiently severe to amount to coercion to waive the
right. (collecting cases)). For example, a law-enforcement
agencys threat that an officer will be transferred or assigned
desk duty if he or she refuses to answer questions is probably
not sufficient for a statement to be considered compelled. See
id. at 1009-10.
446
Making clear that he retired instead resigned was

important to Arneson. Arneson specifically objected to the PSRs
statement that he resigned from the LAPD in May 2003 (APSR
11) and requested that it be amended to state that he retired in
October 2003. (CR 2076 at 7.)
626
such, neither invoked his Fifth Amendment rights nor made any
compelled statements.447
Contrast Uniformed Sanitation Men, 392
U.S. at 284 (Fifth Amendment right to silence in the Garrity

context violated where public-sector employees were not
discharged merely for refusal to account for their conduct as
employees of the city.
They were dismissed for invoking and
refusing to waive their constitutional right against

self-incrimination).
Garrity simply is not implicated.
Arnesons assertion that, even if there was not an actual

Garrity violation, the questioning of Detective Lim nonetheless
infringed his Fifth Amendment rights by commenting on his
silence is both legally and factually unsupportable.
(AOB 28).
Legally, it is unsupportable because Arnesons decision to retire

was not an invocation of his Fifth Amendment privilege as a
matter of law.
The Supreme Court has made clear that the Fifth
Amendment right to silence must be invoked unambiguously.448

447
For these reasons, the other Garrity cases relied on by

Arneson are unhelpful to him. See United States v. Saechao, 418
F.3d 1073, 1077 (9th Cir. 2005) (If an individuals refusal to
answer incriminating questions subjects him to a penalty, then
the Fifth Amendment is self-executing and any statements made
under threat of such penalty are inadmissible.); Lybarger v.
City of Los Angeles, 40 Cal. 3d 822, 827 (1985) (As a matter of
constitutional law, it is well established that a public employee
has no absolute right to refuse to answer potentially
incriminating questions posed by his employer. Instead, his
self-incrimination rights are deemed adequately protected by
precluding any use of his statements at a subsequent criminal
proceeding.).
448
In Sessoms v. Runnels, 691 F.3d 1054, 1062-63 (9th Cir.

(continued...)
627
Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (refusing to

[t]reat[] an ambiguous or equivocal act, omission, or statement
as an invocation of Miranda rights).
A decision to retire,
which could be made for any number of reasons, is categorically

the type of equivocal act that the Supreme Court has held is
insufficient to constitute an invocation of the Fifth Amendment
privilege.
Id.
The situation here is thus no different from
that of a defendant who flees the country on the eve of trial.

It is inconceivable that comment on such conduct as evidencing
consciousness of guilt could be viewed as comment on the
defendants constitutional right not to testify at the trial that
would have occurred but for his flight.
See, e.g., United States
v. Mikos, 539 F.3d 706, 710 (7th Cir. 2008) (distinguishing

comment on defendants conduct from comment on defendants
silence, noting that [n]othing in Griffin [v. California, 380
U.S. 609 (1965)] or its successors prevents a prosecutor from
448
(...continued)
2012) (en banc), this Court recognized that the unambiguous
invocation rule may not apply to the Miranda right to counsel if
the suspect had not yet been advised completely of his rights.
Sessoms does not aid Arneson for at least two reasons. First,
Sessoms does not address the Fifth Amendment right to silence.
Second, Sessoms rationale -- that a person not aware of his
rights cannot be expected to clearly invoke them -- does not
apply to Arneson. Id. at 1062. Arneson was clearly aware of his
right to remain silent both because, as he testified, he had
submitted to the Internal Affairs at a prior interview five
months earlier at which [t]hey had read me my rights and
because, as a police officer for 29 years, Arneson clearly would
know of the Fifth Amendment right to remain silent. (4/11/08
(P.M.) RT 80).
628
urging the jury to draw inferences from events that can be

established by evidence independent of the accuseds silence);
United States ex rel. Powell v. Pennsylvania, 294 F. Supp. 849,
852 (E.D. Pa. 1968) (permitting jury to infer guilt from
accuseds flight and concealment does not implicate right to
remain silent).
Thus, even if Arneson subjectively intended his
decision to retire to constitute an invocation of his Fifth

Amendment privilege, his claim would necessarily fail as a matter
of law.
Here, moreover, the record establishes that Arneson did not
have that intent.
On direct-examination, Arneson characterized
his decision to retire not as an invocation of his Fifth

Amendment rights but instead as an act of tak[ing]
responsibility for his having accessed restricted law
enforcement databases to acquire confidential information on
PIAs investigative targets in violation of the duties imposed on
him under the law and his office.
(4/11/08 (P.M.) RT 76-77).
And on cross-examination, Arneson confirmed that his decision to

retire was not because he was faced with the Hobsons choice
between surrendering [his] constitutional rights or [his]
job[].
Uniformed Sanitation Men, 392 U.S. at 284.
Rather, when
asked whether he retired to avoid being interviewed by Internal

Affairs about this case, Arneson responded, No, and explained
that he did not subject himself to the IAD interview because he
629
had already submitted himself to an interview with the government

and the FBI three months earlier and didnt feel I needed to do
another interview.
(4/11/08 (P.M.) RT 79-80).
Thus, even if a
decision to retire could somehow constitute an invocation of the

Fifth Amendment right to remain silent (it cannot), the record
establishes that is factually not what Arneson intended his
retirement to be.
Finally, even if there somehow was a Fifth Amendment
violation, Arneson rendered the questioning about his retirement
and the aborted IAD interview harmless by taking the stand.
See
Jenkins v. Anderson, 447 U.S. 231, 235-38 (1980) (Fifth Amendment

not violated when defendant who testifies in his own defense is
impeached with his prior pre-custody, pre-warning silence).449
Arnesons rejoinder that he would not have testified but for
Detective Lims testimony is disingenuous.
(AOB 32 n.11.)
Arnesons opening statement included a promise of evidence that

could only be introduced through Arnesons own testimony
449
Arneson inaptly relies on Fowle v. United States, 410

F.2d 48, 51-56 (9th Cir. 1969), for the proposition that it was
constitutionally improper for the government to use Detective
Lims examination . . . to impeach Arnesons credibility. (AOB
32 & n.11). Fowle -- a 1969 decision of this Court -- did not
survive the Supreme Courts subsequent decision in Jenkins, which
is probably why Fowle has been cited in only two post-Jenkins
decisions, neither of which adopts the constitutional holding on
which Arneson relies. See Campanale v. Harris, 724 F.2d 276, 280
(2d Cir. 1983) (citing Fowle to frame historical discussion of
pre-Doyle v. Ohio, 426 U.S. 610 (1976), circuit split); State v.
McCrory, 87 P.3d 275, 278-79 (Haw. 2004) (discussing Fowles
abrogated constitutional analysis in construing Hawaiis rules of
evidence for relevance).
630
including what Arneson allegedly remembered, what he thought,

what he believed, what his reaction to events was, and what
he and Pellicano discussed in numerous private conversations.
(3/6/08 (P.M.) RT 8-20; ).
Thus, even if the questioning of
Detective Lim was improper, Arneson cannot show that it is more

probable than not that the questioning materially affected the
jurys verdict.
3.
See Hinton, 31 F.3d at 824.
The Governments Brief Questioning of Arneson Regarding

a Prior Internal Affairs Investigation Did Not Use
Any of His Compelled Statements Against Him
During cross-examination, the government briefly questioned

Arneson about a 1999 IAD complaint against him by fellow officer
Kelly Shea relating to Arnesons computer inquiries.
(P.M.) RT 118-20; JER 3237-39).
(4/11/08
Arneson testified that he did
not specifically recall what he told IAD, but that he had been
truthful and that the Shea complaint had not been sustained.
(Id.).
This thoroughly nonprejudicial testimony was introduced
without objection, and although the parties raised a number of

other issues at the end of the court day, Arneson still failed to
object.
(Id. at 119-20, 136-44; JER 3238-39; ).
Instead, three
days later, Arneson filed a written emergency motion for a

mistrial and a stay of his ongoing cross-examination.
AER 37-79).
(CR 1372;
When the district court denied Arnesons motion
after a day-long evidentiary hearing, Arneson declined the
631
courts offer to give a curative instruction.
(4/15/08 (Pt. B))
RT 66-67; 4/16/08 (A.M.) RT 10; JER 3394-95; ).

Arnesons claim that the governments questioning violated
Garrity and constituted misconduct warranting a new trial is
meritless.450
(AOB 34-35).
Because Arneson testified that he did
not remember what he said in the interview, no compelled

statement was ever in fact introduced.
Moreover, the evidence
adduced at the evidentiary hearing, which the court conducted

after Arnesons counsel refused to put him on the stand to
continue what had already proved to be a highly damaging crossexamination, established that the government did not use
Arnesons IAD statement within the meaning of Garrity at all.
(4/15/08 (A.M.) RT 6-8, 12-18; JER 3414-16, 3420-26).
Indeed,
the court found -- a finding that Arneson has made no effort to,
and cannot possibly, establish is clearly erroneous -- that the
AUSA who conducted the cross-examination was not even aware that
such a statement existed at the time the questioning took
place.451
(4/15/08 (Pt. B) RT 62-66; JER 3389-93).
Rather, the
450
Arnesons claim that the government conceded a Fifth

Amendment violation in connection with this questioning (AOB 35)
is false. In his testimony at the evidentiary hearing, the AUSA
who conducted the cross-examination expressly declined to accept
Arnesons contention that legal error had been committed, stating
only that he believed he had made an error in judgment in
asking the questions without having anticipated the potential
legal issues. (4/15/08 (Pt. A) RT 69-70; JER 3312-13).
451
As established at the evidentiary hearing, the most that

anyone on the prosecution team ever heard of Arnesons IAD
(continued...)
632
court found that Arnesons denials of improper conduct in the

prior investigation were easily inferred from the fact that the
Shea complaint had not been sustained and from Arnesons
testimony that he had never disclosed to anyone Pellicanos
alleged role as a law enforcement source.452
(Id.)
The courts
factual findings were amply supported by the record, and Arneson

does not contend that they were clearly erroneous; indeed,
Arneson does not even mention the courts findings in his opening
brief.
(See 4/15/08 (Pt. A) RT 41-42, 48, 53-55, 64, 66-67, 72-
73; JER 3284-85, 3291, 3296-98, 3307, 3309-10, 3315-16).

Arnesons claim that the district court failed to hold a
proper hearing under Kastigar v. United States, 406 U.S. 441,
460 (1972), and erroneously placed the burden on him to show that
the government used his statements is also meritless.453
(AOB 29-
451
(...continued)
interview was a statement of the purpose of the interview and a
possible Hello. (4/15/08 (Pt. A) RT 41-42; JER 3284-85). At
that point the recording was immediately sealed and delivered to
a taint AUSA who was not part of the prosecution team and who
retained the recording in his custody until the evidentiary
hearing. (Id. at 23-25, 42-43; JER 3266-68, 3285-86).
452
The government was aware of the unsustained complaint

from a reference in the IAD investigative report prepared in
connection with this case, which the government had produced to
the defense in discovery. (4/15/08 (Pt. A) RT 53-55; 4/15/08
(Pt. B) RT 63; JER 3296-98, 3390).
453
Kastigar, 406 U.S. at 460, requires the government to

prove by a preponderance of the evidence that its evidence is
derived from a legitimate source wholly independent of any
compelled testimony. See United States v. Rogers, 722 F.2d 557,
560 (9th Cir. 1983).
633
30).
The procedure that the court undertook for the hearing was
that proposed by Arnesons own counsel, and neither the

government nor the court challenged counsels position that the
burden was on the government to prove non-use of the statement.
(4/15/08 (Pt. A) RT 4-5; JER 3247-48).
Indeed, Arneson fails to
cite anything in the record that suggests that the district court
placed the burden on him to prove the governments use of the
statements.
Rather, the court found, consistent with the
uncontradicted testimony presented by the government, that the

prosecution team was not aware of the content of Arnesons
compelled statement and had not used that statement to any
extent.
(4/15/08 (Pt. B) RT 63; JER 3390).
Because an
investigative team cannot derive evidence from a compelled

statement that it has never seen or heard, that finding in itself
answered the Kastigar inquiry.
Moreover, even if the governments questioning regarding a
statement that it had never seen or heard could constitute use
of that statement in violation of Garrity, Arneson has failed to
demonstrate any prejudice.
The entire series of questions and
answers on the Shea complaint occupied less than two transcript

pages in a 248-page cross-examination and elicited only Arnesons
denial that he had lied, his statement that he did not
specifically recall what he told IAD, and the fact that the
complaint had not been sustained (an exculpatory fact that, as
634
the district court noted, would otherwise have been

inadmissible).
(4/11/08 (P.M.) RT 119-20; 4/15/08 (Pt. B) RT 64;
JER 3238-39, 3391).
The IAD interview was not mentioned in the
governments closing argument, and the jury was instructed at the

beginning and end of the case that lawyers questions are not
evidence.
(3/5/08 (P.M.) RT 47-48; 4/29/08 (A.M.) RT 24; ).
Because the evidence adduced by the questioning to which Arneson

belatedly objected was in no way inculpatory, any error in the
governments brief questioning regarding Arnesons 1999 IAD
investigation was harmless.
4.
The Governments Failure to Produce Arnesons Recorded

Statement, Which It Knew Was Already in His Counsels
Possession, Did Not Violate Rule 16
Arnesons claim that the government failed to produce his

statement in the Shea investigation in violation of Rule 16 is
baseless.
(AOB 38-39).
Before trial, Arneson issued a subpoena
duces tecum to the LAPD and obtained from the City Attorneys
Office responsive material, including the Shea IAD file and
Arnesons recorded statement.
1983] Exh. A]).
(GER [Arneson new trial opp [CR
As established by the record, the government
repeatedly asked Arnesons counsel to produce reciprocal

discovery, including the materials he had obtained by subpoena
from the LAPD, but Arnesons counsel repeatedly refused to do so
and told the government to obtain a duplicate production set
directly from the City Attorney.
(4/15/08 (Pt. A) RT 31-33, 37-
635
39, 46, 56-59; JER 3274-76, 3280-3282, 3289, 3299-3302 [Arneson

new trial opp [CR 1983] Exh. B, C]; ).
Accordingly, the
government obtained from the City Attorneys Office, on or about

the first day of trial, a subset of the documents and recordings
that the City had previously produced to Arneson.
A) RT 32, 38-40, 62; JER 3275, 3281-83, 3305).
(4/15/08 (Pt.
In response to
the courts inquiry at the close of the day-long evidentiary

hearing, Arnesons counsel grudgingly admitted that he had in
fact had possession of the recording since before the trial
started.
(4/15/08 (Pt. B) RT 40-42; JER 3367-39).
The failure to produce an item that is equally available to

the defense or, as in this case, already was in the defenses
possession does not constitute a Rule 16 violation.
See, e.g.,
United States v. Gee, 695 F.2d 1165, 1167 (9th Cir. 1983) (no
Rule 16 violation in governments failure to disclose audiotape
transcript where defendant had ability to produce his own
transcript from produced recording); see also United States v.
Hernandez-Muniz, 170 F.3d 1007, 1011 (10th Cir. 1999) (no Rule 16
or Brady violation where evidence was already known by and
available to defendant before trial); United States v. Brown, 628
F.2d 471, 473 (5th Cir. 1980) (In no way can information known
and available to the defendant be said to have been suppressed by
the Government.).
Just as the government is not required under
Rule 16 to produce back to a defendant documents that the
636
defendant has produced to the government, so the government here

was not required to give Arneson copies of materials that he had
already obtained from a third party and as to which he had
expressly invited the government, in lieu of reciprocal
production, to obtain a duplicate production set from the third
party for itself.454
United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982),
on which Arneson relies, is inapposite.
In that case, the
government cross-examined the defendant with a tape recording of

a conversation that the defendant did not know had been recorded
and that had never been produced in discovery.
Court held that Rule 16 had been violated.
Id. at 1112.
Id. at 1115.
The
In
dicta, the Court suggested that a defendant is always aware of

the contents of his own statements since he was a party to them,
but that the principal fact revealed by disclosure is that the
Government is also.
Id. at 1114.
Bailleaux did not involve a
situation where, as here, both the defendant and his counsel knew
that the recording existed and were in fact in possession of it
before trial.
Indeed, Bailleaux found that [i]t is error to
454
Arneson himself took the position that his invitation to

the government to view documents at the City Attorneys Office
was a substitute for reciprocal discovery. When the district
court found that Arneson had violated Rule 16 by failing to
disclose to the government before trial a document he intended to
use in his defense, Arnesons counsel sought to claim compliance
with Rule 16 by stating they could have seen it, as the
document was produced to Arneson by the City Attorneys Office.
(4/18/08 RT 151-52, 283).
637
admit into evidence a statement which has been withheld from the
defendant in violation of Rule 16 if the defendant has not
otherwise been afforded the opportunity to review the proffered
evidence.
Id. at 1115 (emphasis added).
Even if the governments failure to give Arneson a copy of

the recording that he had already received from the same source
could be considered a Rule 16 violation, Arneson has failed to
show a likelihood that the verdict would have been different had
the violation not occurred.
See United States v. Figueroa-Lopez,
125 F.3d 1241, 1247 (9th Cir. 1997); Bailleaux, 685 F.2d at 1115.
Because Arneson was undisputedly already in possession of the
recorded statement, he cannot show prejudice from the
governments failure to disclose it to him.
White Horse, 316 F.3d 769, 773 (8th Cir. 2003) (even if
government violated Rule 16, violation did not affect defendants
substantial rights where defendant obtained copy of document from
source other than government a month prior to trial).
Arnesons
claim that the violation impacted his decision to testify and

prevented him from moving to preclude mention of his IAD
statement is unavailing.
(AOB 39).
recognized, Arnesons belief that the prosecution team did not

have possession of or know the contents of his compelled
statement was completely accurate, and he knew long before trial
that the government was aware of the Shea IAD investigation based
638
on a reference in the separate IAD materials relating to the

Pellicano investigation (which had been produced in discovery).
(4/15/08 (Part B) RT 62-63; JER 3389-90).
Thus, Arneson has
failed to show a likelihood that any Rule 16 violation materially

5.
The Governments Questioning of Arneson Regarding a

Fraudulent Bankruptcy Petition Was Wholly Proper and
Did Not Involve Any Rule 16 Violation
Arnesons arguments regarding his cross-examination about a

fraudulent bankruptcy petition, which make up a substantial part
of his opening brief (AOB 40-59), are remarkable both for their
misrepresentations and for their factual omissions.
The true
facts, as borne out by the record, are nowhere near as nefarious

as Arneson suggests -- at least, not with respect to the
government -- and reveal the baselessness of Arnesons claims.
a.
The Bankruptcy Questioning
On direct examination, Arnesons counsel asked him about a

bankruptcy petition filed in his name in July 1998.
The petition
identified Arneson as a self-employed private investor earning

$4,000 per month and failed to list his employment with the LAPD.
(JER 5416).
The petition, which was filed on July 7, 1998, the
day that Arnesons residence was due to be sold in a foreclosure

sale, included Arnesons name, Social Security number, residence
address, and a mailbox address that Arneson was using at the
time, and correctly identified Arnesons bank account and
639
vehicle.
(4/16/08 (A.M.) RT 66-69; 4/16/08 (P.M.) RT 34-38, 41;
Exh. (I) 629,455 633; JER 5377, 5389; ).
Arneson testified on
direct that he did not file the fraudulent petition; that he
had
no idea who had done so; that he first learned of the petition
when he received notification from the United States Bankruptcy
Court; that he did nothing after learning about the petition;
and that the petition was eventually dismissed.
(4/11/08 (A.M.)
RT 96-97).
On cross-examination, the government introduced a number of
documents related to the bankruptcy filing, some of which were
self-authenticating (such as the certified bankruptcy petition
and summary of schedules), some of which Arneson authenticated
(including letters on his letterhead and bearing his signature),
and others that had been obtained from the file of Sandra Olin at
National Loan Center pertaining to a July 1998 refinance loan on
Arnesons residence and that were introduced subject to later
authentication.456
(See, e.g., 4/16/08 (P.M.) RT 44, 51, 56).
455
The copy of Governments Exhibit 629 included in the JER

omits the page referring to the foreclosure sale. A complete
copy of the exhibit is included at GER (Arneson New Trial Opp (CR
1983) Exh. F).
456
As Arneson affirmatively had raised the issue of the

bankruptcy petition on direct examination, the government was
permitted to introduce extrinsic evidence under Federal Rule of
Evidence 607, pursuant to the doctrine of impeachment by
contradiction. See United States v. Castillo, 181 F.3d 1129,
1132-33 (9th Cir. 1999). Had he not done so, introduction of
extrinsic evidence on this issue would have been foreclosed under
Federal Rule of Evidence 608(b) and the government would have
(continued...)
640
One of the documents introduced was a letter dated August 13,

1998, from Arneson to Vista Mortgage, which read, in part, as
follows:
A concern generated by the underwriter has mandated a
response to address a financial position. The recent
filing of Chapter 13 was predicated on the adverse
actions pursued by FATCOA.[457] Their bid to undermine
the loan process was specifically directed to gain
control of the property through false pretext. The
negative impact of the assault created the necessity to
protect the residence against a hostile entity. . . .
[T]heir purposeful attempt to illegally gain control of
the property forced an alternative action to protect
the property and my credit status. . . . The Chapter
13 filing was specifically engaged to counter the
hostile takeover of FATCOA to gain control of the
residence. . . . It was with great reluctance I
submitted to a Chapter 13 filing for protection. . . .
Advice received from my financial advisory team and
attorney convinced me to apply for the legal and
rightful protection afforded under Chapter 13. The
filing negated FATCOAs hostile attempts to sell the
property and allowed a sufficient time base to
facilitate the loan. . . . On August 7, 1998, the
Chapter 13 filing was dismissed. Sandra Olin of
National Loan Center has provided proof of the
dismissal. This is another illustration of my
commitment to the property and financial obligation.
(4/16/08 (P.M.) RT 45-48; GERT 5748-51; Exh. (I) 636; JER , 543031).
Arneson admitted that he may have written that letter,
456
(...continued)
been left with Arnesons denial, as the government anticipated
before Arnesons testimony. (4/28/08 (A.M.) RT 49).
457
FATCOA (or, correctly, FATCOLA) is the First American

Title Company of Los Angeles, which Arneson acknowledged was
seeking to foreclose on its second mortgage on Arnesons home and
was listed as a security holder in the July 1998 bankruptcy
petition. (4/16/08 (A.M.) RT 64-65; 4/16/08 (P.M.) RT 45; JER
5393).
641
which bore his signature and was on his letterhead.458

(P.M.) RT 44-46; GERT 5747-49).
(4/16/08
Arneson, who had previously
disavowed any knowledge of the petition, acknowledged after being

confronted with his own letter that obviously he was aware of
the bankruptcy filing, although he continued to deny knowing who
had filed it or having caused the petition to be filed.
(P.M.) RT 48-49).
(4/16/08
Arneson offered no explanation for the
correspondence on his letterhead and bearing his signature that

sought to justify his filing of the petition.
(4/16/08 (P.M.) RT
89-91, 102).
In its rebuttal case, the government called Phyllis Miller
to authenticate two exhibits from the Arnesons loan file that
had been conditionally admitted during Arnesons crossexamination.
Miller testified that, at the request of her
husband David Miller, she had put Arneson in touch with Sandra
Olin to assist Arneson in refinancing his personal residence.
(4/25/08 (A.M.) RT 102-04).
On cross-examination, Miller
458
Arneson admitted that he avoided foreclosure by securing

a refinance loan on his property through Sandra Olin at National
Loan Center. (4/16/08 (A.M.) RT 75; 4/16/08 (P.M.) RT 36).
Arneson further admitted that he wrote a letter to Olin providing
his correct contact information and affirming the dismissal of
the bankruptcy petition (4/16/08 (P.M.) RT 49-51; Exh. (I) 637;
JER 5432), and did not dispute that a September 1998 fax from him
to Olin and Phyllis Miller regarding the refinancing of his home
was genuine. (4/16/08 (A.M.) RT 74-76). Other documents in
Olins loan file also included Arnesons contact information
(telephone, pager, and facsimile numbers). (4/16/08 (P.M.) RT
43-44, 49-50; 4/28/08 (A.M.) RT 51-52; Exh. (I) 635, 637; JER
5429, 5432).
642
acknowledged that the handwriting on the summary of schedules

filed with the bankruptcy petition looked like her husbands.
(4/25/08 (A.M.) RT 118-20).
When Arnesons counsel asked whether
Miller and her husband had filed the bankruptcy petition

fraudulently on Arnesons behalf, the district court directed her
not to answer the question and excused the jury.
(4/25/08 (A.M.)
RT 120, ).
Contrary to Arnesons false assertion that the court stopped
Millers testimony because her government . . . sponsored . . .
perjury . . . was so obvious (AOB 5 (emphasis in original)), the
court actually did so because, as the court told Miller, if you
were involved in some way in the filing of a fraudulent
bankruptcy petition, either alone . . . or in connection with
your husband that would subject you potentially to criminal
prosecution, [and] you have a right not to testify.
(A.M.) RT 120-21, ).
(4/25/08
On the basis of that concern, the court
appointed Miller counsel.
(4/25/08 (A.M.) RT 125, ).
Although Millers initially appointed counsel told the court

that he would instruct her to invoke her Fifth Amendment right
against self-incrimination (4/25/08 (P.M.) RT 34), Millers
subsequently appointed counsel informed the court on the morning
of the next court day that Miller would not be asserting her
Fifth Amendment privilege and was willing to answer all questions
on cross-examination.
(4/28/08 (A.M.) RT 37-39).
643
At that point, the district court gave Arneson the choice

either (1) to continue with Millers cross-examination or (2) to
strike Arnesons cross-examination relating to the bankruptcy and
Millers direct examination (but not Arnesons direct or Millers
cross).
(4/28/08 (A.M.) RT 52-53, 58).
Contrary to Arnesons
false assertions that the court found the bankruptcy questioning

improper and struck Millers testimony based on a finding of
prosecutorial misconduct (JOB 39; AOB 43), the court expressly
declined to find any error in the cross-examination of Arneson,
and its proposed striking of testimony was based solely on
Federal Rule of Evidence 403 and the extraordinary amount of
time that the court believed would be needed to present evidence
on the bankruptcy issue.459
(4/28/08 (A.M.) RT 43-44, 50-51, 57-
60; 4/29/08 (A.M.) RT 11).
Arneson promptly elected to strike
the governments cross-examination of him rather than further

cross-examine of Miller.460
(Id. at 61-62).
Accordingly,
defendants assertion that the court found the cross-examination

of Arneson improper and struck [it] from the record on that
basis is simply false.
(JOB 39; AOB 43).
459
The district court had previously denied Arnesons Rule

403 objections to the bankruptcy-related questioning. (4/16/08
(P.M.) RT 59).
460
Arnesons suggestion to this Court that the district

court prevented him from completing his cross-examination of
Miller is therefore also false. (AOB 45).
644
When the jury returned the following day, the court

instructed:
Ladies and gentlemen, the Court has stricken and you
are instructed to disregard the direct testimony of
Phyllis Miller and the governments cross-examination
of Mr. Arneson with regard to a bankruptcy filing made
in Mr. Arnesons name. Mr. Arnesons direct
examination questioning regarding the bankruptcy and
the cross-examination of Ms. Miller have not been
stricken.
You may not consider any of the stricken testimony or
exhibits for any purpose. However, of course, you may
consider any testimony that has not been stricken by
the Court on this subject.
(4/29/08 (A.M.) RT 18-19).
b.
The Government Had a Good-faith Basis to Crossexamine Arneson Regarding His Knowledge of the
Bankruptcy Filing
Arnesons claim that the government engaged in misconduct by

cross-examining him about the bankruptcy filing without a goodfaith basis must be rejected.
(AOB 45-48).
Arneson testified
not only that he did not sign the petition, but that he had
nothing to do with it, had no idea who had filed it, and knew
nothing about it at the time it was filed.
96-97; 4/16/08 (P.M.) RT 32-33, 35, 41, 50;
(4/11/08 (A.M.) RT
).
Yet the
government obtained from Arnesons loan file an August 13, 1998,

letter, on his letterhead and bearing his signature, in which he
discussed his reasons for having filed the bankruptcy petition.
The government also obtained documents showing that Arnesons
residence, which matched that on his letterhead and on the
645
bankruptcy petition, was scheduled for a foreclosure sale on the

very date that the petition was filed, as referenced in Arnesons
own August 13, 1998, letter.
(4/16/08 (A.M.) RT 66-69, 71-73;
4/16/08 (P.M.) RT 36; Exh. 629, 633; JER 5377, 5389).
Arneson,
who did not deny writing the letter, was unable to provide any
explanation.
(4/16/08 (P.M.) RT 44-46, 89-91, 102).
In light of this evidence, the government had -- and, given

Arnesons failure to explain his August 13, 1998 letter, still
has -- a good-faith basis to believe that Arnesons testimony
that he did not authorize the bankruptcy petition and knew
nothing about it at the time it was filed was knowingly false.
At most, Phyllis Millers acknowledgment that the handwriting on
the petition looked like her husband Davids writing suggested
that Arneson did not commit his fraud alone: Arneson had
previously admitted on cross-examination that he knew David
Miller, whom he described as a financial consultant that went
around police stations.
(4/16/08 (A.M.) RT 63-64; GERT 5625).
Indeed, at Arnesons sentencing, the district court, which had

the opportunity to hear all the evidence and to observe Arnesons
demeanor on the witness stand, imposed an enhancement for
obstruction of justice based in part on Arnesons testimony
regarding the bankruptcy petition, stating that the Court is
certain, based on the testimony and other evidence, that
defendant was not a victim of identity theft and does not believe
646
himself to be a victim in connection with the bankruptcy filing.

(3/3/09 (MA) RT 28-29; JER 4904-05).
Given this factual finding,
Arnesons contention that the government lacked even a good-faith

basis to question him regarding the fraudulent bankruptcy
petition is completely without merit.
Arnesons claim that the district court erred in allowing
the government conditionally to introduce the bankruptcy
documents subject to later authentication by a rebuttal witness
should also be rejected.461
(AOB 47-48).
Federal Rule of
Evidence 104(b) commits the order of proof to the discretion of

the trial judge and authorizes admission of evidence subject to
later satisfaction of a condition to relevancy.
Fed. R. Evid.
104(b); see United States v. Black, 767 F.2d 1334, 1342 n.6 (9th
Cir. 1985) (requirement of authentication is governed by general
approach to issues of conditional relevancy set forth in Rule
104(b)).
Rule 104(b) plainly gave the court discretion to
provisionally admit the bankruptcy exhibits subject to later

authentication, rather than either interrupt the defense case
with a government witness or require the introduction of the
documents in the governments rebuttal case when Arneson could no
longer be questioned about them.
461
The government intended to call Sandra Olin in its

rebuttal case to authenticate the documents as coming from her
file. (4/28/08 (A.M.) RT 51-52). Because the court later struck
Arnesons cross-examination relating to the bankruptcy, Olin was
not called as a rebuttal witness. (4/28/08 (A.M.) RT 58, 61-62).
647
c.
The Government Did Not Violate Rule 16 by Failing

to Disclose Documents Used Solely for Impeachment
Arneson next claims that the government violated Rule 16 by

failing to produce the bankruptcy-related documents from the loan
file.462
(AOB 48-51).
Although the district court initially
instructed the government to turn over all of Arnesons

statements that it intended to use for cross-examination (4/15/08
(P.M.) RT 68), the court later withdrew that order and stated
that the government need not produce statements that the
government intends to use solely for the purpose of impeaching
the credibility of a defendant . . . prior to introducing the
material on cross-examination.
(JER 3446).
This order was
consistent with Rule 16 and controlling case law.
See United
States v. Gonzalez-Rincon, 36 F.3d 859, 865 (9th Cir. 1974)

(defendants customs declaration form, offered only as impeaching
evidence after defendant testified, was not relevant statement
within the meaning of Rule 16 and was therefore not
discoverable); see also, e.g., United States v. Gleason, 616 F.2d
2, 24 (2d Cir. 1979) (statements are not discoverable under Rule
16(a) if they become relevant only for impeachment purposes after
witness has testified on direct examination); United States v.
462
The government did not obtain the loan file relating to

Arnesons home refinancing (which included his signed
correspondence explaining and justifying the bankruptcy filing)
until the weekend following Arnesons direct examination, after
Arnesons counsel had unexpectedly opened up the opportunity for
impeachment with extrinsic evidence by raising the bankruptcy
issue on direct. (4/28/08 (A.M.) RT 49).
648
Skillman, 442 F.2d 542, 550 (8th Cir. 1971) (Rule 16 did not
require advance disclosure of tape-recorded conversation of
defendant that was admitted solely for purpose of impeachment).463
As presented by the government on cross-examination, the
relevance of Arnesons August 13, 1998, letter and the other
bankruptcy-related documents from Arnesons loan file lay solely
in their value for impeachment.
Requiring production of such
material prior to cross-examination would only serve to dilute or

destroy effective impeachment and allow a defendant to commit
more effective perjury by tailoring his testimony to the evidence
against him -- a tactic for which Arneson had already shown a
propensity.
(See 4/29/08 (A.M.) RT 112-13); cf. Harris v. New
York, 401 U.S. 222, 225 (1971) (defendants privilege to testify

in his own defense does not include right to commit perjury
unchecked by the traditional truth-testing devices of the
adversary process).
Accordingly, the documents were not
discoverable under Rule 16.
463
If viewed as documents under Rule 16(a)(1)(E) rather

than written statements under Rule 16(a)(1)(B), the bankruptcy
documents were not discoverable because the government did not
use them in its case-in-chief. See Fed. R. Crim. P.
16(a)(1)(E)(ii). Nor were those documents material to preparing
the defense under Rule 16(a)(1)(E)(I). In the context of Rule
16, the defendants defense means the defendants response to
the Governments case in chief. United States v. Armstrong, 517
U.S. 456, 462 (1996); see United States v. Libby, 429 F. Supp. 2d
1, 7 (D.D.C. 2006) (determination of material under Rule 16
focuses on allegations in indictment).
649
Arneson argues that the loan file documents were substantive

evidence relating to the charged offenses, noting that the court
observed, in initially denying his motion to strike the
bankruptcy-related testimony, that the bankruptcy could pertain
to a potential motive to sell information to Mr. Pellicano.
(4/24/08 (A.M.) RT 4).
It was Arneson, however, who raised the
issue of a financial motive in connection with the bankruptcy

issue on his direct examination.
(4/11/08 (A.M.) RT 96-98).
The
government never argued or suggested such a purpose in its

opening statement, its cross-examination, or its closing
argument, but relied on the bankruptcy-related documents solely
to impeach Arnesons direct testimony.464
58, 67-69).
(4/16/08 (P.M.) RT 32-
Given that motive is not an element of any offense
with which Arneson was charged, the documents -- and particularly

Arnesons devastatingly impeaching August 13, 1998, letter -were not relevant statements under Rule 16(a)(1), but rather were
proper impeachment material of which Arneson had no right to
discovery.
See United States v. Disston, 612 F.2d 1035, 1037
(7th Cir. 1980) (Rule 16(a) applies only to statements relevant

to the indictment); United States v. Gleason, 616 F.2d 2, 24 (2d
464
The earlier cross-examination regarding the foreclosure

sale of Arnesons home and the loan he obtained through Sandra
Olin and the National Loan Center was clearly intended to set up
Arnesons subsequent impeachment with the related bankruptcy and
loan file documents, not to suggest any financial motive for the
charged criminal conduct (except insofar as it provided yet
further impeachment by contradiction of Arnesons direct
testimony). (4/16/08 (A.M.) RT 62-76).
650
Cir. 1979) (Rule 16(a) is intended to provide defendant in

advance of trial with any of his own statements relevant to the
crime charged against him).
Finally, even if there was a Rule 16 violation, reversal is
not appropriate because, in light of his election to strike the
bankruptcy-related testimony and exhibits, Arneson has not shown
a likelihood that the verdict would have been different had the
violation not occurred.
See Figueroa-Lopez, 125 F.3d at 1247.
Arneson has also not shown that discovery of the documents when
the government obtained them (after his cross-examination had
already begun) would have affected his testimony or that he would
have had any ground on which to successfully move to have the
documents excluded.
6.
The Single Word Accidentally Overheard by a Single

Juror Did Not Constitute Prosecutorial Vouching
When the court recessed for an afternoon break during

Arnesons cross-examination, the prosecutor told Arnesons
counsel of his intention to ask the court to revoke Arnesons
bail and remand him into custody at the end of that days
proceedings based on his commission of new criminal conduct i.e., perjury - while on pretrial release.
59-60).
(4/16/08 (P.M.) RT
Unfortunately, the prosecutor did not realize that the
651
last of the jurors had not yet exited through the door to the
jury room.465
The matter was called to the district courts attention, and
the court immediately called in the jurors and asked if any of
them had heard the prosecutor say something to Arnesons counsel
as they were leaving the room.
one juror raised her hand.466
(4/16/08 (P.M.) RT 60-61).
(4/16/08 (P.M.) RT 61).
Only
When that
juror was questioned outside the presence of the other jurors,

she told the court that she had been the last one to leave the
courtroom and that all she had heard was the word perjury.
(Id.).
When questioned by defense counsel, the juror reaffirmed
that she had heard nothing except the word perjury, that no one
had been with her when she heard it, that she had not discussed
it with any other jurors, and that she did not believe any other
465
While the prosecutor was undeniably frustrated with the

ceaseless litany of perjury that Arneson was presenting under
oath -- the extent of which the district court recognized as
virtually unprecedented in its own broad experience (3/3/09(MA)
RT 27) -- the statement was not a threat, as defendants claim
(JOB 46-47), but appropriate notice to defense counsel of the
governments intent to make a significant motion 90 minutes
later. The government submits that its error was not in the
substance of what was said, but rather in the timing -- i.e., in
not realizing that the last juror had not yet exited the
courtroom.
466
The juror who raised her hand was misidentified by the

court reporter in the trial transcript as Juror #1. (4/16/08
(P.M.) RT 61). In fact, she was Juror #7. Although defendants
refer to the juror in their briefs as Juror #34 (see JER 39), the
jurors number during voir dire, the government refers to her
herein by her number on the trial jury.
652
jurors had been in the courtroom at the time.467

RT 62).
(4/16/08 (P.M.)
The district court reminded the juror that statements by
lawyers are not evidence, and the juror assured the court that
she could put the comment that she overheard out of her mind.
(4/16/08 (P.M.) RT 61).
After denying Arnesons motion for a mistrial, the court
then brought the other jurors back in and reminded them all that
comments by the lawyers during the proceedings or that the jury
might overhear could not be considered as evidence in the case.
(4/16/08 (P.M.) RT 66-67).
The court similarly instructed the
jury at both the beginning and end of the trial.
(3/5/08 (P.M.)
RT 47; 4/29/08 (A.M.) RT 24).

Arneson and Pellicano contend that the prosecutors
partially overheard comment was vouching.468
(AOB 51-52; POB 49-
467
After seeking out defense counsel (and the media) postverdict, Juror #7 submitted a declaration in support of
Pellicanos new trial motion in which she stated -- in
contravention of what she had told the court minutes after the
incident -- that she heard the prosecutor say him . . . perjury,
perjury and that she understood the statement to mean that the
prosecutor would file charges against Arneson. (JSER 572; JER
468). Later, in connection with Pellicanos sentencing (at which
she appeared in person to ask the court for leniency), the same
juror sent a letter to the court that contradicted what she had
said in her previous declaration. (12/15/08 RT 25, 42-43; GERT
13974, 13991-92). Under the circumstances, the government
submits that the greatest weight among the jurors many
conflicting statements should be attached to her contemporaneous
statement that all she heard was the word perjury.
468
The separate argument raised by all defendants that the

prosecutors comment constituted a presumptively prejudicial
communication with the jury is addressed earlier.
653
50).
Because Arneson did not raise this claim when he moved for
a mistrial or when he moved post-verdict for a new trial (see JER

476), review is for plain error.
See United States v. Necoechea,
986 F.2d 1273, 1276 (9th Cir. 1993).
The isolated word overheard
without context by a single juror -- a word that had been used

many times in open court -- cannot reasonably be viewed as the
prosecutor communicating his personal opinion of the defendants
guilt.
See United States v. Williams, 989 F.2d 1061, 1071 (9th
Cir. 1993).
Moreover, in light of the jurors statement that she
could put the comment out of her mind, the courts prompt
curative instruction to her individually and again to the entire
jury,469 and the courts instructions to the jury at the beginning
and end of the trial that comments by lawyers are not evidence,
there is no likelihood that the single overheard word materially
See United States v. Younger, 398 F.3d
1179, 1191 (9th Cir. 2005).

7.
Even If Arneson Has Demonstrated Any Acts of

Misconduct, Such Acts Were Harmless in Light of the
Overwhelming Evidence of Arnesons Guilt
Apart from and in addition to the issue-specific

harmlessness arguments raised above, any misconduct or discovery
violation raised by Arneson, even if found to have occurred, must
469
Because the curative instruction that the court gave was

precisely the one requested by Arnesons counsel (4/16/08 (P.M.)
RT 64-67), Arnesons claim on appeal that a more specific and
focused instruction was required (AOB 57-59) is precluded under
the invited error doctrine. See United States v. Baldwin, 987
F.2d 1432, 1437 (9th Cir. 1993).
654
be deemed harmless in light of the overwhelming evidence

presented at trial -- evidence that resulted in Arnesons
conviction on every one of the 46 counts in which he was charged.
Arneson was not convicted because of questioning about a prior
unsustained IAD complaint, because of stricken testimony about a
10-year-old bankruptcy petition, or because of a prosecutors
single out-of-context word overheard out of session by a single
juror, all of which constituted isolated incidents over the
course of a nine-week trial.
See United States v. Wright, 625
F.3d 583, 613 (9th Cir. 2010).
Rather, Arneson was convicted
based on overwhelming testimonial and documentary evidence of his

criminal association with Pellicano and of the thousands of
illegal database inquiries that he conducted on Pellicanos
behalf, as well as by the fact that his self-serving and wholly
unsubstantiated version of events was decimated on crossexamination in myriad ways that Arneson does not challenge on
appeal.
Thus, regardless of what harmlessness standard is
applied, none of the issues raised by Arneson, whether viewed

individually or cumulatively, warrants reversal.
N.
THE GOVERNMENTS CLOSING ARGUMENT WAS PROPER AND CERTAINLY

NOT PLAINLY IMPROPER
Arneson and Pellicano claim that the government engaged in
vouching and made other improper remarks in closing argument that

require reversal.
(AOB 59-68; POB 46-50).
The challenged
statements, however, nearly all of which were made without any

655
objection, were wholly proper in the context of the entire

argument and do not warrant reversal.470
1.
Standard of Review
The district courts denial of objections to closing

argument is reviewed for an abuse of discretion.
v. Tam, 240 F.3d 797, 802 (9th Cir. 2001).
United States
Improper remarks in
closing argument are subject to harmless error analysis and will

result in reversal only if it is more probable than not that they
F.2d 548, 556 (9th Cir. 1985).
United States v. Prantil, 764
Where there is no timely
objection to comments made in closing argument, review is for

plain error and will result in reversal only if a miscarriage of
justice would otherwise result.
United States v. Brown, 327 F.3d
867, 871 (9th Cir. 2003); Williams, 989 F.2d at 1071-72.

2.
The Government Did Not Improperly Malign Arnesons

Counsel or Express Personal Opinions of Arnesons
Credibility
Arneson claims that the following argument improperly

maligned his counsel:
Defendant Arneson has surely been on the witness stand
many times before in his career as an officer. And He
spent another few hours with Mr. Hummel with what I
submit is a very polished, very professional, very
470
Because defendants excerpts of record contain only

portions of the governments closing and rebuttal arguments, the
arguments are included in the GER in their entirety to allow this
Court to view the challenged statements in their proper context.
(4/29/08 (A.M.) RT 71-121; 4/29/08 (P.M.) RT 4-138; 5/1/08 (Sess.
2) RT 31-92).
656
well-rehearsed act, right down to his cute ad lib about

the Minnesota Vikings.471
(4/29/08 (A.M.) RT 111; JER 3915).
this statement.
(Id.).
Arneson did not object to
In context, it is clear that the few
hours referred to Arnesons testimony on direct examination

(i.e., on the witness stand) and not, as Arneson contends on
appeal (through use of misleading additional bracketed text), to
time that he spent with his counsel rehearsing his testimony.472
(AOB 64-65).
Indeed, other than mentioning the undisputed fact
that Mr. Hummel conducted that direct examination, the

governments statement cannot reasonably be viewed as even
referring to let alone maligning Arnesons counsel.
It was
Arnesons status as a law enforcement witness that the government

properly submitted to the jury as a factor in evaluating his
471
The Vikings reference was to the following question

and answer in Arnesons direct examination while discussing the
nature of his police work:
Q:
And just in terms of your investigation of bookmaking,

you are not talking about the guy that bets on the
Minnesota Vikings on Sunday; right?
A:
You know, sir, I have never met anyone successful that

bets on the Vikings.
(4/11/08 (A.M.) RT 122;
).
472
Arnesons additional bracketed text replaces the

governments actual words with what I submit was. (4/11/08
(A.M.) RT 111; JER 3915). Given that Arneson, on the very next
page of his brief, cites case law holding that the use of I
submit precludes a claim of impermissible vouching (AOB 65), it
appears clear that Arnesons selective editing was not done in
order to save space.
657
testimony and credibility, and the adjectives polished,

professional, and well-rehearsed were clearly references to
Arneson, not his attorney.473
Arneson also contends that the government committed
prosecutorial vouching in describing his testimony as
ridiculous, not credible, and a story that Arneson came up
with after the fact.
(AOB 59-60, 63-66).
None of the comments
that Arneson now challenges drew an objection at trial.
(4/29/08
(A.M.) RT 108, 115).

Contrary to Arnesons claim, it is neither unusual nor
improper to suggest in closing argument that a defendant lied on
the stand.
1984).
United States v. Birges, 723 F.2d 666, 672 (9th Cir.
Rather, [i]n a case that essentially reduces to which of
two conflicting stories is true, it may be reasonable to infer,

and hence to argue, that one of the two sides is lying.
United
States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (citations
omitted).
Counsel are allowed reasonably wide latitude in
closing arguments and may strike hard blows based upon the
testimony and its inferences.
Birges, 723 F.2d at 671-72
(internal quotations and citation omitted); see Molina, 934 F.2d

473
To the extent that the challenged comment suggested

that Arnesons counsel played any role in planning the specific
Minnesota Vikings question and answer to which the government
referred, the government submits that the inference was a fair
one to ask the jury to draw: the exchange did come off as
remarkably scripted. In any event, the isolated comment did not
constitute plain error that resulted in a miscarriage of justice.
See Williams, 989 F.2d at 1071-72.
658
at 1445 (prosecution must have reasonable latitude to fashion

closing arguments, including freedom to argue reasonable
inferences based on the evidence).
In Birges, the prosecutor argued in closing that the
defendants testimony contained numerous lies and that his duress
defense was a figment[] of [the defendants] imagination
fabricated by him to escape the responsibility of his criminal
actions.
Birges, 934 F.2d at 671.
This Court held that there
was no misconduct and that the prosecutors dismissal of the

defendants defense as a fabrication was well within the bounds
of acceptable comment.
Id. at 672; see also United States v.
Moreland, 622 F.3d 1147, 1161-62 (9th Cir. 2010) (prosecutors

repeated references to defendant as a liar throughout closing
argument were reasonable based on the evidence); United States v.
Rude, 88 F.3d 1538, 1548 (prosecutors use of words lie,
lies, and lied over 90 times when referring to defendants was
within the boundaries of proper argument); United States v.
Sarno, 73 F.3d 1470, 1496-97 (9th Cir. 1995) (rejecting defense
challenge to prosecutors repeated characterization of
defendants statements as lies in closing argument); Molina,
934 F.2d at 1445 (no misconduct in prosecutors closing argument
that the defendant lied to you on the stand and remember that
the reason he lied to you is because he is guilty); United
States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988) (no
659
misconduct in prosecutors closing argument that I think that

after listening to all the evidence defendant has lied to you
consistently throughout.
His entire testimony is one big lie and
falsity.).
The government did not express any personal opinions of
Arnesons credibility in its closing argument.
Rather, the
government repeatedly made clear that it was inviting the jury to

make its determination of Arnesons credibility based on evidence
that the government listed in its argument.
See, e.g., 4/29/08
(A.M.) RT 111; JER 3915 (I submit to you that the evidence in

this case clearly shows that Defendant Arneson had no more
compunction about lying under oath than he did about running
those names through confidential police databases.); id. ([T]he
evidence shows you that just about everything he said related to
this case was a lie.).
Such submissions to the jury of
inferences from evidence in the record are perfectly acceptable.

See United States v. Weatherspoon, 410 F.3d 1142, 1147 n.3 (9th
Cir. 2005); Necoechea, 986 F.2d at 1279.
The statements cited by Arneson, when viewed in the context
of the entire argument, were plainly comments on the evidence
rather than assertions of personal belief, and therefore were
fully appropriate.474
See Laurins, 857 F.2d at 539; see also
474
Arnesons selective and misleading editing of the cited

statements simply omits the contextual portions that disprove his
argument. For example, the excerpt cited on page 60 of Arnesons
(continued...)
660
Williams, 989 F.2d at 1072 (argument functioned mainly as

rhetorical emphasis for the inferences the prosecutor was urging
the jury to draw rather than a meaningful personal assurance that
the defendants were guilty).
The challenged arguments bear no
resemblance to those found improper in the cases cited by

Arneson.
See United States v. Frederick, 78 F.3d 1370, 1379-80
(9th Cir. 1996) (prosecutor allied government with the court and
stated that they, unlike defense counsel, wanted the jury to see
the truth); United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir.
1992) (I think he was candid.
I think he was honest.); United
States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir. 1985) (former
prosecutor, testifying as witness, told jury that he believed the
government had an extremely strong case against all
474
(...continued)
opening brief replaces with ellipses the following statement from
the governments closing: The only problem is the evidence
shows you that just about everything he said related to this case
was a lie. (4/29/08 (A.M.) RT 111; JER 3915). Similarly, the
allegedly improper argument cited on page 60 of the brief omits
the following from the middle of the excerpt: It is not
corroborated by a single witness, no employee of the agency, no
fellow officer, nothing. It is not corroborated by a single
document. Nothing anywhere in any LAPD record. And it is
directly contrary to Defendant Arnesons own letter to Defendant
- excuse me. To Lieutenant Hooper. (4/29/08 (A.M.) RT 115; JER
3919). In their proper context, the statements that Arneson
challenges were clearly comments on the evidence and inferences
from the evidence, and as such were wholly proper. See JER 476
(There is no indication that the government was asking the jury
to disbelieve Arneson because the individual prosecutors did not
believe him. To the contrary, the government argued that Arneson
should not be believed because of among other things
inconsistencies in his testimony and a failure of his testimony
to comport with other evidence in the case.).
661
defendants).
Arneson has failed to demonstrate that any of the
comments he cites constituted plain error resulting in a

miscarriage of justice.
Finally, Arneson challenges the following statement in the

governments rebuttal argument, which also failed to draw any
objection at trial:
Mr. Hummel suggested to you in his closing or
insinuated that the Government should have gone after
the clients who maybe hired the Pellicano Investigative
Agency once and ignore his client who committed at
least 3500 separate felonies over the course of four
years while wearing a badge.
(5/1/08 (Sess. 2) RT 33; JER 4028).
Contrary to Arnesons claim,
this statement did not suggest that the prosecutor had

information beyond what was presented at trial.
(AOB 65).
The
case agent testified that the FBI was able to identify, from the
LAPD audits of Arnesons computer inquiries, a total of over
2,500 individual inquiries on Pellicano-related targets, which
unquestionably understated the true number as the audit only went
back to 1999.475
226-27, 254).
(3/14/08 (A.M.) RT 32-33; 4/18/08 RT 32, 78-79,

Whether the transcript is inaccurate or the
prosecutor misspoke, the argument was clearly intended to refer
475
The fact that unauthorized access to computer data (one

of the charged target offenses in the identity theft counts)
constitutes a felony was itself clear from the indictment, jury
instructions and argument, as well as from LAPD personnel records
that Arneson elected not to redact before they were admitted into
evidence. (4/1/08 (P.M.) RT 144-46; 4/2/08 (A.M.) RT 8-10;
4/8/08 (A.M.) RT 13; 4/29/08 (A.M.) RT 46-47; 4/29/08 (P.M.) RT
34-35; Exh. (I) 316; JER
, 3969-71, 3979, 3983, 3985).
662
to this number, which the government cited several other times in

its rebuttal argument.
(5/1/08 (Sess. 2) RT 74, 86-87).
The additional identified computer inquiries were not

crimes other than those charged, as Arneson contends (AOB 65),
but were all properly subject to consideration as evidence of the
charged racketeering enterprise.
See United States v. Fernandez,
388 F.3d 1199, 1256 (9th Cir. 2004) (evidence of uncharged acts
admissible as proof of racketeering enterprise); United States v.
Clemente, 22 F.3d 477, 483 (2d Cir. 1994) (same); see also United
States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (acts
committed in single criminal episode do not become other acts
under Federal Rule of Evidence 404(b) where defendant is indicted
for less than all of his actions).
Moreover, the rebuttal was a
fair response to the argument of Arnesons counsel, which

included a list of clients on whose behalf Pellicano conducted
wiretapping but who were not charged criminally.
RT 40-43).
(4/30/08 (A.M.)
See United States v. Lopez-Alvarez, 970 F.2d 583,
597-98 (9th Cir. 1992) (propriety of prosecutors argument must

be judged in relation to what constitutes fair response to
remarks of defense counsel).
The argument did not constitute
plain error.
3.
The Government Did Not Improperly Argue Other Acts

Evidence or Vouch For Its Witnesses
Pellicano also claims error in the governments closing

argument.
(POB 46-50).
As with Arnesons claims, none of the

663
challenged statements was the subject of an objection at trial,

and they are therefore reviewed for plain error.
Pellicanos first claim (POB 46-47) is that the government
inflamed the jury with [] unsubstantiated claims of violence,
threats or intimidation by Pellicano, in contravention of the
courts Rule 404(b) instruction, by the following statement near
the start of its closing argument:
You now know, ladies and gentlemen, what happens when
the Pellicano Investigative Agency gets hired in the
case and gets its $25,000 nonrefundable retainer.
Witnesses start receiving threatening phone calls,
witnesses families get harassed, severed rat heads
appear in informants mailboxes, dead fish appear on
reporters cars, tires get slashed, computers get
hacked, homes get broken into. People like Jud[e]
Green, just out trying to do their errands, get blocked
in and harassed.
(4/29/08 (A.M.) RT 73-74).
unsubstantiated:
presented at trial.
These matters were hardly
each was the subject of witness testimony

(3/13/08 (P.M.) RT 112-15; 3/19/08 (P.M.) RT
93, 30-32; 3/20/08 (P.M.) RT 99-100; 3/25/08 (P.M.) RT 50-52;

3/28/08 (P.M.) RT 60-62; 4/9/08 (A.M.) RT 113-14; 4/9/08 (P.M.)
RT 4-6).
Moreover, these matters were introduced not as other
acts under Rule 404(b), but as direct evidence of the

racketeering enterprise charged in the indictment.
Nor was the
governments language unduly inflammatory or prejudicial.
See
Rude, 88 F.3d at 1548 (prosecutors choice of terms and phrases

including charlatan, scam, outlandish, gibberish and
664
falsehoods was not overly repetitious and reasonably described

practices of defendants).
Pellicano also claims that the following statement, which
also appeared in the introduction to the governments closing
argument, constituted prosecutorial vouching (POB 47-49):
You have heard that this investigation took years,
countless hours of work in imaging and decrypting the
massive amounts of computer evidence that were seized,
hundreds of witness interviews, extensive proceedings
by a Federal Grand Jury. [] All so AUSA Lally and I
could come into this courtroom over the last eight
weeks and prove to you beyond a reasonable doubt the
guilt of every one of these defendants on every one of
the crimes charged in the indictment. And I submit to
you that that is precisely what we have done.
(4/29/08 (A.M.) RT 74-75).
Once again, there was no objection to
this argument at trial, and there was no plain error in its

admission.
Contrary to Pellicanos current claim, there is
absolutely nothing in this statement that expressed the

prosecutors personal belief in the guilt of the defendants.
Rather, the argument was an accurate recap of the evidence
presented at trial, which included testimony of numerous FBI
computer personnel about the seizure, imaging, and decryption of
the computer evidence476 and cross-examination of numerous
government witnesses about their testimony before the grand
476
This parade of computer witnesses was required in order

to authenticate the documents and recordings recovered from the
PIA computers, to which defendants (other than Pellicano)
declined to stipulate.
665
jury.477
Moreover, unlike United States v. Brooks, 508 F.3d 1205,
1210-11 (9th Cir. 2007), on which Pellicano relies and in which

this Court found that extensive testimony about the process of
obtaining a wiretap authorization suggested that government
attorneys and a federal judge had concluded the defendant was
guilty, the statement at issue here was a brief and passing
introduction to a detailed discussion of the evidence and
expressly invited the jurors to draw their own conclusions as to
defendants guilt.478
See Necoechea, 986 F.2d at 1279 (I submit
statements do not constitute vouching).

Finally, Pellicano contends that the government told the
jury a well placed half-truth and bolstered Teresa Wrights
testimony by stating that she had lost her job of 23 years with
Pacific Bell and suffered a felony conviction, while purportedly
concealing its knowledge that Wright had obtained new employment
with Verizon.
(POB 49; 4/29/08 (A.M.) RT 76).
The argument,
which (once again) drew no objection, was a fully accurate

statement of Wrights testimony and in no way vouched for her
credibility.
(3/27/08 (P.M.) RT 129, 146).
Moreover, Pellicano
has made no showing that the government had any knowledge of
477
See, e.g., 3/11/08 (P.M.) RT 22-24, 90-91, 135-40;

3/18/08 (P.M.) RT 116-17; 3/28/08 (P.M.) RT 116-18.
478
The Brooks court declined to find that the vouching in

that case constituted plain error. Brooks, 508 F.3d at 1212.
666
Wrights new employment at the time of argument; nor has he

explained how that fact could have changed the trials outcome.479
Because nothing in the governments argument was improper,
there was no error here, let alone plain error resulting in a
miscarriage of justice.
O.
THE EVIDENCE WAS SUFFICIENT TO SUPPORT NICHERIES CONVICTION

OF AIDING AND ABETTING THE INTERCEPTION OF WIRE
COMMUNICATIONS
Nicherie argues that there was insufficient evidence to
support his conviction of aiding and abetting Pellicanos

interception of Ami Shafrirs wire communications.
Specifically,
Nicherie claims that the government failed to prove that Ami

Shafrirs wire communications were intercepted or that Nicherie
engaged in any conduct to aid and abet that wiretap after October
26, 2000.480
(NOB 23-29).
Nicherie has waived the latter of
these arguments by failing to raise it in his Rule 29 motions at

trial; moreover, even if not waived, there was more than
sufficient evidence to support the jurys verdict.
1.
Standard of Review
479
At Wrights sentencing, conducted 19 months

closing argument, the prosecutor stated only that the
was aware that Wright was working. (JER 4986-87).
transcript page that Pellicano cites (RT 4/18/08 AM:
nothing to do with Wright.
480
after
government
The
76) has
The initial indictment charging Nicherie was returned

on October 26, 2005. (JER 535). Thus, the jury was instructed
that it was required to find beyond a reasonable doubt that the
interception of Shafrirs wire communications continued after
October 26, 2000. (4/29/08 (A.M.) RT 60-61; JER 3888-89). See
18 U.S.C. 3282(a) (general five-year statute of limitations).
667
A defendant need not state specific grounds to support a

Rule 29 motion; however, when a Rule 29 motion is made on a
specific ground, other grounds not raised are waived.
United
States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (internal
quotations and citations omitted); see.
This Court may review a
waived ground for acquittal only where necessary to prevent a

manifest miscarriage of justice.
Id. (quoting United States v.
Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000)).

Where not waived, the test for sufficiency of the evidence
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original).
In reviewing the sufficiency of the
evidence, this Court may not usurp the role of the finder of
fact by considering how it would have resolved the conflicts,
made the inferences, or considered the evidence at trial.
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en
banc).
A reviewing court must presume that the trier of fact
resolved any conflicts in favor of the prosecution, and must

defer to that resolution:
the government does not need to rebut
other reasonable interpretations of the evidence or rule out

every hypothesis other than guilt beyond a reasonable doubt.
668
Id.
2.
Nicherie Waived His Statute of Limitations Argument By

Failing to Raise it in His Rule 29 Motion for Judgment
of Acquittal
Nicherie raised a number of specific arguments as grounds

for his Rule 29 motion at the close of the governments case-inchief, focusing on the claim that the government had failed to
prove any interception of Shafrirs telephone conversations:
made no mention of any statute of limitations issue.
(P.M.) RT 82-84; JER 3140-42).
he
(4/10/08
Nor did he raise the limitations
issue in his renewed Rule 29 motion at the close of all the

evidence.
(4/28/08 (P.M.) RT 81; JER 3873).
Nicherie claims that he raised the sufficiency of the

evidence with regard to the statute of limitations in a written
motion for judgment of acquittal filed at the close of the case.
(NOB 11-12, 24-26).
motion.
Nicherie misrepresents the nature of that
In his written motion, Nicherie argued that the
indictment was invalid because it did not provide sufficient

notice and particularity of the date the offense occurred and
instead charged a range of dates, a portion of which fell outside
the staute of limitations.
(CR 1421).
Nicherie also argued that
the proposed jury instruction requiring the jury to find that the
offense continued after October 26, 2000 was an impermissible
constructive amendment of the indictment.
(Id.)
Although that
motion was captioned as a Motion for Judgment of Acquittal FRCrP

29(a) or in the alternative To Dismiss the Indictment, it did
669
not address or challenge the sufficiency of the evidence on the

statute of limitations issue.
Indeed, after filing the motion,
Nicheries counsel orally affirmed to the district court that the

motion did not address sufficiency of the evidence but rather
two legal arguments.481
(4/28/08 (P.M.) RT 81; JER 3873).
Because Nicherie raised a number of specific grounds in his

Rule 29 motions but did not challenge the sufficiency of the
evidence with respect to the statute of limitations, he has
waived his right to raise that challenge on appeal.
See Graf,
610 F.3d at 1166; Quintana-Torres, 235 F.3d at 1199.

3.
The Evidence Was Sufficient To Support Nicheries

Conviction
Even if Nicherie has not waived his sufficiency claim, there

was sufficient evidence for a rational juror to conclude both
that Shafrirs phone calls were intercepted and that Nicherie
aided and abetted that interception after October 26, 2000.
Tarita Virtue testified that she saw Nicherie listening to
wiretapped conversations in the PIA offices over the course of a
few months during late 2000 and early 2001.
84-90; JER 1395-1401).
(3/11/08 (A.M.) RT
Sarit Shafrir testified that she dropped
Nicherie off at Pellicanos office for the purpose of listening

481
Nicherie erroneously claims that the district court

denied his Rule 29 motion based on a finding that the
sufficiency-of-the-evidence issue was not timely raised. (NOB
24-26). In fact, the district court denied Nicheries Motion to
Dismiss the Indictment on the ground that his challenge to the
indictments sufficiency had been waived under Federal Rule of
Criminal Procedure 12(b)(3)(B). (CR 1637; JER 4231-32).
670
to Ami Shafrirs intercepted telephone conversations and

playing them for her over the phone at least 20 times from
August 2000 to December 2000.
(4/4/08 (A.M.) RT 124; 4/4/08
(P.M.) RT 4-10; JER 2564, 2610-16).
Sarit Shafrir further
testified that Nicherie told her that he and his brother had
hired Pellicano to wiretap Shafrir, that Pellicano had explained
that he had a phone company employee who placed a digital
recorder in the telephone box outside Shafrirs house, and that
Nicherie was listening to Shafrirs intercepted telephone
conversations at Pellicanos office.
(4/4/08 (A.M.) RT 118-19,
123-24; 4/4/08 (P.M.) RT 5; JER 2558-59, 2563-64, 2611).
Sarit
Shafrir dropped Nicherie off at Pellicanos office for this

purpose at least 20 times from August 2000 to December 2000.
(4/4/08 (A.M.) RT 124; 4/4/08 (P.M.) RT 4-6; JER 2564, 2610-12).
Nicherie himself admitted to the DEA that he had listened to
Shafrirs telephone conversations in late 2000 and early 2001,
and told the FBI that he had begun listening to Shafrirs
intercepted telephone conversations no earlier than the fall of
2000. (4/4/08 (P.M.) RT 89-92, 117; JER 2695-98, 2707).
In the
DEA interview, Nicherie identified a specific conversation he

reviewed between Shafrir and an individual named Hag who was
staying with Shafrir at the time, and explained that the
individual did not come to the United States until late 2000 or
early 2001.
(4/4/08 (P.M.) RT 118; JER 2708).
671
From this
evidence, a rational juror could easily conclude that Nicherie

hired and authorized Pellicano to wiretap Shafrir, that Pellicano
did in fact wiretap Shafrir, and that the interception of
Shafrirs communications continued past October 26, 2000.
Defendants reliance on Noel v. Hall, 568 F.3d 743, 748-50
(9th Cir. 2009), in which this Court held that listening to or
copying a recording of a previously intercepted telephone
conversation an individual does not constitute a new
interception of that conversation, is misplaced.
In Noel, the
listening and copying took place after the period of interception

had terminated and the recordings had been seized.
46.
Id. at 745-
The evidence in this case, by contrast, supported a finding
that Nicheries review and translation of the recordings occurred

while the illegal wiretap was still ongoing and for the purpose
of maximizing the benefits to be obtained therefrom by focusing
Pellicanos attention on the most pertinent calls.482
Given the
fact that Pellicano was intercepting time-sensitive discussions

between Shafrir and his attorneys about their strategies in the
ongoing litigation against the Nicheries (4/4/08 (P.M.) RT 9-10),
as well as the abundant evidence of Pellicanos established
practice of promptly reviewing and discussing with his clients
the results of ongoing wiretaps (see, e.g., 3/25/08 (A.M.) RT
51062; 4/1/08 (A.M.) RT 64-68; 4/1/08 (P.M.) RT 8-10; 4/3/08
482
The government so argued in closing.

RT 129; JSER 3952).
672
(4/29/08 (P.M.)
(A.M.) RT 39-41; 4/3/08 (P.M.) RT 14-16), a rational juror could

easily infer that Nicherie was not engaging in a pointless
exercise of listening to and translating conversations that had
been intercepted months earlier.
Indeed, Nicheries admission to
having listened to Shafrirs conversation with Hag in late 2000

or early 2001 was alone sufficient to allow a rational juror to
find that the wiretap was ongoing at that time.
(4/4/08 (P.M.)
RT 118).
Because the evidence established that Pellicano initiated
and conducted the Shafrir wiretap at the behest of Nicherie and
his brother, evidence that the wiretap continued past October 26,
2001 in light of the highly reasonable inference that Pellicano
was maintaining the wiretap at the Nicheries direction and not
for his own personal amusement also constituted evidence that
Nicherie continued to command, induce, or procure Pellicano to
commit that uncompleted crime after October 26, 2001.
4/29/08 (A.M.) RT 32-33).
(See
Moreover, evidence that Nicherie
translated the intercepted recordings on an ongoing basis

throughout late 2000 and early 2001 in order to accomplish the
objective of the illegal wiretap securing a real-time window
into Shafrirs conversations, activities, and strategies
established that Nicherie aided Pellicano in committing the crime
of interception of wire communications.
673
(See id.).
The evidence
was therefore sufficient to support Nicheries aiding and

abetting conviction.
P.
THE COURTS JURY INSTRUCTIONS WERE NOT ERRONEOUS, AND ANY

ERROR WAS HARMLESS
1.
Standard of Review
A district courts formulation of jury instructions is

reviewed for an abuse of discretion.
United States v. Stapleton,
293 F.3d 1111, 1114 (9th Cir. 2002).
Whether a jury instruction
misstates elements of a statutory crime is a question of law and

is reviewed de novo.
Id.
A district courts failure to instruct
the jury on an element of a crime is harmless if it is clear

beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error.
United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en banc).
When there is no objection to the jury instructions at the time
of trial, this Court will review only for plain error.
United
States v. Franklin, 321 F.3d 1231, 1240 (9th Cir. 2003).

In reviewing jury instructions, the relevant inquiry is
whether the instructions as a whole are misleading or inadequate
to guide the jurys deliberation.
A single instruction to a jury
may not be judged in artificial isolation, but must be viewed in

the context of the overall charge.
United States v. Dixon, 201
F.3d 1223, 1230 (9th Cir. 2000).

2.
There Was No Plain Error in the District Courts PreNosal Instruction on the Computer Fraud Count
674
Turner argues (TOB 22-38; AOB 21-23) that his convictions

for Computer Fraud, under 18 U.S.C. 1030(a)(4) should be
reversed because the jury instructions did not include the
definition of exceed[ing] authorized access that was later
explained in LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir.
2009), and United States v. Nosal, 676 F.3d 854 (9th Cir. 2012)
(en banc).
He further argues that this alleged instructional
error also requires reversal of his identity theft, RICO, and

conspiracy convictions.
And he claims that the identity theft
conviction rested on a faulty interpretation of California Penal

Code Section 502.
a.
The claims are meritless.483
Factual Background
Counts 63 through 66 charged Pellicano and Turner with

Computer Fraud under Section 1030(a)(4), for aiding and abetting
483
Insofar as Pellicano (POB 58-59) and Arneson (AOB 21-23)

join Turners arguments, their challenges must be rejected for
the reasons given in this section.
Aside from that, however, the arguments must be considered
forfeited. Because the applicable prejudice and sufficiency-ofevidence arguments depend on the fact-specific details of the
evidence against and arguments by each defendant, Pellicanos and
Arnesons abbreviated adoption-by-reference of Turners arguments
on those subjects are insufficient. See United States ex rel.
LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227,
237 (3d Cir.) (fact-specific arguments may not be adopted under
Fed. R. App. P. 28(i)); United States v. Isabel, 945 F.2d 1193,
1200 (1st Cir. 1991); United States v. Harris, 932 F.2d 1529,
1533 (5th Cir. 1991) (sufficiency-of-evidence arguments may not
be adopted under FRAP 28(i) because they are fact-specific).
Because Arneson and especially Pellicano have argued for
adoption by reference in a perfunctory manner in this complex
case involving numerous issues of both fact and law, their
arguments should be deemed waived. United States v. Casas, 425
F.3d 23, 30 n.1 (1st Cir. 2005).
675
SBC employee Teresa Wright in accessing, without authorization

and in excess of her authorized access, a protected SBC computer
to obtain information on four of Pellicanos investigative
targets Bo Zenga, Heidi Gregg, Johnny Friendly, and Anita
Busch.
(ER 3986).
The evidence showed that Pellicano paid Turner to use his

phone company connection with Wright to get confidential
information enabling Turner and Pellicano to implement wiretaps
on Pellicanos investigative targets.
Wright was a sales support
manager for the phone company SBC (previously known as Pacific

Bell), with access to numerous company databases.
(P.M.) 129-31).
(3/27/08 RT
Wright testified that, at Turners request and
in return for payment, she provided him with BOSS system records
of telephone numbers, addresses, and records of local calls for
SBC customers.
21.)
(3/27/08 RT (P.M.) 133-138; 3/28/08 RT (A.M.) 13-
Turners requests numbered in the hundreds, and did not
correspond to any maintenance tickets or service orders to which

Turner was assigned.
(3/27/08 RT (P.M.) 134-35).
Indeed, some
of the requests came after Turner had retired from SBC.

RT (P.M.) 133).
(3/27/08
Turner paid Wright with checks and with $50- or
$100-dollar bills, paying $25 for some inquiries and $100 for
others.
(3/28/08 RT (A.M.) 13-21).
The payments totaled about
$3,000 in checks and several times that in cash.
676
(Id.)
Wright
gave Turner the information both orally and on paper.
(3/27/08
RT (P.M.) 136).484
To support internal auditing and prevent improper use, the
BOSS system kept a trail of each users inquiries.
(A.M.) 17).
(3/28/08 RT
After initial confusion, Wright testified that she
had discussed the BOSS systems tracking capabilities with

Turner.
(3/28/08 RT (A.M.) 31).
Wright also told Turner that
the BOSS system required employees to state the reasons for their
queries.
(3/28/08 RT (A.M.) 31).
When making inquiries on
Turners behalf, Wright would enter the code ERR (for error)
or CHK (for checking the account) -- which fooled the BOSS
system at the time, but later made it possible to deduce which of
her inquiries were on Turners behalf.
(3/27/08 RT (P.M.) 139,
144; 3/28/08 RT (A.M.) 31, 40-41 (If I went into the false note
and put that error, I would have given him some information.).485
Her purpose in inputting these codes was to cover her tracks in
case someone ever checked on the records she had accessed.
(3/27/08 RT (P.M.) 139; 3/28/08 RT (A.M.) 31).
At trial,
recognizing her user identification, the use of the ERR code, and
the empty notations field on her BOSS query logs, Wright
484
Although Turner occasionally asked Wright for cable-pair

information, she did not usually have access to that information.
(Id. at 137).
485
Those inquiries were also distinctive for another
reason. When making a legitimate BOSS inquiry in the course of
her work duties, Wright would ordinarily enter into a notation
field an explanation of her activities in the account. 3/28 AM
Tr. 55-56. When snooping in an account for Turners non-business
purposes, however, Wright would leave that field empty. Id.
677
established that, at Turners request, she had looked up and

given him BOSS database information on Erin Finn, Bo Zenga, Heidi
Gregg, Sylvester Stallone (Johnny Friendly), and Anita Busch
(3/27/08 RT (P.M.) 139-46; 3/28/08 RT (A.M.) 56) -- in other
words, on Pellicanos investigative targets.
With respect to Arneson, the evidence showed that he had
made a large number of inquiries to sensitive law enforcement
databases, obtaining personal information, criminal histories,
and DMV information on a large number of people who were (not
coincidentally) Pellicanos targets.
For this, he received large
amounts of money.
Finally, for each of these schemes, the evidence as a whole
showed that this was not simply a matter of getting information
for informations sake.
Rather, the information was used to
support wiretaps, harassment, and blackmail.

Section 1030(a)(4) punishes anyone who knowingly and with
intent to defraud, accesses a protected computer without
authorization, or exceeds authorized access, and by means of such
conduct furthers the intended fraud and obtains anything of
value, unless the object of the fraud and the thing obtained
consists only of the use of the computer and the value of such
use is not more than $5,000 in any 1-year period.
1030(a)(4).
18 U.S.C.
[T]he term exceeds authorized access, in turn,
means to access a computer with authorization and to use such
678
access to obtain or alter information in the computer that the

accesser is not entitled so to obtain or alter.
Id.
1030(e)(6).
The government filed its proposed instructions on April 7,
2008, proposing an instruction on the meaning of exceeds
authorized access that closely tracked the language of Section
1030(e)(6).
(ER 2801 (a defendant exceeds authorized access to
a computer 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).
Turners written objections to the governments proposal, filed
April 9, did not take issue with the governments proposed
computer fraud instruction.
(C.R. 1344).
On April 10, Turner
submitted six additional proposed instructions, none of which

addressed computer fraud. (C.R. 1345).
The government filed its
revised proposed instructions on April 14, which once again

defined exceeds authorized access by essentially quoting the
statute.
(C.R. 1369, at 83).
The trial court issued its own proposed instructions and

ordered that all [o]bjections to the proposed instructions
should be submitted in writing . . . and should provide a
proposed revised or additional instruction.
(C.R. 1409, at 1).
Turners filed objections, on April 24, addressed the computer

fraud count only by joining Arnesons filing.
679
(C.R. 1416, at 1-
2).
Arnesons filing, in turn, did not challenge the courts
proposed definition for exceeding authorized access.

25).
(ER 3703-
Rather, Arnesons objection to the computer fraud
instruction asked only for additional language on good faith and

intent to defraud (ER 3720-23), and proposed an instruction as
follows:
having committed the offense of computer fraud, the
government must prove each of the following elements
beyond a reasonable doubt:
First, the defendant knowingly accessed without
authorization or exceeded authorized access of a
computer that was used in interstate or foreign
commerce or communication;
Second, the defendant did so with the intent to
defraud, that is, an intent to deceive or cheat. Good
faith is a complete defense to these charges because
good faith is inconsistent with an intent to defraud;
Third, by accessing the computer without
authorization or exceeding authorized access to the
computer, the defendant furthered the intended fraud;
and
Fourth, the defendant, by accessing the computer
without authorization or by exceeding authorized access
to the computer, obtained anything of value.
(ER 3724).
The Courts final instruction on computer fraud (Instruction
67) rejected Arnesons and Turners suggestions as to good faith
and intent to defraud, but tracked the rest of Arnesons and
Turners proposal nearly verbatim, stating:
having committed the offense of computer fraud, the
government must prove each of the following elements
beyond a reasonable doubt:
First, the defendant knowingly accessed without
authorization or exceeded authorized access of a
680
computer that was used in interstate or foreign

commerce or communication;
Second, the defendant did so with the intent to
defraud, that is, an intent to deceive or cheat;
Third, by accessing the computer without
authorization or exceeding authorized access to the
computer, the defendant furthered the intended fraud;
and
Fourth, the defendant, by accessing the computer
without authorization or by exceeding authorized access
to the computer, obtained anything of value.
The value of information is relative to ones
needs and objectives. Access for mere idle curiosity
is not sufficient.
(C.R. 1606, at 82).
A further instruction on aiding and abetting
computer fraud (Instruction 68) said:

In order for a defendant to be found guilty of aiding
and abetting computer fraud, the government must prove each
of the following elements beyond a reasonable doubt:
First, the crime of computer fraud was committed by
someone;
Second, the defendant knowingly and intentionally
aided, counseled, commanded, induced or procured that person
to commit the crime of computer fraud; and
Third, the defendant acted before the crime was
completed.
It is not enough that the defendant merely associated
with the person committing the crime, or unknowingly or
unintentionally did things that were helpful to that person,
or was present at the scene of the crime.
The evidence must show beyond a reasonable doubt that
the defendant acted with the knowledge and intention of
helping that person commit the crime.
(C.R. 1606, at 83).
Defining exceeds unauthorized access,
Instruction 69 said:
[A]
when the
but uses
that the
defendant exceeds authorized access to a computer

defendant accesses a computer with authorization
such access to obtain information in the computer
defendant is not entitled to obtain.
(C.R. 1606, at 84; 4/29 RT (A.M.) 64-65).
681
No defendant objected.
b.
Any Errors Were Invited and Waived by Defendants
Arnesons and Turners challenges are barred because

defendants invited the instructions about which they now
complain.
Arneson and Turner jointly requested the relevant
parts of the district courts Section 1030 instruction,

suggesting nearly the exact language the Court eventually gave.
(ER 3724; C.R. 1416).486
They complain, in other words, about an
instruction they themselves drafted.
For invited error to apply
to an instruction the party requested, this Court requires

evidence of intentional relinquishment of a known right.
United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).487
Because neither Arneson nor Turner posit attorney negligence as
the reason they failed to ask for the instruction they now claim
a plain entitlement to, this Court may properly conclude that
486
Turners joinder to Arnesons filing stated that Turner

joined certain of [Arnesons] proposed instructions, including
those concerning . . . the computer fraud charges (at pp. 1820). (C.R. 1416, at 1-2). Page 20 of Arnesons filing, in
turn, requested as one alternative certain Proposed Alternative
Instructions on the following pages. (ER 3722). That proposed
instruction, in turn, contained the language on which the
government bases its claim of invited error. (ER 3724). While
the Court did not adopt Arnesons language in toto, none of its
deletions affected the points Turner now raises.
487
The government does not concede . . . the correctness
of that [binding] precedent. United States v. Williams, 504
U.S. 36, 45 (1992) (failure to make futile objection to
then-binding precedent does not foreclose further review). This
Court has subsequently said that [a]n error is invited and
unreviewable only if a defendant induced or caused the error,
or if he intentionally relinquished or abandoned a known
right. United States v. Budziak, 697 F.3d 1105, 1110 (9th Cir.
2012) (emphasis added). Here Arneson and Turner induced or
caused the error, id., by suggesting a Section 1030 instruction
that they now deem insufficient.
682
they knowingly asked for the instruction, and knowingly

relinquished claims to any other instructions, making the invited
error doctrine applicable.
c.
The District Court Did Not Plainly Err by Using

Congress Definition of Exceeds Authorized
Access
Ignoring their own role in inviting the instructions they

now challenge, defendants claim that plain error instead applied.
(TOB 22).
Even under that standard, however, defendants
challenges fail.
The plain error test has four parts three
mandatory, and the fourth discretionary.
In order to reverse,
there must be (1) error, (2) that is plain, and (3) that
affects substantial rights.
705, 712 (9th Cir. 1997).
United States v. Klinger, 128 F.3d
If those prerequisites are met, an
appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Id.
Turners claim fails at multiple steps.
There was no error in the trial courts failure to further

define the term exceeds authorized access.
Turner never
complains that the court misstated the law or omitted any element
of the offense.
Rather, he argues that the instructions failed
to further define the term exceeds unauthorized access with the

specificity that this Court would eventually apply years later in
Nosal and Brekka.
But to say that the instructions could have
683
further defined the term does not mean they were erroneous.
The
district court has wide discretion in formulating the

instructions to the jury, and we review its decision for an abuse
of discretion.
United States v. Reyes, 660 F.3d 454, 467-68
(9th Cir. 2011) (citation omitted).
Heredia, 483 F.3d 913, 920-21 (9th Cir. 2007) (discussing courts
broad discretion on whether to grant defendants request for
supplemental instruction tailor[ed] . . . to the particular
facts of the case).
Here, the district court told the jury
Congress definition of exceeds authorized access virtually

verbatim.
Even if a further explanation of Congress words could
have been given, the district court was within its discretion in
giving the jury the statutory definition.
See generally United
States v. McNeal, 77 F.3d 938, 944 (7th Cir. 1996) (finding no

error in instruction that was largely a direct quote from the .
. . statute and thus [was] accurate).488
488
The district courts decision to stick with Congress

definition was not error for another reason. Whether a term in
a jury instruction requires definition normally turns on whether
it expresses a concept within the jury's ordinary experience. No
prejudice results from a district court's failure to define a
concept within the comprehension of the average juror. United
States v. Tirouda, 394 F.3d 683, 688-89 (9th Cir. 2005); see also
United States v. Somsamouth, 352 F.3d 1271, 1275 (9th Cir. 2003).
Because the term exceeds authorized access is within an
ordinary jurors understanding, no further definition was
required, as the Second Circuit has found with respect to a
similar portion of the same statute. See United States v.
Morris, 928 F.2d 504, 511 (2d Cir. 1991) (because the term
authorization in Section 1030(a)(5)(A) is a word of common
usage, without any technical or ambiguous meaning, court was
not obliged to instruct the jury on its meaning); see also
(continued...)
684
Even if there was error, it was far from plain.
Turners
original brief (TOB 15 n.3) misstated the then-prevailing timing

rule for determining the plainness of an error in this Circuit,
see United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997)
(plain error, as that term is used in Fed. R. Crim. P. 52(b),
normally means error plain at the time the district court made
the alleged mistake).
Since the filing of Turners brief,
however, the Supreme Court has clarified that the term plain
error is measured as of the time of [apellate] review.
Henderson v. United States, -- U.S. --, 2013 WL 610203, at *6
(Feb. 20, 2013).
As a result of Henderson, defendants claim of
plain error can take into consideration two decisions by this

Court that postdated the trial in this case -- LVRC Holdings LLC
v. Brekka, 581 F.3d 1127 (9th Cir. 2009), and United States v.
Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc)489 - even though
those decisions did not exist when the district court formulated
its instructions here.490
488
(...continued)
Brekka, 581 F.3d at 1133 (citing Morris for this point).
489
While the government maintains that Nosal was wrongly
decided and preserves the point for further review, it
acknowledges that Nosal is at present binding law in this
Circuit.
490
For that matter, when the district court formulated its
instructions in this case, it likewise did not have the benefit
of the nonbinding district court cases that Turner now cites in
support of his claim, but which almost all postdate Turners
trial. See TOB 16 (citing United States v. Nosal, 2010 WL 934257
(N.D. Cal. Jan. 6, 2010), and United States v. Aleynikov, 737 F.
Supp. 2d 173 (S.D.N.Y. 2010)); TOB 25-26 (citing United States v.
Drew, 259 F.R.D. 449 (C.D. Cal. 2009); ATPAC v. Aptitude
(continued...)
685
Henderson does not, however, change the outcome in this case

because Turners asserted error is not plain even under the law
as it stands now.
The plain error standard that Turner must
satisfy exists here on top of the already considerable discretion

the law gives judges in devising jury instructions.
See United
States v. Harris, 185 F.3d 999, 1007 (9th Cir. 1999).
In order
to satisfy this prong, therefore, Turner must show that the

district courts instruction was not only an abuse of discretion,
but plainly an abuse of discretion.
In Henderson, the Supreme Court cautioned that, even
applying a time-of-appeal benchmark, a new rule of law, set
forth by an appellate court, cannot automatically lead that court
to consider all contrary decisions by trial courts plainly
erroneous.
Henderson, 2013 WL 610203, at *9.
Particularly
where the district courts decision concern[s] matters of

degree, not kind, the lower courts ruling even if now wrong
(in light of the new appellate holding), is not necessarily
plainly wrong.
Id.
Such is the case here.
In formulating instructions, [t]he
trial court has substantial latitude so long as its instructions

fairly and adequately cover the issues presented.
490
United
(...continued)
Solutions, Inc., 2010 WL 1779901 (E.D. Cal. Apr. 29, 2010); Bell
Aerospace Serv., Inc. v. U.S. Aero Serv., Inc., 690 F. Supp. 2d
1267 (M.D. Ala. 2010); Black & Decker (US), Inc. v. Smith, 568 F.
Supp. 2d 929 (E.D. Tenn. 2008) (decided July 11, 2008 after
Turners trial)).
686
States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000).
The
formulation of instructions, therefore, is precisely the sort of

matter[] of degree for which Hendersons warning is most
strong: a lower court ruling, even if now wrong (in light of the
new appellate holding), is not necessarily plainly wrong.
Henderson, 2013 WL 610203, at *9.
Brekka and Nosal were essentially determinations on the
sufficiency of evidence.
Neither they nor any other case
specifies that a defendant is entitled to an instruction narrowly

defining exceeds authorized access.
Such an instruction is
likewise found neither in the current Ninth Circuit Model Jury

Instructions nor in the leading treatise.
See Ninth Circuit
Model Instruction 8.99; OMalley, Grenig & Lee, 2A Federal Jury

Practice and Instructions 42:19, at 248 (6th ed. 2009)
(Exceeds authorized access Defined).
Rather, the leading
authority recommends that, to define exceeds authorized access

district judges should do exactly what the district court did
here: quote the statute.
248.
See OMalley, Grenig & Lee 42:19, at
The fact that Turners belatedly advocated instruction
still is not in the model instructions underscores how far from a

plain abuse of discretion Turners assertion of error is.
Compare United States v. Still, 857 F.2d 671, 672 (9th Cir. 1988)
(finding no plain error from omitted definition where, inter
687
alia, the courts instructions conformed almost entirely with

federal model jury instructions).
Moreover, both Brekka and Nosal concerned far different
scenarios than the one here.
In Nosal, the courts concern was
that a broad interpretation of the CFAA [would] allow[] private

parties to manipulate their computer-use and personnel policies
so as to turn these relationships into ones policed by the
criminal law.
Nosal, 676 F.3d at 860.
Here, by contrast,
Arnesons (and his accomplice, Pellicanos) misuse of federal and

state law enforcement databases was already a violation of law
not because of any employment contract, but rather because of
statutes and regulations that carry the force of law of their own
accord.
Multiple California statutes made Arnesons and
Pellicanos actions criminal.
See California Penal Code: 11142
(criminalizing the dissemination of criminal history database

records obtained by a party who is in legal possession of these
materials to a party who is not authorized to possess them); id.
1303 (criminalizing the receipt of such information by a person
not authorized to receive it); id. 11143 (criminalizing the
purchase, receipt, or possession of information obtained from
such records by a party who is not legally authorized to possess
them); Cal. Veh. Code 1808.45 (criminalizing distribution of
DMV records or the use of a false representation to get such
records).
Federal statutes and regulations, too, made Arnesons
688
and Pellicanos actions not just a breach of contract, but

illegal.
Even taking Brekka and Nosal into account, therefore,
it is still not plain that the district court would have abused
its discretion in failing to include Nosals limitations in the
courts instructions.
Finally, neither Turner nor any other defendant, through
argument or evidence, contested that the actions alleged by the
government, if proven, constituted unauthorized access.
That,
too, defeats the claim of plain error, because defendants have a

right to a particular instruction only where for issues that are
presented.
Hicks, 217 F.3d at 1045.
Even if plainness is
measured as of the time of this appeal, rather than the time of

trial, therefore, any error here is not plain.
The lack of a specific instruction in this case also did not
affect substantial rights, because it did not change the
verdict in Turners case.
Two factors increase defendants burden on this prong.
First, defendants burden to prove prejudice is the prejudice
prong, defendants burden here is especially heavy because no
erroneous instruction was given; [their] claim of prejudice is
based on the failure to give any explanation beyond the reading
of the statutory [definition] itself.
U.S. 145, 155 (1977).
Henderson v. Kibbe, 431
Such [a]n omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement
689
of the law.
Id.; Villafuerte v. Stewart, 111 F.3d 616, 624 (9th
Cir. 1997) (same); United States v. Cruz, 783 F.2d 1470, 1472
(9th Cir. 1986) (same).
As a result, defendants complaint about
an omission or an incomplete instruction, is presumptively not

prejudicial.
Second, the Supreme Courts recent decision on plain error
underscores that the substantial rights prong of plain error is
meant to serve as a screening criteria, in which the fact that
a defendant did not object, despite unsettled law, may well count
against the grant of [plain error] relief.
Henderson, 2013 WL
610203, at *9.
A close reading of the en banc decision in Nosal makes clear
Turner would have been convicted even with an instruction that
complied with Nosal.
Nosal retains possible liability for
employees who circumvent computer system tracking measures by

entering false information.
Acknowledging that the statute
defines exceeds authorized access as to access a computer with

authorization and to use such access to obtain or alter
information in the computer that the accesser is not entitled so
to obtain or alter, 18 U.S.C. 1030(e)(6) (emphasis added), Nosal
hypothesized an application of the statute that would give effect
to the word so:
[L]ets say an employee is given full access
to the information, provided he logs in with his username and

password.
In an effort to cover his tracks, he uses another
690
employees login to copy information from the database.
Once
again, this would be an employee who is authorized to access the

information but does so in a manner he was not authorized so to
obtain.
Nosal, 676 F.3d at 858.
Nosal therefore does not
forbid an instruction penalizing an authorized users attempt to

disguise her access by entering information that covered her
tracks.491
That is what happened here.
Undisputed evidence established
Wrights efforts to fool SBCs security and tracking system with

her entries into code-based required fields auditing her usage.
As explained by SBCs David Lopes, the BOSS system required
employees accessing a record to type in a code showing why they
entered the account.
(3/27/08 RT (A.M.) 107).
Wrights
testimony established she was aware that the BOSS database left
a trail showing which employees had accessed the database on
which numbers on which dates.
(3/27/08 RT (P.M.) 139.)
Therefore, Wright said, when accessing SBC databases for Turner,

491
While Nosal also left open the possibility that the word
so was mere surplussage, the Supreme Court has instructed
courts that they must give effect to every word of a statute
wherever possible. Leocal v. Ashcroft, 543 U.S. 1, 12 (2004);
see also Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985) (similar).
In any case, however this Court ultimately rules on the question
that Nosal left open, Nosal does not foreclose an instruction
making clear that an employee authorized to access a database may
be found to have exceeded authorized access where he circumvents
the employees auditing and control measures by entering false
information into required fields. Since Turner is entitled to at
most plain error review, his prejudice should be measured by
considering what result would have obtained if he had received an
instruction that is not plainly erroneous -- not by de novo
determining a perfect instruction and applying that to the case.
691
Wright would enter the code ERR in order to meet the systems
code-based requirement, while misrepresenting that she had
accessed the number in error.
(Id.).
[s]o I wouldnt leave a trail.
She said this was done
(Id.).492
This testimony was
corroborated by unimpeachable evidence -- SBC records confirming

Wrights repeated use of the three-letter code ERR to indicate
the account was accessed in error when accessing account
information on Pellicanos and Turners targets.
(3/27/08 AM Tr.
107-17; Exs. 500, 501, 502, 503, 504, 505, 506.)

Wrights false use of the ERR code to defeat the tracking
(with Turners knowledge) was further corroborated by a recorded
call between Wright and Turner, after her actions had been
discovered, in which she described the evidence SBC had:
TURNER:
[W]hen you pull an account . . . I remember, you

told me, you had to have a reason for doing it.
WRIGHT:
Right, and I always put error in the account, but

still it made it look really bad that I would put
error.
(3/28/08 RT (A.M.) 31).
The jury found this recording revealing
enough that they asked for it to be replayed during

deliberations.
(5/7/08 RT 22-25).
In short, there was no doubt that when Turner paid Wright to

access confidential information on SBC servers, Wright would
enter a false code ERR for error to defeat the BOSS
492
See also 3/28/08 RT (A.M.) 40-41 (Wrights testimony

that queries where she had entered the ERR code would all have
been done at Turners request: If I went into the false note and
put that error, I would have given [Turner] some information).
692
systems auditing system.
If Turner had gotten a Nosal
instruction, the instruction would have had to specify that

system entries made to cover ones tracks are in excess of
authorized access.
Since that instruction would still have led
to Turners conviction, any error is not prejudicial, and the

conviction cannot be reversed.
Moreover, while Nosal stated that the general purpose of
the CFAA was to punish hacking the circumvention of
technological access barriers, 676 F.3d at 863, Nosal did not do
anything to narrow the sorts of circumvention that might qualify.
Nosal contains no hint, for instance, that the statute would not
apply where one person steals or guesses the password of a more
broadly-authorized user to expand her access.
Nor does Nosal
imply any lack of coverage where an unauthorized user bribes or

extorts an authorized user into giving him access to an
unauthorized system.
here.
But that latter scenario is what happened
Even if White and Arneson did not exceed their authorized
access under Nosal, the fact remains that they were essentially
bribed by Turner and Pellicano to give Turner and Pellicano
access that was unauthorized.
In that sense, Turner and
Pellicano were primary violators of the statute, and Arneson was

an accomplice to Pellicanos violation.
Since the defendants did
not contest the facts showing that Pellicano and Turner were not
entitled to access the relevant databases, that is yet a further
693
reason why any omitted instruction could not have prejudiced

them.
Finally, and independent of the three tests above, this
Court should not exercise its discretion to reverse on the
unpreserved error.
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.
201 F.3d 1145, 1152 (9th Cir. 2000); see, e.g., United States v.
Buckland, 289 F.3d 558, 572 (9th Cir. 2002) (finding fourth prong
of plain error not met where failure to submit drug-quantity
element to the jury was plainly erroneous but where drug quantity
was essentially uncontested by the defense); United States v.
Barajas-Montiel, 185 F.3d 947, 953 (9th Cir. 1999).
In addition, where the evidence against the defendant on
the issue erroneously explained to the jury is overwhelming,
plain error reversal would be inappropriate, because [a]llowing
the conviction to stand does not seriously affect[] the
fairness, integrity, or public reputation of judicial
proceedings.
United States v. Bear, 439 F.3d 565, 570 (9th
Cir. 2006); see, e.g., United States v. Lacy, 119 F.3d 742, 749
(9th Cir. 1997) (Even if we found that Lacy established plain
error [in the instructions] . . . . , we would not exercise our
discretion to correct the error because it did not seriously
694
affect the fairness, integrity or public reputation of judicial

proceedings.).493
In Johnson v. United States, 520 U.S. 461 (1997), for
instance, the Supreme Court found plain error relief for
instructional error to be improper on this fourth prong, even
though it determined the error was plain and assumed the error
affected substantial rights.
Id. at 468-69.
The jury
instructions had erroneously omitted a required element.

467.
Id. at
Despite the plainness of the error, plain error relief was
held to be improper -- because there was no miscarriage of

493
Although Turner claims to cite authority that this

discretionary prong is met because a conviction based on a
legally invalid theory always affects the integrity of the
courts and the interests of justice (TOB 26-27), that argument
is foreclosed by Puckett v. United States, 556 U.S. 129, 142-43
(2009) which specifically rejects the view that a particular type
of error can per-se satisfy the fourth, discretionary plain-error
step. See id. (The fourth prong is meant to be applied on a
case-specific and fact-intensive basis. We have emphasized that
a per se approach to plain error review is flawed.); see also
United States v. Turrietta, 696 F.3d 972, 984 n.15 (10th Cir.
2012) (discussing Puckett).
In any case, Turners citations do not support his claim.
Turners cited portion of Olano v. United States, 507 U.S. 725,
739 (1993), contains nothing supporting Turners assertion, but
rather leaves open the possibility of presuming prejudice under
prong three of the plain error test. And United States v. Cruz,
554 F.3d 840 (9th Cir. 2009), says only that the discretionary
prong for plain error relief can be met where there was a
complete lack of jurisdiction to try [the defendant] for the
alleged offense, or where someone is sent to jail for a crime
that, as a matter of law, he did not commit. Id. at 845. Cruz
does not apply here, because Turner raises no question of
jurisdiction, and his request for plain error relief for a jury
instruction is quite different from an attack on the sufficiency
of the evidence. In any case, because Cruz was decided before
the Supreme Courts Puckett decision, any per-se rules from Cruz
are now overruled by Pucketts holding barring such per-se rules.
695
justice in the omission of an element that was essentially

uncontroverted and supported by overwhelming evidence.
Id. at
470; see also United States v. Cotton, 535 U.S. 625, 632-33
(2002) (similar); United States v. Keys, 133 F.3d 1282, 1287 (9th
Cir. 1998) (withholding plain error relief where the instructions
omitted an element but [t]he record, the evidence . . . and the
nature of [the] defense demonstrate without a doubt that the
element was met).
This Court should act similarly here.
Uncontroverted
evidence established that Wright circumvented her employers

security system by purposefully mis-entering her reason for
accessing the records at issue by employing the misleading ERR
error code.494
Such activity remains an act of exceeding
494
While Turner may have contested whether he encouraged

Wright to access records improperly (and whether he did so for
pay), he did not contest the fact that she in fact did access the
records or the manner in which she did so. Because Turners
disputed instruction pertains only to the last of these points,
that is the issue on which the evidence and arguments must be
evaluated to determine whether or not Turner controverted the
governments theory. The reader will search in vain for any
point in Turners cross-examination of Wright, or in Turners
closing argument, where Turners counsel contested the fact that
Wright entered the ERR code falsely to conceal her reasons for
accessing the records at issue. This case is therefore
distinguishable from cases such as Bear, 439 F.3d at 570-71. In
Bear, where the trial court had similarly neglected to give a
particular instruction (the public authority defense), the fourth
prong of plain error was deemed satisfied because the defendant
not only raised the factual issue through her testimony, but also
raised that issue as her sole theory of defense. Id. Bear on
its own terms stands only for the proposition that [w]hen a
defendant actually presents and relies upon a theory of defense
at trial, the judge must instruct the jury on that theory even
where such an instruction was not requested. Id. at 568
(continued...)
696
authorized access even after Nosal.
Id.
Turners cross
examination of Wright did not take issue with her statement that
she entered the ERR code to cover her tracks.
(A.M.) 38-52).
(3/28/08 RT
Turners closing argument -- which argued that
Wrights computer inquiries were not taken at Turners behest,

and that they did not assist a wiretap -- never contested that
Wright actually accessed the records and entered the ERR code as
a cover-up.
See
5/1/08 RT (Sess. I) 32 (Turners counsel: if
you believe [Ms. Wright], then convict Mr. Turner of aiding and
abetting her computer fraud).
As a result, any instructional
error does not seriously affect[] the fairness, integrity or

public reputation of judicial proceedings; rather, it would be
the reversal of a conviction such as this which would have that
effect.
Johnson, 520 U.S. at 469.495
494
(...continued)
(emphasis added). Turners case, in contrast, did not controvert
the governments evidence on the ERR code at all. He neither
presented evidence on, nor relied on the theory he now says the
district court should have sua sponte instructed on. That makes
him ineligible for the relief in Bear. The Supreme Courts
opinion in Johnson controls instead.
495
Indeed, the inappropriateness of discretionary relief is
even more striking here than in Johnson and Keys. In those
cases, the trial court had failed entirely to submit an element
to the jury. Here, all elements were submitted to the jury;
defendants simply claim that one element should have been further
defined. See Case of Tweed, 83 U.S. 504, 515-16 (1872) (the
party aggrieved, if he supposes the instructions given are either
indefinite or not sufficiently comprehensive, is always at
liberty to ask that further and more explicit instructions may be
given, and if he does not do so he is not entitled to claim a
reversal of the judgment for any such supposed error).
Moreover, the defendants actually asked for the instruction
of which he now complains. While the government argues that that
(continued...)
697
The limitations imposed by the fourth, discretionary prong

of plain error are one reason why the Supreme Court in Henderson
did not fear that the time-of-appeal rule for measuring plain
error would open the floodgates.
*9.
Henderson, 2013 WL 610203, at
Moreover here, unlike in Henderson, the defendants did not
merely stand by silently when the court or prosecutor made an

error; here, the defendants proposed the instructions about which
they now complain.
Under Hendersons view of the fourth prong of
plain error, the fact that a defendant did not object, despite
unsettled law, may well count against the grant of Rule 52(b)
relief.
Id.
If mere failure to object count[s] against the
grant of Rule 52(b) relief, then a fortiori the defendants

actions in proposing the instructions that they later appeal
should count against plain error relief.
At the time of trial, a
wealth of case law contradicted defendants current theory.496

495
It
(...continued)
makes any error invited error such that his appeal is waived,
Turners and Arnesons role in drafting the instruction is also
relevant to whether they should receive discretionary and
extraordinary relief under plain error. Otherwise, the law would
incentivize purposeful laying of errors in the trial record,
since [m]any a defendant would like to plant an error and grow a
risk-free trial, with an acquittal . . . irrevocable under the
double jeopardy clause, and a conviction [later] set aside
because of the planted error. United States v. Boyd, 86 F.3d
719, 721 (7th Cir. 1996).
496
International Airport Ctrs., LLC v. Citrin, 440 F.3d
418 (7th Cir. 2006) (holding that employees who used permitted
computer access to take actions breaching a duty of loyalty to
their employer had thereby violated the CFAA by accessing the
employers computers without authorization or in excess of
authorized access); United States v. Czubinski, 106 F.3d 1069,
1071, 1078 (1st Cir. 1997) (finding that IRS employee
(continued...)
698
would already be asking a tremendous amount to have expected the

district court to predict the Nosal and Brekka decisions.
By
2008, CFAA prosecutions of employees using their computer

privileges for purposes harmful to their employers were
frequent,497 and had received support in the academic literature
looking to legislative history.498
496
To overturn the verdict based
(...continued)
unquestionably exceeded authorized access to a Federal interest
computer under Section 1030(a)(4) where the employee had used a
valid password to access taxpayer records for non-official
purposes in violation of IRS computer policies); United States v.
Slaughter, 248 Fed. Appx 313 (3d Cir. 2007) (upholding the
Section 1030 conviction of an IRS employee who used her password
to look at taxpayer records to assist in fraud). Indeed, even
this Court, while not addressing Turners precise issue, had
upheld the Section 1030(a)(5) conviction of an ex-employee who
used her still-active password to access and damage her
employers files. United States v. Sablan, 92 F.3d 865 (9th Cir.
1996).
497
See, e.g., United States v. Butler, 16 Fed. Appx 99 (4th
Cir. 2001) (prosecution for Equifax employee who used her
computer access to manipulate credit reports in employers
database); United States v. Bae, 250 F.3d 774 (D.C. Cir. 2001)
(Section 1030(a)(4) prosecution of merchant for using lottery
terminal to print fraudulent tickets); United States v. Sadolsky,
234 F.3d 938 (6th Cir. 2000) (prosecution of employee for using
employers computers to fraudulently process credit card
credits).
498
One article, for instance, showed how legislative
history established that the conduct barred by exceeding
authorized access was intended to make it a criminal offense for
anyone who has been authorized to use a computer to access it
knowing the access is for a purpose not contemplated by the
authorization. Beryl Howell, Real World Problems of Virtual
Crime, 7 Yale J.L. & Tech. 103, 109 (2004-2005) (quoting H.R.
Rep. No. 98-894, at 21 (1984)). See id. at 109-10 (The
cumbersome phrase used in the original CFAA having accessed a
computer with authorization, uses the opportunity such access
provided for purposes to which such authorization does not
extend was condensed to the current language of exceeds
unauthorized access in order merely to clarify the language in
existing law and simplify the language. (footnotes omitted)).
(continued...)
699
on instructions that defense counsel not only allowed without

objection, but affirmatively asked for, would defeat Hendersons
expectation that the fourth prong of plain error will serve as a
screening criteria limiting relief.
at *9.499
Henderson, 2013 WL 610203,
Giving defendants the instructions they asked for,
which were fully in accord with then prevailing precedent, cannot

have seriously affected the fairness, integrity, or public
reputation of the proceedings.
Id.
Under this fourth prong,
defendants claim must fail.

As previously noted, although Arneson claims to join
Turners argument, Arneson never discusses how the evidence
against him and his lawyers arguments affect the third and
498
(...continued)
See also Fishman & McKenna, Wiretapping and Eavesdropping:
Surveillance in the Internet Age 26:5, 26:5.50 (3d ed. 2012).
As Professor Nimmer has observed, the Ninth Circuits Brekka
interpretation was a minority view; the contrary view that
contractual use restrictions can determine whether a particular
access . . . exceeded authorization [c]learly dominates the
case law. 4 Raymond Nimmer, The Law of Computer Technology
18:31, at 18-73 (4th ed. & Supp. 2012).
499
See United States v. John, 597 F.3d 263, 272-73 (5th
Cir. 2010) (defendant exceeded authorized access under Section
1030 when she accessed and misuse[d] information to commit
fraud: the concept of exceeds authorized access may include
exceeding the purposes for which access is authorized.);
United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010)
(upholding CFAA conviction for Social Security Administration
employee who violated computer access policy by accessing social
security records for nonbusiness purposes: Rodriguez exceeded
his authorized access and violated the Act when he obtained
personal information for a nonbusiness reason); United States v.
Tolliver, 451 Fed. Appx 97, 103-04 (3d Cir. 2011) (employee
exceeded her authorized access by using valid password to
access customer records to support a fraud rather than for a
business purpose); United States v. Nosal, 642 F.3d 781, 788-89
(9th Cir. 2011), overruled by Nosal, 676 F.3d 854.
700
fourth prongs of plain error.
As a result, Arnesons challenge
on this point is waived.
Even considered on the merits,
Id.
however, Arnesons claims would fail.
In addition to the
failings listed above such as lack of error and lack of

plainness in the error Arneson confronts another problem.
Use
of the systems he invaded criminal history systems operated by

the Department of Justice and others is subject to statutory
and regulatory legal constraints that are different in kind from
mere employment policies.
Arensons access was unauthorized not
because of the vagaries of employer policies and terms-of-use

contracts, but because of statutes and regulations carrying the
force of law.
Federally provided information could be released to state
criminal justice agencies such as Arnesons police department
only for criminal justice purposes.
28 C.F.R. 20.33(a)(1).500
Since Arnesons use of the information was for other purposes (to
sell to Pellicano), his actions violated this regulation.
The
regulations at 28 C.F.R. 20.33(d) further prohibit using the

records for any purpose other than the purpose noted in the
request a violation that Arneson engaged in repeatedly, when he
500
Indeed, if a state agency were to distribute the records

for other than official use, that would lead to cancellation of
any federal undertaking to provide that agency with the
information. 28 U.S.C. 534(a)(4), (b); 28 C.F.R. 20.33(b);
28 C.F.R. 20.38.
701
requested law enforcement records under pretense of legitimate

use but in fact was feeding them to Pellicano.501
California statutes also governed the extent of Arnesons
authorized access according to his purpose and his intended use
of the data.
California law allows the release of such records
to peace officers only if needed in the course of their duties.

Cal. Penal Code 11105(b).
Statutes provide that the state
criminal history database (CLETS) shall be used exclusively for

the official business of the state[ or] . . . of any city,
county, . . . or other public agency.
Cal. Govt Code 15153.
Under California regulations, [c]riminal offender record

information may be released, on a need-to-know basis, only to
persons or agencies authorized by court order, statute, or
decisional law to receive criminal offender record information.
Cal. Code Regs. tit. 11, 703(b) (emphasis added).
Thus, in
addition to restricting access to certain people, the

regulations, which carry the force of law, also restrict access
according to the users use and purpose the extent to which the
information is needed in the course of [the requestors]
duties, Cal. Penal Code 1105(b), the use[] exclusively for
the official business of the requestors agency, Cal. Govt Code
15153, and the requestors need to know, Cal. Code Regs. tit.
11, 703(b).
501
Like the phone company databases accessed by Wright, the

law enforcement databases accessed by required a code designating
the purpose for database searches. (3/14/08 RT (A.M.) 99).
702
Indeed, Arnesons and Pellicanos scheme to have Arneson

access the records in order to provide them to Pellicano (an
unauthorized party) not only was prohibited under Californias
general computer crime statute, but was also criminal under three
separate sections of the California Penal Code: Section 11142
(criminalizing the dissemination of criminal history records
obtained therefrom by a party who is in legal possession of these
materials to a party who is not authorized to possess them),
Section 1303 (criminalizing the receipt of such information by a
person not authorized to receive it), and Section 11143
(criminalizing the purchase, receipt, or possession of
information obtained from such records by a party who is not
legally authorized to possess them).502
Whatever the wisdom of Nosals limiting criminal liability
where access policies stem merely from employment agreements or
private contracts, that reasoning does not plainly apply where
access policies are set by legislation and regulation with the
force of law.
And for the counts where Arneson was convicted of
violating Section 1030(a)(2)(B), which applies specifically to

federal computers, it makes even more sense that federal
regulations should determine the scope of authorized access.
Thus, the governments arguments under prongs three and four of
the plain error standard are even stronger with respect to the
502
Cal. Veh. Code 1808.45 further criminalizes the

distribution of DMV records or the use of a false representation
to get such records.
703
Arneson counts than they were with respect to the Turner counts.
Since Arnesons conduct would still have been illegal under a
post-Nosal instruction, he and Pellicano were not prejudiced by
an omission of the instruction, and the omission of the
instruction works no miscarriage of justice.
*
Rarely will an improper jury instruction justify a

finding of plain error.
United States v. Musacchio, 968 F.2d
782, 789 n.12 (9th Cir. 1991); United States v. Williams, 990
F.2d 507, 512 (9th Cir. 1993) (similar).
To the contrary,
Orderly procedure requires that the respective adversaries

views as to how the jury should be instructed be presented to the
trial judge in time to enable him to deliver an accurate charge
and to minimize the risk of committing reversible error.
Henderson, 431 U.S. at 154.
This is not the rare case
justifying such a reversal.
Id.
The convictions must be
affirmed.
d.
Even If the Computer Fraud Instruction Were

Erroneous, That Would Not Require Reversal of
Turners Other Convictions
Turner next argues that, as a result of the alleged

infirmity in the Section 1030 instructions, his convictions for
identity theft, RICO, and RICO conspiracy must also fall.
27).
704
(TOB
Because there was no plain error in the Section 1030

instructions, Turners attacks on the other counts cannot
prevail.
Even if this Court were to find an error in the Section
1030 instructions, however, and even if the Court were to find

that the error were plain, the other convictions would still
stand based on the jurys independent basis for its convictions:
Turners aiding and abetting of Wrights violation of
Californias computer fraud statute, California Penal Code
Section 502(c) (CPC 502).
(1)
Background
Counts 59 through 62 (ER 3985) charged Pellicano and Turner

with committing identity theft under 18 U.S.C. 1028(a)(7), (2),
by transferring, possessing, and using various means of
identification with the intent to aid and abet Wrights
violations of the federal Computer Fraud statute, 18 U.S.C.
1030, and the California statute penalizing unauthorized computer
access, Calif. Penal Code 502(c)(2) (CPC 502).
Counts 37
through 41 charged Pellicano and Arneson with similar violations.

(ER 3979).
And Counts 51 through 54 charged Pellicano with
further such violations.
(ER 3983).
Count 1 -- the Racketeering count under 18 U.S.C. 1962 -accused Turner, Arneson, and Pellicano of committing, as overt
acts 47 to 69, those and other acts of identity theft.
72).
(ER 3969-
Count 2, charging Racketeering Conspiracy under 18 U.S.C.
705
1962(d), charged Pellicano, Arneson, and Turner with conspiring

to commit the racketeering crimes specified in Count 1.
3974).
(ER
All three counts, therefore, to some degree or another,
involved potential jury findings that Turner, Arneson, and

Pellicano violated either Section 1030 or CPC 502.
The CPC 502 instructions defendants now attack are the ones
defendants themselves proposed.
Regarding the identity theft
instructions cross-reference to CPC 502, the district court said

that it wanted to give the jury a heads up, but maybe its not
worth doing if it's going to be confusing.
24).
(4/28/08 RT (A.M.)
The court asked Arnesons and Turners counsel for their
views: Does anyone have a comment?

(Id.)
Mr. Hummel or Ms. Soo Hoo?
With Turners counsel standing by, Arnesons counsel said
the Court should give a general description of CPC 502, but

should not give the elements:
I certainly believe the jury should be
instructed on what 502 is if it's going
to be a basis for Mr. Saunders' argument
as to why identity theft has been
proved.
THE PROSECUTOR:
But not specific elements, because those

elements don't need to be proved. I
think Mr. Hummel agrees with that.
DEFENSE COUNSEL:
I do.
(Id.)
DEFENSE COUNSEL:
That afternoon, Arnesons counsel expressly asked for the
jury instructions to include his own description of CPC 502

rather than the statutory definitions:
706
THE COURT:
What are we going to do about this

unauthorized access to computers?
DEFENSE COUNSEL:
Your Honor, we have a proposal. I

think, given the fact that the
Government has agreed that they're
proceeding under Penal Section 502C2,
that we would just simply have the Court
instruct that unauthorized access of
computers is the knowing access and
taking, copying, or making use of data
or supporting documentation from a
computer, a computer system, or computer
network without permission to do so.
*
DEFENSE COUNSEL:
I think it's a quote from the statute,

Your Honor. Not quite.
*
DEFENSE COUNSEL:
It's [co-counsels] compilation.
(4/28/08 RT (P.M.) 53-54).

When the Court instructed the jury on identity theft,
therefore, it used Arnesons exact words to describe the CPC 502
element, telling the jury that, in order to convict, the jury
must find that:
when possessing, transferring, or using the means of
identification or causing it to be transferred,
possessed, or used, the defendant acted with the intent
to commit or aid or abet the commission of computer
fraud in violation the Title 18 United States Code
Section 103(a)(4), or unauthorized access to computers
in violation of California Penal Code Section
502(c)(2).
Unauthorized access of computers is 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.
707
Computer fraud will be described further in later

instructions.
(4/29/08 RT (A.M.) 45); C.R. 1606, at 52-53).
No party objected.
This is the instruction Turner, Arneson, and Pellicano now

challenge.
(2)
Any Error Was Invited and Waived
For invited error to apply to an instruction the party

requested, this Court requires evidence of intentional
relinquishment of a known right.
Perez, 116 F.3d at 845.
Nevertheless, even applying Perezs rule, the CPC 502 instruction

was invited under United States v. Laurienti, 611 F.3d 530, 543
(9th Cir. 2010).
Defendants challenge complains that the
district court failed to instruct the jury as to certain elements

of CPC 532 -- namely, requirements of hacking, a loss amount, and
the definition of access.
But when the parties were asked
whether the district court should instruct the jury as to any

element of CPC 532, Arneson (who, throughout the instruction
conferences, took the lead in presenting Arnesons and Turners
joint views) said he did not want an instruction on the elements.
(4/28/08 RT (A.M.) 24).
The right to a specific instruction on
any particular element is necessarily a subset of the general

right to an instruction on the elements.
Thus, in rejecting the
district courts greater offer to discuss all the elements,

Arneson and Turner necessarily considered and declined an offer
to discuss the particular element they now say should have been
708
covered.
Arneson, moreover, drafted the relevant parts of the
CPC 502 instruction; and by tying his ship to Arnesons overall

jury instruction efforts, Turner likewise joined in Arnesons
effort.503
As in Laurienti, this Court should hold that by
turning down an offer to discuss the element Turner now proposes,

Turner and Arneson waived any right to complain on appeal.
(3)
The CPC 502 Instructions Were Not Plainly

Erroneous
Unsuprisingly, the defendants did not object when the

district court gave the CPC 502 instruction that the defendants
had themselves drafted.
While the instructions at issue, given
at defense request, were actually invited error even defendants

do not suggest that any review greater than plain error applies,
given their failure to object.
See TOB 31 (claiming CPC 502
instructions were plainly erroneous).

Turner does not specify how he believes the instructions
should have been altered or supplemented.
Perhaps he believes he
was entitled to an (unspecified) instruction to implement his

belief that the term accesses is redolent of hacking.
32).
(TOB
Elsewhere (TOB 31) he hints at a belief that the
503
Turners approach in the instructional filings and

conferences was to join his requests with Arnesons, letting
Arnesons counsel take the lead in arguing. There is no evidence
that anything different happened here. Indeed, in announcing his
proposed instruction, Arnesons counsel said that we have a
proposal. (4/28/08 RT (P.M.) 53-54 (emphasis added)) The
instruction therefore should be deemed to have been requested by
Arneson and Turner together.
709
instructions should have defined access in the precise language

of the statute504 an approach he simultaneously claims was
insufficient in the district courts Section 1030 instruction.
Lastly (TOB 34-35), and in the only one of his complaints easily
reducible to a definite instruction, he says he was entitled to
an instruction making plain that the value of the information
obtained had to be over $250.
Whichever of these three complaints is at the heart of
Turners challenge, the claims fail to meet the plain error
tests four prongs.
Steps one and two of the plain error test are not met,
because there was no error -- and certainly no plain error -- in
the CPC 502 instructions.
First, the jury did not need to be instructed on the precise
content of CPC 502 because Turners identity-theft conviction
under 1028(a)(7) does not require that anyone have successfully
accomplished the associated crimes of violating CPC 502 or
Section 1030.
As United States v. Sutcliffe, 505 F.3d 944, 959-
60 (9th Cir. 2007), holds, it is irrelevant whether or not the

CPC 502 violation occurred; what matters is that the defendants
unlawful action -- transferring, possessing, or using the means
of identification -- occurred with the requisite criminal
504
Access means to gain entry 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).
710
intent to aid or abet a violation of the specified statutes.

Id.
Turner points to no case clearly establishing -- either in
2008 or now -- that a jury needs to be informed of the elements

of the associated crime in order to decide whether the defendants
intended to aid and abet it.
(That doubtlessly is the very
reason why Arnesons experienced counsel, who litigated this case

with extraordinary vigor and whose jury instruction arguments
bore the full approval of Turners counsel, rejected the judges
attempt to add discussion of the CPC 502 elements.)
The absence
of any such case shows that there either was no error at all, or
no error so clear-cut, so obvious, a competent district judge
should be able to avoid it without benefit of objection, as
would be required for plain error.
Turman, 122 F.3d 1170.
Second, even if some definition of the statutes elements

was plainly required, Turners specific newly raised glosses on
the statute were not.
Turners vague complaint that the instructions should have
required the government to prove a trespass or something
redolent of hacking or breaking into a computer (TOB 33, 32)
fails to rise to the level of plain error.
Turner essentially
argues for the application of a Nosal-like rule to CPC 502.
But
both in 2008 and now, there was substantial disagreement about

how to interpret CPC 502 -- with one authority (which Turner
711
cites) applying reasoning resembling Nosals, and other

authorities (which Turner ignores) holding the opposite.
Turner relies (TOB 32-33) on the California Second District
Court of Appeals decision in Chrisman v. Los Angeles, 65 Cal.
Rptr. 3d 701 (Cal. Ct. App. 2007).
Chrisman construed a
different section of the statute, CPC 502(c)(7), in the course of

deciding the statute of limitations for an administrative action
firing a police officer for unauthorized computer snooping.
Chrisman, 65 Cal. Rptr. 3d at 704.
Chrisman did not discuss jury
instructions at all; rather, it determined that because the

evidence did not establish a violation of CPC 502(c)(7), the
longer statute of limitations on police firings for commission of
a felony did not apply.
Id.
The statements on which Turner
relies, stating that the statute was aimed at hacking and

reading the legislative history to that end, were therefore made
to decide what was essentially a sufficiency-of-evidence
question.505
But -- even putting aside the fact that Chrisman was
interpreting a different subdivision of the statute, and did not
505
Turner does not argue that Wrights conduct was exempt

under CPC 502(h)(1)s provision for acts committed in the scope
of lawful employment. By not making the argument in his opening
brief, he has waived it. (The provision could not, in any event
apply, since feeding Turner information obviously was not
reasonably necessary to the performance of [Wrights] work
assignment.) Moreover, Turners argument (TOB 34) about CPC
502(h)(2), which applies only to a person acting outside of his
or her lawful employment, makes clear that Turner does not claim
Wright was acting in her lawful employment.
712
address jury instructions -- Chrisman comes from an intermediate

appellate court rather than the California Supreme Court.
Such
opinions do not even bind other panels of the California District

Courts of Appeals.
See McGlothen v. DMV, 140 Cal. Rptr. 168, 176
(Cal. Ct. App. 1977).
As a result, Chrisman is not conclusive as
to the interpretation of CPC 502.
See Wright, Miller & Cooper 19
Federal Practice & Procedure 4507 (2d ed. & 2012 Supp) (it
makes no sense to give state court decisions more binding effect
than they would have in the state court system).
Rather,
Chrisman is at best persuasive authority on CPC 502, meaning

that, if this Court were to review the jury instructions de novo,
it would have to engage in a complicated analysis of the
statute.506
506
See, e.g., CIR v. Boschs Estate, 387 U.S. 456, 465

(1967) (while the decrees of lower state courts' should be
attributed some weight . . . the decision (is) not controlling .
. . where the highest court of the State has not spoken on the
point). While some authorities state that a state intermediate
courts decision must be followed unless other persuasive
authority convinces us that the state supreme court would decide
otherwise, this principle may, in fact, extend no further than a
requirement that this Court give state intermediate court
opinions proper regard, treating them as data from which
the law must be derived. Spinner Corp. v. Princeville Dev.
Corp., 849 F.2d 388, 390 n.2 (9th Cir. 1988). There thus would
be no bar, on de novo review, to this Courts determining that
the California Supreme Court would decide the issue differently
than Chrisman. Indeed, this Court has rejected California Court
of Appeals decisions on state law, e.g., Dimidowich v. Bell &
Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), and has even done so
applying the highly deferential AEDPA standard, e.g., Briceno v.
Scribner, 555 F.3d 1069, 1079-80 (9th Cir. 2009) (rejecting two
California appellate court decisions).
713
Here, however, this Courts task is easier.
This Court need
not decide whether the California Supreme Court would or would

not adopt Chrisman.
Rather, this Court only has to consider
whether the rule of Chrisman would so plainly be adopted by the

California Supreme Court that any other interpretation of the law
constituted incompetence by the district court -- a question
which answers itself.
See In re Watts, 298 F.3d 1077, 1084-85
(9th Cir. 2002 ) (OScannlian, J., concurring) (We can be

certain that state case law is an authoritative expression of
state law only when it comes from the state's court of last
resort.
Anything less leaves room for doubt including a
decision by an intermediate state appellate court, which . . . is

inevitably less than conclusive. (footnote omitted)); Hagan v.
Caspari, 50 F.3d 542, 547 (8th Cir. 1995) (rejecting claim that
state intermediate courts decision had settled the law: we are
strongly inclined to agree with the state 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.).
Chrisman is only one side of a vigorous debate on CPC 502 in
both state and federal courts.
Some opinions find CPC 502(c)(2)
violated where a person is authorized to access a computer but

accesses it in violation of the policies governing access, as
Wright and Arneson did here.
See, e.g., Craigslist v.
Naturemarket, Inc., 694 F. Supp. 2d 1039, 1057-58 (N.D. Cal.
714
2010) (website stated claim under Section 502(c)(1)-(3) where

user accessed with permission, but violated terms of use);
Facebook, Inc. v. ConnectU LLC, 489 F. Supp. 2d 1087, 1090-91
(N.D. Cal. 2007) (approving CPC 502 lawsuit where users accessed
with permission, then exploited data in a manner not authorized
or permitted by Facebook).
Several cases suggest CPC 502(c) is
violated where an employee with password access to an employers

computer system uses the access for illegitimate purposes that
were not foreseen in the original grant of access -- as Wright
and Turner did here.
Lynn v. Gateway Unified Sch. Dist., 2011 WL
6260362, at *1-2, 6 (E.D. Cal. 2011) (disqualifying attorney who

used emails that client had copied from employers computer,
because actions possibly violated [CPC] 502, making it a felony
to use information from a computer database without permission);
Han v. Futurewei Tech., Inc., 2011 WL 5118748, at *3-4 (S.D. Cal.
2011) (cross-complaint likely stated a claim under [CPC] 502
where employee illegally copied and deleted various files from
her company-issued laptop during her employment); Gilbert v.
Sunnyvale, 31 Cal. Rptr. 3d 297, 309 (Cal. Ct. App. 2006) (citing
CPC 502(c)(2) to support denying appeal of police officers
firing for accessing CLETS records for improper purposes).
Indeed, Sunnyvale specifically says that a police officer who
715
misuses CLETS data (as Arneson did here) thereby violates CPC
502.
Id. at 309.507
Nor do other California decisions agree with Chrismans
reasoning.
Chrismans reliance (65 Cal. Rptr. 3d at 704) on a
snippet of legislative history is called into doubt by another

California Court of Appeal decision stating that [w]e cannot be
confident . . . that this brief declaration of purpose was
intended to summarize every act covered by the statute.
Mahru
v. Superior Court, 237 Cal. Rptr. 298, 300 (Cal. Ct. App. 1987)
(rejecting reliance on a purported legislative intent to deter
and punish . . . hackers - outsiders who break into a
computer).508
And, as one California Court of Appeals found,
Chrisman may not apply at all where access to a computer system

included enter[ing] false information in furtherance of a
larger fraudulent scheme, People v. Laiwala, 2012 WL 3834895
507
See also, e.g., People v. Oliveira, 2006 WL 775645, at

*1-2, *4 (Cal Ct. App. Mar. 28, 2006) (unpublished) (prosecution
under CPC 502(c)(1) for access with intent to defraud in case
where employees used their passwords to make false accounting
entries).
508
Indeed, the legislative history of CPC 502 supports the
government. The Assembly and Senate committees reports reveal
each committees expectation that the bill would criminalize
employees for misusing their employers computers. This bill
would make it a crime to knowingly and without permission use a
computer, including, for example, an employee who uses his or her
computer or a colleagues computer to write a term paper.
Assembly Comm. on Pub. Safety Rpt. on SB 255, at 3 (June 1,
1987); see also Sen. Comm. on Judiciary Rpt. on SB 255, at 7
(One effect of this change would be to make such acts as
unintentional and inadvertent alteration of data by an employee
using a computer for a personal project without permission[]
subject to a state prison term.).
716
(Cal. Ct. App. Sept. 5, 2012) (unpublished), as Turner and Wright

did here.
In short, Chrisman is a nonbinding opinion that merely
takes sides in the debate; there is nothing plain about its rule.
Nor is there anything plain about Turners claim to be entitled
to an instruction on the injury and loss-requirement of CPC
502(h)(2), since that section describes an affirmative defense -i.e., something that need not receive an instruction unless the
defense places it in issue, which defendants did not do here.
See Dixon v. United States, 548 U.S. 1, 13-14 (2006); United
States v. Pearson, 274 F.3d 1225, 1232 (9th Cir. 2001).
To the extent there was any error in omitting CPC 502s
statutory definition of access or failing to instruct on the
dollar amount, such error was not prejudicial.
CPC 502(b)(1)
defines access as to gain entry to, instruct, or communicate

with the logical, arithmetical, or memory function resources of a
computer, computer system, or computer network.
But that is
exactly what Turner wanted Wright to do when he paid her to enter

commands so that the SBC computer system would execute its
program and return to her its data regarding Pellicanos targets.
It is likewise what Arneson did in his illegitimate queries to
restricted law enforcement databases.
When computer software
operates, it operates through its logical, arithmetical, and

memory functions.
When a user enters a query or command, he is
communicating with and instructing those functions.
717
And when a
user gets information from the database, he gets it through and

from the systems memory function.509
Given the evidence, there
is no way a jury could have concluded that this definition of

access was not met.
The same is true as to Turners complaint about the district
courts failure to instruct as to CPC 502(h)(2)s carve-out from
liability.
CPC 502(h)(2) exempts a defendant from prosecution
provided that the employees activities do not cause an injury,

as defined in [CPC 502(b)(8)], to the employer, or another, or
provided that the value of supplies or computer services, as
defined in [CPC 502(b)(4)], which are used does not exceed an
accumulated total of [$250].
When Wright accessed the Boss
system at Turners behest, she altered the systems records by

entering an ERR code.
That was an alteration of data,
which explicitly satisfies CPC 502(b)(8)s definition of injury,

making the carve-out inapplicable.510
Moreover, the evidence
showed that the information taken was worth the many thousands of
dollars that Turner paid Wright for it, and that Arneson took
509
That does not make the statutes definition of access

redundant or unnecessary. The definition is necessary so as to
limit CPC 502 to cases where a defendant takes, alters or
destroys data using the computer qua computer, rather than as a
physical object. Thus, because of the statutory definition of
access, CPC 502 is not violated where a person physically
destroys computer data by dropping the computer rather than
accessing its logical and memory functions, or where he takes
data by stealing the computer rather than executing a command.
510
Because Turner knew Wright had to make such entries, his
intent in instructing her included an intent for such alterations
to take place. As for Arneson, he made the alterations himself,
by inputting false reasons for his unjustified access.
718
from Pellicano for it -- far more than the defendants say should
have been specified in an instruction.511
Indeed, under the
statute as it existed at the time of the offense (rather than the

updated version Turner relies on (TOB 35)), the value requirement
was only $100, not $250.512
Given the thousands of dollars
Pellicano paid for the information, the value was well above CPC
502's applicable $100 requirement.
Even with the additional
instruction, defendants would have been convicted.
The prejudice
requirement is not met.

In any case, on the fourth prong of plain error, this Court
should not exercise its discretion to reverse.
extraordinarily long, costly trial.
This was an
The district court took its
instruction on CPC 502 from the defendants proposed language.

To make the government and court system bear the costs of the
defendants mistake would not serve the purposes of the plain
error rule.
The governments evidence on the alteration of data
and the moneys Turner paid was uncontradicted and uncontested.

Under Johnson, plain error reversal would be an abuse of
discretion.
511
In convicting defendants of the federal Section 1030

charge, the jury necessarily found that defendants computer
intrusion resulted in their gaining something of value. (C.R.
1606, at 82).
512
See West's Ann. Cal. Penal Code 502 (2011) (Stats.
2009- 2010, 3rd Ex. Sess., c. 28 (S.B.18), . . . in subd. (h)(2),
substituted two hundred fifty dollars ($250) for one hundred
dollars ($100).).
719
Turner argues alternatively (TOB 35) that Section 502 could

not support the identity theft and RICO charges, because Section
502 is a wobbler that can be charged as either a felony or a
misdemeanor under California law.
Because Turner cites nothing
to say that a statute that can be punished as either a felony or

a misdemeanor fails to serve as a felony prerequisite for Section
1028(a)(7), his claim fails plain error review.
In any case,
[u]nder California law, a wobbler is presumptively a felony

and remains a felony except when the discretion [of the trial
court] is actually exercised to make the crime a misdemeanor.
United States v. Salazar-Mojica, 634 F.3d 1070, 1073 (9th Cir.
2011) (quoting Ewing v. California, 538 U.S. 11, 16 (2003) and
People v. Williams, 163 P.2d 692, 696 (Cal. 1945)).
In short,
Wrights violation of CPC 502 had to be viewed as a felony unless

and until a state trial court exercised discretion to convert it
into a misdemeanor.
Since no state trial court did so, it
remained a felony.513
513
Application of this rule makes special sense where the

felony status under state law triggers federal consequences. In
general, a host of conduct can be punished as either a felony or
a misdemeanor. Murderous conduct can, after all, be prosecuted
as misdemeanor assault -- that does not mean that an act
qualifying as murder under state law cannot be a predicate felony
under Section 1028(a)(7). The key point is that the act can be
punished as a felony -- that is what allows Congress to know that
it is a crime of the requisite seriousness to justify a federal
prosecution when coupled with a federal jurisdictional element.
Defendants contrary argument, that no wobbler can count as a
felony for federal purposes, would lead to absurd results. For
instance, 42 U.S.C. 3716(a)(1)(B) allows the Attorney General
to assist state law enforcement in the investigation of any
(continued...)
720
Turner next claims (TOB 36) Section 502 could not be a basis
of federal criminal liability because the statute of limitations
had already run for California to prosecute him on the charge.
This plain-error claim is doomed by his failure to cite authority
saying that Californias statute of limitations governs the
federal prosecution.
Even reviewed de novo, his claim would fail
under the Supremacy Clause, since it is Congress that sets the

statute of limitations for federal crimes, and Turner does not
claim that this case violated any federal statute of limitations.
Turners last-ditch claim (TOB 37) that CPC 502 is void for
vagueness (or would be unless his strictures apply) cannot
prevail on plain error review, since no existing case declares it
so or leads ineluctably to that result.
CPC 502 does not plainly
fail to define the conduct it prohibits with sufficient

dfiniteness and . . . establish minimal guidelines to govern law
enforcement.
Cir. 2005).
United States v. Wyatt, 408 F.3d 1257, 1260 (9th
In any case, Turners claim is waived because it is
not adequately argued: Turner never explains why the statute is

vague; his real complaint is that it sweeps more broadly than he
would like..
Turner does not argue -- or exceptionally briefly argues
(TOB 26, 30) -- that an infirmity in either the CFAA instruction
513
(...continued)
violent hate crime that constitutes a felony under state law.
Defendants principle would mean the Attorney General could not
assist California in the investigation of hate-crime wobblers.
721
or the CPC 502 instructions would require reversal of the pendant

counts even if the instructions on the other associated offense
were valid.
To the extent the argument is made, it is waived for
being inadequately detailed.
To the extent it is not waived, it
is wrong.
At most, Turner asserts simply that instructions that
allow[] a jury to convict . . . based on a legally invalid
theory and on legally insufficient evidence are prejudicial and
require reversal for plain error.
Not so.
(TOB 26-27).
If this Court rules that the Section 1030
instructions were not plain error, then there will be a valid and
conclusive jury finding that Turner and Pellicano intended to aid
and abet the CFAA violation.
Because the Section 1030 conduct
and CPC 502 conduct is exactly the same, there thus will be no
possibility that the jury convicted defendants based on the CPC
502 conduct alone -- making any infirmity in the CPC 502
instructions irrelevant.
Where jury instructions gave the jury
two routes to conviction -- one via proper instructions and one

via improper ones -- reversal is not required if it is not open
to reasonable doubt that a reasonable jury would have convicted
the defendant on the valid theory.
(citation omitted).514
Pelisamen, 641 F.3d at 406
Conversely, if the instructions were plain
514
Insofar as some of Turners arguments address

sufficiency-of-evidence rather than instructional error, the
existence of any evidentiarily sufficient count suffices to
protect the overall verdict. See Griffin v. United States, 502
(continued...)
722
error for Section 1030 but not for CPC 502, the identity theft,
RICO, and RICO Conspiracy convictions still survive, because it
would not be open to reasonable doubt that the acts at issue
satisfied CPC 502 and thus support the pendant convictions.
*
For the reasons above, Turners, Arnesons, and Pellicanos

challenges to their CFAA, Identity Theft, RICO, and RICO
Conspiracy convictions should be rejected.
3.
Kachikians Challenges to the Wiretapping

Instructions Fail
Kachikian raises a variety of challenges to the jury

instructions on wiretapping, claiming that the trial court
wrongfully rejected his proposed good-faith instruction,
understated the mens rea element for his crimes, and erred by not
sua sponte instructing that single-consenting-party recording is
not wiretapping.
Kachikians claims some preserved, some not
all fail on the merits.

a.
Trial Evidence
Kachikian maintained he was unaware of Pellicanos illegal

use of his software and hardware.
But convincing evidence showed
that Kachikian who received over $370,000 from Pellicano from
514
(...continued)
U.S. 46, 56-57 (1991) ([W]hen a jury returns a guilty verdict
on an indictment charging several acts in the conjunctive, . . .
the verdict stands if the evidence is sufficient with respect to
any one of the acts charged.).
723
1998 to 2001 (Ex. 904 (summary); GEX 2971-73); 4/24/08 (P.M.) RT

22-23; GERT 7016-17) was a knowing participant in Pellicanos
scheme.
Former Pellicano employee Tarita Virtue testified that the
Telesleuth Player program, which she used to listen to and
transcribe wiretapped calls, was created and maintained by
Kachikian at Pellicanos direction.
(3/7/08 (P.M.) RT 128, 136;
3/11/08 (P.M.) RT 75, 129, 137; 3/12/08 (A.M.) 69; 3/13/08 (P.M.)
RT 38; GERT 956, 965, 1186, 1240, 1248, 1342, 1685).
As part of
Kachikians troubleshooting duties, he met with Virtue to work on

the program while she was actively listening to wiretapped
conversations.
(3/7/08 (P.M.) RT 137; GERT 966).
The
instructions for building or assembling the Telesleuth recording

software and the Telesleuth Player instructed users to call
Kachikian with any problems.
(Ex. 801; GEX 2920-25).
Other former employees testified that Kachikian worked in

the war room, where Pellicano kept computers plugged into phone
lines for wiretapping.
(3/28/08 (P.M.) RT 93-94; 4/3/08 (A.M.)
RT 22-26; GERT 3430-31, 3994-98).
The computers in the war room
were each connected to a separate phone line through a separate

small box, that was either black or metallic.
RT 24-26; GERT 3996-98).
(4/3/08 (A.M.)
The boxes were assembled from
components that had been ordered by Kachikian and Pellicano from

out-of-state companies.
(4/3/08 (A.M.) RT 29-36; 4/24/08 (P.M.)
724
RT 8-12; GERT 4001-08, 7002-06).
(In his grand jury testimony,
Kachikian admitted to building [w]ay more than ten of the

black boxes used to process phone signals for input into those
computers.
(3/25/08 (P.M.) RT 121; GERT 2957).
But in his trial
testimony, attempting to minimize his involvement, Kachikian said

he built just three to four.
7005-06)).
(4/24/08 (P.M.) RT 11-12; GERT
Wayne Reynolds, Pellicanos former chief laboratory
technician, testified that the boxes were appropriate to use in

listening in on phone conversations, but would not be appropriate
for the forensic audio restoration work that Pellicano did
separately.
(4/3/08 (A.M.) RT 19, 34-36; GERT 3991, 4006-08).
Reynolds also gave other evidence of Kachikians knowing

involvement with Pellicanos illegal use of Telesleuth,
Kachikians program [f]or the recording of phone . . .
conversations.
(4/3/08 (A.M.) RT 22-23; GERT 3994-95).
According to Reynolds, Kachikian knew about and said he was very

surprised that Pellicano allowed two clients into the war-room
to listen to wiretap recordings. (4/3/08 (A.M.) RT 41-42, 122;
GERT 4013-14, 4094).515
Reynolds also testified about waiting in
a car while Pellicano went into an apartment that had been rented
to support the wiretapping in the Maguire case.
RT 44-48; GERT 4016-20).
(4/3/08 (A.M.)
Pellicano had entered the apartment to
retrieve equipment that Reynolds recognized as identical to that

515
The clients, described as two Jewish brothers (id.),

were evidently the Nicherie brothers.
725
used in the war-room.
(4/3/08 (A.M.) RT 49-50; GERT 4021-22).
When driving away, Pellicano first called Kachikian to instruct

him to correct bugs within the software, then called Turner to
take . . . down the Maguire wiretap.
(4/3/08 (A.M.) RT 46-49;
4/3/08 (P.M.) RT 19-20; GERT 4018-21, 4140-41).

Evidence of Kachikians knowing wrongdoing also came from
the design of his program.
Kachikian had programed Telesleuth
with the ability to self-destruct and remove all evidence of its

operation if an unauthorized user stumbled upon it.
An expert
analyst testified that Kachikians program had certain selfdefense mechanisms.
(3/26/08 (A.M.) RT 52; GERT 3029).
If
incorrect key-presses or mouse commands were entered by a user

unfamiliar with the program, all of the audiorecordings and even
the Telesleuth program itself would be erased and overwritten
with random data, so that it would be unrecoverable in forensic
searches.
(3/26/08 (A.M.) RT 53-57; GERT 3030-34).
The program
was also programmed to self-destruct on restartup if it had been

shut-down prematurely for instance, if a power cord was pulled,
as is typical in law enforcement computer seizures.
(3/26/08
(A.M.) RT 57-60; GERT 3034-37).

Although Kachikian claimed that he expected Pellicano to
sell Telesleuth and the converter boxes to law enforcement, that
claim was undercut at trial.
Former Pellicano employee
LeMasters, who was in charge of Pellicanos appointments and
726
scheduling, was unaware of any meetings to demonstrate Telesleuth

to law enforcement.
(3/18/08 (P.M.) RT 86-87; GERT 2224-25).
Nor did she see any sign of any such sales presentations or of
marketing literature.
(Id.)
Virtue, during her two years of
employment, likewise learned of no sales presentations, marketing

efforts, or materials directed to law enforcement.
(3/11/08
(P.M.) RT 147-48, 154 (never in my time working there did they

ever . . . discuss who they were going to sell it to as being law
enforcement.
That never, ever occurred.); 3/13/08 (P.M.) RT 36-
37); GERT 1258-59, 1265, 1683-84.
While Virtue knew of one
possible sale of a scaled-down version, that sale was not to a

law enforcement organization.
1258-60).516
(3/11/08 (P.M.) RT 147-49; GERT
Although Kachikian called as a witness a former
prosecutor who had dealt with Pellicano in Pellicanos forensic

audio restoration business, that witness denied that Pellicano
had ever discussed selling wiretapping equipment with him.
(4/23/08 (P.M.) RT 93, 98-99; GERT 6812, 6817-18).
In fact, Kachikians purported evidence of efforts to sell
to law enforcement was not only suspect, but also so sporadic as
516
Virtue also testified as to exactly one conversation

where the question of selling Telesleuth to law enforcement came
up; when she expressed concern over the products glitches,
Kachikian and Pellicano made clear that any sold versions of the
product would be inferior to those Pellicano retained for his own
use: they said that we would be the only ones with the most
updated software. (3/7/08 (P.M.) RT 138; GERT 967). In later
testimony, Virtue was unable to be certain whether this
conversation pertained to Telesleuth wiretapping software or to
the Forensic Audio Sleuth sound-processing software. (3/12/08
(A.M.) RT 61-62; GERT 1334-35).
727
to undercut any claim that law enforcement was intended as a

primary user of the products.
Former Pellicano employee Ricardo
Cestero, called by Kachikian, recalled only two sales pitches

one to the Ventura County Sheriffs Office, and the other to the
Orange County Sheriffs Office.
GERT 6501, 6519-21).
(4/22/08 (P.M.) RT 60, 78-80;
Both would have occurred in 1995 or 1996,
the only years Cestero worked at PIA.
(Id.)
Tellingly, although
Cestero testified about working on a sales brochure for

Pellicano, that brochure promoted only the audioprocessing
capabilities of Forensic Audio Lab, (4/22/08 (P.M.) RT 68, 88-89;
GERT 6509, 6529-30), not the wiretapping capabilities that
Kachikian had worked on. (4/22/08 (P.M.) RT 84-85; GERT 6525-26).
Kachikian testified in his own defense.
But when he was cross-
examined, he admitted that he knew of no law enforcement

purchaser (or for that matter, non-law enforcement purchaser) of
Pellicanos wiretapping software, during Kachikians seven years
working on the product.
(4/24/08 (P.M.) RT 47-48; GERT 7041-42).
Kachikian also admitted that certain features that he built into

Telesleuth in particular, the non-circumventable password
requirements would seem to make the program impractical for law
enforcement agencies who need to have more than one agent able to
access recordings.
(4/24/08 (P.M.) RT 60-62; GERT 7054-56).
Kachikians testimony was further undercut by other points

developed on cross examination.
The jury learned of Kachikians
728
evasiveness in his early interviews and grand jury testimony.

(4/24/08 (A.M.) RT 90-97; 4/24/08 (P.M.) RT 27; GERT 6964-71,
7021).
They learned that, after Pellicanos arrest, Kachikian
sent an email saying that I expect to be called on to the stand,

and I need to be able to testify that I dont remember much about
what was done.
(4/24/08 (A.M.) RT 98; GERT 6972).
And the jury
learned that, after Pellicanos arrest, Kachikian had permanently

deleted from his computer all of Pellicanos computer programs,
and physically destroyed the backup disk.
(4/24/08 (A.M.) RT 99-
100, 108-11; GERT 6973-74, 6982-85).

b.
The Statute and Jury Instructions
Section 2511(1)(a) & (d) punish any person who:

(a) intentionally intercepts, endeavors to
intercept, or procures any other person to intercept or
endeavor to intercept, any wire, oral, or electronic
communication; [or]
* * *
(d) intentionally uses, or endeavors to use,
the contents of any wire, oral, or electronic
communication, knowing or having reason to know that
the information was obtained through the interception
of a wire, oral, or electronic communication in
violation of this subsection.
Section 2512(1)(b) punishes any person who intentionally:
manufactures, assembles, possesses, or sells 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, and that such device or any component
thereof has been or will be sent through the mail or
transported in interstate or foreign commerce.
729
A special proviso in Section 2512(2)(b), however, provides

that it shall not be unlawful under this section for a person
to manufacture, possesses, ship or sell such a device where the
person is an officer, agent, or employee of, or a person under
contract with, the United States, a State, or a political
subdivision thereof, in the normal course of the activities of
the United States, a State, or a political subdivision thereof.
Kachikian submitted a proposed jury instruction on
mistake of fact regarding Pellicanos intent to market to law
enforcement.
(JER 244).
Kachikians proposal would have
instructed:
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
the Conspiracy, Wiretapping, and Possession of
Wiretapping Device counts] because Mr. Kachikian would
not possess the requisite knowledge and intent to
be convicted of these offenses.
(Id.)
Aside from this good-faith instruction, Kachikian did not
propose any specific definition of the word intent or

intentional.
(JER 243-44).
He did not object to the district
courts mens rea instruction, or any other aspect of the

instructions.
The district court, in a written order, denied Kachikians
request on two grounds.
With respect to the Section 2511
charges, the court found Kachikians proffered instruction
730
superfluous, because [m]istake of fact does not appear to be

separate from the intent element of the crimes that the
government must prove beyond a reasonable doubt.
(JER 304).
As
the district court found, If Kachikian did not know or

understand that individuals were being wiretapped and had no plan
or intent to wiretap or agree to wiretap, then he would not have
the intent necessary to be found guilty of those counts.
(Id.)
With respect to the Section 2512 count, the district court found
Kachikians proposed instruction contrary to the statute,
because, under section 2512(2)(b), the mere hope for a
governmental customer for wiretapping equipment was not
sufficient an actual contract with a governmental agency is
required to escape liability.
(Id.)
The Courts instruction on the Section 2511 counts

(Instruction No. 60) therefore required the government to prove
two elements:
First, the defendant intercepted, endeavored to
intercept or procured another person to intercept or
endeavor to intercept a wire, oral or electronic
communication; and
Second, the defendant acted intentionally, that
is, purposefully and deliberately and not as a result
of an accident or mistake.
(C.R. 1606, at 75; GER ***).
The courts instructions on the
Section 2512 count (Instruction No. 63), required the government

to prove the following elements beyond a reasonable doubt:
731
First, the defendant manufactured, assembled,

possessed, or sold an electronic, mechanical, or other
device;
Second, the defendant knew or had reason to
know that the design of such device rendered it
primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic
communications; and
Third, the defendant knew or had reason to know
that such device or any component thereof had been or
would be sent through the mail or transported in
interstate or foreign commerce.
(C.R. 1606, at 78; GER ***).
c.
The District Court Committed No Error In

Refusing Kachikians Flawed Instruction
This Court reviews de novo whether the jury instructions

accurately define the elements of a statutory offense and whether
the jury instructions adequately cover a defendants proffered
defense.
2000).
United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.
However, the district courts ultimate formulation of
the instructions is reviewed for abuse of discretion.
Id.
The trial court has substantial latitude so long as its

instructions fairly and adequately cover the issues presented.
Id.
In all events, a defendant is not entitled to an
instruction that misstates the law.
United States v. George,
420 F.3d 991, 1000 (9th Cir. 2005).

(1)
The District Court Correctly Refused

Kachikians Legally Erroneous Instruction
Kachikian complains (KOB 24-33) about the district courts

refusal to give his proposed good-faith instruction.
Because
Kachikians proffered instruction substantially misstated the law

732
and because any legally permissible portions of the proposal

were already incorporated into the district courts instructions
on the elements the district court did not abuse its discretion
by refusing to give it.
Kachikians proposal termed it a complete defense if
Kachikian had any belief that Pellicano had any intent to market
any wiretapping devices to law enforcement.
(JER 244).
Such an
instruction would have contradicted the statute in two ways.

First, by making any belief in Pellicanos intent to market
to law-enforcement a complete defense to all the wiretapping
counts, the instruction was grossly overbroad even on Kachikians
interpretation of the law.
If Kachikian had believed that
Pellicano intended to sell some of the devices to law

enforcement, that could not legally insulate him from liability
on the conspiracy and wiretapping counts if he also knowingly and
intentionally aided Pellicano in Pellicanos illegal wiretaps.
To state the contrary, as Kachikians proposal did, would be akin
to saying that a getaway car driver cannot be liable where his
intent in driving was both to help the bank robber flee the scene
and to pick up groceries on the way home.
Second, with respect to the Section 2512 offense,
Kachikians proffered instruction far exceeded the express
statutory carve-out for sales to law-enforcement.
Section
2512(2)(b) makes it permissible for a person under contract
733
with, the United States, a State, or a political subdivision

thereof to possess and deal in wiretapping equipment.
As the
district court found, that provision, by its plain language,

applies to only those who are actually under contract with a
governmental agency not to those merely hoping for a contract.
(JER 303).
The section forbids speculative development of a
wiretapping device in the hopes of selling to law enforcement,

as Kachikian claimed he had done.
(Id.)
The express mention of
those under actual contract, and the omission of those

anticipating or believing in a contract, leads to the conclusion
that Congress did not intend mistaken belief in a possible
contract to be a defense.
See United States v. Gamboa-Cardenas,
508 F.3d 491, 497 (9th Cir. 2007) (The doctrine of expressio
unius est exclusio alterius as applied to statutory
interpretation creates a presumption that when a statute
designates certain persons, things, or manners of operation, all
omissions should be understood as exclusions.).
Moreover,
Kachikians instruction would have improperly converted an

affirmative defense on which he bore the burden into a matter for
the government to disprove.
See United States v. Pearson, 274
F.3d 1225, 1232 (9th Cir. 2001) (When a statutory prohibition is

broad and a defendant seeks to apply a narrow exception to the
prohibition, it is more likely than not that the exception is an
affirmative defense.); Dixon v. United States, 548 U.S. 1, 13-14
734
(2006) (where Congress has enacted an affirmative defense in the

proviso of a statute, the settled rule is that it is
incumbent on one who relies on such an exception to set it up and
establish it.).517
Indeed, Kachikians proposed instruction went far beyond
what even a true mistake-of-fact instruction would have provided
for this exception.
Kachikians proposal would not merely have
required acquittal if he mistakenly believed Pellicano had a

contract to sell his devices to governmental agencies.
Rather,
Kachikians proposal would required acquittal if Kachikian

believed Pellicano had any intent however farfetched or
speculative to attempt to market even a single copy of
Telesleuth to law enforcement, even if Kachikian knew the
marketing efforts would be unsuccessful and knew that Pellicanos
purpose for most of the devices was nefarious.
There is good reason why Congress did not enact such an
overbroad safe-harbor.
Determining whether a wiretapping device
517
Kachikians wording of his proposed instruction was also

improper. [A] district court may refuse an instruction if its
language gives undue emphasis to defendants version of the facts
. . . or if it would tend to influence the jury toward accepting
the defendant's version of the facts. United States v. Keiser,
57 F.3d 847, 851 (9th Cir. 1995). Here, Kachikians wording
began by stating 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 (JER 244 (emphasis
added)). By beginning with the word that instead of if, and
by using the word is rather than would be, Kachikians
instruction gave undue emphasis to his version of the facts and
risked improperly influencing the jury. The court therefore had
discretion to refuse the instruction under Keiser.
735
manufacturer has an actual contract with a governmental entity is

simple; determining whether the manufacturer hoped to market to a
governmental entity, whether that prospect was reasonable or
speculative, and what proportion of the devices those efforts
might cover, would create endless confusion.
Similarly, where
the manufacturer has an actual contract to provide eavesdropping

equipment to a governmental entity, there is reasonable assurance
that the eavesdropping devices will be given to that entity and
not diverted to illegal use.
In contrast, where there is only a
speculative hope of selling to a governmental entity, there is a

substantial danger that the devices will be diverted to illegal
use if the governmental sales do not pan out.
Congress thus
acted reasonably in requiring an actual contract to qualify for

the Section (2)(b) safe harbor.
Because Kachikians proffered instructions were legally
incorrect, the district court was right to refuse them.
While a
defendant is entitled to an instruction that adequately addresses

his theory of defense, he is not entitled to an instruction that
misstates the law.
George, 420 F.3d at 1000; see also Febres v.
Challenger, 214 F.3d 57, 63 (1st Cir. 2000) (It is hornbook law
that a trial court does not commit error when it instructs
generally about a legal principle and then declines a partys
request for a further instruction that is misleading, legally
incorrect, or incomplete).
Moreover, because Kachikian did not
736
(and does not) maintain that he or Pellicano had an actual

contract to sell to law enforcement, the factual basis for a
Section 2512(2)(b) instruction was not met, and Kachikian was not
entitled to any instruction under that section.
To the extent Kachikians proffered instruction contained
any legally permissible content, the district court was correct
to find that the substance was already incorporated into the
Section 2511 instruction, through the element requiring proof
that the defendant acted intentionally, that is, purposefully
and deliberately and not as a result of an accident or mistake.
(C.R. 1606, at 75; GER ***).
A defendant is not entitled to any
particular form of instruction, nor is he entitled to an

instruction that merely duplicates what the jury has already been
told.
United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th
Cir. 1992); see also United States v. Warren, 25 F.3d 890, 895-96
(9th Cir. 1994) (A court may reject portions of a proposed
theory of defense that merely rephrase explanations of the law
adequately covered elsewhere in the instructions.); United
States v. Heredia, 483 F.3d 913, 920-21 (9th Cir. 2007)
(discussing courts broad discretion on whether to grant
defendants request for supplemental instruction tailor[ed] .
. . to the particular facts of the case).
Because any
permissible portions of Kachikians proffered instruction were

already incorporated into the courts instructions, no additional
737
instruction was required.
See United States v. Duran, 59 F.3d
938, 941 (9th Cir. 1995) (It is not reversible error . . . to

reject a defendants proposed instruction on his theory of the
case if other instructions, in their entirety, adequately cover
that defense theory.).518
(2)
Kachikians Other Arguments on Mens Rea

Are Reviewed for Plain Error, and Fail
Kachikian also complains (KOB 5-23) that the district

courts instructions understated the mental state required for
violations of Sections 2511 and 2512.
Kachikian claims, in
short, that sections 2511 and 2512 require proof of the

defendants specific intent to violate the law.
(KOB 17).
Because the district courts instructions on intent instead used
518
Kachikian mischaracterizes the district court as having

denied him the opportunity to present his theory of defense
instruction. (KOB 10). But Kachikians proposed instruction
does not read like a theory-of-defense instruction. As the
leading treatises example makes clear, a theory of defense
instruction, classically, explains that Defendant ____ . . .
contends that [he] . . . is not guilty of the crime charged
because (detail law or alleged facts). 1A OMalley, Grenig &
Lee, Federal Jury Practice & Instructions 19:01, at 701 (6th
ed. 2008) (emphasis added). That is, a true theory-of-defense
instruction (unlike Kachikians proposal) makes plain that the
theory being advanced is the defendant's not the courts.
Because Kachikian's proposal did the opposite, his arguments
under the theory-of-the-case rubric are inapposite. In any case,
even if Kachikians proposal was a theory-of-defense instruction,
it was properly denied because of its misstatements of law and
because it was without factual basis. See United States v.
Blixt, 548 F.3d 882, 889 (9th Cir. 2008) (court did not abuse
its discretion in declining to give theory-of-case instruction
that was not grounded in the law[] and was not supported by the
evidence).
738
general intent language, Kachikian claims, the instructions were

defective.
Although Kachikian tries to portray his appeal of the mens
rea instruction as a preserved issue (KOB 10), that is incorrect.
At trial, Kachikians submissions never requested an instruction
that would have required him to know he was violating the law.
(C.R. 1344, at 1-3; C.R. 1371 (requesting mere-presence
instruction); JER 243-44; JER 3435-45).
His proposed mistake-of-
fact instruction did not cover the issue.
(JER 244).
When
discussing specific-intent in his written submissions, Kachikian

raised it only with respect to conspiracy (where specific intent
has a special meaning).519
(C.R. 1339, at 4-5).520
And in his
oral objections, Kashikians only mention of specific intent

was aimed at getting a mistake of fact instruction (4/17/08 RT
(Jury Instr. Part I) 74-78; GERT 5919-23) not an instruction on
mistake-of-law, as would have made sense if he was arguing that a
conviction required knowledge of illegality.
519
The specific intent in a conspiracy is the intent to

commit the substantive crime. United States v. Montgomery, 384
F.3d 1050, 1062 (9th Cir. 2004). That does not mean that the
government must prove the conspirators knew their actions were
illegal. See id. (finding conspiracy where conspirators agreed
to conceal rental income from owners; making no mention of need
to show they knew it was illegal).
520
With respect to Section 2512, Kachikian mentioned out-ofcircuit cases requiring proof that a defendant had knowledge of
the illegality of the conduct. (C.R. 1339, at 9). But he
never requested such an instruction or stated that such an
instruction was required; his proposed instructions made no
mention of such a requirement; and he never even argued that
similar concerns applied to Section 2511.
739
Rule 30 prohibits a party from assigning error unless that

party objects . . . stating distinctly the matter to which that
party objects and the grounds of that objection.
United States
v. Elias, 269 F.3d 1003, 1017 (9th Cir. 2001) (emphasis in

original).
Kachikians objections, which stated specific intent
as an element of conspiracy but of nothing else, and which

mentioned cases involving specific intent but did not ask for any
instruction apart from his defective proposed good faith
instruction, did not distinctly raise the issue he now presents.
As a result, his mens rea appeal is reviewed for plain error.
Reviewed for plain error, the claim fails.
Section 2511
punishes one who intentionally intercepts, endeavors to

intercept, or procures any other person to intercept . . . any
wire, oral, or electronic communication.
2511(1)(a).
18 U.S.C.
The statute thus provides the mens rea the
act must be done intentionally.

This Court has not interpreted the meaning of
intentionally under Section 2511.
The Second Circuit has,
however, recommending that courts instructing on Section 2511

define intentionally as meaning that the defendant acted
deliberately and purposefully; that is, defendants act must have
been the product of defendants conscious objective rather than
the product of a mistake or an accident.
United States v.
Townsend, 987 F.2d 927, 930 (2d Cir. 1993).
740
At least three other
circuits have likewise rejected arguments that conviction under

Section 2511 requires proof the defendant knew his actions were
illegal.
United States v. Dossey, 66 Fed. Appx. 528, 532 (6th
Cir. 2003) (rejecting defendants claim that he could not be

convicted under Section 2511 where he was unaware that he was
committing an illegal act); Peavy v. WFAA-TV, Inc., 221 F.3d
158, 179 (5th Cir. 2000) (rejecting an ignorance or mistake of
law defense under Section 2511(1)(c), (d)); Williams v. Poulos,
11 F.3d 271, 285 (1st Cir. 1993) (no good faith defense for
mistaken belief that there exists a statutory authorization for
wiretapping).
The one model jury instruction on the statute
known to the government agrees that there is no requirement that

the defendant knew his conduct was illegal.521
Given this strong
authority rejecting Kachikians claim, there was no error and

certainly no plain error in the courts instruction.
Kachikians argument is not helped by his discussion (KOB
10-14) of cases interpreting the pre-1986 version of the statute,
which used the term willfully instead of intentionally.
Although Kachikian largely buries (KOB 11) his discussion of this
Courts decision in United States v. McIntyre, 582 F.2d 1221 (9th
Cir. 1978), that case confirms the governments interpretation of
521
See Eric Ruschky, Pattern Jury Instructions for Federal

Criminal Cases: District of South Carolina 494 (2011) (for
Section 2511, Intentionally means that the defendant acted
deliberately and purposefully; that is, the defendants act must
have been the product of the defendants conscious objective
rather than the product of a mistake or an accident (following
Townsend)).
741
the statute.
McIntyre interpreted the prior version of Section
2511(1)(a), which contained the mens rea requirement of

willfulness.
McIntyre, 582 F.2d at 1224.
The defendants in
McIntyre argued essentially what Kachikian argues here that

their action was not willful because they believed in good
faith that their conduct was legitimate.
Id.
McIntyre rejected
the argument, because such a defense amounts only to a defense

of ignorance of the law, which this and other courts have
pointed out . . . is no defense.
Id.; see also id. at 1224-25
(approvingly citing United States v. Schilleci, 545 F.2d 519 (5th

Cir. 1977) for proposition that a mistaken belief that the
eavesdropping was legal is no defense).
As McIntyre put it, the
jurys job is not to determine whether the defendant thought his

conduct was legal.
Id.522
McIntyre shows that the district
courts interpretation of the current statute not only was not

plain error, but was not error at all.523
Because this Circuits interpretation of the pre-1986
statute expressly rejected the interpretation Kachikian now
522
Because McIntyre interpreted the prior version of the

statute definitively within the Ninth Circuit, Kachikian's
reliance (KOB 11-12) on out-of circuit cases interpreting the
prior statute, such as Malouche v. JH Management Co., Inc., 839
F.2d 1024 (4th Cir. 1988), is misplaced. Other circuits cases
construing the prior version of the statute can hardly be more
authoritative for this Court than this Courts binding precedent.
523
Interpreting the pre-1986 statute, McIntyre also held that
willfulness required a showing of bad purpose' or evil
motive. 582 F.2d at 1225. Because Kachikian did not in the
trial court and does not now argue that he should have received
an instruction requiring bad purpose or evil motive, that portion
of McIntyre is not at issue.
742
urges, and because Kachikians contention has been rejected with

respect to the current statute by several other circuits, it
cannot have been plain at the time of trial that Kachikian was
entitled to an instruction defining intentionally as requiring
the intent to violate the law (KOB 17).
Kachikians claim thus
fails plain error review.524

Even if de novo review applied, Kachikians claim would
fail.
Kachikian provides no good reason why this Court should
overrule its interpretation of the prior statute in McIntyre,

diverge from the Second Circuits decision in Townsend, and
create a needless circuit split.
524
Kachikian is correct to note (KOB 21-22) that the district

court omitted to mention the intent requirement in its Section
2512 instruction an omission to which Kachikian did not object.
On plain error review, the error is not reversible, because
Kachikian cannot meet his burden to show prejudice. The word
intentionally in Section 2512 modifies the verbs manufactures,
assembles, possesses, or sells. Neither the evidence nor
Kachikians arguments ever cast doubt on the fact that he had
intentionally assembled and possessed the items at issue. (He
did not, for instance, claim that he had picked up a bag of
wiretapping equipment without knowing the contents.) Rather, his
defense was that he made and possessed the items without knowing
Pellicanos purpose for them. Moreover, the district court
correctly instructed the jury as to the element requiring proof
that Kachikian knew or had reason to know that the design of
[the] device rendered it primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic
communications (C.R. 1606, at 78; GER ***) an element the jury
could not logically have found without also finding that
Kachikians possession of the item was intentional. Plain error
reversal for the omitted element would be inappropriate, because
the omission was harmless and did not seriously affect the
reputation, fairness, or integrity of the proceedings. See
Johnson v. United States, 520 U.S. 461, 469-70 (1997); United
States v. Keys, 133 F.3d 1282, 1287 (9th Cir. 1998).
743
Kachikians reliance on the legislative history of the 1986

amendments is unavailing.
The Senate Report on the 1986
amendments makes clear that the use of the word intentionally

was meant to underscore that the inadvertent reception of a
protected communication is not a crime.
(1986).
Sen. Rep. 99-541, at 6
The wording addressed a specific concern about radio
scanners that in the course of scanning radio frequencies in

order to receive public communications . . . could inadvertently
tune through a protected communication.
Id.
As a result, the
reports section discussing [s]tate of mind explains that

[t]he word intentional describes the mental attitude
associated with an act that is being done on purpose, but does
not require that the act was committed for a particular evil
purpose.
Id. at 24. In short, the Senate Report makes
Kachikians interpretation less likely.525

Defendants other arguments likewise fall short.
This
Courts decision in United States v. Flores, 753 F.2d 1499 (9th

Cir. 1985) (en banc) did occur a year before the 1986 amendments,
as Kachikian says (KOB 15).
But Flores interpreted a wholly
unrelated statute, and there is no evidence that Congress was
525
Kachikian is wrong to state that the 1986 wording change

from willfully to intentionally was intended to increase the
mens rea required. To the contrary, Congress evidently
considered the two words simply interchangeable. See H.R. Rep.
99-647, at 48 (1986) (advocating retention of the term willful,
but saying it has the same meaning as the term intentional).
744
aware of Flores or chose language in the 1986 amendments because

of it.526
Finally, Kachikians reliance on Liparota v. United States,
471 U.S. 419 (1985) (cited at KOB 15-16), is misplaced.
Liparota
concerned a statute making it a crime to knowingly use[],

transfer[], acquire[], alter[], or possess[] [federal food
stamps] in any manner not authorized by [the statute] or the
regulations.
Id. at 421 n.1.
The Court held that, for that
statute to be violated, there had to be proof the defendant knew

his conduct to be unauthorized by statute or regulations.
at 425.
Id.
The Court arrived at this result in part because the
statutory and regulatory requirements for handling foodstamps

were complex and broad, covering a broad range of conduct that
would appear innocent to one unfamiliar with the regulations.
Id. at 426; see, e.g., id. (noting regulation barring use of food
stamps to purchase food at other than prevailing prices).
such concern appears here.
No
Unlike purchasing food at a discount,
wiretapping phones is inherently suspect enough to put potential

offenders on notice of the need to conform their conduct to legal
norms.
526
Moreover, even as a general comment on interpreting

statutory mens rea, Flores does not say that words such as
"intent" and "willfully" are sufficient to make a specific intent
crime. Rather, Flores, which held that the use of the word
"knowingly" in a statute did not require "specific intent to
violate the statute," id. at 1505, implied at most that Congress'
use of the words intentionally or willfully were necessary
prerequisites for a crime to be one of specific intent.
745
Moreover, this Court has carefully circumscribed Liparota,

making plain that Liparota does not state a general rule
requiring knowledge of illegality for convictions under other
statutes.
This Court discussed Liparota in detail in United
States v. Moncini, 882 F.2d 401, 405 (9th Cir. 1989).
Moncini
observed that Liparota construed the mens rea term knowingly in

a statute that made it a crime to knowingly . . . acquire[]
[food stamps] . . . in any manner not authorized by [law].
at 405.
Id.
Moncini reasoned that Liparotas holding thus depended
on the existence of a genuine problem of grammatical scope: the

adverb knowingly . . . could conceivably modify acquire
alone, or acquire in conjunction with in any manner not
authorized.
Id.
By contrast, construing a statute
containing no reference to illegality . . . which the word

knowingly could be similarly construed to modify, Moncini held
that Liparotas reasoning was inapplicable.
Id.
Moncinis reasoning controls here, and bars defendants

attempt to use Liparota.
Section 2511(1)(a) penalizes anyone who
intentionally intercepts, endeavors to intercept, or procures

any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communications.
18 U.S.C. 2511(1)(a).
There is no reference to violations of other statutes or
746
regulations which the word intentionally could be held to

modify.
Under Moncini, Liparota is thus inapplicable.527
Finally, Kachikians attempt to require proof that he knew

his actions were illegal violates a basic precept of criminal
law.
Just as ignorance of the law or a mistake of law is no
defense to criminal prosecution, knowledge of the law is almost

never an element of a crime.
United States v. Torres-Flores,
502 F.3d 885, 888 n.4 (9th Cir,. 2007).528
In short, even
reviewed de novo, this Court must reject Kachikians claim.

Kachikians further attacks on the Section 2512 instructions
also fail.
Kachikian (KOB 27-29) raises a new argument not
raised in the district court that the term intentionally in

Section 2512 applies not only to the verbs following it
(manufacturers, assembles, possesses, or sells) but also to the
objects of those verbs (any electronic, mechanical, or other
device).
Then, noting that the definition of electronic,
mechanical, or other device in Section 2510(5) contains an

exception for equipment being used . . . by an investigative or
527
There is also no merit to Kachikians appeal to the rule

of lenity. (KOB 19). [T]he rule of lenity only applies if,
after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute,
such that the Court must simply guess as to what Congress
intended. Barber v. Thomas, 130 S. Ct 2499, 2508-09 (2010)
(citation omitted). In light of this Courts prior opinion in
McIntyre, and the Second and Sixth Circuits interpretations in
Townsend and Dossey, this Court can do far more than just guess
at Congress interpretation.
528
For that reason, there is no merit to Kachikians
complaint (KOB 21) about the courts general instruction
regarding the inapplicability of mistake-of-law defenses.
747
law enforcement officer in the ordinary course of his duties, 18

U.S.C. 2510(5)(a)(ii), Kachikian apparently argues that his
proposed mistake-of-law instruction was required, because the
jury should not have been able to convict him without finding
that he did not intend for law enforcement to possess the device.
The argument fails, because of the verb-tense in the Section
2510(5)(a)(ii) exception.
The exception applies to devices that
are being used by . . . [a] law enforcement officer (emphasis

added).
It does not, therefore, apply to hoped-for future use.529
Since Kachikian never presented evidence or argument that he

thought the devices he made were being used at the time by law
enforcement, he did not supply a factual basis for further
instruction.
Any omission therefore was not erroneous, and could
not have been prejudicial.
Moreover, the specific safe-harbor
for governmental (including law-enforcement) use in Section

2512(2)(b) displaces the more general exception in Section
2510(5)(a)(ii).
See Morales v. TWA, Inc., 504 U.S. 374, 384
(1992) (it is a commonplace of statutory construction that the

specific governs the general).
not plain.
At the very least, any error was
And since Kachikian did not raise his current
argument which essentially asks for a definition of
529
Ignoring the verb tense would lead to truly absurd

results: a defendant could claim immunity from prosecution under
Sections 2511 or 2512 where he sold wiretapping equipment that
had formerly belonged to the police.
748
electronic, mechanical, or other device at the trial court,

plain error is the standard that governs.
Kachikian also argues (KOB 31) that the district court
misconstrued the word surreptitious in Section 2512, because
law-enforcement wiretaps, if legally authorized, cannot be
surreptitious.
But Kachikians argument would make the safe-
harbor in Section 2512(2)(b) a nullity.
Since this Court is
obliged to give effect, if possible, to every word Congress

used, Roth v. Reyes, 567 F.3d 1077, 1083 (9th Cir. 2009),
Kachikians argument must be rejected.
Moreover, Kachikians
argument that a recording cannot be surreptitious if it is

legally authorized contradicts the meaning this Court gave the
term in applying Section 2512 in United States v. Lande, 968 F.2d
907 (9th Cir. 1992).
In Lande, which involved equipment
manufactured to intercept and descramble satellite television

programming, this Court held that the surreptitious element was
met because the producers of satellite programming were unable to
detect the interception equipment.
Id. at 910.
See also United
States v. Bast, 495 F.2d 138, 143 (D.C. Cir. 1974) (The words
surreptitious interception connotes, in plain and ordinary
usage, secret listening.
The mere fact that a device may be
used for interceptions that do not violate 2511 does not mean
that its manufacture and advertising are compatible with 2512.
(footnote omitted)).
Kachikians wiretapping equipment lent
749
itself to similarly surreptitious interception of telephone calls

the equipment was designed not to let the callers know they
were being spied on making Kachikians arguments about
hypothetical future authority for hypothetical future law
enforcement uses entirely irrelevant.530
The district court was
therefore right to reject Kachikians argument. (JER 302-03).

Kachikians claimed Rule 30 violation (KOB 33-35) is a red
herring.
In his closing argument, Kachikian tried to argue that
a recording by law enforcement is never surreptitious, because

Title III requires law enforcement to give eventual notification
to the wiretapped person.
(4/30/08 (P.M.) RT 18; GERT 7874).
Kachikians argument that a law-enforcement wiretap is not

surreptitious was a misstatement of law that the district court
530
United States v. Biro, 143 F.3d 1421 (11th Cir. 1998)

(cited at KOB 31-32), is not to the contrary. Biro found the
statutory requirement for Section 2512 prosecution met where
defendant sold electronic surveillance devices disguised as
pens, calculators, and wall plugs. Id. at 1424. Although any
of these devices could conceivably have been used for entirely
authorized purposes for law enforcement, or as baby monitors,
or as novelty items with all parties aware of their function
the court in Biro did not require the government to exclude those
possible uses. That is because the question of whether something
is primarily useful for the purpose of . . . surreptitious
interception under Section 2512(1)(b) is answered not with
respect to the creators particular purpose for those items, but
rather with respect to the products objective characteristics.
Biro, 143 F.3d at 1427. As Biro notes, [t]he statute makes no
reference to the customers intended use of the product, id. at
1428, making Kachikians purported belief in Pellicanos
customers uses irrelevant. The district court therefore
properly ruled that questions about selling to law enforcement
must be handled not by stretching the meaning of surreptitious,
but rather by the express safe-harbor provision for contracts
with governmental entities under Section 2512(2)(b).
750
had foreclosed after extensive briefing and argument.531

decision was correct.
That
Indeed, the argument that a recording is
not surreptitious if the eavesdropped party eventually gets some

notification that she was listened-in-on is so farfetched that
Kachikian does not attempt to press it as a valid interpretation
of the statute on appeal.
Kachikians counsel flouted the
district courts ruling by making an improper argument that

government wiretaps could not be surreptitious because
[s]urreptitious is secret.
And the uncontested evidence in this
trial is that those who have their calls intercepted in a law

enforcement wiretap are notified at the end of the wiretap.
(4/30/08 (P.M.) RT 18; GERT 4874).
governments objection.
The Court sustained the
(4/30/08 (P.M.) RT 18-19; GERT 4874-75).
In considering the appropriate corrective action for the

defenses misstatement of law, the district court gave the
parties time to discuss potential approaches.
1) 12-15, 57-60; 5/1/08 RT (Sess. 2)
73, 8015-19.
5/1/08 RT (Sess.
26-30; GERT 7925-28, 7970-
In the end, the court gave a brief and innocuous
instruction that, with regard to Count 77, in determining the

meaning of surreptitious, it is not relevant that notification
of the interception may later be given.
31; GERT 8020).
(5/1/08 RT (Sess. 2)
The instruction did not undermin[e] defense
531
Kachikian had argued for a jury instruction on

surreptitious that would have effectively made all government
wiretaps non-surreptitious because government wiretaps are
authorized. (4/17/08 RT (Part A) 58-80; GERT 5903-25). The
district court rejected this instruction. (JER 302-03).
751
counsels credibility in the eyes of the jury as Kachikian

hyperbolically claims.
(KOB 35).
Indeed, the instruction never
mentioned Kachikian or his attorney by name, and did not portray

itself as a corrective to closing arguments.
Instead, the
district court included it simply as one of two instructions

that we didnt include in what I read to you earlier.
(5/1/08
RT (Sess. 2) 30; GERT 8019.)

Although Kachikian objected to the supplemental instruction,
he did so citing only the Due Process Clause not Rule 30.
(5/1/08 RT (Sess. 2) 29; GERT 8018).
therefore reviewed for plain error.
His Rule 30 argument is

And his argument fails,
because there was no error at all, let alone a plain one.

Rule 30 provides that, once a party has requested
instructions at the close of the evidence or . . . earlier,
Fed. R. Crim. P. 30(a), [t]he court must inform the parties
before closing arguments how it intends to rule on the requested
instructions, Fed. R. Crim. P. 30(b).
The rule does not
prescribe a particular time for the court to disclose its

decision on supplemental instructions responding to closing
arguments (i.e., after the close of evidence).
Under the rule,
therefore, the district court retains power . . . to add

instructions necessitated by the arguments.
advisory comm. notes (1987).
Fed. R. Crim. P. 30
When Kachikians attorney misstated
the law, the court was right to correct that misinformation.
752
See
United States v. Blixt, 548 F.3d 882, 889-90 (9th Cir. 2008) (the
district court did not err in properly instructing the jury on
the actual law regarding materiality after Blixts counsel
misstated what the government was required to prove).
The
alternative, which would leave the court and opposing counsel no

recourse when a lawyers argument misstated the law, would
effectively invite the jury to decide the case on improper
grounds.
See United States v. Pena, 897 F.2d 1075, 1084-85 (11th
Cir. 1990) (We do not believe that the requirements of Rule 30

function as a limitation on the district court's obligation to
inform the jury of the law which properly governs a case.
Nor do
we believe that . . . Rule 30 operate[s] to empower counsel,

through the mechanics of the closing argument, either to dictate
the law by which a verdict is reached or to create a mistrial by
erroneously stating the legal principles applicable to a given
situation.), abrogated on other grounds by Coleman v.
Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994).
In light of the
Rules language and the advisory committee notes, there was no

plain error, and indeed no error at all.
There was also no prejudice.
Kachikian was not unfairly
prevented from arguing [his] defense to the jury or substantially

misled in formulating and presenting arguments.
v. Tham, 960 F.2d 1391, 1399 (9th Cir. 1991).
United States
To the contrary,
all of Kachikians legitimate defenses were argued at length; the
753
district court merely corrected Kachikians pursuit of an

illegitimate defense he had been previously warned against.
The
courts supplemental instruction did not single out or discredit

Kachikians counsel.
The instruction neither mentioned counsel
by name, nor asserted that he had done anything improper.

Instead, the instruction, which quietly corrected Kachikians
misstatements, was portrayed as just something the court had
accidentally omitted earlier on par with an accompanying
supplemental instruction correcting a mix-up between two cities
names.
(5/1/08 RT (Sess. 2) 30-31; GERT 8019-20).
In Blixt,
this Court affirmed supplemental instructions that far more

pointedly criticized a defense lawyers closing.
See Blixt, 548
F.3d at 886 (refusing to reverse where supplemental instruction

named defense counsel, said his argument was incorrect under the
law and told jury to disregard the erroneous statement of the
law by defense counsel).
If the instruction in Blixt was
proper, then this one was a fortiori.
Moreover, the supplemental
instruction cannot have been prejudicial, given its

nonaccusatory, anodyne nature.
Unable to confront Blixt, Kachikian (KOB 34-35) relies
instead on two grossly inapposite cases.
First, Kachikian relies
on United States v. Harvill, 501 F.2d 295 (9th Cir. 1974), to

assert that the supplemental instruction was prejudicial because
it undermin[ed] defense counsels credibility in the eyes of the
754
jury.
(KOB 35).
But, as more recent cases show, prejudice
cannot be established simply by asserting that counsel lost

credibility when he argued a legal point that the supplemental
instruction made irrelevant.
In United States v. Foppe, 993 F.2d
1444, 1451-52 (9th Cir. 1993), this Court found no prejudice

where defense counsel, relying on the district courts
instructional rulings, read to jurors a particular instruction
that he told them the judge would give.
give the promised instruction.
The court then did not
Although this Court recognized
that counsel lost credibility when the trial court did not give
the instruction defense counsel had predicted, this Court
nevertheless held that whatever loss of credibility Foppes
counsel may have suffered is not sufficient prejudice to merit
reversal.
Id.
The same is true here.
Kachikians reliance on United States v. Gaskins, 849 F.2d

454 (9th Cir. 1988), is also off-point.
Gaskins found a Rule 30
error where the district courts post-argument supplemental

instruction added a whole new theory of liability aiding and
abetting which the district court previously had expressly
ruled out.
Id. at 456.
The applicability of accomplice
liability is such a central factual and legal issue that it was

reasonable in Gaskins to assume that the entire defense argument
was built around the omission of accomplice liability and
therefore vitiated by the new instruction.
755
Pemberton, 853 F.2d 730, 735 (9th Cir. 1988) (noting that in
Gaskins, the judge gave a new instruction on aiding and abetting
after defense counsel had tailored closing argument to the theory
that defendant was not a principal participant).
That concern
does not apply here Kachikians closing argument on

surreptitiousness was but four lines (4/30/08 (P.M.) RT 18; GERT
7874) out of a 50-page argument (4/30/08 (P.M.) RT 4-54; GERT
7860-7910).
Pemberton further suggests that Gaskins is limited
to post-argument instructions that open up an entire alternative

theory of liability that counsel could not have foreseen.
See
Pemberton, 853 F.2d at 735 (denying Rule 30 reversal because

[u]nlike in Gaskins, in this case the judge did not introduce a
new theory by means of an alternative instruction).
And the
supplemental instruction here was but a small change in the

otherwise lengthy instructions.
See id. at 730 (finding no
prejudice under Rule 30 where judge added one short phrase

that, [i]n the context of the entire instruction given, . . .
did not render the instruction misleading or inadequate).
Given cases finding that a defendant was not prejudiced [by
a Rule 30 violation] in more egregious cases, United States v.
Scott, 642 F.3d 791, 798 (9th Cir. 2011), the outcome here is
clear: Kachikians claim should be denied.
Kachikian finally argues (KOB 35-42) that the district court
committed plain error by not sua sponte instructing jurors that
756
Section 2511(2)(d) permits a party to a telephone call to record

that call.
Noting that Pellicano used Telesleuth both to record
Pellicanos own calls and to wiretap his investigative targets

calls, Kachikian argues that the omission of a specific
instruction on the Section 2511(2)(d) exception allowed the jury
to convict him of conspiracy for helping Pellicano to record his
own calls even if jurors did not believe that Kachikian intended
to help Pellicano wiretap other peoples calls.
But the actual jury instructions prevent Kachikians claim.
The court instructed the jury that conviction on that count
required proof beyond a reasonable doubt that beginning on a
date unknown and ending on or about November 21, 2002, there was
an agreement between two or more persons to commit the crime of
interception of wire communications as charged in Counts 68
through 76 of the indictment.
(C.R. 1606, at 66 (emphasis
added); 4/29/08 (A.M.) RT 54; GER ***, GERT 7844).
Those cross-
referenced counts each concerned the conspiracys wiretapping of

calls to which Pellicano was not a party such as the calls of
Erin Finn, Ami Shafrir, Vincent Bo Zenga, Aaron Russo, Keith
Carradine, Sylvester Stallone, and Anita Busch.
(JER 3993-4001).
There therefore was no possibility that the jury convicted

Kachikian based on a conspiracy for Pellicano to record
Pellicanos own calls.
Since the jury was also told that the
conspiracy count required a finding that the defendant became a
757
member of the conspiracy knowing of at least one of its objects

and intending to help accomplish it, (4/29/08 (A.M.) RT 55; C.R.
1606, at 66; GERT 7583, GER ***), there was no way for the jury
to convict Kachikian unless they found that he intended to join a
conspiracy to wiretap other peoples private calls.
Kachikians
concern is therefore misplaced, and he cannot meet his burden to

show prejudice or a substantial injury to the the reputation,
integrity, or fairness of the proceeding.532
4.
The District Court Did Not Commit Plain Error by

Failing to Instruct the Jury That Reviewing
Intercepted Communications After the Period of
Interception Has Been Completed Does Not Constitute
Aiding and Abetting of the Interception
Citing Noel v. Hall, 568 F.3d 743 (9th Cir. 2009), Nicherie
claims that the district court erred in failing to instruct the
jury that listening to a recording of a previously intercepted
telephone call was not a violation of 18 U.S.C. 2511(1)(a).
(NOB 14-23).
Nicherie concedes that he did not raise this issue
in the district court and that review is therefore for plain

error.
(NOB 14).
532
Kachikian argues (KOB 40-41) that the fact that the jury
acquitted him of the substantive Section 2511 counts, while
convicting him of the Conspiracy charge, means they must have
believed he conspired to help Pellicano record Pellicanos own
calls. But that substantially misunderstands the difference
between what is needed for a conspiracy conviction (the agreement
to accomplish the object), and what is needed for aiding and
abetting (specifically aiding the principal to accomplish the
crime). As a result of this difference, it is not unusual for
juries to find guilt on a conspiracy charge while acquitting on
substantive charges. See, e.g., United States v. Fiander, 547
F.3d 1036, 1040-41 (9th Cir. 2008); United States v. Florez, 447
F.3d 145, 148 (7th Cir. 2006).
758
As already discussed in detail, the evidence in this case,

unlike that in Noel, showed that Nicheries review of the wiretap
recordings occurred while the Shafrir wiretap was still ongoing
and for the purpose of ensuring that it remained fruitful (as
well as, presumably, determining how long to keep the wiretap
going).
Compare Noel, 568 F.3d at 745-46 (review of previously
intercepted conversation took place after interception had

terminated and recordings had been seized).
Furthermore, the
evidence established that Nicheries aiding and abetting activity

was not limited to reviewing recordings, but included hiring and
directing Pellicano to conduct the illegal wiretap.533
While
Nicherie focuses only on the dates of the checks paid to hire

Pellicano (NOB 22, 28), Nicheries liability for commanding,
inducing, and procuring the illegal wiretap was coterminous with
Pellicanos and lasted for the duration of the interception
period.
See 18 U.S.C. 2(a).
533
Nicherie incorrectly suggests that the district court

precluded him from presenting evidence that Sarit Shafrir had
hired Pellicano and stated that the identity of the hiring party
was irrelevant. (NOB 22). The district courts statement came
in the course of hearing Nicheries proffer of the testimony of
his proposed financial expert, which the district court denied
based on an undisputed Rule 16 discovery violation. (4/23/08
(P.M.) RT 117-33; JER 3669-85). Nicheries counsel stated that
he wanted to establish that the source of the funds used to pay
PIA came from Sarit Shafrir, a fact that Ms. Shafrir had already
conceded in her own testimony (with the explanation that the
Nicheries had taken over control of her accounts). (4/4/08
(P.M.) RT 80-81; 4/23/08 (P.M.) RT 124; JER 2686-87, 3676). It
was this tracing of the source of the funds not the question
of who hired Pellicano to wiretap that the district court found
was not relevant. (4/23/08 (P.M.) RT 124, 128; JER 3676, 3680).
759
The government never suggested that Nicherie could be found

guilty for reviewing recordings of a previously terminated
wiretap.
Rather, it argued that Nicheries aiding and abetting
activity consisted, among other things, of listening to the

wiretapped recordings while [the wiretap] was ongoing in order
to translate and summarize the recordings and keep the wiretap
fruitful.
(4/29/08 (P.M.) RT 129; JER 3952).
Nicherie himself
never contended in closing that he had reviewed recordings after

the wiretap was completed:
Shafrir never occurred.
rather, he argued that the wiretap of
(5/1/08 (Sess. 2) RT 4-25; JER 4005-26).
Moreover, the court instructed the jury as follows:

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. If you find that the Government failed to
prove beyond a reasonable doubt that the interception
of wire communications continued after October 26,
2000, you must find the defendants not guilty of the
charge in Count 69 of the indictment.
(4/29/08 (A.M.) RT
60-61; JER 3888-89).
This instruction itself
precluded conviction in the Noel scenario, i.e., if the jury

found that the interception period had ended before Nicheries
review of the recordings (which occurred, according to eyewitness
testimony and Nicheries own admission, in late 2000 and early
2001).
(3/11/08 (A.M.) RT 84-90; 4/4/08 (P.M.) RT 117-18; JER
1395-1401, 2707-08).
In light of the evidence, argument, and instructions
presented to the jury, the district courts failure to sua sponte
760
provide an instruction that was not supported by the evidence or

by the governments or the defendants theory of the case was not
error, let alone plain error.
Nor can it conceivably be said
that such failure affected Nicheries substantial rights or

seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.
Q.
See Franklin, 321 F.3d at 1240.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING A

NEW TRIAL BASED ON ALLEGATIONS OF JUROR MISCONDUCT OR IN
DECLINING TO HOLD AN EVIDENTIARY HEARING ON THOSE
ALLEGATIONS
Following their convictions, Pellicano and Arneson each
filed motions for a new trial based on alleged juror misconduct.

The motions were based on a declaration from one former juror534
and a declaration from Pellicanos defense investigator about her
interviews of other jurors.
The district court denied the
motions and defendants request for an evidentiary hearing,

finding that parts of the declarations were inadmissible under
Federal Rule of Evidence 606(b) and that the remainder did not
demonstrate any misconduct that could possibly have affected the
verdict.535
Defendants challenge this ruling on appeal.
(JOB 38-
55).
534
Juror #7, who submitted the declaration, is the same

juror who reported to the district court hearing the prosecutor
say the word perjury during the recess in Arnesons crossexamination.
535
Wholly apart from questions of admissibility under Rule
606(b), the investigators declaration was inadmissible hearsay.
See Walton v. Wild Goose Mining & Trading Co., 123 F. 209, 221
(9th Cir. 1903) (Statements made by jurors not under oath, after
the trial is over, are not competent evidence.).
761
1.
Standard of Review
The district courts denial of a motion for new trial based

on alleged juror misconduct is reviewed for an abuse of
discretion.
United States v. Bussell, 483 F.3d 639, 642 (9th
Cir. 2005).
The courts decision not to hold an evidentiary
hearing on such allegations is also reviewed for an abuse of

discretion.
Id.
Because of the trial judges unique
opportunity to observe the jurors during trial, to hear the

defenses asserted, and to hear the evidence, the judges
conclusion about the effect of the alleged misconduct deserves
substantial weight.
United States v. Smith, 424 F.3d 992, 1011
(9th Cir. 2005) (internal quotations and citation omitted).

Where extrinsic information is introduced into the jury
room, a new trial is warranted only if there is a reasonable
possibility that the extrinsic material could have affected the
verdict.
United States v. Vasquez, 597 F.2d 192, 193 (9th Cir.
1979).
2.
Several of Defendants Challenges to the Jurys

Conduct and Deliberations Are Prohibited by Federal
Rule of Evidence 606(b)
Federal Rule of Evidence 606(b)provides:

Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jurys
deliberations or to the effect of anything upon his or
any other jurors mind or emotions as influencing him
to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection
therewith, except that a juror may testify on the
762
question whether extraneous prejudicial information was

improperly brought to the jurys attention or whether
any outside influence was improperly brought to bear
upon any juror. Nor may his affidavit or evidence of
any statement by him concerning a matter about which he
would be precluded from testifying be received for
these purposes.
Fed. R. Evid. 606(b).
This rule serves the important policy interests of
discouraging harassment of jurors by defendants after a guilty
verdict, encouraging free and open discussion in the jury room,
reducing incentives for jury tampering, promoting finality, and
respecting the institution of the jury as a fact-finding body.
United States v. Bagnariol, 665 F.2d 877, 884 n.4 (9th Cir. 1981)
(citing cases); see Tanner v. United States, 483 U.S. 107, 120
(1987) (noting that [i]t is not at all clear . . . that the jury
system could survive post-verdict investigation into juror
misconduct); McDonald v. Pless, 238 U.S. 264, 267-68 (1915)
(recognizing harms from allowing post-verdict juror testimony).
Thus, only evidence that falls within the limited parameters set
forth in Rule 606(b) may be used in considering allegations of
jury misconduct.
Bagnariol, 665 F.2d at 884.
Recognizing the broad scope of Rule 606(b)s absolute bar,

this Court has consistently upheld district courts refusals to
consider juror declarations or testimony regarding alleged juror
misconduct and has imposed a narrow view of what falls within the
extraneous prejudicial information exception.
763
In United States
v. Pimentel, 654 F.2d 538, 542 (9th Cir. 1981), for example, the
defendants, who had been convicted of illegal wiretapping,
claimed that post-trial conversations with several jurors
indicated that some jurors had made up their minds about the
defendants guilt prior to jury instructions.
The defendants
submitted a declaration from one of the jurors and an affidavit

of defense counsel recounting his conversations with other
jurors.
This Court held that the district court had properly
refused to consider this evidence under Rule 606(b) and Supreme

Court precedent.
Id.; see also, e.g., United States v. Davis,
960 F.2d 820, 828 (9th Cir. 1992) (jurors post-trial statement
that from the first day I knew [the defendant] was guilty held
insufficient to set aside verdict under Rule 606(b), as statement
reflected jurors personal feelings and beliefs); HernandezEscarsega, 886 F.2d at 1579 (affirming district courts denial of
evidentiary hearing based on post-verdict juror declaration that
another juror had relied on a sign from God in deliberations);
Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1460-62 (9th
Cir. 1989) (noting that courts have nearly always refused to
admit juror testimony concerning internal abnormalities absent a
contemporaneous adjudication or an extremely strong showing of
juror incompetence); United States v. Rohrer, 708 F.2d 429, 434
(9th Cir. 1983) (affirming district courts refusal to consider
affidavits of two jurors and of two private investigators who
764
conducted post-trial interviews with other jurors); Bagnariol,

665 F.2d at 883-89 (noting that intrinsic jury processes will
not be examined on appeal and cannot support reversal); United
States v. Weiner, 578 F.2d 757, 764 (9th Cir. 1978) (affirming
district courts refusal to consider juror affidavits that one
juror had voted guilty with reservation, noting that to permit
juror impeachment of verdicts would create [o]pportunities for
harassment of jurors and jury tampering and that [s]uch a
burden on the jury system could not long be tolerated).536
Defendants claim that the jurors engaged in premature
deliberations rests exclusively on inadmissible portions of the
juror declaration.
(JOB 50-51).
Post-verdict claims that jurors
expressed their views of the evidence during trial and

deliberated with each other outside the presence of other jurors
do not involve extraneous prejudicial information or outside
influence and thus are impermissible under Rule 606(b).537
536
See,
Although the language of Rule 606(b) addresses matters

and statements occurring during the course of deliberations, the
Supreme Court and this Court have applied the rule to prohibit
post-verdict juror claims of misconduct during the trial. See
Tanner, 483 U.S. at 117-27 (holding inadmissible under Rule
606(b) juror testimony regarding alleged alcohol and drug use by
jurors during trial); Pimentel, 654 F.2d at 542 (holding
inadmissible under Rule 606(b) juror declaration stating that
some jurors had made up their minds about the defendants guilt
prior to jury instructions).
537
Although the jury deliberated for two weeks and sent
numerous notes during that time, no claim of improper or
premature deliberations was brought to the Courts attention
prior to verdict. See Tanner, 483 U.S. at 127 (Sixth Amendment
interest in unimpaired jury is protected by several aspects of
the trial process, including jurors ability to report
(continued...)
765
e.g., United States v. Logan, 250 F.3d 350, 381 (6th Cir. 2001)
(post-verdict claims of premature deliberations precluded by Rule
606(b)).
The district court therefore did not abuse its
discretion in rejecting these claims.
(JER 470).
Nor did the court abuse its discretion in finding that the
declarant jurors claim that the foreperson was sleeping during
trial did not fall within one of the limited exceptions to Rule
606(b).
(JOB 49; JER 476).
See Tanner, 483 U.S. at 125-26
(post-verdict claims of sleeping jurors held inadmissible); cf.

United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987)
(affirming denial of mistrial after district court discovered
that juror had slept through certain witness testimony).
Defendants reliance on United States v. Barrett, 703 F.2d 1076,
1083 (9th Cir. 1982), is misplaced.
(JOB 49).
In that case, a
juror came forward prior to deliberations and volunteered that he

had been sleeping during trial, but the judge declined to
interview or excuse the juror and instead simply stated that
there was no juror asleep during this trial.
Id. at 1082.
This Court held that under the particular circumstances of

[that] case - specifically, [i]n view of the jurors own
statement - failing to conduct a further inquiry was an abuse of
the district courts discretion.
Id. at 1083.
Here, unlike in
Barrett, the issue was raised post-verdict by means of a juror

537
(...continued)
inappropriate juror behavior to the court before they render a
verdict (emphasis in original)).
766
declaration that fell squarely within the prohibition of Rule

606(b).538
3.
The District Court Did Not Abuse its Discretion in

Finding That the Remaining Claims of Extrinsic
Evidence Did Not Warrant a New Trial
Defendants claim that a juror was exposed to information

about the trial on an Internet blog.
does not support this claim.
(JOB 51-52).
The record
Juror #7s declaration stated only
that another juror had told her (1) that her husband had read
that a juror had fallen asleep during trial, (2) that her husband
knew who the upcoming witnesses were going to be before they
testified (the declaration did not state that the identity of any
of these witnesses was communicated to the juror), and (3)
another piece of information her husband read on the blog that
struck Juror #7 as significant but that she could not recall.
The first two of these matters involved in-court proceedings and
did not constitute extraneous information that could in any way
influence a verdict,539 and the district court did not abuse its
538
In the fourth week of trial, the district court brought

to the parties attention that the foreperson had told the clerk
that she was not feeling well and that the court had observed her
with her eyes closed. The court asked if any party wanted the
court to do anything about it, and all defendants answered in the
negative. (3/27/08 (A.M.) RT 4-5). Separate and apart from Rule
606(b), the district court properly rejected the sleeping juror
claim as a basis for a new trial in light of defendants
affirmative decision not to seek further inquiry when the issue
was raised during trial. (JER 476).
539
Indeed, with respect to the sleeping juror blog
report, Juror #7 stated in her declaration that she observed the
foreperson sleeping during the trial, thereby negating the claim
that the blog contained anything the jurors did not already know.
(continued...)
767
discretion in finding that the third was far too vague to form
the basis for a new trial (or even for an evidentiary hearing).
(JER 471).
See Packwood, 848 F.2d at 1010.
Nor did defendants
demonstrate any exposure to extraneous information from the fact

that one juror brought a personal computer into the jury room to
type notes during deliberations (and stopped when told he could
not use it), as there was no evidence that the juror used the
computer for anything other than as a proxy for handwritten
notes.
(JOB 51; JER 471-72).
Defendants also contend that the prosecutors comment to

Arnesons counsel regarding his intent to seek Arnesons remand
of which, based on the district courts contemporaneous inquiry,
one juror heard one word constituted a presumptively
prejudicial improper communication with the jury.540
The facts do not support this characterization.
(JOB 43-47).
See Mattox v.
United States, 146 U.S. 140, 150 (1892) (presumption of prejudice

attaches to private communications . . . between jurors and
third persons).
Moreover, even if this could be considered an
communication with a juror, its de minimis nature requires

defendants to show that the communication could have influenced
the verdict before the burden of proof shifts to the prosecution.
539
(...continued)
(JER 471).
540
The facts relating to this claim have been set forth
earlier.
768
Caliendo v. Warden of California Mens Colony, 365 F.3d 691, 696

(9th Cir. 2004).
As the district court recognized, the governments position
that Arneson had perjured himself cannot be considered
extraneous prejudicial information or an outside influence in
any meaningful way, as it was oft-stated before the jury and
therefore could not have changed the outcome of the verdict.541
(JER 470).
In addition, the court obtained an assurance from the
one juror who acknowledged hearing the word perjury that she
could put the comment out of her mind and gave a curative
instruction to all jurors immediately upon their return to the
courtroom.
(4/16/08 (P.M.) RT 61, 64-67).
Thus, even if the
word perjury could constitute extraneous information of the

type that is contemplated by Rule 606(b), defendants have failed
to justify invoking the Mattox presumption; moreover, even if
that presumption were to apply, it has been rebutted because
there is no reasonable possibility that the communication
influenced the verdict.
See Caliendo, 365 F.2d at 697; compare,
e.g., United States v. Rosenthal, 454 F.3d 943, 949-50 (9th Cir.
2006) (new trial ordered where juror, during deliberations, had
a substantive legal discussion with attorney-friend about the
courts instructions); Jeffries v. Wood, 114 F.3d 1484, 1490 (9th
Cir. 1997) (jurors communication of the defendants past
541
A review of the transcript shows that the prosecutor

used the word perjury seven times in his cross-examination of
Arneson. (4/16/08 (P.M.) RT 35, 40-41, 53).
769
criminal record based on extraneous facts was presumptively

prejudicial).
Finally, the district court did not abuse its discretion in
finding that, even accepting Juror #7s claim that the foreperson
told her she had heard the prosecutors comment and not disclosed
it to the court, no new trial or presumption of juror bias was
warranted.542
(JER 470-71).
In Dyer v. Calderon, 151 F.3d 970
(9th Cir. 1998) (en banc), on which defendants rely (JOB 47-48),
this Court made clear that the relevant inquiry is not simply
whether a juror lied, but whether the falsehood revealed a lack
of partiality and thereby undermined the impartiality of the
Id. at 973.
jury.
In that case, the court concluded that a
juror, whose brother had been murdered execution-style and whose

husband had been arrested for rape and had shared a jail cell
with the defendant, had lied materially and repeatedly during
voir dire in order to secure a seat on the jury in a capital
murder case, resulting in the extraordinary and rare case in
which bias could be implied.
Id. at 981-84; see Green v. White,
232 F.3d 671, 677-78 (9th Cir. 2000) (implying bias from jurors
repeated lies during voir dire and other conduct that brought his
impartiality into serious question).
542
Here, in stark contrast,
Given Juror #7s statement to the court that she was the
last one through the door and the assertion in her declaration
that the foreperson was walking ahead of her, it is implausible
that the foreperson could have heard anything more than what
Juror #7 heard, which she told the court at the time was only the
word perjury. (4/16/08 (P.M.) RT 61).
770
the allegation involved a juror who failed to raise her hand in

response to the courts inquiry because according to
defendants own submitted evidence she did not want to have
attention on her.
(JER
(Jordison Decl. 2)).
The district
court properly found that this allegation was insufficient to

raise a colorable claim that the juror was biased (for one side
or another) as opposed to shy, unassertive, or simply uncertain
as to what, if anything, she had heard and did not support the
extraordinary step of implying bias.
(JER 470-71).
See Dyer,
151 F.3d at 974 (court confronted with a colorable claim of

juror bias must undertake investigation of relevant facts and
circumstances).
4.

Denying an Evidentiary Hearing
Even where claims of jury misconduct or bias are properly

raised, district courts have considerable discretion in
determining whether to hold an evidentiary hearing on such
allegations.
United States v. Olano, 62 F.3d 1180, 1192 (9th
Cir. 1995); see United States v. Romero-Avila, 210 F.3d 1017,

1024 (9th Cir. 2000) (district courts are not required to hold
evidentiary hearings each time there is an allegation of jury
misconduct or bias).
In determining whether to hold an
evidentiary hearing, the court must consider the content of the

allegations, the seriousness of the alleged misconduct or bias
and the credibility of the source.
771
Smith, 424 F.3d at 1011.
No
hearing is necessary where the court knows the exact scope and
nature of the bias allegation.
Id.
Moreover, if the court can
determine that the allegations, if true, would not warrant a new

trial, no evidentiary hearing is required.
United States v.
Navarro-Garcia, 926 F.2d 818, 822 (9th Cir. 1991); see Hard, 870
F.2d at 1461 (evidentiary hearing is justified only where
affidavits and testimony admissible under Rule 606(b) are
sufficient on their face to require setting aside the verdict);
United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (no
further inquiry into jury misconduct required where trial judge
determines that, even if everything in juror affidavit were true,
new trial would not be required).
In this case, even if the admissible portions of the
declarations were accepted as true (and even if the prosecutors
partially overheard comment were considered extrinsic evidence
falling within the exception to Rule 606(b)), no evidentiary
hearing was needed to determine that a new trial was not
warranted.
The submitted declarations fully addressed whether
extrinsic information was brought before the jury, and the

district court was precluded from questioning jurors about the
subjective effects of such information.
See Montes, F.3d at
(recognizing that restrictions of Rule 606(b) can severely limit

the utility of holding an evidentiary hearing at which jurors may
testify).
Moreover, the court was able conclusively to find
772
from the nature of the alleged extrinsic material that it could

not have prejudiced defendants, given the issues and evidence in
the case.
See id.; see also Hernandez-Escarsega, 886 F.2d at
1580-81 (where notes implicating defendant in death of his former

girlfriend were sent into jury room despite not being in
evidence, motion for new trial denied without evidentiary
hearing; noting that court ordinarily assumes that a curative
instruction keeps improperly introduced extrinsic evidence from
influencing the jury); Marques, 600 F.2d at 747-48 (no
evidentiary hearing held on post-verdict allegation that juror
had seen defendants in conspiracy case getting into car together;
affidavit did not claim that information was discussed or
considered by jurors in their deliberations, and defendants
failed to carry burden of persuading trial court that allegation
warranted further inquiry).
Accordingly, the district court did
not exceed the bounds of its discretion in declining to hold an

evidentiary hearing.
R.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING

WIRETAPPING-RELATED EVIDENCE IN THE CHRISTENSEN-PELLICANO
WIRETAPPING TRIAL
Christensen claims that the district court abused its
discretion under Rules 404(b) and 403 by jointly admitting

against Christensen and Pellicano evidence of wiretaps conducted
by Pellicano prior to and contemporaneously with the spring 2002
Bonder-Kerkorian wiretap.
(COB 55-64.)
773
Christensen further
claims that the district court abused its discretion under Rules
901 and 403 when it admitted without proper authentication a
document (Exhibit 101) seized from a computer in Pellicanos
personal office within PIA and then permitted unfairly
prejudicial evidence that the document contained passwords that
Pellicano used to access wiretapped calls.
(COB 60-61.)
The district court properly exercised its discretion in

finding that evidence of Pellicanos prior and contemporaneous
wiretapping was not other acts evidence subject to Rule 404(b)
but rather was evidence directed to rebut two cornerstones of
Christensens trial defense, namely, that Pellicano lacked the
capacity to wiretap in 2002, and that Pellicano had altered the
34 telephone recordings between Pellicano and Christensen to make
it appear that they were discussing wiretapping, when they were
not.
(CR 1676, 1677.)
Similarly well grounded was the district
courts independent finding that this evidence was not 404(b)

evidence as it was inextricably intertwined with the charged
offense conduct because it provided necessary context to items of
evidence that were cental to the charged wiretapping conspiracy
and therefore was admissible to allow the government to provide a
coherent and comprehensible presentation of the evidence.
(Id.)
While the district court did not abuse its discretion in

concluding that this evidence fell outside the scope of Rule
404(b), even if considered within the context of that rule, the
774
evidence still would be admissible as it was not introduced to

establish propensity but rather for reasons consistent with
several recognized bases for admission under Rule 404(b),
including opportunity (i.e., possessing the capability to conduct
the wiretap).
Regardless of the theory of admissibility relied
upon, the district court also did not abuse its discretion in
finding the admission of prior and contemporaneous wiretapping
evidence appropriate under Rule 403 as the probative value of the
evidence was high, any unfair prejudice was low, and the district
court carefully exercised its role as the evidentiary gatekeeper
throughout trial to ensure that this balance remained well below
the threshold for exclusion set by Rule 403.
The district court,
likewise, did not abuse its discretion in admitting Exhibit 101

against Christensens Rule 901 and Rule 403 objections.
Finally,
even if the district court had abused its discretion in admitting

either Exhibit 101 or the evidence of prior and contemporaneous
wiretapping, such error would be harmless as the evidence
establishing Christensens guilt on the substantive wiretapping
and wiretapping conspiracy charges was overwhelming, as evidenced
most prominently by the 6 hours of the Pellicano-Christensen
recordings, which are laden with admission upon admission of
wiretapping, and the fact that Christensen has not mounted even a
facial sufficiency challenge to these convictions.
775
1.
Standard of Review543
This Court reviews the admission of evidence, including

admission under Rules 403, Rule 404(b) and 901, for abuse of
discretion.
Whether evidence
constitutes other acts evidence subject to Rule 404(b) is

determined de novo.
United States v. Rrapi, 175 F.3d 742, 748
(9th Cir. 1999).

2.
Factual Summary
The wiretap that served as the basis of the substantive

wiretapping and wiretapping conspiracy charges against
Christensen and Pellicano (counts 106-07) was implemented on
approximately March 15, 2002 and continued for almost exactly two
months, extending one day past as Christensen decided to keep the
wiretap ongoing to intercept the attorney-client communications
that Bonder-Kerkorian would have with her legal team following a
May 14, 2002 court hearing.
The wiretap concluded on May 16,
2002, with Christensen and Pellicano agreeing that the switch

gets shut.
In addition to the foundational evidence addressing the use
and functionality of the Telesleuth wiretapping program seized
from PIA in November 2002, the centerpiece of the governments
case-in-chief was the approximately 6 hours of recorded
telephone conversations between Christensen and fellow co543
A broader discussion of the applicable standards of

review is set forth earlier.
776
conspirator Pellicano, as documented on 34 separate calls that

they had throughout the lifespan of the wiretapping conspiracy.544
This evidence was supplemented by a variety of other types of
evidence, including: (1) testimony from attorneys Steven Kolodny,
Kelli Sager, Jeff Sturman, Harlee Gasmer, Robert Rein, and Debra
Simon, who each testified that information discussed on the
Christensen-Pellicano recordings included intercepted privileged
attorney-client communications that each had by phone with
Bonder-Kerkorian: (7/24/2008 (A.M.) RT 13; GERT 9567; 7/25/2008
(A.M.) 76; GERT 9966; 8/5/2008 (P.M.) RT 48; GERT 10278);
8/6/2008 (P.M.) RT 98; GERT 10579; 8/7/2008 (P.M.) RT 85; GERT
10886; 8/14/2008 (P.M.) RT 133; GERT 12039;(2) testimony from
physician Gary Chase, who similarly testified that the
Christensen-Pellicano recordings included intercepted privileged
doctor-patient communications that he had by phone with BonderKerkorian (8/7/2008 (P.M.) RT 4; GERT 10805);545(3) testimony from
numerous other associates of Bonder-Kerkorian who likewise
confirmed that the Christensen-Pellicano recordings referenced
telephone conversations that they had with Bonder-Kerkorian;
(8/7/2008 (A.M.) RT 76; GERT 10735; 8/5/2008 (A.M.) RT 31; GERT
10108); (4) payment information showing that Christensen paid
544
These calls were played in their entirety before the
jury.
545
These calls also include Pellicano admitting to

Christensen that Pellicano had broken into a medical facility to
steal Bonder-Kerkorians confidential medical file. (7/24/2008
(A.M.) RT 104; 8/6/2008 (P.M.) 56; Ex. 21; GEX 3209; GERT 9658,
10537.)
777
Pellicano $100,000 under an assumed name that the two agreed to

use for this purpose; (7/25/2008 (P.M.) 39, Ex. 1; GEX 3014; GERT
9929; 8/14/2008 (A.M.) RT 15; Ex. 120; GEX 3662; GERT 11792)
(5)
materials seized from PIA that both reflected this retention and
the wiretapping, including a list of Telesleuth passwords
recovered from a computer in Pellicanos private office within
PIA that included both Bonder-Kerkorians name and the names of
several additional known individuals who had been wiretapped by
Pellicano (7/23/2008 (A.M.) RT 33, Ex. 101; GEX 3445; GERT 9315
and (6) testimony and other evidence, including evidence of past
and contemporaneous wiretapping, that provided necessary context
to others items of evidence and/or rebutted Christensens trial
defenses (8/8/2008 (P.M.) RT 6, 44; GERT 11095, 11133; 8/12/2008
RT 88, 113, 138, 177, Ex. 39; GEX 3394; GERT 11339, 11364, 11389;
11398; 8/13/2008 RT 185, 193, 235; Ex. 38; GEX 3389; GERT 11671,
11679, 11721; 8/14/2008 (A.M.) RT 52; GERT 11829; 8/14/2008
(P.M.) 21; GERT 11926.
Although Christensens trial defenses were many and often
contradictory,546 several predominated.
546
First, Christensen
In closing, Christensens counsel effectively presented

a flow chart of possible defenses that included: (1) Pellicano
altered the substance of the recordings through selective use of
the pause feature; (2) Pellicano edited the conversations to make
them appear as if they were criminal; (3) Pellicano was obtaining
information not from wiretaps but public or internal sources; (4)
Pellicano was fabricating information; (5) if there was an actual
wiretap, Christensen did not know about it; and (6) the implicit
theme coursing the argument was that, tacitly repeated here (JOB
96), if Christensen knew, there should be nullification because
(continued...)
778
presented a full frontal attack on the Bonder-Kerkorian wiretap

itself by attempting to establish that Pellicano lacked the
capacity to wiretap in 2002 and therefore, could not have
conducted this wiretap.
Exploiting the limitations of the
Telesleuth wiretapping program (e.g., it required a geographic

proximity to the location where the tap was placed), the fact
that residential phone lines in Bonder-Kerkorians Beverly Hills
neighborhood were underground, and the exclusivity of the
neighborhood, Christensen argued and presented evidence that
Pellicano would have had to dig a two-mile trench from PIA to
Bonder-Kerkorians residence to tap her phone line at the street
level.
(7/17/08 (A.M.) RT 76-77, 8/15/08 (P.M.) RT 99-101.)
Christensen, again through argument and elicited testimony,

further sought to exploit the fact that Turner had retired from
SBC in December 2001, when his opening statement claimed that
Turner was Pellicanos inside man at the phone company who
would set up either a frame tap or direct tap on Pellicanos
behalf; however, Turners retirement deprived him of the access
to the phone companys facilities needed to implement a wiretap,
thereby, placing a bright-line termination point to Pellicanos
ability to successfully implement a wiretap.
(7/17/08 (P.M.) RT
74.)
546
(...continued)
his actions were directed at Bonder-Kerkorian.
779
Second, Christensen both argued and sought to show, albeit

unsuccessfully, that Pellicano was effectively serving as a
double agent for Steve Bing in connection with the BonderKerkorian matter.547
Under this theory, Pellicano secured
Christensens retention, engaged in a series of recorded

conversations with Christensen, and then using his computer-based
expertise and his motive to deceive, altered the recordings to
make it appear as if he and Christensen were discussing wiretaps,
when their conversations were nothing of the sort.548
Relatedly,
Christensen argued that, even if Pellicano was speaking to him

about wiretapping, he did not know it, positing that the
confidential information provided by Pellicano either was
fabricated or from human sources.
3.
The District Courts Evidentiary Rulings Did Not

Constitute an Abuse of Discretion
a.
The Evidence Was Admissible to Rebut

Christensens Trial Defenses
547
While Christensen was permitted to introduce Bings

payments to Pellicano to show the fact that Pellicano had been
retained by Bing, Christensen was not permitted to argue the
reason for the retention absent actual evidence supporting his
claim. Christensen elected not to call Bing, who was on his
witness list, as to the true purpose of the retention. The
Christensen-Pellicano recordings, however, contain multiple
lengthy discussions regarding the assistance that Pellicano was
providing Bing during a contemporaneously unfolding paternity
dispute between Bing and actress Elizabeth Hurley.
548
Christensens counsel went so far as to argue both in
opening statements and closing argument that, given Pellicanos
prodigious forensic capabilities, the possibility existed that
Pellicano had deleted recorded instructions from Christensen that
he was not to wiretap. (7/17/2008 (A.M.) RT 48; GERT 8554;
8/26/2008 (P.M.) RT 62-65; GERT 13512-15.)
780
Christensen directly put in dispute and made a central issue

in the trial whether Pellicano possessed the capacity to
successfully implement a wiretap in 2002.549
The evidence of
Pellicanos prior wiretapping that the government presented to

rebut this claim was properly admitted by the district court.
See United States v. Kearns, 61 F.3d 1422, 1427 (9th Cir. 1995)
(prior acts admissible without regard to Rule 404(b) to show
defendants involvement with conspirators and to rebut defense
that she was not an active participant in conspiracy).
As a preliminary matter, Christensens claim that the
district court abused its discretion by permitting the government
to introduce evidence of Pellicanos wiretapping capabilities
prior to Turners December 2001 retirement from SBC is meritless.
(COB 61-62.)
There was no evidence that Turners SBC retirement
had any affect on Pellicanos ability to successfully conduct

wiretaps.
Trial evidence from the RICO case, including testimony
from Wright and Malkin, established that Turner continued to

utilize his SBC contacts for subscriber and cable pair
information and that Pellicano continued to wiretap PIA
investigative targets (e.g., Stallone, Busch) well past Turners
549
The government had offered to enter into a stipulation

that Pellicano possessed the capacity to successfully implemenet
a wiretap in 2002, which would have obviated the need for much of
the testimony to which Christensen now objects. (7/22/2008 (P.M.)
RT 146; GERT 9275.) Christensen declined the stipulation and
made this issue a central focus of his defense.
781
December 2001 retirement date. (8/13/2008 RT 235; GERT 11721;

8/14/2008 (A.M.) 52; GERT 11829; 8/14/2008 (P.M.) 21; GERT
11927.)550
That Christensen elected to forcefully advance a
demonstrably false defense based upon an artificially constructed
premise does not require that the district court or the
government be bound by the artificial construct that Christensen
sought to impose.
Instead, as Christensen placed Pellicanos
wiretapping capabilities directly at issue, the government was

entitled to establish what those capabilities were and how they
remained unchanged by Turners retirement.551
Conduct predating
Turners December 2001 retirement that established both the fact

that Pellicano could implement a successful wiretap, and the
means and manner by which he did so, was highly probative of this
fact.
The district courts decision to admit evidence of
wiretaps that predated Turners retirement was not implausible or
550
Neither Pellicano nor Turner has challenged the

sufficiency of the evidence in support of the substantive
wiretapping convictions that they sustained for having wiretapped
Stallone and Busch. (CR 1607, 1609.)
551
This evidence also was relevant to rebut Christensens
claim that Turner was the SBC employee who in all instances
implemented the actual tap. While Turners job duties provided
him with the access and the ability to implement wiretaps in the
field, phone records between Pellicano and Turner showed that
Turner had another SBC contact, frame technician Joann Wiggan,
who he regularly contacted along with Wright and Malkin at times
when wiretaps were implemented and who had access to multiple
central offices, including the Beverly Hills Office. (8/22/2008
(P.M.)_8-12; GERT 13245-49.)
782
illogical, was supported in the record, and thus, did not

constitute an abuse of discretion.
The government presented several witness to rebut
Christensens lack of capability defense, each of whom provided
discrete information which when viewed together proved that the
defense was unfounded.552
Virtue, who knew that Pellicano could
successfully conduct wiretaps using the Telesleuth program from

personally having listened to wiretapped calls involving several
PIA investigative targets, provided percipient witness testimony
that Pellicano used the Telesleuth program to conduct wiretaps
through the time that she left PIA in mid-February 2002, which
was two-months after Turners retirement and just one month prior
to the initiation of the Bonder-Kerkorian wiretap.
(7/23/2008
(A.M.) 46; GERT 9328; 7/23/08 (P.M.) RT 95; GERT 9505.)
Wright
similarly testified that Turner continued to contact her to

obtain confidential SBC subscriber information past his
retirement, including information on Busch in May 2002 (for which
Wright sustained a felony conviction in this case).
(P.M.) RT 8-10, 14, 16-17, 21-2.)
(8/8/08
Attorney Lawrence Nagler
testified that in mid-February 2002, he filed suit on behalf of

Sylvester Stallone against financier Ken Starr, who then retained
Pellicano.
(8/14/08 RT (P.M.) 21-22, 25-26.)
552
Listening to a
Given the purposes for which the evidence was admitted,

the government employed far fewer wiretap-based witnesses and
presented their testimony in a far more truncated manner than had
been done at the RICO trial.
783
February 20, 2002 call between Pellicano and Starr, Nagler

confirmed that Pellicano was advising Starr of the contents of
attorney-client privileged communications that Nagler had by
phone with Stallone and Stallones representatives at Stallones
residence in the days immediately preceding this call, which
postdated Turners retirement and predated Christensens
retention of Pellicano by just one month.
3421.)
(Id. at 32-80; GEX
Turners April 11, 2002 call with Pellicano, in which
they discuss whether a former PIA employee would rat on them

for the illegal stuff that they did together, was made in the
very midst of the Bonder-Kerkorian wiretap and evidenced an
ongoing conspiratorial relationship between Pellicano and Turner
following Turners SBC retirement.
3384.)
(8/13/08 (A.M.) 185-90; GEX.
Testimony relating to the two undocumented Busch wiretaps
discovered on the SBC central office frame in November 2002

showed that Pellicano retained the ability to execute wiretaps at
SBC central offices well past Turners December 2001 retirement
from SBC and through the entirety of the period of the March-toMay Bonder-Kerkorian wiretap.553
b.
The Evidence Was Inextricably Intertwined with

Direct Evidence of the Wiretapping Conspiracy
553
Several witnesses were required to address specific

aspects of the taps discovery, i.e., the house call, the
discovery of the undocumented tap on the frame, and the discovery
of a second tap. (8/13/2008 RT 193, 208, 235, 242; GERT 11679,
11694, 11721, 11728; 8/14/2008 (A.M.) 62-65; GERT 11839-42.)
784
Testimony regarding Pellicanos dealings with prior clients

and evidence of select past wiretaps also did not fall within the
scope of Rule 404(b) in that such evidence was necessary to
properly present the means and manner by which Christensen and
Pellicano intended to and did carry out the charged wiretapping
that was the object of the charged conspiracy.
See United States
v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995)

(other act evidence may be admitted without regard for Rule
404(b) where it is necessary to do so in order to allow the
prosecutor to offer a coherent and comprehensible story regarding
the commission of the crime.) Two items of evidence central to
the governments case-in-chief were the Christensen-Pellicano
recordings and Exhibit 101, which was a listing of Telesleuth
related passwords recovered from a computer in Pellicanos
private office within PIA.
Particularly given that Christensen
structured a considerable portion of his trial defense advancing

his claims that Pellicano had materially altered the 34
Christensen-Pellicano recordings such that the substance of the
recordings could not be trusted and that the information
Pellicano provided actually had been obtained through sources,554
554
Christensens primary defense witness, forensic examiner

Bruce Koenig, testified that the Christensen-Pellicano recordings
were digitally captured and could be edited without detection at
gap points caused by brief moments of silence or other pauses
within the conversation. Koenig then testified to the number of
gap points in the recordings, effectively equating them with the
number of potential editing points at which the ChristensenPellicano calls could have been altered by Pellicano.
(continued...)
785
it was within the district courts discretion to allow the

admission of evidence placing these recordings and Exhibit 101 in
a their proper context.
See, e.g., Dorsey, 677 F.3d at 951
(testimony about past use of particular firearm not 404(b) as it

was necessary for prosecution to provide a coherent and
comprehensible presentation of the evidence).
LeMasters testimony regarding Pellicanos use of offsite
wiretap listening posts provided proper context to Pellicanos
statements on the recordings that he has to go all the way over
there and all the way back (8/5/2008 (A.M.) RT 24, Ex. 9, GEX
3097; GERT 10101), Ive been there every fucking night and am
going to be there again over the weekend (8/5/2008 (A.M.) RT 30;
Ex. 11; GEX 3103; GERT 10107.), that he needed one days notice
if Christensen wanted information because he did not keep
things at his office (8/12/08 (A.M.) RT 86; Ex. 34; GEX 3375.),
and Christensens statements such as youre like over there,
youre like over there on like Sunday nights, for Petes sake,
(8/7/08 (A.M.) RT 72; Ex. 23; GEX 3254.), and that Pellicano had
to engage in one more adventure the night before the wiretap
was taken down (8/12/2008 (A.M.) RT 77; Ex. 33; GEX 3354; GERT
11328.)
554
(...continued)
Ultimately, however, Koenig conceded that there points in the
conversation with no break points (where Christensen and
Pellicano openly discussed their ongoing wiretap) and that he
could not say whether these recordings had been altered in any
way or were the actual, unvarnished conversations between
Christensen and Pellicano.
786
Similarly, Pfeifers testimony regarding Pellicanos

openness in discussing wiretapping with a new client, his use of
phrases such as there is only one way you know I could be
getting this information, and code words such as special
techniques to describe his wiretapping, and read, as in I
have to go read tonight, and I read something to describe his
need to go listen to or having obtained information from
wiretapped communications all provided context to, and rebutted
claims of alteration involving, the numerous near identical
statements on the Pellicano-Christensen recordings. (7/22/2008
(P.M.) RT 88, 108; GERT 9217; 9237.)
For example, in describing that Bonder-Kerkorians attorney
was in e-mail communication with a DNA laboratory and researching
whether his communications were subject to the attorney-client
privilege, Pellicano advises Christensen so be very careful
about this because theres only one way for me to know this.
(7/25/08 (P.M.) RT 125; Ex. 5; GEX 3046.)
When discussing a call
that Bonder-Kerkorian had with her father, Pellicano advises

Christensen, her lies are overwhelming . . . and theres no way,
except with my unique techniques, that you would know this to
which Christensen responded yeah and then followed up on the
substance of the information just provided by Pellicano.555
555
(Id.)
Christensen cites the governments statement in closing

that Christensen initially seemed confused when Pellicano first
spoke in code (COB 59), but fails to acknowledge that the very
next line of argument whereby the government noted that
(continued...)
787
Similarly, Pellicano, as he did with Pfeifer, repeatedly referred

to listening to wiretaps as having to read, including one
instance when, referencing Kirk Kerkorian, Pellicano stated it
may be helpful for our client to read things, so he has a better
feel. (8/6/08 (P.M.) RT 34; EX. 18; GEX 3190.)
The district court, likewise, did not abuse its discretion
it admitting evidence necessary to fully and properly assess
Exhibit 101.
This exhibit consisted of a one page document
recovered from a computer in Pellicanos private office within

PIA that included abbreviated or coded listings of investigative
targets followed by a password that, in all but one instance (AB
Catholic Girl Reporter), included the word Omerta (e.g.,
Kwacker
Lisa Bonder Omerta, Gores Main Lisa Gores Omerta,
Laviolette Omerta, Vincent Bo Zenga Omerta Final).556

555
(...continued)
Christensens confusion was short-lived, as the ChristensenPellicano recordings showed that Christensen understood future
uses of this code, including when Pellicano suggested having
Kerkorian to read things rather than get the information
third-hand (i.e., from Christensen after being relayed through
Pellicano). (8/27/08 (A.M.) RT 50-51.)
556
discretion in admitting Exhibit 101 based on Virtues testimony,
as she could not properly authenticate the document. (COB 60.)
The record is clear, however, that the district court did not
admit the document on this basis, expressly stating so. (7/23/08
(A.M.) RT 32-33.) Prior to its admission, the district court had
before it the testimony of the FBI agent who seized the computer
containing Exhibit 101 from Pellicanos personal workspace, the
FBI computer specialist who imaged the computer evidence and who
testified that the images, and the evidence recovered therefrom,
were identical reproductions of the original computer evidence,
and a summary chart that showed the specific item of computer
evidence from which the computer-related exhibits were recovered.
(continued...)
788
Virtue testified that, each of the many times that she

listened to wiretapped calls in the Zenga matter over several
months, Pellicano provided her with the calls and then typed the
phrase Vincent Bo Zenga Omerta, as the second part of a two-part
password required to access the wiretap files.
30-31; GERT 9313-14)
(7/23/2008 (P.M.)
Virtue further testified that the passwords
in three other wiretaps that she listened to also included the

word Omerta and that it was only in the context of wiretaps that
Pellicano used the word Omerta.557
7/23/08 (P.M.) RT 28, 118-19.)
(7/23/08 (A.M.) RT 31-32;
FBI forensic testimony
established that Pellicano used Omerta as part of the hard coded

password needed to access encrypted audio recordings on the
Telesleuth Jr. recording program. (7/18/08 (P.M.) RT 19.)
Additional testimony established that, in addition to Zenga,
556
(...continued)
(7/18/2008 (A.M.) 119-21; Ex. 190; GERT 8845-47.) Moreover, the
face of Exhibit 101 reflected numerous known PIA matters,
including the Bonder-Kerkorian matter. The document, as the
district court noted, was properly authenticated. See United
States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir. 1991)
(Federal Rule 901(a) only requires the government to make a prima
facie showing of authenticity or identification so that a
reasonable [trier of fact] could find in favor of authenticity or
identification.); United States v. Salcido, 506 F.3d 729, 733
(9th Cir. 2007) (physical evidence properly authenticated through
testimony describing how images were retrieved from a particular
computer); United States v. Black, 767 F.2d 1334, 1342 (9th Cir.
1985) (Once the government meets this burden, the credibility or
probative force of the evidence offered is, ultimately, an issue
for the [trier of fact]).
557
Virtue did not recall the phrase final at the end of
the password but testified that the password was otherwise
identical to what was listed on Exhibit 101. (7/23/08 (A.M.) RT
31.)
789
wiretapping had been conducted on several of the investigative

targets listed on Exhibit 101, to include Busch, Laviolette, and
Gores.558
(7/23/08 (A.M.) RT 34, 104; GERT 9316; 8/12/08 RT 113-
17; GERT 11364-68; 8/14/2008 (A.M.) 56; GERT 11833)

The mere fact that Exhibit 101, a document found on
Pellicanos office computer, referenced Bonder-Kerkorian made it
relevant to proceedings in which Christensen and Pellicano were
charged with having wiretapped her.
Fed.R.Evid. 401.
The fact
that Bonder-Kerkorians name was accompanied by the word Omerta,

which Virtue testified was used in the wiretapping context,
forensic evidence established the word Omerta was part of the
embedded password necessary to circumvent the sophisticated
encryption program that Pellicano installed in Telesleuth Jr.559,
and that at least 1/3 of the investigative targets listed on the
document were known to have been wiretapped, Exhibit 101 was
probative evidence of the Bonder-Kerkorian wiretap and highly
probative evidence rebutting Christensens defense that the overt
discussions of wiretapping on the Christensen-Pellicano calls had
been altered to make it appear that wiretapping had occurred,
when it had not.
c.
The Evidence Would Be Admissible under Rule 404(b)
558
Christensen incorrectly states that Virtue failed to

identify wiretapping in the LaViolette matter. (COB 60.) On
cross-examination from his counsel, Virtue testified that while
had not listened to wiretaps in the case, Pellicano had.
(7/23/08 (A.M.) RT 104.)
559
Telesleuth Jr. was a modified version of the Telesleuth
wiretapping program (7/18/2008 (P.M.) 18; GERT 8878).
790
Even if the evidence of prior and contemporaneous wiretaps

conducted by Pellicano were analyzed under Rule 404(b), it still
would be admissible.
Rule 404(b) permits the introduction of
evidence of other crimes, wrongs or acts for any purpose other

than to show action in conformity therewith, including as
proof of motive, opportunity, preparation, plan, knowledge,
identity, or absence of mistake or accident.
404(b).
Fed. R. Evid.
This Court has explained that Rule 404(b) is an
inclusionary rule, which admits evidence of other acts unless it

tends only to prove criminal disposition,560 United States v.
Curtin, 489 F.3d 935, 944-45 (9th Cir. 2007); United States v.
Catabran, 836 F.2d 453, 459 (9th Cir. 1988); and further has
stated that the inclusionary approach recognizes the evidence of
other crimes may be probative on issues that are not listed
specifically in Rule 404. United States v. McKoy, 771 F.2d 1207,
1213-14 (9th Cir. 1985).
Moreover, once it has been established
that the evidence offered serves one of the purposes [set forth
in the Rule], the relevant Advisory Committee notes make it clear
that the only conditions justifying the exclusion of the
560
This Court has held that, under Rule 404(b), evidence

of prior criminal conduct may be admitted if (1) the evidence
tends to prove a material point; (2) the prior act is not too
remote in time; (3) the evidence is sufficient to support a
finding that the defendant committed the other act; and (4) (in
cases where knowledge and intent are at issue) the act is similar
to the offense charged. United States v. Mayans, 17 F.3d 1174,
1181 (9th Cir. 1994). All conditions are easily satisfied here.
See, e.g., United States v. Vo, 413 F.2d 1010, 1013, 1018 (9th
Cir. 2005) (finding that 13-year old drug trafficking conviction
not too remote in time for admission under Rule 404(b)).
791
evidence are those described in Rule 403.
Curtin, 489 F.3d at
944.
Evidence of Pellicanos prior and contemporaneous
wiretapping was relevant to a number of issues wholly unrelated
to criminal propensity.
First, it is relevant for the same
reasons that such evidence is not technically 404(b) evidence in

the first instance. Second, such evidence, as discussed earlier,
is directly relevant to show Pellicanos capability to achieve
the object of the charged conspiracy i.e., Pellicanos ability
to successfully implement a wiretap, an issue that Christensen
repeatedly challenged throughout the trial.
It was thus an issue
of unquestionable relevance and one for which Rule 404(b)

expressly authorized admission.
See United States v. Green, 648
F.2d 587, 592 (9th Cir. 1981)(opportunity exception under Rule

404(b) refers to a defendants capacity to accomplish the charged
acts).
Third, this evidence established Pellicanos modus
operandi when implementing wiretaps on behalf of clients,

including the openness with which he shared the illegally
acquired information with his clients, and thereby undercut
claims that the Christensen-Pellicano recordings were altered
while bolstering the supporting inference that Christensen fully
was aware of what Pellicano was doing on his behalf.
Under this
Circuits precedent, once one exception has been satisfied and

the opportunity exception unquestionably had been the 404(b)
792
inquiry has been satisfied and the issue then becomes whether the
evidence is admissible under Rule 403.561
d.
The Evidence Was Admissible under Rule 403
The district court did not abuse its discretion under Rule
403 by admitting the evidence of past and contemporaneous
wiretapping conducted by Pellicano.
Any prejudice that may have
resulted from the admission of such evidence was not unfair

prejudice.
Bailleaux, 685 F.2d at 1111 (unfair prejudice means
prejudice resulting from an aspect of the evidence other than its

tendency to make the existence of a material fact more or less
probable, e.g., that aspect of the evidence which makes
conviction more likely because it provokes an emotional response
in the jury or otherwise tends to affect adversely the jury's
attitude toward the defendant wholly apart from judgment as to
his guilt or innocence of the crime charged).
This is
particularly true given that Christensens defense that Pellicano

could not successfully wiretap after December 2001,562 necessarily
implied that Pellicano previously had successfully conducted
561
As the evidence was admitted jointly against Christensen

and Pellicano, no limiting instruction was necessary or
appropriate. See, e.g., United States v. Boone, 951 F.2d 1526,
1540 (9th Cir. 1991) (recording of one conspirators
conversations with undercover agent held clearly admissible
against all conspirators under Rule 404(b) as proof of a plan or
scheme or to show modus operandi).
562
Christensens defense was not in any premised on the
district courts decision to admit this evidence, as he made
known his intent to pursue it in a severance motion prior to when
the district court ruled on the admissibility of this evidence.
793
wiretaps, a matter Christensens opening argument made

explicit.563
Bailleaux, 685 F.2d at 1105 (the greater the degree
of probativity possessed by the evidence, the greater the showing

of unfair prejudice that will be required to exclude the
evidence.) Moreover, Christensen well knew that the artificial
defense he created around Turners retirement, which was proved
to be demonstrably false at the RICO trial, would be met with
rebuttal evidence proving its falsity, which he all but invited
by pursuing a manufactured defense.
To create the impression of unfair prejudice, particularly
unfair prejudice that substantially outweighs the high
probativity of the admitted evidence in establishing Pellicanos
capacity to conduct wiretaps and in explaining other items of
evidence, Christensen distorts the record.
Christensen implies
that the government sought, and the district court granted,

admission of multiple wiretapped communications despite the
absence of actual wiretapped calls in this case: the court
permitted the jury to hear over objection extensive recordings
563
Christensen cites to alleged prejudice in Pellicanos

questioning of Virtue and LeMasters regarding past wiretapping at
PIA. (COB 64.) The wiretaps at issue occurred before December
2001, and therefore came at a time when even Christensen conceded
that Pellicano was wiretapping. Moreover, Christensen sought to
exploit the existence of the past wiretaps through affirmative
questioning that was designed to show how those wiretaps involved
evidence trails that did not exist in his case (7/23/2008 (A.M.)
101-02, 109, 115; GERT 9383-84, 9391, 9397; 8/8/2008 (P.M.) 10203, 110; GERT 11191-92, 11199. There was no unfair prejudice to
Christensen from this questioning.
794
and testimony about those activities [Stallone, Gores, and Finn

wiretaps] ironic in a case where no recordings of Bonder
existed. (COB 64.)
This is false.
For reasons including that
Pellicano, as he explained to Christensen, kept wiretapped

recordings offsite
(8/5/2008 (A.M.) RT 24, Ex. 9, GEX 3097; GERT
10101) and that the initial search warrant of PIA was limited to
matters relating to the Busch threat (7/17/2008 (P.M.) RT 8-9;
GERT 8610-11), only a single wiretapped recording of any party
(the Gores recording) was recovered.
While this recording was
played at trial as evidence of Pellicanos capacity to wiretap,

all other wiretapping evidence involved witness testimony and/or
recorded calls between Pellicano and the client discussing
wiretapping, which is the same type of evidence as existed
against Christensen.
Moreover, efforts to claim prejudice based
on the personal nature of the conversations or the celebrity

status of the participants (COB 64), turns a completely blind eye
to the fact that the Christensen-Pellicano recordings contained
approximately 6 hours of discussion in which Christensen and
Pellicano revel in the interception of their adversarys
privileged attorney-client and doctor-patient communications
involving issues such as sterility, parentage, fraudulent DNA
tests, and the mental stability of several prominent individuals.
(7/25/2008 (P.M.) RT 57, 61-62, 126, 139-40; Ex. 4, 5 GEX 3035,
3046; GERT 9947, 9951-52, 10016, 10029-30; 8/6/2008 (P.M.) 70;
795
Ex. 21; GEX 3209; GERT 10551;

GERT 11316)
8/12/2008 RT 65; Ex. 33; GEX 3354;
(CR 1196).
Similarly, Christensen distorts the record by claiming that

the government impermissibly introduced evidence of wiretaps
involving individuals not listed on Exhibit 101.
(COB 61.)
As a
preliminary matter, Christensens claim that wiretaps of Tom

Gores and Busch are not referenced in Exhibit 101 is false.
Busch, an LA Times reporter at the time she was targeted by
Pellicano (and whose DMV information found within PIA referenced
an account at the United Catholic Credit Union), expressly
testified that the AB Catholic Girl Reporter reference on
Exhibit 101 was to her.
(8/14/08 (A.M.) RT 54-56; GERT 11831-32;
Ex. 112-13; GEX 3655-57.)
As for Tom Gores, he was the
participant on the other end of the wiretapped phone call

involving Lisa Gores, who was directly identified on Exhibit 101.
(7/23/2008 (A.M.) RT 33-34, Ex. 101; GEX 3445; GERT 9315-16;
8/12/2008 RT 97-98, 112, 114-15, 137-38; GERT 11348-49, 11363,
11365-66; 11388-89)
The other individuals cited by Christensen
provided either testimony about wiretaps that related directly to

Exhibit 101 Virtue testified that the passwords for the
wiretapped calls also involved Omerta
while the other two
matters cited, Maguire and Stallone, were introduced for the

reasons already stated.
796
Much of the evidence regarding prior and contemporaneous

wiretapping by Pellicano was a direct response to Christensens
manufactured defense.
The remainder was necessary to place
specific items of evidence into their proper context,

particularly when that context was further distorted by
Christensens multiple defenses.
The district courts finding
that the unfair prejudice did not substantially outweigh the

probativity of this evidence was not illogical or implausible and
further was supported in the record.
e.
It should be upheld
Any Error in Admitting this Evidence Was Harmless
Even assuming that the district court abused its discretion

in admitting this evidence, such error would have been harmless.
Christensens knowing participation in both the wiretapping
conspiracy and the substantive wiretapping of Bonder-Kerkorian
was proved through overwhelming evidence, most notably the
approximately 6 hours of conversations in which Pellicano and
Christensen make admission upon admission relating to this
wiretapping (e.g., TC: so Harlee told her that the judge was
questioning her credibility (7/25/2008 (P.M.) RT 68; Ex. 4, GEX
3035; GERT 9958; TC: So what did you hear on your end? . . . Oh
I see, youve been waiting to see if you had a fraud count to
talk about.
Or to listen about.
(8/5/2008 (A.M.) 22; Ex. 8;
GEX 3094 ; GERT 10099; AP: You know she talks to him and the she
says, the first thing that comes out of her mouth, is will you
come with me tomorrow (8/5/2008 (A.M.) RT
797
101; Ex. 12; GEX
3108; GERT 10178)
AP: She speaks in parables (8/5/2008
(A.M.) 134, Ex. 13; GEX 3130; GERT 12011)); TC: Im telling you
what youre gonna find.
Okay?
Thats what youre gonna find.
Discussions about Steve Bing. (8/5/2008 (A.M.) RT 146, Ex. 14;

GEX 3140; GERT 10223)).
The strength of this evidence is such
that Christensen has not challenged its sufficiency and for good
reason.
When the Christensen-Pellicano recordings are considered
in their totality, it is plain that the admission of evidence

relating to past or contemporaneous wiretapping conducted by
Pellicano did not impact the verdict.
Furthermore, while the governments case-in-chief satisfied
its burden and successfully defeating Christensens defenses,
Christensens defense case failed in spectacular fashion, which
was reflective of its lack of a legitimate foundation.
For
example, Christensens forensic expert Bruce Koenig, whose

responses on cross-examination were so evasive that Christensens
counsel apologized to the jury in closing564, conceded that he
could not tell whether the Christensen-Pellicano calls had been
altered in any way and further that his critical listening
skills did not reveal any particular location in any of the 34
Christensen-Pellicano calls where he definitively could say that
564
Counsel stated I actually was watching some of your

faces and some of you were frustrated that he gave what you
perceived perhaps to be equivocal answers. (8/26/08 RT(A.M.)
109.)
798
there had been an alteration (8/20/2008 (A.M.) RT 35-37; GERT

12642-644).
He ultimately concluded by noting that his opinion
was that he did not have an opinion on the authenticity and

accuracy of these recordings (8/19/2008 (P.M.) RT 65-66; GERT
12537-538; 8/20/2008 (A.M.) RT 106; GERT 12713.
Michael Ashman, the phone technician who installed the
phones at Bonder-Kerkorians residence, testified unequivocally
on direct examination that Bonder-Kerkorians phone could not be
tapped due to it being a digital phone (8/15/08 RT (P.M.) 83, 8687), only to readily concede that the signal switched to analog
as soon as it left the house, at which time it could be tapped
and intercepted just like any other analog signal.
(P.M.) 115.)
(8/15/08 RT
Notably, Ashman further acknowledged on cross-
examination that it would be simple for a phone company employee

with access to cable information and the mainframe or at the BBox to set up a wiretap and that if the tap was not logged into
the phone company database if you werent looking for it
specifically, youd never find it.565
Id. at 117-18, 120, and
that if the person who placed the undocumented tap were to remove
it before it was discovered, nobody would ever know that the line
had been tapped.
Id. at 120-21.
In doing so, he effectively
adopted the governments wiretapping theory.

565
In addressing the Busch scenario of two undocumented

half-taps in short succession, Ashman testified it would
definitely alert someone to look into it. (8/15/08 RT (P.M.)
120.)
799
There was no was abuse of discretion.

prejudice.
There was no
Christensens challenges to the admission of this
evidence fails.
S.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN NOT

GRANTING CHRISTENSENS MOTION FOR SEVERANCE
discretion by not severing his trial from that of Pellicano and

that Christensen suffered prejudice because: (1) evidence of
prior and contemporaneous wiretapping conducted by Pellicano
would not have been introduced against Christensen in a joint
trial; and (2) Pellicanos prison attire and admissions through
his questioning of witnesses prejudiced Christensen in the jurys
eyes. (COB 64-65.)
Christensen has fallen woefully short of his
burden of proving that the prejudice from the joint trial was so
clear, manifest, or undue that he was denied a fair trial.
Throckmorton, 87 F.3d at 1071-72.
Based on both Christensens trial defenses and the
inextricably intertwined nature of the evidence, the district
court, in a proper exercise of its broad discretion, concluded
that the evidence of past and contemporaneous wiretapping
conducted by Pellicano was admissible against Christensen
individually, as well as jointly with Pellicano.
Therefore, the
joinder did not result in prejudice warranting severance.
See
United States v. Crespo de Llano, 838 F.2d 1006, 1020 (9th Cir.
1987) (denial of severance motion was not abuse of discretion
800
where purportedly prejudicial evidence would have been admissible

against defendant in a separate trial to prove conspiracy
charge).
Christensen also was not unduly prejudiced by Pellicanos
decision to wear jail-issued clothes during the course of the
trial.
Among the numerous instructions that the district court
provided the jury that directly or indirectly addressed

Pellicanos pro se status566 was that Pellicanos custodial
status, including his election not to wear civilian clothes,
should not influence the jury in any way.
36.)
(7/16/08 (A.M.) RT
The jury is presumed to have followed this instruction,
United States v. Rousseau, 257 F.3d 925, 932 (9th Cir. 2001), so
there is no reason to believe that the jury made any negative
inferences towards Pellicano, much less Christensen, based on
this fact.
Christensen also was not unduly prejudiced by Pellicanos
conduct during trial.567
Pellicano, who had two months before
566
As it had done in the RICO trial, the district court

provided Pellicano with a series of admonishments regarding how
he would be expected to conduct himself as pro se counsel
(7/14/08 (A.M.) RT 16-17, 24); advised the jury prior to the
start of trial that statements or arguments made by Pellicano as
pro se counsel were not evidence (7/16/08 RT (P.M.) 99; 7/17/08
(A.M) RT 9); and instructed the jury that any statements that the
attorneys, including Pellicano, made in closing argument were not
evidence (8/26/08 (A.M.) RT 16).
567
Christensen ignores that it was his counsel, not
Pellicano, who was rebuked by the district court for merging two
audiofiles and playing them as a single recording, and who, in a
separate instance was admonished again regarding the misleading
use of audiofiles in cross-examination. (7/4/08 (A.M.) RT 104(continued...)
801
been convicted of more than six dozen felonies (CR 1607), largely
stood by and allowed Christensen to control the defense message.
Pellicano did not open (7/17/08 (P.M.) RT 52), did not close
(8/26/08 (P.M.) RT 105), and his questions to the witnesses, to
the extent that he asked any at all, were typically quite
brief.568
Moreover, while Christensen cites to select instances
in which Pellicano acknowledged that Telesleuth was a wiretapping

program and/or that he may have wiretapped previously (COB 64),
his doing so was 100% consistent with Christensens trial defense
as set forth in Christensens opening statement.
(7/17/08 (A.M.)
RT 74.)
As Christensen failed to establish the manifest and unfair
prejudice necessary for severance, the district court, in a
proper exercise of its discretion, found that the compelling
considerations in favor of joint trials in conspiracy cases
should control.
T.
Patterson, 819 F.2d at 1502-03.
THE GOVERNMENT DID NOT ENGAGE IN MISCONDUCT AT THE SECOND

TRIAL BY POINTING OUT IN REBUTTAL ARGUMENT DEFENDANT
CHRISTENSENS FAILURE TO PRESENT EVIDENCE THAT HE HAD
PROMISED IN HIS OPENING STATEMENT
1.
Standard of Review
567
(...continued)
06; 7/25/08 (A.M.) RT 9-18; 8/8/08 (A.M.) RT 25-27.)
568
Christensens statement of facts in the joint trial
brief notes that Pellicano spent two days on a defense case in
which he questioned government computer experts. (JOB 116.) As
Christensens counsel made clear to the jury, Pellicano had
significant technological expertise. (7/17/08 (A.M.) RT 37, 45,
48, 50.) Moreover, Christensen does not explain, as he was
required to do, how he was prejudiced through the questioning of
these witnesses.
802
The district courts denial of objections to closing

argument is reviewed for an abuse of discretion.
at 802.
Tam, 240 F.3d
Improper remarks in closing argument are subject to
harmless error analysis and will result in reversal only if it is

more probable than not that they materially affected the verdict.
Prantil, 764 F.2d at 556.
2.
The Governments Argument Was Wholly Proper and

Based on the Evidence Introduced (and Not
Introduced) at Trial
Christensen claims that the government knowingly

misrepresented in its rebuttal argument the facts relating to
Steve Bings payment of $310,000 to Pellicano in the summer of
2002.
(COB 66-70).
The governments argument was entirely
proper.
In her opening statement, Christensens counsel told the
jury:
On June 25 and August 5, 2002, between that time
period, Mr. Bing pays Mr. Pellicano $300,000 or -- and
more for the Kerkorian matter. Not the Elizabeth
Hurley matter. There will be evidence to the contrary.
Its in connection with the Lisa Bonder matter.
(7/17/08 (A.M.) RT 67).569
In opposing Christensens request for
the admission of the two Bing checks into evidence, the

government invited the defense to call Mr. Bing and have him
testify about what he paid and why.
569
(8/14/08 (A.M.) RT 6).
The
In their recorded conversations, Pellicano repeatedly

told defendant that he represented Bing in connection with a
paternity claim by Elizabeth Hurley. (See, e.g., 8/5/08 (A.M.)
RT 142; 8/6/08 (P.M.) RT 35; 8/8/08 (P.M.) RT 144-47).
803
government noted that no foundation had been laid for the purpose
of the checks:
matter.
We dont know whether it dealt with the Hurley
We dont know whether it dealt with this matter.
And
Mr. Bing has made statements previously, but he is not on the

stand, he is not under oath or subject to cross-examination.
(8/14/08 (A.M.) RT 6-7).
The checks were admitted over the
governments objection for a limited purpose - to establish that

Bing was a client of Pellicanos during the relevant time period.
(8/14/08 (A.M.) RT 10-11).
Although Bing appeared on
Christensens witness list, Christensen failed to call him as a

witness, and thereby failed to introduce any evidence whatsoever
regarding the purpose of Bings checks to Pellicano.
After Christensens counsel repeatedly suggested in her
closing argument that the Bing checks had something to do with
Pellicanos motive for recording Christensen and/or altering the
recordings (8/26/08 (A.M.) RT 101-03; 8/26/08 (P.M.) RT 31-34),
the government properly pointed out in its rebuttal argument
defense counsels failure to deliver on the promises made in her
opening statement:
[Defense counsel] told you that the evidence would show
that the $300,000 Bing paid defendant Pellicano was for
the Bonder Kerkorian matter. Where was that evidence?
You have checks that they submitted from Steve Bing to
defendant Pellicano in June and August, 2002. So what?
You dont have any testimony about those, and you heard
on the recordings that defendant Pellicano was
representing Bing on a completely different matter
involving Elizabeth Hurley. . . . [T]here is
absolutely no evidence that defendant Pellicano having
804
Steve Bing for a client has anything whatsoever to do

with what happened in this case.
(8/27/08 RT 34).570
See United States v. Ziesman, 409 F.3d 941,
954-55 (8th Cir. 2005) (government may properly point out in

closing argument evidence that defense promised in its opening
statement but failed to produce); United States v. Zanabria, 74
F.3d 590, 592-93 (5th Cir. 1996) (prosecutor may comment on
failure of defense to follow through on opening statement
promises); United States v. Dula, 989 F.2d 772, 777 (5th Cir.
1993) (It is not error to comment on the defendants failure to
produce evidence on a phase of the defense upon which he seeks to
rely.).
The district court did not abuse its discretion in
overruling Christensens objection to this argument.
(8/27/08 RT
35).
Christensens claim that the government engaged in
misconduct by asking the jury to find facts that it knew were
false is entirely groundless.
Although Bing had told the FBI in
an unsworn interview that the payments were, at least in part, a

thank you to Pellicano for his assistance in the Kerkorian
matter,571 the government was not required to accept that
statement as fact (particularly in an investigation in which
570
Christensens selective editing in his opening brief

deletes the opening two sentences above and thereby misleadingly
removes the governments statement from its context. (COB 67).
571
Bing stated in the same interview that the purpose of
the check was to stay on Pellicanos good side and was also a
thank you to Pellicano for his assistance in a matter with Ron
Burkle. (JSER 599).
805
numerous people were successfully prosecuted for lying to the

FBI) or to refrain from pointing out Christensens failure to
deliver the evidence that he had promised in opening statement.
In United States v. Reyes, 577 F.3d 1069 (9th Cir. 2009), on
which Christensen relies (COB 69), the prosecutor in closing
argument made an affirmative assertion of fact that the entire
Finance Department of the defendants company had no idea that
options backdating was occurring, when in fact he knew that
officers of the Finance Department had admitted their knowledge
to the FBI, that the companys controller had resigned as a
result, and that SEC complaints had been filed against Finance
Department employees alleging that they knew about the scheme.
Id. at 1074, 1076-78.
Here, in contrast, the government did not
make any assertion of fact as to the purpose of the Bing checks,

but simply (and properly) pointed out the absence of evidence in
the record to support the factual assertions being made by
defense counsel.
Finally, any error in the governments argument is harmless
because it is not more probable than not that the error
As discussed earlier,
Christensen failed to present any evidence supporting his theory

that the Recordings were altered or tampered with in any way, and
the prosecutors accurate statement about the absence of evidence
806
regarding Bing did not aggravate that failure.572

29-33).
(See 8/27/08 RT
Moreover, the entire defense theory that Bing had
anything whatsoever to do with was speculative, vague, and

generally incomprehensible and, as pointed out by the
government, was one of at least six wholly inconsistent defense
theories presented in the case.
(8/27/08 RT 25-28, 33-37).
Christensen was convicted based on his own devastatingly

incriminating recorded words in 34 separate conversations
culminating in him asking Pellicano to keep the wiretap going one
more day so that he could find out what Bonder Kerkorians
lawyers said to her about a court hearing and not because of
whether Bings two checks pertained to the Bonder Kerkorian or
Elizabeth Hurley matter.
U.

DISMISSING A JUROR DURING DELIBERATIONS AFTER MAKING A
FACTUAL FINDING THAT THE JUROR HAD REPEATEDLY LIED TO THE
COURT
During jury deliberations in the second trial, the district
court dismissed a juror after it concluded, based on its inquiry

conducted in response to notes received from several jurors, that
the juror had told numerous lies in response to the courts
questions.
The district court acted within its broad discretion
572
Indeed, in arguing for admission of the Bing checks,

Christensens counsel assured the district court that she did not
intend to claim to the jury that Bing paid Pellicano to alter the
tapes. (8/14/08 (A.M.) RT 10). Moreover, as noted in the
governments rebuttal, the tampering theory was only one of at
least six wholly inconsistent defense theories presented to the
jury.
807
in dismissing the juror and denying defendants motion for a new

trial, and defendants claim that reversal is required should be
rejected.
1.
(JOB 119-32).573
Standard of Review
The district courts decision to excuse a juror for just

cause pursuant to Rule 23(b) will be reviewed on appeal for abuse
of discretion and must be affirmed unless the appellate court is
left with the definite and firm conviction that the district
court committed a clear error of judgment.
United States v.
Beard, 161 F.3d 1190, 1193-94 (9th Cir. 1998).
The courts
factual findings relating to dismissal of a juror will be

reviewed for clear error.
United States v. Vartanian, 476 F.3d
1095, 1098 (9th Cir. 2007).
A defendant carries a significant
burden on appeal to show that the district court abused its

discretion in denying a motion for a new trial.
United States v.
Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).

2.
Factual Background
Within little more than an hour after jury deliberations

began in the second trial, the district court received two notes
from separate jurors reporting Juror #7s stated disagreement
with the law regarding wiretapping and position that if it was
acceptable for the government to wiretap and not get caught,
then it should be OK for him.
(8/27/08 RT 99-100; JSER 587,
573
Although this issue is raised in defendants joint

opening brief, it bears only on Pellicano and Christensen, who
were the only defendants in the second trial.
808
589).
At the bottom of the note, the foreperson wrote, We are
unable to move forward we need assistance.
(JSER 587).
In
response, the court summoned the jury and re-read Instruction No.
1, which stated the jurors duty to follow the law as the court
stated it, whether they agreed with it or not.
JER 4377).
(8/27/08 RT 112;
Minutes later, the court received another note
stating that Juror #7, when asked whether he believed wiretapping

is illegal, had responded, In the law we dont have to pay
federal taxes, just state taxes.574
4378-79; JSER 591).
(8/27/08 RT 113-14; JER
On the bottom of the same page, the
foreperson added a note stating that Juror #7 will not talk

about evidence or the law and will not participate in
deliberations, and was ANTI Government, and requested an
alternate juror.
(8/27/08 RT 114; JER 4379; JSER 591).
The district court recognized that it could not dismiss a

juror merely because other jurors claimed he was unwilling to
deliberate.
(8/27/08 RT 114; JER 4379).
The court asked the
parties to research the appropriate colloquy and stated that it

would focus on whether Juror #7 was willing to deliberate and to
follow the law.
(8/27/08 RT 115-16; JER 4380-81).
574
The court
The same note revealed that Juror #7 had told the other
jurors that Ray Turner was in prison, which he knew from
papers. (8/27/08 RT 113; JER 4378; JSER 591). (In fact,
Turner had not yet been sentenced and was not in prison.
(8/27/08 RT 118; JER 4383)). Defendants declined to have the
court inquire of the jury into this potential exposure to
extrinsic information. (8/28/08 RT 77-80, 83-85; JER 4464-67,
4470-72).
809
sent the jurors home, but before they left, another note was
received:
this note listed quotes of Juror #7, which included
this case is a joke case, no one died, She (LISA) demanded too
much, and I dont treat this case seriously.
(8/27/08 RT 118-
20; JER 4383-85; JSER 593).

The next morning, the court again acknowledged its inability
to inquire into jurors views on the merits of the case and
stated that it would not inquire into whether Juror #7 was antigovernment or whether he viewed the case as a joke (which
could have reflected on his view of the evidence).
3-4, 26, 31-32; JER 4390-91, 4413, 4418-19).
(8/28/08 RT
The court brought
Juror #7 into the courtroom and carefully admonished him not to

volunteer information beyond what the court asked, not to discuss
the jurys deliberations, not to discuss the merits of the case
or the views of any juror (including himself) on the case, and
not to discuss the evidence or the views of any juror (including
himself) on the evidence.
(8/28/08 RT 41-42; JER 4428-29).
Juror #7 denied knowing that the Court had received notes from
the jury, although the record reflects that upon being called
into the courtroom, he blurted out First of all, the notes --.
(8/28/08 RT 41-42, 54; JER 4428-29, 4441).
Juror #7 denied ever
having said anything like If its okay for the government to

wiretap, its okay for him, denied ever saying that he disagreed
with the law about wiretapping, and insisted that he didnt say
810
anything about taxes.
(8/28/08 RT 43-44; JER 4430-31).
The
court followed up with the question, You didnt say anything at

all about taxes?, and Juror #7 responded, No.
JER 4432).
(8/28/08 RT 45;
Juror #7 further stated that, in response to being
asked by a juror if he believed wiretapping was illegal, he had

agreed that its illegal to wiretap.
(8/28/08 RT 45; JER
4432).
Following this brief and focused questioning, the court sent
Juror #7 back to the jury room and determined that it needed to
question the jurors whose names appeared on the notes.
RT 45-46; JER 4432-33).
(8/28/08
One at a time, the court then called
into the courtroom and questioned Jurors #1, 9, 3, and 2, each of

whom had signed one or more of the notes.
At Christensens
request, the court also then questioned Juror #11.

65; JER 4452).
(8/28/08 RT
Before any questioning, each juror was given the
same cautionary instruction that the court had given Juror #7

regarding not volunteering information, not discussing
deliberations, and not disclosing their or any other jurors
views on the case or the evidence.
(8/28/08 RT 47, 56, 59, 62-
63, 66-67; JER 4434, 4443, 4446, 4449-50, 4453-54).

In response to the courts inquiries, Juror No. 1, the
foreperson, said that he heard Juror #7 say, If its okay for
the Government to wiretap and not get caught, then its okay for
him; that he heard Juror #7 say, If its okay for the
811
Government to do it and not get caught, then it should be okay

for him; that he heard Juror #7 say, If the federal government
charges someone, theyre innocent; and that after being
reinstructed by the court on the jurys duty to follow the law,
Juror #7 had stated a bunch of babble about we dont have to
pay federal taxes.
(8/28/08 RT 47-54; JER 4434-41).
Juror #9 stated that she heard Juror #7 say, If its okay

for the Government to wiretap and not get caught, then its okay
for him; that she heard Juror #7 say, If its okay for the
Government to do it and not get caught, then it should be okay
for him; and that after being reinstructed by the court, she
asked Juror #7, If you knew someone was wiretapping and the law
said it was illegal, do you believe its illegal?, to which
Juror #7 replied, In the law, we dont have to pay federal
taxes, just state taxes.
(8/28/08 RT 56-58; JER 4443-45).
Juror #3 stated that he heard Juror #7 say, If its okay

for the Government to do it and not get caught, then it should be
okay for him.
Juror #3 also stated that, after being
reinstructed by the Court, he heard a juror ask Juror #7, If you

knew someone was wiretapping and the law said it was illegal, do
you believe its illegal?, to which Juror #7 replied, In the
law, we dont have to pay federal taxes, just state taxes.
(8/28/08 RT 59-61; JER 4446-48).
812
Juror #2, who the foreperson stated had written down Juror
#7s comments every word verbatim (8/28/08 RT 50; JER 4437),
stated that he heard Juror #7 say, If the federal government can
do it and not be found guilty, then a private citizen shouldnt
be.
Juror #2 also stated that, after being reinstructed by the
Court, he heard a juror ask Juror #7, If you knew someone was
wiretapping and the law said it was illegal, do you believe its
illegal?, to which Juror #7 replied that people shouldnt pay
federal taxes, that he was very much against that, and that
we dont have to pay them.
(8/28/08 RT 63-65; JER 4450-52).
Juror #11, whom the court questioned at Christensens

request, stated that the notes regarding it being okay for him
to wiretap if it was okay for the government were pretty close
to what Juror #7 said and that after being reinstructed by the
Court, she heard a juror ask Juror #7, If you knew someone was
wiretapping and the law said it was illegal, do you believe its
illegal?, in response to which Juror #7 said something about
the federal taxes, that maybe its not important.
(8/28/08 RT
65-69; JER 4452-56).

Following the questioning of Juror #11, the court the
parties whether they wanted the court to question any other
jurors.
No party requested any further questioning.
70-71; JER 4457-58).
813
(8/28/08 RT
After hearing arguments from counsel, the district court

stated that it found just cause to excuse Juror #7.
72; JER 4459).
(8/28/08 RT
The court first found that Juror #7 was refusing
to follow the law and would not follow the law in the case.
(8/28/08 RT 73; JER 4460).
The court based its finding on the
notes, on its questioning of the jurors, and on its finding that

Juror #7 was not credible and that the other five questioned
jurors were.
(8/28/08 RT 73-74; JER 4460-61).
With respect to
this ground for dismissal, the court found no reasonable

possibility that the impetus for the jurors notes or their
request for an alternate stemmed from Juror #7s views on the
merits of the case.
(8/28/08 RT 74; JER 4461).
As the court
noted, however, this point was moot because the court further
found, also based on its credibility determinations, that Juror
#7 had lied to the Court and that those lies constituted an
independent grounds for removing him.
4461).
(8/28/08 RT 74; JER
The court found that Juror #7 had been deceitful not only
in response to its inquiries that day, but also during voir dire,
when numerous questions were asked that should have elicited
Juror #7s views.
(8/28/08 RT 27-29, 74-75; JER 4414-16, 4461-
62).
The district court dismissed Juror #7, seated an alternate
juror, and instructed the jury to begin its deliberations anew.
(8/28/08 RT 81-82, 87-89; JER 4468-69, 4474-76).
814
Following the guilty verdicts, Christensen moved for a new

trial based on the dismissal of Juror #7.
(CR 1938).
The motion
was supported by declarations from Juror #7 and Juror #8, who had
not been questioned by the court (and of whom Christensen and
Pellicano had declined to request questioning).
(JER 4487-97).
The district court denied the new trial motion, again finding
that Juror #7 had repeatedly lied during the courts examination,
as well as most likely during voir dire.
(JER 473).
The court
further found that the juror declarations were barred by Federal

Rule of Evidence 606(b), but that even if they were not, they did
not undermine the courts previous credibility findings or its
conclusions as to Juror #7s veracity and willingness to follow
the law.
3.
(JER 474).
The Submitted Juror Declarations Were Barred by Federal
Rule of Evidence 606(b)
The district court properly found that the declarations

submitted in support of Christensens new trial motion were
barred by Rule 606(b).
As discussed above, Rule 606(b) expressly
prohibits the receipt of such declarations for the purpose of

challenging the validity of a verdict.
The declarations of
Jurors #7 and #8 addressed exclusively matter[s] or statement[s]

occurring during the course of the jurys deliberations and did
not fall within the limited exceptions for whether extraneous
prejudicial information was improperly brought to the jurys
attention or whether any outside influence was improperly
815
brought to bear on any juror.
As such,
they were inadmissible under the plain language of Rule 606(b).

See Rohrer, 708 F.2d at 434;
Pimentel, 654 F.2d at 542; Marques,
600 F.2d at 746-47; Weiner, 578 F.2d at 764; see also United
States v. Tallman, 952 F.2d 164, 167 (8th Cir. 1991) (To admit
proof of contentiousness and conflict to impeach a verdict under
Rule 606(b) would be to eviscerate the rule.); United States v.
Norton, 867 F.2d 1354, 1366 (11th Cir. 1989) (noting that
alleged harassment or intimidation of one juror by another would
not be competent evidence to impeach the guilty verdict).
In United States v. Decoud, 456 F.3d 996 (9th Cir. 2006),
the district court dismissed a juror during deliberations after
the juror told the court that her religious convictions rendered
her unable to carry out her duties.
Id. at 1003-05.
After the
verdict, the defendants filed a motion to further examine the

dismissed juror, based on a declaration of the defendants sister
that the juror had told her that the juror had been subjected to
severe pressure from other jurors because she was a holdout for
acquittal.
Id. at 1005.
The district court denied the motion,
finding that the declaration contradicted the jurors testimony

before the court and that any evidence concerning pressure
allegedly brought to bear on the juror was inadmissible under
Rule 606(b).
Id. at 1005-06.
This Court affirmed, finding that
Rule 606(b) clearly barred consideration of the declarations
816
allegation that the juror was subjected to pressure for being a

holdout for acquittal.575
Id. at 1016-19 & n.11 (citing cases).
Decoud is controlling and precluded consideration of the postverdict juror declarations in this case.
Defendants attempt to evade Rule 606(b) by claiming that
the declarations were not submitted to challenge the verdict, but
rather to demonstrate an error occurring prior to the jury
reaching a verdict, is fallacious.
(JER 131-32).
As the
district court recognized, the declarations were submitted in

support of a motion to set aside the verdict and grant a new
trial, and therefore clearly involved an inquiry into the
validity of a verdict.
(JER 474 n.1).
Indeed, all cases in
which post-verdict juror declarations are set aside under Rule

606(b) necessarily involve claims of error, misconduct, or other
activity occurring prior to the verdict.
See, e.g., Pimentel,
654 F.2d at 542; Hernandez-Escarsega, 886 F.2d at 1579;

Bagnariol, 665 F.2d at 883-89.
575
The proffered declaration also stated that the excused

juror had implied to the defendants sister that there may have
been some racial pressure to get her off the case because she,
like the defendants, was African-American. Decoud, 456 F.3d at
1005. The court noted that the Ninth Circuit had previously
implied in dictum that evidence of racial prejudice might be
exempt from Rule 606(b)s restriction on post-trial evidence.
Id. at 1018. To the extent that defendant suggests that the
forepersons alleged remark to the court clerk that Juror No. 7
(who claimed that the federal government had no power to collect
income taxes) was a commie falls within such an exemption (see
JOB 128-29), the government notes that the Decoud court
recognized that the referenced dictum related to evidence of
racial bias against the defendants. Id. at 1018-19. No such
bias is alleged here.
817
Defendants claim that Rule 606(b) does not apply to Juror

#7s declaration because he was dismissed before a verdict was
reached is equally meritless.
(JOB 132).
The rule applies by
its terms to any juror and precludes testimony regarding any

matter or statement occurring during the course of the jurys
deliberations.
Because Juror #7 was a
juror (albeit a dismissed one) and his declaration addressed

matters occurring during jury deliberations (and not falling
within any of the rules narrow exceptions), the declaration was
inadmissible.
See United States v. Acker, 52 F.3d 509, 515-16
(4th Cir. 1995) (finding that the clear language of Rule 606(b)
precluded court from considering post-verdict affidavit of juror
dismissed during deliberations that claimed juror would have held
out for acquittal).576
Accordingly, defendants claim that the district court
abused its discretion in dismissing Juror #7 must be based on the
576
Apart from Rule 606(b), the district court found that

defendants waived any right to introduce Juror #8s testimony
when they failed to request, in response to the courts
invitation at the evidentiary hearing, that any further jurors be
questioned. (8/28/08 RT 70; JER 4457). See United States v.
Kelm, 827 F.2d 1319, 1323 (9th Cir. 1987) (court may refuse to
permit defendant to reopen case and present additional evidence
where there is insufficient reason for his failure to offer
evidence at the proper time), overruled on other grounds, United
States v. Heredia, 483 F.3d 913, 920 (9th Cir. 2007); United
States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968) (defendant
could not claim actual bias of jurors who had participated as
jurors in related cases when his counsel was given opportunity
during voir dire to propound additional questions and declined to
do so).
818
record before the court at the time it made its decision.
See
Bagnariol, 665 F.2d at 884.577

4.

Conducting Carefully Circumscribed Questioning of
Jurors in Response to the Jury Notes
The district court acted within its discretion in

questioning Juror #7 and other jurors in response to the flurry
of jury notes received shortly after deliberations began.
See
United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006) (where
credible allegations of jury nullification or of a refusal to
deliberate arise during deliberations, district court may, within
its sound discretion, investigate the allegations through juror
questioning or other appropriate means); Dyer, 151 F.3d at 974
(A court confronted with a colorable claim of juror bias must
577
As the district court recognized, even if the

declarations are considered, they do not undermine the courts
credibility findings with respect to any of the questioned jurors
or the courts finding that Juror #7 had lied to the court, and
refused to follow the law. Juror #7s declaration consisted of
post hoc recharacterizations and strained interpretations of
Juror #7s words in an attempt to reconcile his prior false
statements with other evidence and testimony, but only served to
impeach him further. For example, Juror #7 claimed in his
declaration that his discussion of federal taxes in the jury room
was not an anti-government diatribe, but a historical meditation
on evolving law and the fact that before World War I, except for
a period around the Civil War, Americans did not pay federal
taxes until about 1913. (JSER 461). When questioned by the
Court, however, Juror No. 7 adamantly and repeatedly denied
having said anything at all about taxes. (8/28/08 RT 44-45;
JER 4431-32). As for Juror #8s declaration, it provides no
basis to question the testimony of the five other jurors
(including one chosen by the defense) who consistently reported
having heard Juror #7 make the statements that Juror #7 denied
having made: indeed, even she stated in her declaration that she
heard Juror #7 say something about taxes. (JSER
).
819
undertake an investigation of the relevant facts and

circumstances.).
The jury notes raised legitimate concerns that
Juror #7 was failing or refusing to deliberate ([Juror #7] will

not talk about evidence or the law. . . .
He will not
participate in deliberations) and was either unwilling or unable

to participate in rational discussions regarding the evidence and
whether or not it had established guilt beyond a reasonable doubt
(In the law we dont have to pay federal taxes, just state
taxes).
Contrary to defendants position (JOB 126), the notes
did not indicate that Juror #7 was in fact deliberating:

witness[es] never tell the truth does not appear to be a casespecific analysis of the evidence, nor does She (LISA) demanded
too much reflect a proper discussion of matters before the jury
(particularly as the district court had instructed the jury that
any alleged conduct by Lisa Bonder Kerkorian did not constitute a
defense to any of the charges and could not be considered for
that purpose).578
(8/22/08 (P.M.) RT 47).
Even if the notes
provided conflicting evidence, however, the court acted within

its discretion in conducting further investigation to determine
whether the reports of Juror #7s refusal to participate in
578
In addition, Juror #7s reported statement that he knew

from papers that Ray Turner was in prison, while ultimately not
a subject of the courts inquiry, suggested that he had either
lied during voir dire about his knowledge of the case or had
ignored the Courts instruction to avoid news accounts during
trial, and that in either event he was violating the integrity of
the deliberations by bringing extraneous, inflammatory and
prejudicial information into the jury room.
820
deliberations or to talk about evidence or the law were

accurate.
Nor is there merit to defendants complaint that the court
did not ask Juror #7 if he was unwilling or unable to deliberate
or to follow the law.
(JOB 127).
The court was not obligated to
ask those questions, nor would it have been required to accept

Juror #7s answers to those questions as determinative.
In
United States v. Egbuniwe, 969 F.2d 757 (9th Cir. 1992), the
district court excused a juror based on the courts determination
that the juror could no longer be fair and impartial after being
informed during deliberations of alleged police misconduct
involving his girlfriend.
This Court held that the district
court had not erred in failing to ask the juror if he could be

fair and impartial:
because [a] trial judge is required to make
an independent assessment of a jurors ability to render a fair

and impartial verdict, [a] jurors assurance that he or she can
render a fair and impartial verdict is not dispositive.
762.
Id. at
The court further held that the district courts findings
of the jurors defensive demeanor and failure to be forthcoming

in response to the courts inquiries constituted just cause to
remove the juror.
Id. at 763; see also Beard, 161 F.3d at 1193-
94 (affirming dismissal of two jurors due to their inability to

properly deliberate after they got into disputes with each other,
even though jurors said they could deliberate; jurors assurance
821
that he or she can render fair and impartial verdict is not

dispositive (citing Egbuniwe)).
For the same reasons, the court
was not required to accept at face value Juror #7s claim that
his disputes with his fellow jurors stemmed from his differing
view of the circumstantial evidence (8/28/08 RT 43-44; JER
4430-31), but was entitled to probe Juror #7s credibility by
questioning other jurors.579
5.
The District Courts Finding That Juror #7 Had Lied

to the Court Was Not Clearly Erroneous, and the
Courts Dismissal of the Juror Was Not an Abuse of
Discretion
Federal Rule of Criminal Procedure 23(b) provides that a

district court may excuse a juror for just cause after the jury
has begun deliberations.
A juror may not be dismissed if the
record evidence discloses any reasonable possibility that the

impetus for [the] jurors dismissal stems from the jurors views
on the merits of the case.
United States v. Symington, 195 F.3d
1080, 1087 (9th Cir. 1999) (emphasis in original).580

579
Because the notes reported alleged statements

evidencing Juror #7s apparent unwillingness or inability to
follow the law, the district court properly focused its cautious
inquiry on determining whether the notes accurately reflected
what Juror #7 had said in the jury room (and had denied saying to
the court). Contrary to defendants claim, the court did not
elicit testimony from Juror #7 regarding his views of the
circumstantial evidence or his disagreement with other jurors
(JOB 125-26): to the contrary, the court clearly instructed
Juror #7 not to disclose such matters or volunteer any
information, and the juror disregarded the courts instructions.
580
The record evidence referenced in the Symington test
is that properly before the court at the time it decides whether
or not to dismiss the juror, unsupplemented by inadmissible postverdict declarations. See Symington, 195 F.3d at 1087 (stating
(continued...)
822
Here, the court found just cause to dismiss Juror #7 on the

grounds that (1) he had lied to the Court (both by omission
during voir dire and affirmatively during the courts inquiry
regarding the jury notes), and (2) he was unwilling to and would
not follow the law.
(8/28/08 RT 72-75; JER 4459-62).
Both of
those grounds are amply supported by the record, and either one
is independently sufficient to sustain the district courts
action.
a.
The District Courts Finding That Juror #7 Lied to

the Court Is Not Clearly Erroneous
Defendants apparently do not dispute that lying to the court

constitutes just cause under Rule 23(b) to dismiss a
deliberating juror.
See Vartanian, 476 F.3d at 1096-99
(affirming district courts dismissal of juror during

deliberations based on findings, following interviews of jurors,
that juror was not forthcoming, had been deceitful and
untruthful with the Court, and was untrustworthy); United
States v. Webster, 162 F.3d 308, 348 (5th Cir. 1998) (court has
discretion to excuse untruthful juror); United States v. Zambito,
315 F.2d 266, 269 (9th Cir. 1963) (no error in dismissal of juror
580
(...continued)
that if the record evidence does disclose a reasonable
possibility that the impetus for dismissal stems from the jurors
views on the merits, the trial judge has only two options: send
the jury back to continue deliberating or declare a mistrial);
id. at 1088 (analyzing evidence that was before district court at
the time it dismissed the juror); see also Decoud, 456 F.3d at
1016-19.
823
who belatedly admitted untruthful voir dire response).581
Rather
defendants claim that the record does not support the courts
finding that Juror #7 was untruthful.
(JOB 129-30).
Defendants
argument is misleadingly selective in its analysis and certainly

does not demonstrate clear error.
In direct and irreconcilable conflict with the consistent
testimony of five jurors, each of whom the court found to be
credible, Juror #7 denied ever having made the statements
attributed to him and having said anything about taxes.
(8/28/08 RT 43-45; JER 4430-32).
Juror #7 also denied knowing
that the court had received notes from the jury, directly
contrary to his spontaneous statement about the notes when
brought into the courtroom.
(8/28/08 RT 41-42; JER 4428-29).
With respect to voir dire, the court correctly noted that a

number of questions had been asked that, had Juror #7 responded
581
Apart from the simple fact of untruthfulness, courts

have held that juror falsehoods can support a finding of implied
bias, which provides a separate basis for dismissal. See, e.g.,
Green, 232 F.3d at 677-78 (implying bias from jurors repeated
lies during voir dire, contradictory and outright false answers
to courts subsequent inquiries, and other conduct that brought
his impartiality into serious question); Dyer, 151 F.3d at 98184 (implying bias from finding that juror had lied materially
and repeatedly during voir dire in order to secure a seat on the
jury). Unlike the situation in the first trial in which a juror
allegedly failed to acknowledge having heard the prosecutors
off-the-record remark, Juror #7s repeated lies were
unquestionably material, in that they related to the fundamental
question of his willingness and ability to discharge his duty as
a juror and to follow the law. More importantly, the respective
post-verdict and pre-verdict contexts in which the juror
credibility issues came to the district courts attention provide
vastly different frameworks for analysis (including with respect
to application of Rule 606(b)).
824
honestly, should have elicited his biases and views regarding the
governments prosecution of individuals for illegal wiretapping
(as well as other anti-federal government views such as the right
to collect taxes).
During voir dire, the court asked the
following questions of the panel:
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?; 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?; and If you were sitting at those
tables trying to pick a fair and impartial jury, is there
anything about yourself that you would want to know to help you
do that, even if I hadnt been smart enough to ask you a question
to bring it out?582
(7/16/08 (A.M.) RT 88, 109).
posed a more direct question about wiretapping:
Pellicano
Have any of you
formed any opinion about the term wiretapping from reading the
newspapers and the governments new litigation -- new legislation
regarding wiretapping?
Anybody have any knowledge of that or
have any opinions on it?
(7/16/08 (P.M.) RT 29).
Juror #7
failed to respond affirmatively to any of these questions.583

582
The jurors to which the court posed these questions

included Juror #7, who was then identified as Juror #18.
(7/16/08 (A.M.) RT 87). The court had previously informed the
entire venire that the case involved charges of wiretapping.
(7/16/08 (A.M.) RT 35-36).
583
Defendants attempt to blame Juror #7s lies on
(continued...)
825
Having observed Juror #7s demeanor in responding to the

courts questions, the court made factual findings that Juror #7
was not credible and that he had lied to the court, both by
omission in voir dire and affirmatively during the courts
inquiry regarding the jury notes.
62).
(8/28/08 RT 73-75; JER 4460-
Those findings are amply supported by the record of the
courts inquiry and are virtually unreviewable by this Court.

See Patton v. Yount, 467 U.S. 1025, 1038 (1984) (trial courts
determination of prospective jurors credibility is largely based
on demeanor and is entitled to special deference); Ristaino v.
Ross, 424 U.S. 589, 595 (1976) (recognizing that the
determination of impartiality, in which demeanor plays such an
important part, is particularly within the province of the trial
judge); United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir.
1991) (affirming district courts dismissal of deliberating juror
following questioning, explaining that it would be rash indeed
to second guess the conclusion of the experienced trial judge,
based in large measure upon personal observations that cannot be
captured on a paper record).
583
(...continued)
language problems should be rejected. (JOB 124, 131). Juror #7
never claimed any language difficulties in voir dire, during the
courts inquiry, or at any other time during the nine-week trial.
His declaration indicates that he had lived in the United States
for __ years, and the court noted that he did not appear to have
any problem with language and worked in the 401(k) department of
AIG. (8/28/08 RT 25; JER ).
826
Although defendants contend that Symington is dispositive

(JOB 125), that case in fact has no application to the dismissal
of a juror for lying to the court.
1096-99.
See Vartanian, 476 F.3d at
As the district court found, Juror #7s views of the
merits of the case and his ability and willingness to deliberate

did not ultimately matter because he lied over and over again.
(8/28/08 RT 71; JER 4458).
That finding constituted just cause
to remove Juror #7 from the jury, and defendants failure to show

that the courts finding was clearly erroneous is fatal to his
challenge on appeal.
b.
The district courts finding that Juror #7 was

unwilling to and would not follow the law is not
clearly erroneous
Just cause exists for dismissal of a juror under Rule

23(b) when the district court determines that the juror is unable
to deliberate impartially.
1083-84.
Symington, 195 F.3d at 1085.
The record here amply supported that factual finding as
to Juror #7, which provided a separate and independent basis for

the jurors dismissal.
Unlike Symington, this was not a situation where the jury
had deliberated for several days and the record before the court
disclosed a reasonable possibility that other jurors were trying
to pressure the dissenting juror into submission.
1083-85.
See id. at
Rather, the court received pleas for help from multiple
jurors little more than an hour after the jury had retired to
827
deliberate.
(8/28/08 RT 72-73; JER 4459-60).
The notes from the
jury room stated that Juror #7 was unwilling to deliberate, that

he understood but disagreed with the law, and that he believed
that a private citizen should be allowed to wiretap to the same
extent as the government.
After the jury was brought back into
court and reinstructed on their duty to follow the law, the court
received a further note stating that Juror #7 had responded to
deliberating jurors questions about the evidence by ranting that
the federal government is not allowed to collect income taxes.
Those notes did not reflect a reasonable possibility that Juror
#7 was rationally disagreeing with the other jurors based on a
differing view of the evidence:
rather, they suggested a rogue
juror who was refusing to deliberate and was improperly pursuing

an agenda of jury nullification.
Juror #7s response to a fellow
jurors thoughtful and deliberative questioning regard

wiretapping with the non sequitur In the law we dont have to
pay federal taxes just state taxes - minutes after being
reminded by the court of his duty to follow the law regardless of
his personal views - suggested either a conscious refusal to
follow the courts instructions or an inability to engage in
rational discussions and deliberations regarding the evidence and
the law.
Based on the courts questioning of five jurors, each of
whom the court found to be credible and two of whom had had no
828
involvement with the jury notes that were sent out, the court
concluded that there was nothing to suggest that the problems
with Juror #7 stemmed from his views on the merits and that he
was unable or unwilling to deliberate and to perform his duties
as a member of the jury.
Those findings are not clearly
erroneous, and for that independent reason, the courts dismissal

of Juror #7 must be affirmed.584
V.
THE DISTRICT COURT DID NOT ERR IN FINDING THAT NO BRADY

VIOLATION RESULTED FROM THE GOVERNMENTS BELATED PRODUCTION
OF A PORTION OF A WITNESS PRESENTENCE REPORT
After all defendants had been convicted and sentenced, the
government became aware of, and disclosed to defendants, a

portion of witness Teresa Wrights presentence report that had
been prepared in connection with her then-upcoming sentencing on
her guilty plea to computer fraud.585
Although certain
584
This conclusion was borne out shortly after Juror #7 was

dismissed. The newly reconstituted jury was charged and sent out
to begin deliberations anew at 10:07 a.m. (8/28/08 RT 89; GERT
). At 10:55 a.m., the jury sent out the following note:
May we review witness transcripts? If we may, we would
like to see, Mr. Kolodnys testimony, also Mr.
Castelluccio; Also Mr. Negler and Ms. Debra Simon. We
also want to here Audios #1 - #5 - #8 - #9 - #10 - #11
- #12 - #15 - #22 - #25 - #28 and #33. Not all at once
please. We want to use our Audio transcript Books.
(GSER 152). This note, which bore a stark contrast to the notes
sent out on the previous day, indicated that Juror #7 had been an
obstacle not to the other jurors reaching a verdict, but rather
to their beginning to deliberate and to review evidence - a
process in which the reconstituted jury proceeded conscientiously
to engage.
585
Wrights presentence report was disclosed on or about
September 13, 2006. Because the government knew that Wrights
(continued...)
829
defendants586 sought to use this disclosure as a basis for a new

trial by claiming a violation of Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 150 (1972), the
district court found that any impeachment value of the material
was minimal, that the unaffected evidence of guilt was
overwhelming, and that there was no reasonable probability that
the outcome of the trials would have been different had the
presentence report been timely disclosed.
(JER 529-30).
The
district court did not err in finding no Brady violation or in

denying a new trial.
1.
(JOB 86-96, 132-35).
Standard of Review
Challenges to convictions based on alleged Brady violations

are reviewed de novo.
712 (9th Cir. 1997).
See United States v. Amlani, 111 F.3d 705,

If the district court correctly decided the
Brady issue, its denial of a new trial is reviewed for an abuse

of discretion.
United States v. Endicott, 803 F.2d 506, 514 (9th
Cir. 1986).
2.
Factual Background
585
(...continued)
sentencing would be continued for a lengthy period of time until
after the trials in this case and the related Wiggan case were
concluded, the government did not read the report at that time
but placed it in Wrights case file for later review in
connection with her sentencing hearing. (JER 5313). The
government reviewed the report for the first time shortly before
Wrights December 7, 2009, sentencing hearing, and after becoming
aware of its contents, sought leave from the court to disclose it
to defendants. (Id.).
586
Turners motion for new trial was joined in by
Pellicano, Arneson, and Christensen. (JER 529). Kachikian and
Nicherie are unaffected by this issue.
830
a.
Wrights Trial Testimony

(1)
First Trial
Former SBC employee Teresa Wright testified as a government

witness at the first trial on March 27 and 28, 2008.
Wright
testified that she accessed proprietary SBC databases without

authorization on hundreds of occasions and provided customer
information obtained therefrom to Turner, including after his
2001 retirement.
(3/27/08 (P.M.) RT 129, 133-35, 142-43, 146).
Wright reviewed computerized database records that reflected her

queries on subjects of Pellicanos investigations -- including
Mark Hughes, Erin Finn, Bo Zenga, Heidi Gregg, Johnny Friendly
(aka Sylvester Stallone), and Anita Busch -- and testified that
she had accessed those accounts at Turners behest.
(P.M.) RT 138-46; 3/28/08 (A.M.) RT 55-56).
(3/27/08
Wright testified
that Turner paid her in checks and cash for giving him the
information from SBC databases.
(3/28/08 (A.M.) RT 13).
Wright
identified several checks that she believed she had received from
Turner in exchange for providing him with confidential SBC
information, and testified that the checks represented
approximately 5% of the money Turner had paid her.
(A.M.) RT 13-15, 18-20).
(3/28/08
Wright testified that she did not
recall her discussions with Turner about amounts to be paid, but

that she believed he paid $100 for telephone bill information
from the BOSS database and $25 for subscriber information from
831
the PREMIS database.
(3/28/08 (A.M.) RT 16-17).
Wright testified that she had lied to her employer and to

the FBI when initially interviewed in this case.
RT 21-22).
(3/28/08 (A.M.)
Among other things, she admitted having told the FBI
that she had never received any money from Turner for the
information she provided him.
(3/28/08 (A.M.) RT 22).
On cross-examination by Turners counsel, Wright

acknowledged that she had no knowledge of Turner engaging in
wiretapping, never saw Turner do any wiretaps, and never gave
Turner cable pair data that he would need to conduct a wiretap.
(3/28/08 (A.M.) RT 39).
Wright stated that she had gone to
Turners house for various parties, but denied that the hundreds
of dollars Turner had given her in checks were payment for fried
chicken.
(3/28/08 (A.M.) RT 41-42).
Wright testified that she
never saw Turner use the telephone numbers she gave him, never
saw or heard Turner give those telephone numbers to anyone, never
saw Turner use the telephone numbers for anything to do with
wiretapping, never saw Turner do anything wrong with the
addresses that she gave him, never heard or saw Turner give any
addresses to anyone, never saw Turner use any addresses for an
improper purpose, never saw Turner use or give anyone else
telephone bills or subscriber names, never saw Turner do anything
wrong with telephone bill or subscriber information, never saw
832
Turner at or around a B box or a central office frame, and

never saw Turner listening to any conversations on a butt
set.587
(3/28/08 (A.M.) RT 43-44).
On cross-examination regarding her plea agreement, Wright

admitted that she hoped to receive a benefit from her testimony,
hoped that she would not go to prison, and was hoping for a
recommendation of probation.
(3/28/08 (A.M.) RT 45-46).
Wright
then again acknowledged that she knew nothing about any illegal
wiretapping conducted by Turner.
(3/28/08 (A.M.) RT 51).
Turners counsel did not cross-examine Wright about her

false statement to the FBI in her initial interview that she was
never paid by Turner for any information.
No counsel for any co-
defendant in the first trial elected to cross-examine Wright.588

(3/28/08 (A.M.) RT 52).
(2)
Second Trial
Wright presented a much-abridged version of her first trial

testimony at the second trial.
Because Turner was not on trial,
the relevance of Wrights testimony was limited to (1) refuting,

in conjunction with other evidence, Christensens claim that
Pellicanos wiretapping capability ended with Turners retirement
587
Trial testimony indicated that a hand-held telephone

test set or butt set, several of which were found in
Pellicanos storage locker pursuant to a search warrant, could be
used to clip onto telephone lines and eavesdrop on conversations.
(3/27/08 (A.M.) RT 87-90).
588
When Wright testified at the second ChristensenPellicano trial, Pellicano (acting pro se) and counsel for
Christensen conducted cross-examination. (8/8/08 (P.M.) RT 2340, 43).
833
from SBC in December 2001, and (2) refuting, in conjunction with

other evidence (including Turners pattern of phone calls to
Wright, Michele Malkin, and Joann Wiggan), Christensens claim
that Pellicano and Turner had no access to the SBC frame (and
therefore that the Lisa Bonder Kerkorian wiretap could not have
been conducted).
Wright testified that she provided Turner with information
from SBC databases on hundreds of occasions before and after his
retirement, including information regarding Anita Busch in May
2002.
(8/8/08 (P.M.) RT 8-10, 12, 21-22).
Wright testified that
Turner would call her at work with his requests and provided her
SBC telephone number.
(8/8/08 (P.M.) RT 11).
As in the first
trial, Wright testified that Turner paid her in checks and cash
for SBC information, both before and after his retirement, with
approximately 95% of the payments being in cash.
RT 14-17).
Wright testified that the amounts of cash Turner paid
her varied from fifty to hundreds of dollars.

17).
(8/8/08 (P.M.)
(8/8/08 (P.M.) RT
Wright further testified that she had lied to SBC and to
the FBI about the nature of her activities with Turner and about
whether she received money from Turner for information that she
provided to him.
(8/8/08 (P.M.) RT 18).
Wright acknowledged
that she had no personal knowledge of whether Turner was involved

in illegal wiretapping and that she was hoping for a sentence
reduction based on her cooperation.
834
(8/8/08 (P.M.) RT 17, 20).
On cross-examination, Wright testified that she had no

accounting system to determine what Turner owed her, but that he
paid her $100 for phone bills and $25 for address information
from PREMIS.
(8/8/08 (P.M.) RT 25-27).
Wright testified that
she did not know what specific checks payable to her were for,
but that they were most likely payment for information she
provided to Turner.
(8/8/08 (P.M.) RT 27-28).
Wright further
testified that she did not know whether or not she was ever paid
for accessing any information regarding Lisa Bonder Kerkorian,
that she had never seen any documents suggesting she had accessed
such information, and that she had never heard of either
Christensen or Bonder Kerkorian.
(8/8/08 (P.M.) RT 31-33, 38,
40).
Neither Christensen nor Pellicano cross-examined Wright
about her false statement to the FBI in her initial interview
that she was never paid by Turner for any information.
b.
Wrights presentence report
Paragraph 20 of Wrights presentence report, which purported

to summarize her presentence interview with the Probation
Officer, states:
Wright further explained that Turner gave her money
after her mother died. Later, the money from Turner
seemed more like his appreciation for her help. She
said it was not a quid pro quo where she was given
money each time she helped Turner.
(JER 5331).
835
In a declaration submitted to the court in connection with

Turners new trial motion, Wright stated that she was certain
that she never told the Probation Officer that defendant did not
pay her for the information she provided to him.
(JER 5312).
Moreover, Wright stated that she does not even know what quid
pro quo means, has never used that phrase, and, as far as she is
aware, had never even heard it before her attorney asked her
about it around the time of her sentencing.
(Id.).
Wrights
counsel, who was present at the presentence interview, submitted

a declaration stating the Probation Officers characterization of
Wrights statement differed from her own recollection of the
interview.
(JER 5311).
Wrights counsel further stated, based
on her custom and practice in over 20 years as a criminal defense

attorney, that if she had heard her client say anything so
significantly different from what she had previously told the
government in a proffer and what she had previously told the
court as the factual basis for her guilty plea, she would
immediately have taken steps to clarify the statement or
otherwise address the matter.
(Id.).
In his own declaration, the Probation Officer acknowledged

that the statement in the last sentence of paragraph 20 was not a
verbatim quote, that the phrase quid pro quo was probably his
own terminology rather than Wrights, and that the phrase likely
either appeared in his question or was used in his report to
836
reflect his understanding, interpretation, or characterization of

Wrights statement.
(JER 5308-09).
The Probation Officer
further acknowledged that any discrepancy between the presentence

report and Wrights other statements regarding payment by Turner
could easily be the result of a misunderstanding on either side,
i.e., Wrights misunderstanding of his question or his own
misunderstanding in paraphrasing her answer.
3.
(JER 5314).
The District Court Did Not Err in Finding No Brady

Violation in Connection With the Disclosure of
Teresa Wrights Alleged Statement to the Probation
Officer
To prove a Brady violation, defendant must show that:

(1) the evidence was exculpatory or impeaching; (2) it should
have been, but was not produced; and (3) the suppressed evidence
was material to [the defendants] guilt or punishment.
v. Arave, 130 F.3d 385, 392 (9th Cir. 1997).
Paradis
Evidence (including
impeachment evidence) is material if there is a reasonable

probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.
United
States v. Bagley, 473 U.S. 667, 682 (1985); see Benn v. Lambert,
283 F.3d 1040, 1053 (9th Cir. 2002) (Evidence is deemed
prejudicial, or material, only if it undermines confidence in the
outcome of the trial.).
A reasonable probability is a
probability sufficient to undermine confidence in the outcome.

Bagley, 473 U.S. at 682.
Thus, a defendant must show that the
favorable evidence could reasonably be taken to put the whole

837
case in such a different light as to undermine confidence in the

verdict.
Kyles v. Whitley, 514 U.S. 419, 435 (1995).
In assessing materiality, a court should undertake a

careful, balanced evaluation of the nature and strength of both
the evidence the defense was prevented from presenting and the
evidence each side presented at trial.
Bailey v. Rae, 339 F.3d
1107, 1119 (9th Cir. 2003) (quoting Boss v. Pierce, 263 F.3d 734,
745 (7th Cir. 2001)).
The withheld evidence must be analyzed in
the context of the entire record.

U.S. 97, 112 (1976).
United States v. Agurs, 427
A Brady violation does not exist when the
withheld evidence was cumulative or peripheral and the defendant

extensively cross-examined the witness at trial.
See, e.g.,
United States v. Tekle, 329 F.3d 1108, 1114-15 (9th Cir. 2003)
(withheld statement of government witness not Brady violation
where it related to a peripheral point in witness direct
testimony); Taylor v. Kincheloe, 920 F.2d 599, 610 (9th Cir.
1990) (withheld finding of fingerprint expert that print evidence
was too tenuous to support match held not material where
defendant admitted being at scene of crime); United States v.
Marashi, 913 F.2d 724, 732 (9th Cir. 1990) (finding withheld
impeachment evidence was merely cumulative).
[N]ewly
discovered evidence to impeach a government witness does not

warrant a new trial when the evidence would not have affected the
jurys assessment of the witness credibility and when the
838
witness was subjected to vigorous cross-examination.
Endicott,
869 F.2d at 456.

Here, defendants did not even meet the first element of a
Brady violation -- showing that the withheld evidence was
impeaching -- because, as the district court found, the submitted
declarations created serious doubt as to whether the
[impeaching] statements were ever made.
(JER 530).
If cross-
examined about whether she had told the Probation Officer that
the payments from Turner were not a quid pro quo for information,
Wright would doubtless have responded that she never made such a
statement.589
If defendants had nonetheless pursued questioning
Wright about the alleged statement, the government would have

called as witnesses Wrights counsel and the Probation Officer,
who, based on their declarations, would have fully supported the
position that the statement was never made or was the apparent
result of a misunderstanding between Wright and the Probation
Officer.
Any impeachment value would thus have been negligible.
Even assuming that defendants could have established that

Wright in fact made the statement at issue, the evidence was not
material because it went solely to the collateral matter of
whether or not Turner paid Wright each time she helped him.
Whether Turner paid Wright every time she gave him information,
589
Because Wrights alleged statement to the Probation

Officer was not given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, it would not
have been admissible for the truth of the matter as a prior
inconsistent statement under Federal Rule of Evidence 801(d)(1).
839
only some of the time, or not at all (as was the case with
Turners other SBC source, Michele Malkin) does not affect the
gravamen of Wrights testimony, which was that she conducted her
unlawful computer inquiries at Turners direction and provided
him with information from confidential SBC databases.
Turners
payment to Wright for the information she illegally provided was

not an element of any of the crimes charged in the indictment.590
(8/2/08 (P.M.) RT 44-46).
Indeed, the issue of Turners payment
to Wright was mentioned only in passing in the governments

closing argument at the first trial, and not at all in closing or
rebuttal at the second trial.
78; GERT ).
(4/29/08 (P.M.) RT 44, 46, 50, 77-
What was important and incriminating about Wrights
testimony -- that she performed computer database inquiries at

Turners behest and gave him the protected information that she
obtained -- would not have been impeached by Wrights purported
statement to the Probation Officer.591
590
The jury was instructed that the crime of computer

fraud, of which Pellicano and Turner were convicted, requires as
an element that the defendant, by accessing a computer without
authorization or by exceeding authorized access to a computer,
obtained anything of value. (4/29/08 (A.M.) RT 63). Even if the
jury had believed that Turner did not pay Wright each time she
helped him, Wrights purported characterization of Turners
payments as appreciation itself reflected that the information
she gave him had value. Moreover, the telephone information that
Wright provided was unquestionably of value to Pellicano and
his high-paying clients, as the government argued in closing.
(4/29/08 (P.M.) 75-76). Thus, whether or not Turner paid Wright
each time she provided him information was not material to the
issue of whether the information had value.
591
Turners claim that Wrights testimony also supported
the wiretapping charges against him is meritless. (JOB 90).
(continued...)
840
Moreover, as the district court found, there was ample

other evidence in the record tying Wrights database inquiries
to Pellicanos pending investigations and overwhelming evidence
tying Turner to Pellicano.
(JER 530).
That evidence included,
but was not limited to: (1) the BOSS database printouts showing
Wrights access of customer accounts of Pellicano investigative
targets on dates when other evidence established Pellicano was
investigating them; (2) the linking of such inquiries by Wrights
consistent entry of the Error code, as reflected on the
database printouts; (3) evidence matching the dates and subjects
of Wrights database inquiries with those conducted through LAPD
computers by Arneson;592 (4) Turners recorded statements to
Wright that she had accessed the Anita Busch account close to
two years ago, that he had believed the FBI investigation would
not get to her and that she was safe, and that he knew if he
had still been working for SBC he wouldve been fired, too; (5)
the recording of Turners conversation with Pellicano in which
591
(...continued)
Wright did not provide any testimony supporting Turners
involvement in wiretapping, and in fact specifically acknowledged
on cross-examination in both trials that she had no knowledge of
such involvement. (3/28/08 (A.M.) RT 51; 8/8/08 (P.M.) RT 17).
The fact that Turner was acquitted of certain wiretapping counts
(JOB 90) is therefore irrelevant in assessing prejudice from the
belated production of Wrights presentence report.
592
For example, on the same date (May 16, 2002) when Wright
accessed the home accounts of SBC customer Anita Busch, Arneson
conducted numerous dabatase inquiries on Busch and ordered a copy
of her DMV photo. (3/14/08 (A.M.) RT 60-66; 3/14/08 (P.M.) 6-10;
4/9/08 (A.M.) RT 100-02, 106-07; 4/9/08 (P.M.) RT 92-94; 4/18/08
RT 86-88; Exhs. 163, 309; 3/27/08 (A.M.) RT 115-17; 3/27/08
(P.M.) RT 145-46).
841
they expressed concern that a former PIA employee would rat

[them] out for all the illegal stuff they did (3/13/08 (P.M.)
RT 110-16); (6) the testimony of PIA employee Wayne Reynolds that
Wright was a telephone company source for Pellicano (4/3/08
(A.M.) RT 118); and (7) the testimony of numerous former PIA
employees that Turner obtained and provided Pellicano with
telephone company information on a regular and ongoing basis
(see, e.g., 3/7/08 (A.M.) RT 139-42; 3/18/08 (P.M.) RT 37-38, 6063; 3/28/08 (P.M.) RT 84-85; 4/8/08 (P.M.) RT 5-6, 14-17).
Moreover, substantial evidence (including bank records and the
testimony of former PIA employees) established that Pellicano
paid Turner in checks and cash for this information.
(See, e.g.,
3/7/08 (A.M.) RT 153; 3/18/08 (P.M.) RT 76; 4/8/08 (P.M.) RT 1113).

Finally, the evidence at issue was wholly cumulative.
As
Wright admitted in her direct testimony in both trials, she lied

to the FBI in her initial interview on the subject of whether or
not she had ever received money from Turner in exchange for
information.
Defendants were in possession of that admittedly
false statement (as well as numerous other false statements

contained in the same report) for approximately two years before
trial.
(JER 5314; GSER (Saunders Dec. Exh. C - under seal)).
Nevertheless, no defense counsel in either trial asked Wright a

single question on cross-examination concerning her lies to the
842
FBI about payment from Turner (or her admitted lies on any other
subject).
Having chosen not to cross-examine Wright on her prior
inconsistent statement about payment that was in their

possession, defendants cannot now plausibly argue that, had they
been in possession of a second prior inconsistent statement by
the same witness on the same subject, it would have changed the
entire outcome of the trial.593
In light of the ambiguity surrounding what Wright in fact
said (as acknowledged by the Probation Officer himself), the
concomitant negligible impeachment value of the alleged
statement, the collateral nature of the payment issue, the
cumulative effect with other prior inconsistent statements, and
the wealth of independent evidence corroborating the most
significant parts of Wrights trial testimony, the district court
had no question that the outcome of the trial would have been
the same had the evidence in question been disclosed by the
government.
(JER 530).
Defendants have thus failed to
demonstrate that the alleged statement at issue, even had they

been able to establish that it was in fact made, could
reasonably be taken to put the whole case in such a different
593
Similarly, defendants claim that Wrights statement to

the Probation Officer that Turner gave her money after her mother
died had impeachment value. (JOB 92). That statement, however,
is also contained in the report of Wrights proffer interview.
(GSER (Saunders Dec. Exh. D at 2 - under seal)). Defendants did
not cross-examine Wright on that statement despite having been in
possession of it for approximately two years before trial. (JER
5314).
843
light as to undermine confidence in the verdict.
Kyles, 514
U.S. at 435.
4.
Defendants Claim That the Government Failed to

Disclose Wrights Employment Was Not Properly
Preserved in the District Court and is Not Properly
Raised n This Appeal
Defendants also allege that the government violated Brady

and Giglio by failing to disclose the fact that Wright, as she
acknowledged at her December 7, 2009, sentencing hearing, secured
employment with Verizon after being terminated from SBC.
87, 92-95).
(JOB
As a threshold matter, defendants are wrong that the
government admitted being aware of Wrights employment at

Verizon.
(JOB 87).
In fact, the record reflects only that the
government was aware at some point that Wright was working.

(JER 4987).
That the record is totally undeveloped as to this claim is
unsurprising because defendants failed to preserve it.
was not raised in Turners motion for new trial.
The issue
(CR 2440).
Nor
was it raised in the one-sentence joinders filed by Christensen,

Arneson, and Pellicano (CR 2441, 2454, 2455)594 or even in
Turners reply brief (CR 2465), which was filed on August 30,
2010 (seven weeks after the Wright sentencing transcript was
594
Defendants claim that the Verizon issue was raised by

the joining defendants is utterly false. (JOB 87 n.17).
Defendants attempted excuse for the issue not being raised in
Turners motion -- that the transcript of Wrights sentencing
hearing was not available until July 13, 2010 (id.) -- is also
disingenuous, as Arnesons and Pellicanos joinders (both of
which failed to raise the issue) were filed on July 27 and 28,
2010, respectively.
844
filed).
Rather, the claim that the government committed a Brady
violation by failing to disclose Wrights employment was raised

for the first and only time in Pellicanos reply brief.595
2467; JER 5316-18).
(CR
Because the court resolved defendants new
trial motion without a hearing, the government never had an

opportunity to respond to the claim, and the district court did
not address it in its ruling on Turners motion, of which no
defendant sought reconsideration based on the claim.
30).
(JER 529-
It is well settled that a district court need not consider
arguments raised for the first time in a reply brief.

v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
See Zamani
Accordingly,
defendants have failed to preserve this claim for appeal, and it

should be rejected.
Even if the claim is considered, it would at most be
reviewed for plain error.
Under that standard, defendants cannot
possibly demonstrate a clear or obvious probability that crossexamining Wright about her employment with another phone company
would have changed the outcome of the trials.
The evidence of
Turners use of Wright -- both before and after his retirement -was overwhelming.
595
Christensens reply brief included a footnote claiming

that Wrights counsel had failed to inform the court about
Wrights Verizon employment, but raised no Brady claim that the
government had failed to disclose this information. (CR 2466 at
5 n.3).
845
W.
PELLICANOS, ARNESONS, TURNERS, AND CHRISTENSENS

SENTENCES SHOULD BE AFFIRMED596
1.
Standards of Review
A defendants sentence may be reversed only after finding

that the court committed significant procedural error in
determining the sentence or that the sentence was substantively
unreasonable.
See, e.g., United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc).
Procedural error occurs when a
district court incorrectly calculates the Sentencing Guidelines,

applies the Guidelines as if they were mandatory, fails to
consider the 3553(a) factors, bases the sentence on clearly
erroneous facts, or otherwise fails to adequately explain the
sentence imposed.
See id.
Moreover, to warrant resentencing,
there must not just be procedural error but significant and

prejudicial procedural error.
See, e.g., United States v. Ali,
620 F.3d 1062, 1074 (9th Cir. 2010) (any potential procedural
error harmless because there is no evidence any of these alleged
errors, if changed, would result in a shorter sentence).
Where procedural error claims are preserved, this Court
reviews the district courts interpretation of the Guidelines de
novo, the district courts application of the Guidelines to the
facts of the case for abuse of discretion, and the district
courts factual findings for clear error.
United States v.
Treadwell, 593 F.3d. 990, 999 (9th Cir. 2010).

596
Under the
Kachikian and Nicherie have not appealed their 27 and

21-month sentences.
846
significantly deferential abuse of discretion and clear error

standards, a sentence must be affirmed except in those rare
instances where the district courts ruling was illogical,
implausible, or without support in inferences that may be drawn
from the facts in the record.
Id. at 1011 (abuse of discretion
at sentencing); see also United States v. Pineda-Doval, 692 F.3d

942, 944 (9th Cir. 2012) (same for sentencing claims reviewed for
clear error).
In other words, the district courts ruling must
be more than just maybe or probably wrong; it must . . . strike

[this Court] as wrong with the force of a five-week-old
unrefrigerated dead fish.
United States v. Bussell,
504 F.3d 956, 962 (9th Cir. 2007) (internal quotation marks and
citation omitted).
Unpreserved procedural error claims are reviewed for plain
error.
United States v. Valencia-Barragan, 608 F.3d 1103, 1108
(9th Cir. 2010).
Where the district court imposed a sentence
within the Guidelines range, this Court will find no plain

procedural sentencing error so long as the district court
listened to [the defendants] arguments [and] stated that it had
reviewed the criteria set forth in 3553(a).
Id.
Moreover, for all forfeited claims of procedural sentencing

error -- that is, regardless whether the sentence was within or
outside the Guidelines -- the defendant must demonstrat[e] a
reasonable probability that he would have received a different
sentence absent the purported errors.
847
United States v. Waknine,
543 F.3d 546, 554 (9th Cir. 2008).
Only a complete failure to
abide by the required sentencing procedures, coupled with a

total lack of analysis of the 3553(a) factors and explanation
of the sentence, can demonstrate prejudice.
Id. at 554-55;
accord, United States v. Hammons, 558 F.3d 1100, 1105 (9th Cir.
2009).
Even then, it is a close question.
Waknine, 543 F.3d
at 554.
Provided that the court committed no significant and
prejudicial procedural error, this Court reviews the ultimate
sentence for substantive reasonableness and does so regardless
whether the sentence is inside the Guidelines range or outside
of it.
United States v. Edwards, 595 F.3d 1004, 1014-15 (9th
Cir. 2010).
This includes a district courts judgment as to
whether 3553(a) warrants a variance.
United States v. Autery,
555 F.3d. 864, 872 (9th Cir. 2009).

Both the Supreme Court and this Court have explained that
significant deference is owed to the district courts 3553(a)
determinations because:
[t]he sentencing judge is in a superior position to
find facts and judge their import under 3553(a) in
the individual case. The judge sees and hears the
evidence, makes credibility determinations, has full
knowledge of the facts and gains insights not conveyed
by the record. The sentencing judge has access to, and
greater familiarity with, the individual case and the
848
individual defendant before him than the [Sentencing]

Commission or the appeals court.
Gall, 552 U.S. at 51; United States v. Ressam, 679 F.3d 1069,
1086 (9th Cir. 2012) (en banc) (because of the significant
deference afforded to such determinations, reversal due to
substantive unreasonableness will occur only in rare cases).
Reversal is not justified even if this Court think[s] a
different sentence is appropriate.
Carty, 520 F.3d at 993.
Indeed, it is not permitted [e]ven if we are certain that we

would have imposed a different sentence had we worn the district
judges robe.
United States v. Whitehead, 532 F.3d 991, 993
(9th Cir. 2008).

2.
Pellicanos In-Guidelines Sentence Should Be

Affirmed Because It Was Procedurally Sound and
Substantively Reasonable
The district court calculated Pellicanos total offense

level at 33 which, with his category II criminal history, yielded
an advisory Guidelines range of 151-188 months.
GERT 14017.)
(12/15/08 RT 68;
The court sentenced Pellicano to an in-Guidelines
term of 180 months.
(12/15/08 RT 74; GERT 14023.)
Pellicano
renews his challenges to the courts application of (1) USSG

3B1.1(a)s four-level role enhancement to his RICO calculations
(POB 67-68), (2) USSG 3C1.1s two-level obstruction enhancement
to his RICO and wiretapping calculations (POB 68-70), and (3)
849
USSG 3B1.3s two-level special-skill enhancement to his

wiretapping calculations (POB 71).
Pellicano also argues for the
first time on appeal that the court failed to consider the

statutory factors mandated in 18 U.S.C. 3553(a).
(POB 59.)
Finally, Pellicano challenges the substantive reasonableness of

his sentence, arguing that the court improperly (1) failed to
credit him for time served on his 2003 felony explosives
convictions (POB 71-73), (2) disregarded the USPOs 70-month
recommendation (POB 62), and (3) created a purportedly
unwarranted sentencing disparity vis--vis other selected RICO,
bribery, and unlawful computer access offenders (POB 62-64).
None of these claims has merit.
a.
USSG 3B1.1s four-level role enhancement properly

applied to Pellicanos RICO convictions
i.
The court correctly interpreted Application

Note 1 to USSG 2E1.1 and applied 3B1.1
based on Pellicanos role in the enterprise
Sentencing Guidelines 2E1.1(a) provides that the base

offense level for RICO and RICO conspiracy convictions is the
greater of either 19 or the offense level applicable to the
850
underlying racketeering activity.597
USSG 2E1.1(a)(1) & (2).
Application Note 1 to 2E1.1 elaborates:

Where there is more than one underlying offense, treat
each underlying offense as if contained in a separate
count of conviction for the purposes of subsection
(a)(2). To determine whether (a)(1) or (a)(2) results
in the greater offense level, apply Chapter Three, Part
A . . . to both (a)(1) and (a)(2). Use whichever
subsection results in the greater offense level.
USSG 2E1.1, comment. (n.1).
Although this Court has not yet ruled on how the second
sentence of Application Note 1 should be interpreted, every
circuit that has done so has held that 3B1.1 role enhancements
apply based on the defendants role in the overarching
enterprise, not his role in specific racketeering acts.598
597
See
The parties agreed that the bribery and honest services

racketeering acts provided offense levels greater than 19 and,
therefore, controlled the calculations for Pellicanos RICO
convictions. (CR 1972, 2038; JER 4634-49; PSR 72, 89.)
598
While this particular issue has not resulted in a
holding, this Court previously has determined the appropriateness
of role enhancements in a RICO case by focusing on the
defendants role in the overarching enterprise. See United
States v. Frega, 179 F.3d 793, 811 (9th Cir. 1999) (district
court abuse no discretion in assessing the applicability of a
role enhancement based on the defendants comparative role in the
enterprise).
851
United States v. Ivezaj, 568 F.3d 88, 99-110 (2d Cir. 2009);
United States v. Yeager, 210 F.3d 1315, 1316 (11th Cir. 2000);
United States v. Coon, 187 F.3d 888, 899 (8th Cir. 1999); United
States v. Damico, 99 F.3d 1431, 1435-38 (7th Cir. 1996).599
As
the Second Circuit recently held, the Guideline is clear that

the requirement to look at each individual act in the RICO
offense is only for the purpose of establishing the base offense
level, not for applying Chapter Three adjustments.
F.3d at 99.
Ivezaj, 568
These courts also uniformly have recognized that the
application of role enhancements on a predicate-by-predicate

approach, as espoused by both the USPO and Pellicano (PSR 74,
82, 91, 105; POB 67-68), could lead to perverse results in which
a defendant convicted of organizing a far-reaching RICO
enterprise could avoid the adjustment so long as [the
predicate act used under USSG 2E1.1(a)(2)] involved
fewer than five participants and was not otherwise
599
Pellicano cites United States v. Nguyen, 255 F.3d 1355

(11th Cir. 2001), for the proposition that individual
racketeering acts should be grouped after the base offense level
for each racketeering act is calculated. (POB 66.) This is not
inconsistent with the uniform interpretation of Application Note
1 referenced above, including the Eleventh Circuits Yeager
decision, which was issued the year before Nguyen. See Yeager,
210 F.3d at 1317. More importantly, the Nguyen decision also
included an analysis of the applicability of a role enhancement
to the defendants RICO conviction. As it had done in Yeager,
the Eleventh Circuit resolved the issue by analyzing the
defendants role in the overarching enterprise and not his role
in any particular racketeering act. Nguyen, 255 F.3d at 1345.
852
extensive. No account would be taken, then, of the

fact that those participating in the isolated predicate
act actually were acting in connection with a larger
criminal enterprise.
Damico, 99 F.3d at 1437; Ivezaj, 568 F.3d at 99-100.
The district court correctly interpreted Application Note 1
when, consistently with the uniform holdings of the Second,
Seventh, Eighth, and Eleventh Circuits, it ruled that 3B1.1
role enhancements apply to RICO counts based on the defendants
role in the overarching enterprise.
14012.)
(12/15/08 RT 63; GERT
In addition to being aligned with what the Second
Circuit identified as the clear interpretation of this

Guideline, the district courts interpretation also was
consistent with the express language of 3B1.1s introductory
commentary, which states that relevant conduct, not just the
count of conviction, is incorporated into the assessment whether
a role enhancement applies, and this Courts precedent applying
role enhancements in the non-RICO context.
See, e.g., United
States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004) (applying
principle to aggravating role enhancement); United States v.
Tankersley, (9th Cir. 2008) (USSG 3B1.2s minor role adjustment
must account for the individuals role in the overall scheme as
well as all relevant conduct within 1B1.3s scope); USSG Ch. 3,
853
Pt. B, intro. comment.
Thus, the district courts interpretation
of this Guidelines provision did not constitute procedural error.

ii.
The court did not clearly err in applying

3B1.1(a)s four-level role enhancement to
Pellicanos RICO calculations
Sentencing Guidelines 3B1.1(a) sets forth two independent

paths by which a four-level role enhancement may be imposed.
First, a defendant is subject to the enhancement if he was an
organizer or leader of a criminal activity that involved five or
more participants.
USSG 3B1.1(a).
Application Note 1 to USSG
3B1.1(a) defines participant as a person who is criminally

responsible for the commission of the offense, but need not have
been convicted.
USSG 3B1.1, comment. (n.1).
Alternatively, a
defendant is subject to the enhancement if he was an organizer

or leader of a criminal activity that . . . was otherwise
extensive.
USSG 3B1.1(a).
Application Note 3 states that,
in assessing whether an organization is otherwise extensive,

all persons involved during the course of the entire offense are
to be considered.
Thus, a fraud that involved only three
participants but used the unknowing services of many outsiders

could be considered extensive.
USSG 3B1.1, comment. (n.4).
Furthermore, while this Application Note addresses only the

number of direct and indirect participants in the offense, this
Court repeatedly has considered additional factors like the
854
number of victims, the profitability of the illegal acts, and the

duration, scope and sophistication of the conduct when assessing
whether criminal conduct is otherwise extensive.
See United
States v. Booth, 309 F.3d 566, 577 (9th Cir. 2002) (wire fraud
scheme was otherwise extensive given the involvement, albeit
unknowing, of more than ten employees and the geographical reach
of the scheme); United States v. Kubick, 205 F.3d 1117, 1126-27
(9th Cir. 1999) (enhancement properly applied where defendant
orchestrated criminal activity over several years that involved
multiple parties, sham businesses, and millions of dollars in
assets); United States v. Govan, 152 F.3d 1088, 1096 (9th Cir.
1998) (enhancement properly applied to leader of robbery crew
that traveled across state lines and conducted multiple dry runs
before robbing casino and victimizing numerous patrons); United
States v. Rose, 20 F.3d 367, 374 (9th Cir. 1994) (enhancement
properly applied where fraud scheme involved approximately three
million dollars, multiple unknowing employees, and duped numerous
investors); United States v. Mullins, 922 F.2d 1472, 1479 (9th
Cir. 1993) (enhancement properly applied to leader of wire fraud
scheme who oversaw at least three participants and used the
unknowing services of outsiders).
Pellicanos leadership of the enterprise never has been in
legitimate dispute.
The trial evidence overwhelmingly
established his position as both the titular and actual head of

PIA and the individual who secured the assistance and coordinated
855
the activities of enterprise associates Arneson, Stevens, Turner,

Parker, and others.
Pellicano further acknowledged this fact in
his closing argument600 and subsequently adopted the PSRs

findings at sentencing, including its finding that he was the
leader of the charged racketeering enterprise who directed the
activities of those involved.
n.5).
(PSR 23-27. 32-34, 74, 82, 91 &
Thus, the issue was not whether a leadership enhancement
should be applied, but whether the court should apply the twolevel enhancement, as recommended by the USPO and Pellicano, or
the four-level enhancement recommended by the government.
The district court properly found that Pellicano qualified
for the four-level enhancement.601
14011-13.)
(12/15/08 RT 62-64; GERT
The court specifically found that Pellicano was
unquestionably the organizer and leader of a racketeering

enterprise that involved five or more participants and further
found that the enterprise was otherwise extensive.
GERT 14012.)
(Id. at 63;
The court based these determinations on its factual
findings that at least twelve individuals participated in the

enterprise and that the enterprises activities -- which spanned
state and international borders, resulted in the corruption of
multiple governmental organizations, and proceeded uninterrupted
600
Pellicano disputed the existence of an enterprise while

simultaneously acknowledging that all of the individuals
implicated in criminal conduct were working at his direction.
(4/30/08 RT (A.M.) 56-60; GERT 7846-50.)
601
The factual determination whether a defendant qualifies
for a role enhancement is reviewed for clear error. United
States v. Salcido-Corrales, 249 F.3d 1151, 1154 (9th Cir. 2001).
856
over the course of years -- was otherwise extensive.

64; GERT 14012-13.)
(Id. at 63-
These findings were well supported by the
record and certainly not clearly erroneous.602

Pellicano argues to the contrary, claiming that the
government improperly relied on his leadership role in the
wiretapping conspiracy to prop up its claim that he should
receive a similar four-level enhancement on the RICO charges.
(POB 67.)
Pellicano further cites the First Circuits decision
in United States v. Ramos-Paulino, 488 F.3d 459 (1st Cir. 2007),

a non-RICO case, for the proposition that 3B1.1 role
enhancements apply to only defendants who manage criminal actors
602
Should this Court interpret Application Note 1 to

2E1.1 to require that role enhancements be applied based on the
defendants role in individual racketeering acts, there was still
no reversible error because the court correctly concluded, in the
alternative, that 3B1.1(a)s enhancement applied even under the
USPOs alternative theory. (12/15/08 RT 64; GERT 14013.) For
example, with respect to the racketeering acts of bribery, which
group under USSG 2E1.1(a) and 2C1.1(b)(2), the jury
specifically found that Pellicano and Arneson gave and received
bribes. Stevens likewise admitted to receiving bribes from
Pellicano and provided unimpeached testimony that LeMasters
served as a conduit for payments. (4/8/08 RT (A.M.) 36, 56; GERT
4576, 4596.) LeMasters and Palazzo testified to issuing checks
to Arneson, which they acknowledged were payment for the
confidential law enforcement information that Arneson supplied
PIA. (3/18/08 RT (P.M.) 58; 3/19/08 RT (A.M.) 74-75; 4/8/08
(P.M.) RT 7-10; GERT 2196, 2342-43, 4675-78.) Arneson, in turn,
cashed these checks and further sought to conceal the bribes by
purportedly reporting this income on his tax forms (Arneson never
provided proof of this claim; in fact, he only provided the USPO
with tax returns post-dating the end of the enterprise).
Therefore, the bribery-related conduct involved at least five
participants and was otherwise extensive. As such, it was
subject to 3B1.1(a)s four-level enhancement. Similar
considerations also supported application of this enhancement to
the several dozen racketeering acts involving honest services
fraud. (CR 1972).
857
as opposed to those who manage criminal activities.
(POB 68.)
Pellicanos claims are meritless and can be discarded quickly.

Preliminarily, Pellicano ignores that the PSR that he
wholeheartedly adopted noted that, should role enhancements be
determined based on the defendants role in the overarching
enterprise, the four-level enhancement likely would be
appropriate as Pellicano was the organizer of the RICO
conspiracy, which was otherwise extensive.
(CR 2038; 12/15/08
RT 12; PSR 96 n.5; JER 4634-49, GERT 13961.)
Moreover, both
the governments sentencing memorandum and its sentencing

arguments based the application of USSG 3B1.1(a) to Pellicanos
RICO convictions on his role in the enterprise, not the
wiretapping conspiracy.
82.)
(CR 1972; 12/15/08 RT 31-33; GERT 13980-
The government focused exclusively on the evidence that
established the participants to the racketeering conduct and the

otherwise extensive nature of the enterprises racketeering
activity.603
(Id.)
More importantly, it is the district courts
603
Even had the district court used Pellicanos role in

conducting wiretaps, which he concedes supported 3B1.1(a)s
four-level enhancement, to buttress its finding that he qualified
for a similar four-level enhancement on the RICO counts, there
would be no procedural error. The Guidelines explicitly state
that [t]he determination of a defendants role in the offense is
to be made on the basis of all conduct within the scope of
1B1.3 (Relevant Conduct), i.e., all conduct included under
1B1.3(a)(1)-(4), and not solely on the basis of elements and
acts cited in the count of conviction. USSG Ch. 3, Pt. B,
intro. comment. As discussed throughout this brief, the
wiretapping committed by PIA, while not falling within the select
offenses that Congress designated as racketeering acts, was
committed by the enterprise in furtherance of its common purpose.
(continued...)
858
factual findings, not the governments arguments, that presently

are before this Court.
The record plainly shows that the courts
findings were based on the number of participants in, and the

otherwise extensive nature of, the enterprise.
64; GERT 14012-13.)
(12/15/08 RT 63-
For example, each of the dozen individuals
cited by the court as being participants in the enterprise

directly committed or aided the commission of conduct qualifying
as racketeering activity.604
(Id.; CR 1972).
Likewise, the
courts factual findings regarding the enterprises otherwise

extensive nature also were premised on the breadth of the
enterprises activities over an extended period of time, not
Pellicanos role in wiretapping.
(Id.)
Equally unfounded is
Pellicanos apparent premise that the four-level role enhancement

should not apply because he did not supervise the other
enterprise participants while they engaged in illegal activity in
furtherance of the enterprise.
Such an argument is inconsistent
with Pellicanos own adoption of the two-level role enhancement

for his RICO charges and the overwhelming, uncontested trial
603
(...continued)
As such, it was relevant conduct that could have been considered
as an additional basis for imposing a four-level enhancement
under 3B1.1(a).
604
That some of these individuals also participated in the
wiretapping conspiracy is of no moment. The common thread in the
courts finding was participation in racketeering activity.
(12/15/08 RT 63-64; GERT 14012-13.) Moreover, as discussed
earlier, Arneson made a point of eliciting throughout the trial
that individuals like Stevens, Wright, Virtue, and Parker could
have been charged with RICO based on their conduct. (4/30/08 RT
(A.M.) 39-41; GERT 7829-31.)
859
evidence establishing his leadership over the enterprises

criminal actors and activities.
Having factually determined that Pellicano was the leader
and organizer of a racketeering enterprise that included more
than five participants and whose activities were otherwise
extensive, the district court did not clearly err in applying
USSG 3B1.1(a)s four-level role enhancement to Pellicanos RICO
convictions.
b.
The court did not clearly err in applying USSG

3C1.1s two-level obstruction enhancement to
Pellicanos RICO and wiretapping convictions
Guidelines 3C1.1 provides a two-level enhancement to be

added to the offense level of a defendant who obstructs justice.
Specifically, 3C1.1 states that the enhancement should be
imposed
[i]f (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendants offense of conviction and any
relevant conduct; or (ii) a closely related offense.
860
Application Note 4 provides illustrative examples of conduct that

qualifies as obstruction under this provision: destroying or
concealing or directing or procuring another person to destroy or
conceal evidence that is material to an official investigation or
judicial proceeding (e.g., shredding a document or destroying
ledgers upon learning that an official investigation has
commenced or is about to commence), or attempting to do so.
USSG 3C1.1, comment. (n.4(d)).
Application Note 9 further
explains that 3C1.1s scope is not limited to acts directly

committed by a defendant, but rather holds a defendant
accountable for his own conduct and for conduct that he aided or
abetted, counseled, commanded, induced, procured or willfully
caused.
USSG 3C1.1, comment. (n.9).
The district court did not clearly err in finding that

Pellicano willfully ordered Kachikian to destroy his copy of the
Telesleuth wiretapping program to impede the governments ongoing
investigation or that Pellicano engaged in the mass destruction
of computer- and document-based evidence at PIA following the
initial search warrants November 21, 2002, execution to impede
subsequent investigative efforts.605
Kachikian testified before
the grand jury in April 2003 that Pellicano contacted him the
previous December or January and ordered him to destroy the copy
of Telesleuth that Kachikian maintained at his home office.
605
(CR
Whether a defendant obstructed justice within the

meaning of 3C1.1 is a factual finding reviewed for clear error.
United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002).
861
1972).
Kachikian further testified that he understood
Pellicanos order to be related to the governments ongoing

investigation.
(Id.)
Kachikian complied with Pellicanos order
by deleting the entire Telesleuth program from his computer and

by using a code-wipe program to ensure that this version of
Telesleuth never could be recovered, even with retrieval
software.
(Id.)
Kachikian then broke and discarded his
Telesleuth backup CD and thereby completed the destruction and

disposal of all versions of Telesleuth in his possession.
(Id.)
Despite being commanded by subpoena to produce all

documents related to the creation and/or utilization of the
Telesleuth software program, including software, source codes,
manuals, encryption data, correspondence, etc., Kachikian was
unable to provide the grand jury his copy of the Telesleuth
program because he had destroyed it at Pellicanos behest.
In
addition to depriving the governments investigation of one of

the only copies of Telesleuth in existence, Kachikian cited his
lack of access to the program as a reason why, months after he
had destroyed his copy, he could not give anywhere near complete
testimony about the programs capabilities during his April 2003
grand jury testimony.606
606
Kachikians inability to provide specifics before the

grand jury contrasted sharply with his trial testimony, during
which he displayed comprehensive knowledge of the Telesleuth
program that he had helped construct and refine over the course
of seven years.
Moreover, although the government did eventually obtain
(continued...)
862
Having factually found that this act of spoilation was

committed to impede the governments ongoing investigation, the
court did not clearly err in applying USSG 3C1.1.607
Application Note 4 all but mandated this result.
Indeed,
See, e.g.,
United States v. Pizzichiello, 272 F.3d 1232, 1237 (9th Cir.

2002) (affirming 3C1.1s two-level enhancement for defendant
who destroyed evidence, including an ATM card, in an attempt to
conceal his involvement in a robbery/murder).
606
(...continued)
usable versions of Telesleuth through its forensic examination of
the computer evidence seized from PIA, the investigation would
have been greatly facilitated had Kachikian been able to provide
copies of the program in April 2003. Instead, it was not until
October 2003 that the FBI was able to determine the password for
the ultra-sophisticated encryption program and code-wipe feature
that Pellicano had designed to completely overwrite the program
if accessed according to standard law enforcement search
procedures.
Indeed, during his closing argument, Pellicano referenced
the fact that the government never should have been able to
recover the Telesleuth-related materials when he lamented that it
was luck and Kachikians inexplicable coding mistake that allowed
the government to circumvent his security measures:
had they not enlisted the aid of a brand new FBI
employee, then to become an agent, who knew how to read
code and found in simple English what Mr. Kachikian
wrote down as a comment, the password, they would have
never heard the content of these conversations, and
thats what they were intended. Those conversations
were never intended to be heard by anyone. Ever.
Except Mr. Pellicano.
(4/30/08 RT (A.M.) 61; GERT 7851.)
607
As noted above, Kachikian has not appealed his sentence,
which included the two-level obstruction enhancement premised on,
in addition to perjury before the grand jury and at trial, this
act of evidence destruction. (3/9/09 RT 13-14; GERT 14040-41.)
863
Nor did the court clearly err in concluding that Pellicano

intentionally engaged in evidence spoilation at PIA following the
November 21, 2002, execution of the initial search warrant, which
was limited in scope to the Hobbs Act threat against reporter
Anita Busch.
(12/15/08 RT 65; GERT 14014.)
Due to the warrants
limited scope, the FBI seized a relatively small set of records

and only a subset of the computer media at PIA.
For example, so
as not to interfere with PIAs facially legitimate investigative

work, the FBI did not seize any computers in PIAs war room,
which testimony identified as the PIA computers used in
wiretapping.
Thus, as Pellicano well knew, he had narrowly
dodged a bullet when the governments search had left at PIA

documents and computer media related to the enterprises
exponentially more extensive criminal activities.
Trial evidence, moreover, established that Pellicano had a
history of destroying evidence in anticipation of the potential
execution of search warrants at PIA.
As described more fully
above, multiple witnesses testified to a mass document

destruction at PIA that Pellicano ordered after he learned that
state law enforcement on the John Gordon Jones rape case might
search PIA.
(3/18/08 RT (P.M.) 50; 3/19/08 RT (A.M.) 61-64;
3/28/08 RT (P.M.) 103, 118-19; 4/3/08 RT (A.M.) 62-63; GERT 2188,

2329-32, 3440, 3455-56, 4034-35.).
Evidence further established
that in the approximately six weeks between the November 21,

2002, execution of the initial warrant and when the government
864
returned on January 15, 2003, with a more expansive warrant

seeking evidence of wiretapping, Pellicano completely
disassembled the computers in his war room and conducted a mass
shredding of client files.
746-50, 756-58.)
(3/7/08 RT (A.M.) 54-58, 64-66; GERT
As a result, the January 15, 2003, search
effectively was fruitless and did not contribute any evidence to

either trial.
(CR 1972).
Just as with the Pellicano-directed destruction of

Kachikians copies of the Telesleuth program, the district court,
having factually found that Pellicano destroyed potential
evidence to impede the governments investigation, logically
found that this conduct fits with section 3C1.1.
Thus, this
instance of spoilation provided an independent basis for the

district courts application of 3C1.1s two-level
enhancement.608
The loss of physical and electronic evidence that resulted
from Pellicanos destruction of PIA records was exploited by the
defendants at trial.
A common theme in both trials was the
608
Should this Court find that neither of these instances

of spoilation qualifies for the obstruction enhancement, it still
can uphold its application based on the two acts of witness
intimidation documented more fully in the governments sentencing
memorandum. Section 3C1.1 plainly states that attempts to engage
in witness intimidation constitute obstruction warranting the
two-level enhancement. USSG 3C1.1, comment. (n.4(a)); see also
United States v. Scala, 231 F.3d 492, 500-01 (9th Cir. 2000)
(affirming obstruction enhancement against a defendant who
contacted a cooperating witness, called the witness a narc, and
intimated that he intended to harm the victim); United States v.
Collins, 90 F.3d 1420, 1430 (9th Cir. 1996) (enhancement applies
even if attempts to influence testimony prove unsuccessful).
865
purported lack of conclusive evidence of wiretapping609 and the

purported lack of evidence documenting the inner-workings of the
enterprise and the manner in which the enterprise used the
information it obtained from illicit sources in particular
investigations.
Pellicano claims that the district courts factual findings
were clearly erroneous insofar as there was no evidence that he
knew of the governments ongoing investigation at the time he
ordered the destruction of the Telesleuth wiretapping program and
engaged in the widespread destruction of evidence at PIA.
68-69.)
(POB
In an attempt to buttress this claim, Pellicano further
claims that he would have destroyed the evidence used to convict

him had this been his intent.
(POB 69.)
Again, Pellicanos
claims are meritless.

Trial evidence established the falsity of Pellicanos claim
that he was unaware that the government was conducting a broader
investigation than the one described in its initial warrant.
As
a preliminary matter, it is indisputable that Pellicano knew as

of the November 21, 2002, search that the government was
investigating his involvement in the Busch threat and pursuing
felony explosives charges against him.
Moreover, Pellicano well
knew that the computer media seized during the November 21, 2002,
609
By way of example, Pellicano, Christensen, Turner,

Kachikian, and Nicherie all stressed the fact that the
governments multi-year wiretapping investigation resulted in the
recovery of only one actual intercepted call, which they
attempted to portray as having been consensually recorded.
866
search contained materials related to PIAs investigation of

Busch, including criminal history and DMV information provided by
Arneson, as well as evidence of additional crimes committed by
Pellicano and his fellow enterprise associates.
Furthermore,
trial evidence established that Pellicano knew that the

government was interviewing former employees and clients about
the broad array of criminal conduct committed at PIA.610
Indeed,
Kachikian specifically testified that he understood that

Pellicanos request to destroy Telesleuth was premised on the
In light of such evidence, the
district courts finding that these acts of evidence destruction

were intended to impede the governments investigation was not
clearly erroneous.
Pellicanos accompanying claim that he would have destroyed
the evidence used to convict him in this case had he intended to
obstruct justice is ludicrous.611
(POB 70).
610
The physical
For example, although the act of intimidation postdated

these acts of spoilation, the uncontested evidence was that
Pellicano was so attuned to the status of the governments
investigation that he knew within days of Virtues testimony that
she had participated in secret grand jury proceedings. (3/11/08
RT (P.M.) 108-12; 3/12/08 RT (P.M.) 75-89, 97-98; 4/25/08 RT
(P.M.) 6-7; GERT 1219-23, 1467-81, 1489-90, 7253-54.) As
discussed above, Pellicano then sought to intimidate Virtue in
yet another act of obstructive conduct.
611
Pellicano also claims that he assisted the governments
investigation. (POB 69.) This, too, is ludicrous. As discussed
earlier, Pellicanos claim that he directed the searching agents
to the explosives within PIAs safe is patently false. (10/8/03
RT 34-36, 80-84; 3/7/08 RT (A.M.) 103-05, 108-10; PSR 138-39;
GERT 795-97, 800-02). Furthermore, whatever his reason,
Pellicanos decision to begin his federal sentence on his
(continued...)
867
evidence obtained from PIA that was used to convict Pellicano

largely612 was acquired during the November 21, 2002, search.
Before that, Pellicano had no knowledge that he was under federal
investigation.
However, once he became aware of this fact,
Pellicano engaged in the very types of evidence destruction and

suppression that he now claims would serve as evidence of his
obstructive intent: destroying evidence at PIA documenting the
criminal conduct committed by the enterprise, having Kachikian
destroy all copies of Telesleuth within his possession.
Pellicano also claims that the district court failed to find
either that the destruction of Kachikians copy of Telesleuth or
the mass destruction of PIA files was material to the
This is false.
Both parties
sentencing memoranda expressly addressed materiality.

2038; JER 4634-49).
(CR 1972,
In finding that the acts of obstruction
cited by the government had been proved and that such conduct
fit within USSG 3C1.1, the district court referenced directly
back to the briefing explaining the materiality of the destroyed
evidence.
(12/15/08 RT 64-65; GERT 14013-14.)
legally sufficient.
This finding was
See United States v. Cordova-Barajas, 360
611
(...continued)
explosives convictions before his self-surrender date did not
assist either the governments investigation or any other federal
agency. Moreover, even had Pellicano engaged in discrete acts
that assisted the government in a nominal manner, such conduct
would be irrelevant to the separate question whether he acted to
obstruct justice in the instances described above.
612
Select evidentiary items subsequently were obtained from
the LAPD, SBC, and an offsite storage facility of Pellicanos.
868
F.3d 1037, 1043 (9th Cir. 2004) (sufficient that court makes an
obstruction finding that encompasses all of the factual
predicates necessary to impose the enhancement); United States v.
Hernandez-Ramirez, 254 F.3d 841, 844 (9th Cir. 2001) (to be
material, act need not affect the outcome but rather be of a type
that would tend to influence or affect a fact at issue).
Moreover, as addressed above, Application Note 4(d) expressly
notes that shredding a document or destroying ledgers upon
learning that an official investigation has commenced or is about
to commence would be an example of the destruction or
concealment of evidence material to an investigation.
The
district courts finding that this constituted obstructive

conduct was supported by the record and is not clearly erroneous.
Finally, Pellicanos claim that the 3C1.1 enhancement
should be set aside because he was not criminally charged with
the obstructive conduct is frivolous.613
(POB 68.)
Both 3C1.1
and this Courts precedent unequivocally contemplate the

application of this enhancement to uncharged instances of
obstruction.
See, e.g., United States v. Garro, 517 F.3d 1163,
1171 (9th Cir. 2008) (upholding application of enhancement when

defendant provided perjurious trial testimony).
613
Kachikian was charged in the Fifth Superseding

Indictment with violating 18 U.S.C. 1512(c)(1) by destroying
Telesleuth. (CR 959; JER 923-86). Hearsay considerations kept
Pellicano from being charged with this offense; Bruton
considerations caused the government to dismiss this particular
charge before trial.
869
Equally frivolous is Pellicanos claim that the enhancement

should not have applied because the efforts to silence Proctor
were lacking in evidentiary support.614
(POB 68, 70.)
The
district court based its obstruction findings on the instances of

spoilation described above, not on the instances of witness
intimidation.
(12/15/08 RT 65; GERT 14014.)
Moreover, there is
no requirement that evidence supporting a sentencing enhancement

be presented at trial.
United States v. Fitch, 659 F.3d 788, 795
(9th Cir. 2011) (a district court can consider facts not

presented to a jury and increase a sentence based on uncharged
conduct).
c.
The court abused no discretion in applying USSG

3B1.3s two-level special skill enhancement to
Pellicanos wiretapping convictions
Guidelines 3B1.3 provides a two-level enhancement for a

defendant who used a special skill, in a manner that
significantly facilitated the commission or concealment of the
offense.
In applying 3B1.3s special skill enhancement, this
614
This is yet another inconsistent argument raised by

Pellicano, whose Rule 403 argument is premised in part on the
fact that evidence related to the threat against Virtue was
elicited at trial. (JOB 73.) Moreover, the letter from
convicted Chicago Outfit member Jerry Scalise to Carradine
regarding Pellicanos efforts to secure Proctors silence is
sufficiently self-explanatory: it discusses how Robert Salerno,
another Chicago Outfit member, was serving a RICO murder sentence
at the same federal prison as Proctor; how Scalise was attempting
to get the message to Salerno through Salernos attorney-son; and
how Scalise and Carradine needed to finalize the plan through
communication methods that would evade government detection. (CR
2509).
870
Court has held that the skill in question must be a pre-existing,

otherwise legitimate, skill not possessed by the general public
that a criminal has perverted to uncivilized and illegal ends.
United States v. Liang, 362 F.3d 1200, 1202 (9th Cir. 2004).
Moreover, this Court has held that 3B1.3s use of the term
facilitated simply means that the special skill made it
significantly easier for the defendant to commit or conceal the
crime.
1996).
United States v. Peterson, 98 F.3d 502, 506 (9th Cir.

In Peterson, this Court affirmed the imposition of a
special skill enhancement to a defendant convicted of computer

fraud and wiretapping in connection with a series of computer
hacking schemes, including one in which the defendant manipulated
a computer program to intercept calls to a radio station and
thereby ensured that he was the winning caller in a series of
prize sweepstakes.
While noting that the defendant lacked formal
computer training, this Court explained that Application Note 3s

reference to substantial education, training and licensing did
not establish an absolute prerequisite for a special skill
adjustment and concluded that the defendants sophisticated
computer skills reasonably can be equated to the skills possessed
by pilots, lawyers, chemists, and demolition experts for purposes
of 3B1.3.
Id.; see also United States v. Campa, 529 F.3d 980,
1017 (11th Cir. 2008) (affirming 3B1.3 enhancement for

defendant who used his knowledge of civil engineering, radio
technology, and computer encryption to create and transmit a
871
mental blueprint of secret military facilities and broadcast

channels).
The district court abused no discretion in concluding that
Pellicano possessed pre-existing, otherwise legitimate, and not
generally possessed, computer, audio, and encryption skills that
he exploited to facilitate his acts of wiretapping.615
RT 65-66; GERT 14014-15).
(12/15/08
Rather than contest the evidence that
Pellicano was an expert whose specialized skills were

instrumental to the creation, development, refinement,
implementation, and use of the Telesleuth wiretapping program,
Pellicano embraced and promoted it.616
In fact, Pellicano
effectively invited this enhancement in his opening statement,

when he stated:
Im just going to make a couple more comments about Telesleuth and the program that Mr. Pellicano
developed, along with Mr. Kachikian.
615
This Court reviews whether a defendants particular

abilities constitute a special skill for abuse of discretion.
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
616
Pellicano admitted to the Probation Office that he
possessed the following special skills and training: forensic
audio, investigations, cryptography, photography, handwriting and
document analysis, voice identification, computer graphics, and
computer analysis. (PSR 182.) The PSR further noted that
Pellicano: (1) has handled highly technical cases involving
electronics; (2) claims to have performed a lot of pioneering
forensic audio work; (3) was trained in cryptography for four
months by the United States Army after which time he served as a
cryptographer for the Army Signal Corps in France; and (4) had
excellent forensic audio-capabilities. (PSR 189; USPO Rec.
3.)
872
Mr. Pellicano was the sole creator of all of these

programs, based on his knowledge of law enforcement and
audio recordings going back into the early 70s. As a
matter of fact, Mr. Pellicano coined the term forensic
audio, and it was then and is now used by law
enforcement and the private sector.
As a result of all those years, and Im talking about a
span of pretty close to 40 years, he became very
familiar with all aspects of audio surveillance counter
measures, which is the location of audio surveillance
devices, and the audio surveillance devices that were
available to law enforcement.
* * *
Mr. Pellicano heard constant complaints from law
enforcement about the methodology and the equipment
being provided. As a result of that, Mr. Pellicano
sought to develop the ultimate program, and thats what
Mr. Pellicano and Mr. Kachikian sought to do. That
program is Telesleuth.
(3/6/08 RT (P.M.) 32-33; GERT 608-09).
Kachikian similarly
testified that: (1) Pellicano approached him in 1995 with plans
873
to create the program that became Telesleuth; (2) Kachikian had

no prior experience with, or knowledge of, the mechanics of
wiretapping; (3) Pellicano, who was well-versed in these
mechanics through his forensic audio expertise, educated
Kachikian on the issue; (4) Pellicano provided Kachikian with all
of the specific features to be included in the program, which
included call interception, identification, and preservation
components; (5) Pellicano demanded that Telesleuth include
numerous security features to limit access to both the
intercepted calls and the wiretapping program, including a
sophisticated encryption program that immediately encrypted all
intercepted calls, a code-wipe program that would automatically
delete all wiretapped calls and the Telesleuth program itself in
the event that specific use protocols were not followed, and the
lack of a backdoor that would allow a forensic examiner to
bypass the encryption; (6) Pellicano helped test each feature and
instructed Kachikian regarding desired modifications; and (7)
Telesleuth, under Pellicanos direction and use, was
significantly upgraded several times from its 1995 creation
through Pellicanos November 2002 arrest.
(4/23/08 RT (P.M.) 18-
23, 46-47, 53-54, 57-59; GERT 6737-42, 6765-66, 6772-73, 677677.)
The district courts finding that Pellicano personally used
special skills to facilitate his multiple acts of wiretapping was

thus founded on uncontested, overwhelming evidence.
874
Contrary to Pellicanos claim, the application of 3B1.3s

special-skill enhancement does not constitute double counting.
(POB 71.)
Section 2H3.1, the Guideline for wiretapping, does not
inherently incorporate into its offense level the special skills

that Pellicano used to wiretap.
See United States v. Williams,
693 F.3d 1067, 1074 (9th Cir. 2012) ([D]ouble counting occurs
where the Guidelines use the same conduct more than once to
increase the severity of the sentence.); United States v. Reese,
2 F.3d 870, 895-96 (9th Cir. 1993) (The use of a single aspect
of conduct both to determine the applicable offense guideline and
to increase the base offense level mandated thereby will
constitute impermissible double counting only where, absent such
conduct, it is impossible to come within that guideline.).
As
Pellicano himself argues, a defendant can commit wiretapping

without personally possessing special skills by employing others
who possess such skills.
(POB 71.)
enhancement would be warranted.
In such a case, no
Moreover, as Kachikian elicited
at trial, rudimentary devices can be cheaply purchased to conduct

equally rudimentary encryption and wiretapping.
(P.M.) 28-32; GERT 6747-51.)
(4/23/08 RT
The wiretapping conducted by
Pellicano, however, succeeded on a grand scale precisely because

of its sophistication, utilizing operational, security, and
encryption features that Pellicano devised, maintained, and
refined based on his pre-existing skill in computers, audio
analysis, and encryption, which, in turn, allowed for the
875
intercepted calls to be systematically captured, encrypted, and

concealed.617
Thus, Pellicanos use of these special skills was
not previously incorporated into his 2H3.1 offense level.
The
district court, therefore, committed no procedural error in

applying the 3B1.3 enhancement.
d.
The court did not commit plain procedural error by

failing to consider how the 3553(a) factors
applied to Pellicano
Despite not objecting to the adequacy of the district

courts consideration of the 3553(a) factors, Pellicano now
asserts for the first time on appeal that the court failed to
consider th[ose] statutory factors.
(POB 59.)
Simply stated,
there was no error, much less plain error, because Pellicanos

claim is false.
(12/15/08 RT 66-73; GERT 14015-22.)
The court expressly stated at Pellicanos sentencing hearing

that its task in sentencing is to determine the sentence that is
reasonable but no greater than necessary to comply with the
purposes stated in Section 3553(a).
(Id. at 69; GERT 1408.)
It
further explained that it had considered each of the 3553(a)

factors and, in doing so, cited each factor.
617
(Id. at 68-69; GERT
Christensen presented expert testimony designed to show

how sophisticated a wiretapping program Pellicano must have had
in order to wiretap in the manner that the evidence showed that
he, in fact, did.
876
14017-18.)
The court then discussed how it had discretion to
sentence outside the applicable Guidelines range and spoke at

length about its assessment of how Pellicanos offense conduct
and the parties sentencing arguments impacted its determination
of an appropriate sentence in light of the 3553(a) factors.
(Id. at 66, 69-73; GERT 14015, 14018-22.)
By doing so, the
court, which ultimately imposed a within-Guidelines sentence,

easily satisfied this Courts requirements for a procedurally
sound sentence.
See Valencia-Barragan, 608 F.3d at 1108 (this
Court will reject a forfeited claim that the district courts

consideration of the 3553(a) factors was inadequate so long as
the court listened to [the defendants] arguments, stated that
it had reviewed the criteria set forth in 3553(a), and imposed
a sentence within the Guidelines range).
e.
Any procedural error was not prejudicial
Even if this Court were to find that Pellicano had

established procedural error, there was no prejudice.618
The
court stated unequivocally that, if Pellicanos calculations had

result[ed] in a lower guidelines range, unquestionably, an
upward departure of five levels or more would be appropriate and
that the court would have, in fact, departed upward to reach at
618
If this Court were to agree with any of Pellicanos

preserved procedural claims, the government would have to carry
the burden of showing that any error was harmless. United
States v. Vonn, 535 U.S. 55, 62 (2002). But if this Court were
to agree with Pellicanos forfeited claim, the tables are
turned and he would have to demonstrate prejudice. Id. at 63.
877
least the higher range on which it bases its sentence today;

even a sentence of approximately 20 years [was] well within the
range of reasonableness for [Pellicanos] collective crimes.
(12/15/08 RT 67, 70; GERT 14016, 14019.)
The court explained
that it held that view because

[Pellicano] engaged in reprehensible conduct for many
years, dragging friends and employees into his schemes
and convincing people in whom the public placed its
trust to betray their oaths and obligations. He did
this eagerly, usually maliciously, and with extreme
pride in his ability to violate the law with impunity
as evidenced by his demeanor on the recordings. The
Guidelines range for these crimes and the method of
grouping failed to take into account the true nature,
circumstances and extent of his crimes, nor does the
range even begin to address the number of victims whose
lives have been damaged and whose privacy has been
violated.
The range also fails to address the serious collateral
damage this conduct has had on the civil and criminal
justice systems. That such collateral damage would
occur if the crimes were discovered was completely
foreseeable. The aim of [defendants] conduct was to
destroy the perceived enemies of [defendants] clients
878
by any means. The message was that justice or, more

accurately, a perversion of justice could be bought.
(Id. at 71-72; GERT 14020-21).
Further explaining the
Guidelines failure to fully account for the harm Pellicano

caused even when they did account for specific conduct (e.g.,
bribery and wiretapping), the court stated that
the nature and scope of Mr. Pellicanos criminal
activity is completely unaccounted for by the Guideline
calculations. The Court finds that [Pellicanos]
conduct was part of a systematic and pervasive
corruption of a government function, process or office
that has indeed caused a loss of confidence in certain
aspects of government, including police agencies and
the courts. In addition, as the evidence, including
the numerous recordings, makes clear, a primary
objective of some or all of the offenses was an
aggravating, non-monetary objective, including the
infliction of emotional distress, and [defendants]
conduct clearly has caused such harm. His offenses
caused physical, emotional and psychological harm to a
significant number of victims and resulted in the most
egregious forms of invasion of privacy imaginable. It
879
is impossible to quantify the harm to the victims of

these offenses.
(Id. at 66; GERT 14015.)
In light of the courts lengthy
justifications for why it would have sentenced Pellicano to at

least 180 months regardless of its Guidelines calculations, there
is no evidence that any of Pellicanos alleged procedural
errors, if changed, would result in a shorter sentence and,
therefore, provide no basis for vacatur and remand.
Ali, 620
F.3d at 1074; see also United States v. Munoz-Camarena, 631 F.3d

1028, 1031 (9th Cir. 2011) (while a courts mere statement that
it would impose the same . . . sentence no matter what the
correct calculation cannot, without more, insulate the sentence
from remand, a miscalculation will be harmless if the court
explains the reason for the extent of a variance that it would
have otherwise imposed).
f.
The District Courts Within-Guidelines Sentence Was

Substantively Reasonable
A sentence is substantively reasonable when it is

sufficient, but not greater than necessary to accomplish the
sentencing goals set forth in 3553(a).
90).
Carty, 520 F.3d at 989-
Reasonableness is reflected in a record that, under the
totality of the circumstances, shows a rational and meaningful

consideration of the [ 3553(a)] factors.
880
Ressam, 629 F.3d at
827-28.
Where the district court imposes an in-Guidelines
sentence, as the court did here, this Court will reverse only if
the courts decision not to go lower was illogical, implausible,
or without support.
Treadwell, 593 F.3d at 1011.
Pellicano cites three reasons why the courts sentence

purportedly was substantively unreasonable.
First, he claims
that the court abused its discretion by rejecting the USPOs

recommendation of a 30-month downward variance to credit him for
time served on his 2003 explosives convictions.
(POB 71.)619
Second, he asserts that the court abused its discretion by

sentencing him to a term of imprisonment that significantly
exceeded the USPOs below-Guidelines 70-month recommendation
(which the USPO admitted was based on incomplete calculations).
(POB 61-62, 73.)
Third, he states that the court abused its
discretion by failing to properly account for sentencing

disparities in violation of USSG 3553(a)(6).620
619
(POB 62-64.)
Pellicano technically claims that his sentence should

have been calculated as starting in November 2003 (when he began
serving the 30-month sentence on these convictions). (POB 73.)
That improperly cast claim is cognizable only as a request for a
downward variance, which is how the government will address it.
620
Pellicano technically claims that the court incorrectly
calculated his Guidelines and failed to properly assess the
nature and circumstances of the offense conduct by citing to
sentences imposed in other cases that he claims involved similar
conduct. (POB 62-64.) Sentences imposed by other courts in
other cases, however, have nothing to do with the proper
calculation of Pellicanos Guidelines range or the offense
characteristics related to the counts of conviction in this case.
Instead, properly framed, Pellicano is claiming that the district
court failed to account for sentencing disparities between
similarly situated defendants as required by 3553(a)(6).
881
Individually and collectively, these arguments are unfounded.

Pellicanos within-Guidelines, 180-month sentence was
substantively reasonable, and the courts decision not to go
lower was not illogical, implausible, or without support.
(1)
Pellicanos sentence is not unreasonable

because it did not include a downward variance
to account for his 2003 explosives convictions
In recommending a 70-month sentence for Pellicano, the USPO

recommended a 30-month downward variance to credit him for the
time he had already served for his 2003 explosives convictions
and did so on the assumption that all these charges [could have]
been brought around the same time.
(USPO Rec. 3.)
In rejecting
this recommendation, the court explained in detail why the

Probation Officers analysis of why [that] variance might be
warranted is incorrect.
(12/15/08 RT 67; GERT 14016.)
882
First, citing the governments briefing,621 the district

court found that the assumption that the government could have
proceeded with the RICO/wiretapping indictment while the
explosives charges were still pending was incorrect.622
(Id.)
Moreover, the court, which well understood the sophisticated

encryption and booby trap features that Pellicano had
incorporated into Telesleuth and heard testimony regarding the
time-consuming forensic examination required to secure this
evidence, found that Pellicano was at least partly responsible
for this delay.
(Id. at 69; GERT 14018.)
621
The government noted that the RICO/wiretapping charges

were the result of a multi-year investigation that extended
through the filing of the Third Superseding Indictment in 2006.
(CR 1972). This investigation included, but was not limited to:
(1) interviews of hundreds of witnesses; (2) the issuance of
dozens of grand jury subpoenas; (3) the acquisition and analysis
of several years of bank and toll records for Pellicano and
others; (4) a review of the LAPD audit of Arnesons database
inquiries; (6) a review of phone company records relating to
Turner and Wright; (7) extensive use of several grand juries; (8)
use of multiple computer experts to image, analyze, and
ultimately decrypt the computer evidence seized from Pellicanos
office; (9) the employment of a taint team to conduct a
privilege review of the document and audio evidence retrieved
from Pellicanos computers; (10) filing multiple crime-fraud
motions to obtain court permission before reviewing documents and
audio recordings that were subject to potential claims of
privilege; (11) the review and analysis of tens of thousands of
pages of documents and hundreds of hours of audio recordings; and
(12) the negotiation of plea agreements with cooperating
defendants. (CR 1972.)
622
The USPO operated under the assumption that since the
government could document payments between Pellicano and Arneson
in early 2003 (which Arneson continues to dispute were bribes to
this day), it could have brought the 112-count RICO/wiretapping
indictment at that time. (PSR 227.)
883
Second, consistent with Pellicanos longstanding position

that the explosives found in his office safe were not retained
for use by the enterprise but rather had been obtained from a
former client for subsequent disposal, the district court found
that there was no evidence that Pellicanos possession of the
explosives was connected to the offense conduct for which he was
to be sentenced.
(Id.)
Third, and most importantly, the district court found that

the Probation Officers conclusion that consideration of the
explosives charges at the same time as the present charges would
not have increased defendants sentence is simply wrong.
(Id.)
As the district court explained, because the explosives

calculations would not have increased Pellicanos total offense
level, the court would have departed upward and sentenced
Pellicano above 180 months based on all the factors previously
stated, as well as the fact that [the] explosives charge wasnt
adequately accounted for in the Guidelines.
14018-19.)
(Id. at 69-70; GERT
None of these findings was illogical, implausible,
or without support.
Before Booker, USSG 5K2.0 provided for upward departures,

and after Booker, the 3553(a) factors provide for upward
variances when the Guidelines fail to fully account for offense
conduct.
See, e.g., Tankersley, 537 F.3d at 1113 (upholding 12-
level upward departure under 5K2.0 after reviewing for

reasonableness because, [a]fter Booker, the scheme of downward
884
and upward departures has been replaced by the requirement that

judges impose a reasonable sentence).
Had Pellicanos
explosives charges been brought in this case, the Guidelines

would not have accounted for that conduct because the behavior
involving the weapons would not group with the instant offense
and the maximum multiple count adjustment ha[d] already been
applied.
(USPO Rec. 3.)
Thus, the only way to account for this
conduct would have been through an upward variance.

Moreover, if Pellicano possessed the C-4 explosive, blasting
cap, and two grenades in furtherance of the enterprises
activities, as he now claims (POB 72),623 a reasonable inference
would be that they were to be used to destroy Buschs car, as
Proctor stated was Pellicanos initial intent.
At a minimum, it
would be reasonable to infer that Pellicano possessed the

explosives to kill, maim, or to cause serious injury to a PIA
adversary or cause equivalent damage to an adversarys property,
particularly given the expert testimony at Pellicanos 2003 trial
regarding the destructive power of these weapons.624
(PSR 143).
Under such circumstances, if the explosives charges had been
623
This is yet another inconsistent argument insofar as

Pellicano elsewhere argues that the jury should not have been
shown a photograph including the explosives or heard testimony
that explosives were recovered from PIA because such evidence
purportedly was not related to the charged conduct and was unduly
prejudicial. (JOB 61, 69.)
624
Expert testimony established that the C-4 explosive was
sufficiently powerful to destroy PIA and kill everyone inside,
take down a plane, or destroy a car. (PSR 143.)
885
brought with the RICO/wiretapping charges and the district court

had varied upward by an amount that matched or exceeded
Pellicanos 30-month explosives sentence to account for the
Guidelines failure to capture that conduct, that decision would
have been reasonable.625
It follows that the flip side of the
coin therefore holds true too: because the explosives charges

were not brought in this case, it was equally reasonable for the
court to decline to grant Pellicano the USPOs recommended
downward variance.626
625
The district court previously had stated that an upward

departure of at least five levels was appropriate even without
taking into account Pellicanos possession of these explosives.
(12/15/08 RT 67; GERT 14016.) A departure of this amount would
have set the low-end of Pellicanos Guidelines range at 262
months or 82 months above the sentence he actually received.
626
Pellicanos accompanying arguments also fail. First,
there is no merit to Pellicanos claim that his criminal history
category should have been I instead of II because his 2003
explosives convictions were part of the instant offense and
should not have counted as a prior sentence under USSG 4A1.2.
Indeed, Pellicano previously asserted that he took possession of
the explosives in 1998 and that, although he possessed them, they
did not belong to him (and, therefore, were unrelated to the
criminal conduct that he affirmatively orchestrated at PIA).
(2003 PSR 22.) Therefore, his possession of the explosives was
neither part of a common scheme or plan involving a common
victim, accomplice, purpose or modus operandi, nor part of the
same course of conduct. USSG 4A1.2, comment. (n.1)
(incorporating 1B1.3s relevant conduct definition); see also
United States v. Rivera-Gomez, 634 F.3d 507, 511, 512 (9th Cir.
2011) (conduct that is part of the instant offense under
4A1.2 is conduct that would be deemed relevant conduct under
1B1.3). Second, Pellicanos claim that he lost the opportunity
to receive a concurrent sentence based on the purported delay in
bringing the RICO/wiretapping indictment is belied by the record.
(POB 72-73). Under the Guidelines, concurrent sentences are
required only when the underlying count of conviction is fully
accounted for in the offense level determination for the instant
(continued...)
886
(2)

because the court exercised its discretion to
reject the USPOs facially incomplete sentence
recommendation
Pellicano asserts that the district court nearly tripled

the 70-month sentence recommended by the USPO and that the
courts rejection of the USPOs recommendation evidences his
sentences unreasonableness.
multiple levels.
(POB 62).
This claim fails on
First, Pellicano significantly overstates the
import of the USPOs sentencing recommendation.
Federal Rule of
Criminal Procedure 32 makes clear that the purpose of both the

PSR and the USPOs sentencing recommendation is not to set the
benchmark for assessing the reasonableness of the sentence
ultimately imposed but rather to provide the court with
information that it may need to meaningfully exercise its
sentencing authority under 18 U.S.C. 3553.627
626
Therefore, even
(...continued)
offense. USSG 5G1.3(b). This scenario does not exist here.
Instead, had the RICO/wiretapping indictment been brought
earlier, it would have been within the district courts
discretion whether to impose concurrent or consecutive sentences.
USSG 5G1.3(c). For the reasons already stated, the district
court acted within its discretion when it effectively concluded
that Pellicanos RICO/wiretapping sentence should run
consecutively to his explosives sentence.
627
A PSR need not even be generated if the court concludes
that it can meaningfully exercise its sentencing authority based
on the information in the record and explains its findings on the
record. Fed. R. Crim. P. 32(c)(A)(ii). Likewise, provided that
(continued...)
887
when based on a fully and correctly calculated Guidelines range,

the USPOs sentencing recommendation simply serves as a nonbinding aide that the court may consider when it exercises its
statutory sentencing duties under 3553.
Second, the USPOs sentencing recommendation in this case
was not based on a fully and correctly calculated Guidelines
range.
First, because USSG 3C1.1s two-level obstruction
enhancement, if applied, would be based at least partly on

evidence presented at trial, the USPO took no position on the
enhancements applicability but instead expressly defer[red] to
the court on the issue.
(PSR 53, 76, 84, 94, 105, 111).
Second, after initially rejecting the applicability of 3B1.3s

two-level special skill enhancement to Pellicanos wiretapping
calculations, the USPO issued an addendum to the PSR and, because
that enhancement would also be based at least partly on evidence
presented at trial, withdrew its recommendation against the
enhancement and expressly defer[red] to the court.
PSR Add. 2).
(PSR 103;
Finally, whereas the government recommended and
the court ultimately imposed a four-level role enhancement under

3B1.1, the USPO recommended only a two-level enhancement.
(Compare CR 1972 and 12/15/08 RT 63-64; GERT 14012-13, with PSR
627
(...continued)
the facts relied upon by the district court in determining a
reasonable sentence are made known to a defendant, the defendant
need not be provided with the USPOs sentence recommendation.
See United States v. Baldrich, 471 F.3d 1110, 1114-15 (9th Cir.
2006).
888
74, 82, 91, 105, and PSR Add. 1 (stand[ing] by its 3B1.1
calculations but ultimately defer[ring] to the Court).)
Despite its facially incomplete Guidelines calculations, the
USPOs recommendation letter nonetheless stated that Pellicanos
advisory guideline range [is] 97 to 121 months based upon an
offense level of 29 and a criminal history category of II and,
from that porous foundation, recommended a 70-month sentence.
(USPO Rec. 1.)
Of course, Pellicanos total offense level was not 29 and
his Guidelines range was not 97 to 121 months both because the
USPOs calculations were facially incomplete and because, with
respect to the role enhancement, they were wrong.
The district
court effectively completed the USPOs calculations for it by

finding that each of the deferred enhancements applied, which,
as the court noted, brought the USPOs and the governments
Guidelines calculations into alignment.
14016-17).
(12/15/08 RT 67-68; GERT
When fully calculated, the USPOs Guidelines
calculations, like those of the government, resulted in a total

offense level of 33, a criminal history category of II, and an
applicable Guidelines range of 151 to 188 months.
GERT 14017).
(Id. at 68;
Thus, the USPO based its sentencing recommendation
on an ultimately inaccurate Guidelines calculation that set the

low-end of Pellicanos Guidelines range 54 months (four-and-ahalf years) below its actual level.
889
Moreover, as already
discussed, the USPOs recommendation included an equally

erroneous downward-variance recommendation further reducing its
bottom line by an additional 30 months.628
Therefore, even if a
USPOs sentencing recommendation could be used as a

representative guidepost for a reasonable sentence, the
incompletely calculated Guidelines and inaccurate variance
analysis offered by the USPO here would preclude its
recommendation from being used as a guidepost in this case.
Third, Pellicanos argument, if adopted, would strip from
district courts the broad sentencing discretion that both the
Supreme Court and this Court have placed squarely in the hands of
district courts and redeposit it with the USPO, which necessarily
is the party in the sentencing process least familiar with the
underlying proceedings.629
In addition to being contrary to
628
In addition, the USPO cited as justification for a

downward variance its erroneous belief that Pellicano could have
been charged with the Busch threat federally and that he was
therefore unnecessarily exposed to an additional jail term stateside should he be convicted. (USPO Rec. 3.) The district court
correctly rejected this position as unduly speculative -- a
conclusion that was borne out over time because, while Pellicano
pleaded to the threat against Busch, the state court ordered the
three-year prison term in that case to run concurrently with the
sentence in this case, thereby not adding any additional time to
Pellicanos total term of imprisonment. (CR 2501, 2509; 12/15/08
RT 70; GERT 14019.)
629
This is not a criticism of the USPO writ-large, but
rather a realistic recognition that the USPO is the only
participant in the sentencing process that is necessarily
incapable of developing an understanding of the offense conduct
and relevant conduct on par with the participants to the
investigative and in-court proceedings (i.e., the parties and the
district court).
890
controlling precedent, the lack of merit in this argument can

readily be seen here, where Pellicano would have this Court find
that deference should be afforded to a Probation Officer who was
first assigned to the case post-trial and not to the Article III
judge who presided over every aspect of this case, including two
years of extensive pre-trial litigation and five months of trial
during which it had extensive interaction with Pellicano, heard
the offense conduct described in exacting detail, and observed
the witnesses who provided this testimony.
That the district court was in a superior position to
sentence Pellicano was recognized by all parties to this
sentencing.
It was recognized by the USPO, which deferred
several sentencing determinations to the district court based on

the district courts more developed knowledge of the record.
(PSR 53, 74, 76, 82, 84, 91, 94, 103, 105, 111; PSR Add. 1,
2).
It was recognized by Pellicanos counsel, who started his
sentencing argument by noting that I dont expect there is much

I can say that you dont already know about this case or about
Mr. Pellicano after these years of litigation and the two
trials.
(12/15/08 RT 25; GERT 13974.)
And it was recognized by
the district court, which responded to Pellicanos assertion that

the Probation Office does have a good handle on this case by
stating, I have a better handle.
891
(12/15/08 RT 56; GERT 14005.)
Neither the law nor the facts support Pellicanos argument

that the USPOs Guidelines calculations and sentencing
recommendation should trump the district courts calculations and
sentence.
The USPOs Guidelines calculations were incomplete,
and its variance analysis was erroneous.
Therefore, the fact
that the district courts sentence differed from the USPOs

recommended sentence says nothing about the reasonableness of the
sentence ultimately imposed.
(3)

because the court declined to vary downward
based on purported sentencing disparities
Section 3553(a)(6) requires sentencing courts to consider

the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.
While this provision is intended to promote
national sentencing uniformity among defendants who are similarly

situated, Saeteurn, 504 F.3d at 1181, it is well established that
the existence of a sentencing disparity does not, unto itself,
render a sentence unreasonable, since the need to avoid
unwarranted disparities is only one factor a district court is to
consider in imposing a sentence.
United States v. Marcial-
Santiago, 447 F.3d 715, 719 (9th Cir. 2006); see also Pepper v.
United States, 131 S.Ct. 1229, 1249 (2011) (rejecting invitation
892
to elevate 3553(a)(6) above other sentencing considerations

and noting that prior precedent required that a sentencing court
consider all of the 3553(a) factors).
Moreover, both the Supreme Court and this Court repeatedly
have held that 3553(a)(6) was intended to reduce only
sentencing disparities that truly are unwarranted among
defendants who truly are similarly situated.
See e.g., United
States v. Labonte, 520 U.S. 751, 761-62 (1997) (sentencing

disparities arising from a proper exercise of prosecutorial
discretion in charging decisions are not unwarranted); United
States v. Ringgold, 571 F.3d 948, 951 (9th Cir. 2009)
( 3553(a)(6) does not require district courts to consider
sentence disparities between defendants found guilty of similar
conduct in state and federal courts.).
It is well established
that defendants who proceed to trial are not similarly situated

with those defendants who accept responsibility by pleading
guilty, who cooperate with the government, who occupy a different
role in the offense, or who are convicted of lesser offenses.
For example, in Ressam, the en banc Court vacated the defendants
too-lenient sentence because the district court had improperly
reduced the sentence pursuant to 3553(a)(6) based on its
erroneous finding that the defendant, who was convicted at trial
of a terror plot, was similarly situated to either other highprofile convicted terrorists who had accepted responsibility by
893
pleading guilty or to his co-defendants who had pleaded guilty

and/or were convicted of lesser offenses.
679 F.3d at 1095; see
also United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009)
(reiterating that a sentencing disparity based on cooperation is
not unreasonable.).
When assessing whether a sentencing court properly has
considered 3553(a)(6), the reviewing courts focus is on the
Guidelines.
Because the [a]voidance of unwarranted disparities
was clearly considered by the Sentencing Commission when setting

the Sentencing Guidelines ranges, when a district court
correctly calculate[s] and carefully review[s] the Guidelines
range, [it] necessarily [gives] significant weight and
consideration to the need to avoid unwarranted disparities.
Gall, 552 U.S. at 54; see also Treadwell, 593 F.3d at 1011
([B]ecause the Guidelines range was correctly calculated, the
district court was entitled to rely on the Guidelines range in
determining that there was no unwarranted disparity between the
defendant and defendants convicted of similar offenses).
Consistent with this guidance, this Court has eschewed the
practice whereby a defendant alleges a sentencing disparity by
citing to specific sentences imposed in other cases.
See, e.g.,
Treadwell, 593 F.3d at 1012 ([T]he mere fact that [the

defendant] can point to a defendant convicted at a different time
of a different [offense] and sentenced to a term of imprisonment
894
shorter than [the defendant] does not create an unwarranted

sentencing disparity, particularly given that such cites are not
accompanied by the the records in the cases.).
As Treadwell
explained, a district court need not, and, as a practical

matter, cannot compare a proposed sentence to the sentence of
every criminal defendant who has ever been sentenced before.
Too
many factors dictate the exercise of sound sentencing discretion

in a particular case to make [such an inquiry] helpful or even
feasible.
Id.; see also United States v. Dewey, 599 F.3d 1010,
1017 (9th Cir. 2010) (rejecting as meritless the defendants

effort to establish a 3553(a)(6) claim by citing a sentence in
another case without evidence establishing that the other
defendant had a similar criminal history).
The court here properly considered 3553(a)(6) when
sentencing Pellicano.
The court expressly stated that it had
taken this sentencing provision into account before concluding

that it was totally unaware of any circumstance that is similar
to this one.
(12/15/08 RT 68-69; GERT 14017-18); see Autery,
555 F.3d at 876 (district courts finding of dissimilarity

between defendants, unless clearly erroneous, will not cause
sentencing disparities to be considered unwarranted).
Moreover,
as already discussed, the district court carefully and correctly

calculated Pellicanos Guidelines range and sentenced Pellicano
within that range.
Nothing more is required.
895
Treadwell, 593
F.3d at 1011; United States v. Vasquez-Landaver, 527 F.3d 798,

804-05 (9th Cir. 2008).
Pellicanos citation to five sentences imposed in other
cases does not establish otherwise.
(POB 62-64.)
This is
particularly true given both the courts finding that Pellicano

was not similarly situated to other parties and that these cases
involve disparities in charges, case resolutions, and/or
jurisdictional considerations that this Court previously has
found to be suitably dissimilar to yield no unwarranted
disparities under 3553(a)(6).630
(4)
Pellicanos within-guidelines sentence was

reasonable
630
Pellicano cites a state case (Chrisman); a federal case

that did not include RICO, bribery, or wiretapping charges in
which the defendant pleaded guilty (Rossini); a federal case
involving a defendant who pleaded guilty to a single-count
information that did not include RICO, bribery or wiretapping
charges (Norell); a federal RICO case that did not involve
wiretapping and whose defendants did not receive role or
obstruction enhancements (Frega); and a federal RICO case
involving a defendant who pleaded guilty and whose charges did
not include wiretapping (Damico). (POB 62-64.) In addition to
involving defendants who were not similarly situated, Pellicanos
claim also fails because he did not provide sufficient
information regarding them to allow for meaningful consideration
of his 3553(a)(6) claim. See Treadwell, 593 F.3d at 1012;
Dewey, 599 F.3d at 1017. In fact, Pellicano mentioned only two
of the five other cases during the underlying sentencing
proceedings.
896
As the Supreme Court explained, when the judges

discretionary decision accords with the [Sentencing] Commissions
view of the appropriate application of 3553(a) in the mine run
of cases, it is probable that the sentence is reasonable.
v. United States, 551 U.S. 338, 350 (2008).
Rita
This Court has thus
recognized that, in the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range
of sentences that would be reasonable in the particular
circumstances.
Treadwell, 593 F.3d at 1015 (internal quotation
marks and cites omitted).
Pellicanos within-Guidelines sentence
rests comfortably among them.

The record reflects that the court, after correctly
calculating an applicable Guidelines range of 151 to 188 months,
carefully and thoroughly analyzed each of the 3553(a) factors
before determining that a 180-month term represented a sentence
that was sufficient, but no greater than necessary, to achieve
3553(a)s sentencing objectives.
14017-22.)
(12/15/08 RT 68-73; GERT
In doing so, it considered relevant aggravating and
mitigating factors, before concluding that the aggravating

factors are so substantial as to outweigh any arguable mitigating
factors.
(Id. at 71; GERT 14020.)
Among these aggravating
factors were: (1) Pellicanos willful and repeated interception

of attorney-client communications that were done in furtherance
of his broader efforts to subvert the legal process by providing
897
the enterprises clients with the privileged, confidential

communications of its litigative adversaries; (2) Pellicanos
corruption of law enforcement and public agencies; (3) the
significant collateral damage that Pellicanos actions caused
these institutions;631 (4) the extreme pride [Pellicano
demonstrated] in his ability to violate the law with impunity;
and (5) the significant number of victims whose lives have been
damaged and whose privacy has been violated.
GERT 14011, 14017-22).
(Id. at 62, 68-73;
As to this last aggravating factor,
Pellicanos claim, repeated on appeal, that the impact of his

criminal conduct was overstated was directly debunked by trial
testimony, Pellicanos admissions on calls that he recorded, and
victim impact statements submitted before and at Pellicanos
sentencing hearing.
(CR 1970; 3/13/08 RT (A.M.) 2526, 41;
3/13/08 RT (P.M.) 112-15, 142; 3/19/08 RT (A.M.) 104-15; 3/19/08

RT (P.M.) 6-11, 14, 16-21, 29-32, 68-71, 74-85, 87-88, 106, 120;
3/20/08 RT (A.M.) 71-86; 3/20/08 RT (P.M.) 22-23, 99-105; 3/28/08
RT (P.M.) 22-23, 26-30, 34; 4/1/08 RT (P.M.) 71-80, 115-16;
4/4/08 RT (A.M.) 96-103, 110-11; 4/9/08 RT (P.M.) 15, 45-46, 5156; 4/10/08 RT (A.M.) 136-59l; 7/25/08 RT (A.M.) 77-79; 8/15/08
RT (P.M.) 52; GERT 1551-52, 1567, 1759-62, 1789, 2372-83, 2396-
631
Both Pellicano and the government cited the extensive

civil litigation that has resulted from the enterprises conduct
as its victims sought redress from, among others, the City of Los
Angeles and AT&T (SBCs corporate successor). (CR 1972; 12/15/08
RT 26; GERT 13975.)
898
2401, 2404, 2406-11, 2419-22, 2458-61, 2464-75, 2477-78, 2496,

2510, 2586-2601, 2644-45, 2721-27, 3359-60, 3363-67, 3371, 371019, 3754-55, 4400-07, 4414-15, 4946, 4976-77, 4982-87, 5126-49,
9856-58, 12249.).
For example, Anita Busch explained how the
fear caused by Pellicanos relentless targeting of her privacy

undermined her ability to maintain her journalism career and
profoundly impacted her daily life.
13957-58.)
(12/15/08 RT 8-9; GERT
Pellicano, of course, bragged about how it was his
mission to destroy his adversaries.

In sentencing Pellicano, the court sentenced the architect
of a criminal enterprise that for a decade had engaged in rampant
criminal conduct that victimized hundreds of individuals,
corrupted longstanding public institutions, and subverted the
judicial process.
While the court correctly concluded that
Pellicanos case was atypical, it also correctly concluded that

its uniqueness was aggravating.
As such, the court acted well
within its broad sentencing discretion when it imposed a withinGuidelines 180-month sentence.
Pellicanos sentence is
substantively reasonable and should be affirmed.

g.
This Court Need Not Remand for Resentencing Even If

It Vacates Counts of Conviction Other than the RICO
and Wiretapping Counts
899
When this Court reverses some counts and affirms others, it

generally remands for resentencing on the affirmed counts.
See,
e.g., United States v. Lazarenko, 564 F.3d 1026, 1047 (9th Cir.
2009).
This is because, [w]hen a defendant is sentenced on
multiple counts and one of them is later vacated on appeal, the

sentencing package comes 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. Bennett, 363 F.3d 947, 955 (9th Cir. 2004).
However,
this rule is phrased in the permissive; it is not a requirement

that [this Court] vacate all of the sentences imposed.
United
States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir. 2010)

(declining to vacate and remand sentence on affirmed count,
despite vacating and remanding sentence on two other counts,
because the statements made by the district court at the
sentencing hearing made clear the district court would impose
the same sentence [on the count unaffected by error] on remand).
Provided that this Court affirms Pellicanos RICO
convictions and does not vacate the jurys findings as to the
bribery racketeering acts, remand is unnecessary.
Pellicanos
Guidelines calculations were driven exclusively by the bribery

racketeering acts and the wiretapping offenses,632 meaning that,
632
Pellicano does not challenge the sufficiency of the

(continued...)
900
so long this Court upholds the jury findings that he committed

that conduct, his Guidelines range would remain unchanged at 151
to 188 months.
Moreover, Pellicanos sufficiency challenges to the honest
services fraud, identity theft, and computer fraud charges are
not based on the underlying conduct not having occurred but
instead the contention that recent changes in the law such have
de-criminalized his conduct.
(POB 53-57.)
The district court,
therefore, would remain free to consider such conduct (e.g.,

Pellicanos retention and use of corrupt police and phone company
employees to acquire confidential information that the phone
companies and state and federal law enforcement compiled on its
customers/citizenry) when assessing an appropriate sentence under
3553(a) even if this Court were to vacate some or all of those
convictions.
Given the district courts clear statement that a
sentence of 180 months was the minimum reasonable sentence that

would satisfy 3553(a) and the fact that the information to be
considered when assessing the 3553(a) factors effectively would
remain unchanged on resentencing, there would be no need to
remand for resentencing.
h.
No Basis Exists for Reassigning Any Resentencing to

a Different Judge
632
(...continued)
evidence in support of the wiretapping charges.
901
Apparently acknowledging that Judge Fischer remains the

appropriate judge to preside over any future trial proceedings,
should they be necessary, Pellicano nonetheless requests remand
to a different judge for resentencing, should it be necessary.
(POB 60, 73.)
Pellicanos reassignment request is meritless.
Absent evidence of personal bias, this Court orders

reassignment to a different judge for resentencing only in
unusual circumstances.
975 (9th Cir. 2009).
United States v. Paul, 561 F.3d 970,
To determine whether such circumstances
exist, this Court considers:

(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty in
putting out of his or her mind previously expressed
views or findings determined to be erroneous or based
on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of
justice, and (3) whether reassignment would entail
waste and duplication out of proportion to any gain in
preserving the appearance of fairness
Id.
Pellicano has failed to establish that Judge Fischer was
personally biased against him or that any of the Paul factors

apply.
Thus, should any portion of his sentence be vacated, the
matter should be remanded to Judge Fischer.
902
Pellicano claims that reassignment is justified because

Judge Fischer: (1) made findings in her order denying the
governments request for an anonymous jury and in explaining
Pellicanos sentence that purportedly reflect improper animus
toward him; (2) imposed a sentence that was outrageous in
length; and (3) used a prepared statement at sentencing.
59-60, 73.)
(POB
None of the cited grounds supports reassignment.
The record reflects that Judge Fischer carefully ensured

that Pellicano received a fair trial (e.g., delaying crossexamination of government witnesses when Pellicano was unprepared
to proceed) and further treated him patiently and cordially,
regardless whether he was represented by counsel or proceeding
pro se (e.g., contemplating a reduction in Pellicanos sentence
based on her sincere appreciation of the professionalism that
he displayed at trial633 and wishing him good luck at the
conclusion of his sentencing hearing).634
Pellicanos claims also
are contrary to his representations at the time of sentencing,

when he submitted a letter acknowledging the fair treatment that
he received from Judge Fischer: I have come to admire you, and
more importantly, respect you.
No matter what the sentence is
that you impose, I want you to know that I consider it an honor

and a privilege to have been given the opportunity to appear
before you [while pro se].
633
634
(12/15/08 RT 70; GERT 14019.)

(12/15/08 RT 78; GERT 14027.)
903
Moreover, the record belies Pellicanos claim that Judge

Fischer demonstrated a predisposition against him in resolving
the anonymous jury motion and in imposing sentence.
(POB 73.)
Judge Fischers order denying the governments motion for an

anonymous jury simply addressed the factual grounds that the
government had cited in its motion and made findings necessary to
resolve the motion.
(CR 1089, 1178.)
While Pellicano now takes
Judge Fischer to task for purportedly adopting the governments

factual arguments, he omits that he did not oppose this motion
and, therefore, Judge Fischer did not have Pellicanos position
as to which of the motions factual allegations purportedly were
unfounded.635
Pellicano also fails to acknowledge that, despite
failing to contest this motion or its factual contentions, Judge

Fischer took care when denying it to qualify her findings through
the use of words and phrases alleged, with the possible
exception, may be, may have, and the possibility that.
(CR 1178.)
Rather than reflect bias, Judge Fischers order
reflects a judge doing what she is charged to do impartially

ruling on motions based on the facts and law before her.
See,
e.g., Liteky v. United States, 510 U.S. 540, 555-56 (1994)

635
Several of these allegations directly were established

at trial (e.g., Pellicanos recorded admission to knowing how the
jury was deliberating in the Kami Hoss manslaughter trial),
admitted by Pellicano (e.g., his adoption of the PSRs factual
finding that his work frequently was directed toward subverting
the judicial process), or proved through documents submitted in
related hearings (e.g., his close association with Chicago Outfit
member Jerry Scalise).
904
([J]udicial rulings alone almost never constitute a valid basis

for a bias or partiality motion.).
The record also shows that Judge Fischer was not biased
against Pellicano at sentencing.
Pellicano does not even
identify the purportedly offending comments; instead, he just

generally avers to statements at sentencing.
(POB 60.)
While
this makes it exceedingly difficult to properly respond to his

claim and arguably renders it abandoned, it is sufficient to note
that Judge Fischer was required to state her justification for
Pellicanos 180-month sentence and to address Pellicanos
sentencing arguments.
Carty, 520 F.3d at 992.
As with the
anonymous jury motion, Judge Fischer did as she was required; she
explained her justifications for her Guidelines calculations, why
Pellicanos sentencing arguments were unfounded, and why she was
imposing a sentence in the upper-end of the applicable Guidelines
range.
All of Judge Fischers comments were directly supported
by trial evidence, victim statements, and the resounding lack of

remorse Pellicano demonstrated at every stage of the
proceedings.636
Simply stated, a district courts proper exercise
of its sentencing obligations that includes its unvarnished

assessment of the positive and the negative factors that impacted
636
Pellicanos counsel candidly acknowledged that Mr.

Pellicano should not be getting a medal. (12/15/08 RT 27; GERT
13976.)
905
its determination of a reasonable sentence under 3553(a) should

not serve as a basis for reassignment.
In addition, the within-Guidelines sentence imposed by
Pellicano was neither outrageous nor reflective of any bias.
On the contrary, this sentence was within the range recommended
by the Sentencing Commission, eight months below the sentence
sought by the government, five years below the sentence that
Judge Fischer found would be justified by the totality of the
conduct, several hundred years below the statutory maximum that
could have been imposed on the 78 counts of conviction, and
reasonable when considered against all of the 3553(a) factors.
(CR 1972; PSR 211; 12/15/08 RT 70; GERT 14019.)
Furthermore, Pellicanos claim that Judge Fischer used a
prepared statement when imposing sentence637 does not support
Pellicanos bias claim.638
Pellicano does not cite any case
stating that it is improper for a district court to prepare its
637
Pellicano does not cite the record for this proposition,

and at a minimum, did not object at sentencing. As it does not
alter the analysis, the government will address the claim under
the assumption that the district court had used a prepared
statement.
638
Pellicano did not claim below and does not claim here
that Judge Fischer did not consider his exceptionally brief
allocution or his sentencing arguments, which effectively
repeated arguments advanced in his sentencing memorandum. The
record shows why. After discussing that a sentence of 240 months
would be reasonable and that a high-end sentence was necessary to
fully account for all the 3553(a) considerations, Judge Fischer
dropped below the governments requested high-end sentence of 188
months and rebuffed the government when it reiterated its
request. (12/15/08 RT 76; GERT 14025.)
906
explanation of its sentencing decisions in advance of a

sentencing hearing.
Moreover, it would have been unfeasible for
Judge Fischer to have imposed sentence off-the-cuff here given

the complex issues before her.
Pellicano stood convicted of 78
felony counts and almost as many racketeering acts.
(CR 1607).
The government and the USPO had presented competing versions of

extremely complex Guidelines calculations that included multiple
disputed and/or unresolved issues, including one issue of first
impression in this Circuit.
(CR 1972).
The parties jointly
submitted approximately 100 pages of sentencing-related briefing

and the PSR and addenda were extensive.
2634-49.)
(CR 1972, 2038; JER
Rather than reflect bias, Judge Fischers use of a
written statement to address her analysis of each of the issues

that materially impacted Pellicanos sentence reflects how
seriously she approached her sentencing responsibilities and how
exceptionally well prepared she was for Pellicanos sentencing
hearing.
Pellicano also has failed to cite any legitimate reason why
Judge Fischer would not be able to properly sentence him on
remand or why sentencing would need to be reassigned to a
different judge to preserve the appearance of justice.
Furthermore, as evidenced by the briefing before this Court, the
record in this case is massive and the issues myriad.
The amount
of time and effort it would take for a newly assigned judge to
907
become adequately prepared would grossly outstrip any nominal

concerns that may exist regarding the need for reassignment.
Having failed to present any circumstances justifying
reassignment, Pellicanos reassignment request should be seen for
what it is -- an attempt to secure a new judge who, perhaps
because of that new judges unfamiliarity with the intricacies of
this case, may impose a lower sentence than the judge that
presided over the totality of the proceedings.
A defendants
desire for a lesser sentence, however, is not a legitimate basis

for reassignment.
Pellicanos request for reassignment therefore
should be rejected.
3.
Arnesons Sentence Should Be Affirmed Because It Was

Substantively Reasonable639
Prior to trial, Arneson informed the district court that he

faced a potential sentence of over twelve years if he were to
be convicted of the substantive RICO count for which the pattern
of racketeering activity included bribery.640
639
(CR 766).
Arneson
Arneson only challenges the substantive reasonableness

of his sentence. (AOB 69-76). Therefore, only this aspect of
his sentencing will be addressed. Ressam, 679 F.3d at 1085.
640
Arneson based this assessment not on his potential
statutory maximum sentence, which exceeded 200 years, but rather
on what he believed to be the applicable Guidelines range
following conviction on the substantive RICO count. (CR 766; PSR
146). In doing so, Arneson presumably utilized a version of
the Guidelines that incorporated the 2004 amendments to USSG
2C1.1. Through these amendments, the Sentencing Commission
(continued...)
908
was convicted at trial on forty-six counts, including the

substantive RICO count, for which the jury also found that the
pattern of racketeering activity committed by Arneson included
bribery.
(CR 1608).
Arneson subsequently was sentenced to a
term of 121 months imprisonment, or more than two years less than
he previously predicted.
(CR 766, 2181).
Arneson now claims that this sentence is extreme.

74).
(AOB
Notably, Arneson does not contest the procedural
correctness of the district courts sentencing determinations,

including its application of USSG 2C1.1's two-level obstruction
enhancement based on Arnesons trial perjury and the false
statements made to the USPO in an attempt to secure a more
favorable sentence.
Instead, Arneson asserts that this sentence
is substantively unreasonable and should be vacated as it

purportedly involves an unwarranted sentence disparity and was
based on sentencing considerations that Arneson claims do not
support a sentence of this length.
640
(AOB 69-76).
(...continued)
increased the base offense level and expanded the applicability
of certain enhancements for bribery and honest services offenses
based on the Commissions conclusion that, in general, public
corruption offenses previously did not receive punishment
commensurate with the gravity of such offenses and to ensure
that punishment levels for public corruption offenses remain
proportionate to those for closely analogous offenses under
2B1.1. As assessed by Arnesons counsel, Arnesons total
offense level under the amended version of 2C1.1 would be a
level 32, or ten levels above his offense level under the pre2004 version of 2C1.1. Ex post facto considerations resulted
in the use of the November 1, 2001 Guidelines to calculate
Arnesons Guidelines range. (PSR 41).
909
Arnesons sentence should be affirmed as the district court

did not abuse its discretion when sentencing Arneson to a term of
121-months imprisonment.
Arnesons sentence does not create an
unwarranted sentencing disparity and the sentence imposed is

substantively reasonable when the totality of his conduct is
considered against the sentencing objectives set forth in
3553(a).
a.
The Presentence Report and the Parties

Sentencing Recommendations
The USPO, as it did with Pellicano, conducted only a partial

calculation of Arnesons Guidelines offense level.
The USPO
determined that Arnesons offense level for the bribery

racketeering acts was 22, based on the following calculations: 10
(base offense level/USSG 2E1.1(a), 2C1.1(a))641 + 2 (more than
1 bribe/USSG 2C1.1(b)(1)) + 10 (value obtained by government
official between $120,000 to $200,000/USSG 2C1.1(b)(2)(A),
2B1.1(b)(1)(F)).
(PSR 76-79).
The USPO, however, deferred to
the district court as to whether a two-level enhancement under
641
Although convicted of almost four dozen felonies,

Arnesons Guidelines calculations were driven exclusively by
count one, the substantive RICO count, as it was the count of
conviction resulting in the highest offense level. USSG
2E1.1(a), 3D1.3. Even more specifically, Arnesons Guidelines
calculations were driven exclusively by the value of the bribes
that Arneson accepted, which was only a portion of the offense
conduct that comprised the pattern of racketeering found by the
jury. (CR 1608; PSR 88). Under merger principles, all other
offense conduct went completely uncounted. (PSR 45-92).
910
USSG 3C1.1 applied based on his trial perjury and having made
false statements to the USPO during his pre-sentence interview
because the obstructive acts occurred, at least in part, before
the district court.642
(PSR 64, 74, 86, Addendum 4).
Moreover, while finding that the numerous factors identified by

the government are valid grounds for an upward departure or
variance, the USPO did not apply a departure or variance,
leaving it to the district courts discretion as to whether a
departure or variance should be applied.
(Addendum 5).
Utilizing a facially incomplete offense level calculation of

22,643 the USPO found Arnesons Guidelines range to be 41 to 51
months and recommended that Arneson receive a mid-point sentence
of 46 months imprisonment.
The governments Guidelines calculations matched those of
the USPO with the exception that the government completed the
calculation.
Specifically, the government applied USSG 3C1.1's
two-level obstruction enhancement.
(CR 2078).
In addition, the
government argued that an eight-level upward departure was

warranted based upon the existence of multiple directly
applicable Guidelines provisions that addressed the
appropriateness of upward departures when: (1) the defendants
642
This included facts that would prove false statements

that Arneson made to the USPO during his presentence interview.
643
As would be expected of a defendant who committed the
crimes of conviction while an LAPD Sergeant, all parties agreed
that Arneson was a criminal history category I. (CR 2076, 2078;
PSR 96).
911
conduct was part of a systematic or pervasive corruption of a

governmental function, process, or office that may cause loss of
public confidence in government (USSG 2C1.1, 2C1.7, cmt.
n.5); (2) a primary objective of the offense was an
aggravating, non-monetary objective, such as the infliction of
emotional harm or the substantial invasion of a privacy
interest (through, for example, the theft of personal
information) (USSG 2B1.1, cmt. n.15); (3) information was
obtained from a protected computer to further a broader criminal
purpose (USSG 2B1.1, cmt. n.15); and (4) the Guidelines fail
to properly account for either the unique circumstances or the
full scope of the criminal conduct. (USSG 5K2.0, USSG
1B1.3(a)(1)(B)).644
(Id.).
With a total offense level of 32 and
644
The governments Guidelines calculations were

conservative. The value of the bribes accepted by Arneson almost
certainly exceeded $200,000, given that bank checks that were
used to document $189,000 in bribe payments only dated back to
1997 and therefore did not cover the entirety of the period when
Arneson worked for Pellicano. (3/18/08 RT (P.M.) 40-41, 55-57,
61; 4/8/08 RT (P.M.) 130, 4/16/08 RT (P.M.) 13-14). Moreover,
this figure did not account for a diamond, a computer, and the
cash payments that Pellicano provided to Arneson. (3/7/08 RT
(P.M.) 152-54; 3/18/08 RT (P.M.) 57-58; 4/16/08 RT (P.M.) 30).
Furthermore, as Arneson had admitted and the district court had
found that Arneson knew that Pellicano conducted wiretapping,
Arnesons Guidelines calculations further could have been
increased by up to five levels, just as had been done with
Pellicano, to account for the wiretapping that was conducted in
furtherance of the enterprises interests. See, e.g., United
States v. Carrozza, 4 F.3d 70, 77 (1st Cir. 1993) (finding no
justification for limiting underlying racketeering activity to
predicate acts charged against one defendant); United States v.
Tocco, 306 F.3d 279, 285-92 (6th Cir. 2002) (vacating defendants
RICO conspiracy sentence because district court failed to include
(continued...)
912
an applicable Guidelines range of 121 to 151 months, the

government recommended that Arneson be sentenced to a term of 144
months imprisonment.
(Id.).
Arneson adopted the USPOs Guidelines calculations that set

his offense level at 22.
(CR 2076).
Arneson argued that an
obstruction enhancement should not apply under USSG 3C1.1 as he

did not lie, or if he did, such lies were not material to the
issues before the jury.
(Id.).
Moreover, despite having
contested an element of every charge against him and having

obstructed justice at every stage of the proceedings, Arneson
brazenly asserted that he was entitled to a three-level reduction
in offense level under USSG 3E1.1(a),(b) for acceptance of
responsibility.645
(Id.).
Furthermore, ignoring that the jury
found him guilty of both charged RICO offenses and that it also
found that the pattern of racketeering activity in which Arneson
personally participated included the receipt of the ten bribes
listed in the indictment, Arneson argued that he was entitled to
a two-level downward departure to account for the governments
purported misconduct in charging him with RICO despite the lack
of evidence showing that [Arneson] participated in the RICO
enterprise and in manipulating the charges to increase his
644
(...continued)
predicate acts committed by others that constituted relevant
conduct as to defendant).
645
In conformity with his consistent refusal to accept
actual responsibility for his criminal conduct at any stage in
the proceedings, Arneson declined to allocute. (3/3/09 RT 14).
913
sentencing exposure by two-levels through the inclusion of state

bribery racketeering acts.
(Id.).
Based on an offense level of
17, Arneson argued that his applicable Guidelines range was 24 to

30 months and requested a sentence in this range.
(Id.).
At his
sentencing hearing, however, Arnesons counsel changed course and

urge[d] the district court to impose a 46-month sentence.
(Id.; 3/3/09 RT 13).
b.
The District Courts Sentencing Determination
Consistent with the position of the parties, the district

court found that the substantive RICO count controlled the
Guidelines calculations and that the bribery racketeering acts
provided the highest offense level within that count.
20, 26).
(3/3/09 RT
Also consistent with the position of the parties, the
district court found that the bribery calculations, standing

alone, resulted in an offense level of 22.
(Id. at 26).
Addressing the disputed obstruction enhancement under USSG

3C1.1, the district court found that there is no question that
this adjustment should be applied as Arneson engaged in several
different acts of obstruction.
(Id. at 21).
Explaining the
basis for this finding, the district court stated:

[Arneson] clearly committed perjury on numerous
occasions during trial. He repeatedly gave false
testimony on matters that were material to the case.
914
The Court observed the testimony of [Arneson], observed

his demeanor and manner while testifying, considered
his testimony in light of the other evidence at trial,
including other evidence of [Arnesons] complete
disregard for the truth in other circumstances, and
concluded that [Arneson] was not merely confused or
mistaken.
While the [district court] need not address each
specific instance of perjury posited by the government,
the [district courts] overall analysis of [Arnesons]
testimony is the same as the governments. [Arneson]
lied almost from the moment he took the stand and
throughout his testimony. He testified extensively
about his relationship with Anthony Pellicano, the
nature of their business dealings and the reasons for
payments he received from Pellicano. The government
has documented just some of this testimony in its
papers. There was much more.646 The [district court]
has no doubt that with minor exceptions, it was
willfully false.
646
The district court later reiterated this fact, noting

that all of the testimony cited by the government and much more
of [Arnesons] testimony on material matters was willfully
false. (Id. at 22).
915
(Id. at 21).
The district court, an experienced federal jurist
who at the time had spent eleven years on the state and federal
bench, then put context to Arnesons perjury, stating In fact, I
as much testimony as I have seen from witnesses on the stand,
Mr. Arneson really took me aback in the nature and scope of his
perjurious testimony.647
(Id. at 21-22;
5/1/08 RT 16).
Providing examples, the district court stated:

On several occasions during the course of these
proceedings, [Arneson] had asserted that he could not
have made all these inquiries because he was off duty
and in other locations when they were made. When his
testimony about being in the air was revealed to be a
lie, his response was that he was being facetious.
Other evidence established that he simply would go by
the office if Mr. Pellicano needed something when he
was off duty. His testimony that others ran some of the
improper inquiries was also willfully false.
(Id. at 22).
The district court further found that Arneson, in
addition to obstructing justice at trial through perjurious

testimony, attempted to obstruct justice at sentencing through
647
Addressing Arnesons counsel at a later point in the

proceedings, the district court stated I am seriously
understating my views about his perjury on the stand. (Id. at
36).
916
lies that he voluntarily advanced to the Probation Office in an

effort to secure a more favorable sentence.
(Id. at 22).
As the
district court explained:

But [Arneson] did not stop with false testimony at
trial. Rather than declining to comment on the case in
his interview with the Probation Officer, which he had
a right to do, and far from accepting responsibility
and speaking truthfully, [Arneson] continued his
obstruction by repeating many of his lies to his
Probation Officer. [Arnesons] continued assertions
that he never took bribes are willfully false. That
the [district court] knows them to be false and that
the Probation Officer was not convinced by them and
that they, therefore, will not impact the sentence does
not mean that they were not material or that they are
not deserving of an obstruction enhancement. To the
contrary, these lies again go to the heart of the
charges and are further evidence of [Arnesons]
continued willingness to lie to achieve his goals.
[Arneson] also lied at the proffer session and these
contrary statements to the Probation Officer are
willfully false.648
648
The district court also found that Arnesons statements

to the USPO that he was the victim of identity theft that
resulted in a bankruptcy petition being filed in his name by an
unknown individual was willfully false, material, and warranting
of an obstruction enhancement. (Id. at 23). In addition, the
district court later identified as spurious Arnesons claim
that he honestly did not believe he was being paid for this
information and his equally incredible claim that he thought he
was merely trading information to benefit LAPD investigations.
(Id. at 27).
917
(Id. at 22).
Having concluded that USSG 3C1.1's two-level obstruction
enhancement applied, the district court then found that grounds
justifying an upward departure existed.649
Citing Application
Note 5 to 2C1.1 and 2C1.7, which identically instruct that

where the Court finds that the defendants conduct was part of a
systematic or pervasive corruption of a governmental function,
process, or office that may cause loss of public confidence in
government, an upward departure may be warranted, the district
court found that Arnesons conduct is a prime example of what
this note is intended to address.
(Id. at 23).
As the district
court explained:
649
The district court denied Arnesons request for a

downward departure, flatly rejecting his claim of alleged
prosecutorial misconduct as meritless. (Id. 24-25). The
district court further rejected Arnesons request for a threelevel departure for acceptance of responsibility as baseless,
finding that he has never, up to and including this moment,
accepted responsibility for the crimes he committed and of which
he was convicted. (Id. at 25). The district court also stated
that, had Arneson accepted responsibility in the early stages of
the governments investigation as he contended, such acceptance
would have been undone by his conduct in repeatedly committing
perjury at trial and lying to the Probation Officer. (Id.).
918
The evidence showed beyond a reasonable doubt that

[Arneson] collected monthly bribes over the course of a
number of his nearly 30 years in the LAPD to be
available to serve Anthony Pellicano both on and off
duty. . .He repeatedly and remorselessly abused his
position of trust to provide the racketeering
enterprise with information from restricted databases,
and otherwise betrayed the trust the public places in
anyone in such a position . . . That [Arneson] had
survived so long and reached the rank of Sergeant only
serves to increase the harm to the reputation of the
LAPD and its officers and to cause a loss of public
confidence in the integrity of that organization and
its members.
(Id. at 23-24).
The district court further found that an upward
departure was warranted as Arnesons Guidelines calculations

failed to fully account for the harm incurred by the enterprises
victims:
[Arnesons] conduct undoubtedly caused substantial nonmonetary harm. The risk that it would do so
considering the nature of the information of and of
919
the enterprise itself and Pellicanos business was

obvious. The harm caused by the enterprise and by the
use made of the information cannot be quantified and is
not accounted for at all by the Guidelines.
(Id. at 24).
In addition, the district court found that
additional grounds for departure existed because, absent an

upward departure, Arnesons Guidelines range would fail[] to
account for the full scope of [Arnesons] 46 convictions,
especially the 1030 computer offenses, the identity theft
offenses, hundreds of additional improper inquiries, harm to the
victims and the sheer magnitude of the betrayal of the legal
system that [Arneson had] purported to serve and the law he ha[d]
sworn to uphold.
(Id. at 24).
While the district court noted that the the governments

request for an eight-level departure was reasonable, it
concluded that a six-to-seven level departure was appropriate
under USSG 5K2.0 and imposed the lower, six-level departure.
(Id. at 24).
When these enhancements were added to Arnesons
offense level calculation, the district court found that Arneson

had a total offense level of 30 and an applicable Guidelines
range of 97 to 121 months.
(Id. at 26).
The district court then carefully considered each of the

remaining 3553(a) sentencing factors.
920
(Id. at 26-30).
In
doing so, the district court stated I am fully aware of the

Supreme Court and Ninth Circuit caselaw that set the parameters
of the [district courts] approach to reaching an individualized
sentence.
(Id. at 27).
Addressing the nature and circumstances of the offense, the

district court found that the crimes committed by [Arneson] and
the other members of the enterprise caused widespread
victimization, and that [Arnesons] conduct undermined the
internal integrity of the LAPD, diminished public confidence in
the institution, deprived the citizens of Los Angeles of their
rights to honest services of their public servants, and attempted
to subvert the legal system by providing clients, including
criminal defendants, with illegally-obtained information to
further their interests.
(Id. at 27).
The district court
further found that the collateral damage that occurs when a

police officer is discovered to have committed criminal acts is a
natural and well-known consequence.
(Id.).
The district court
likewise found that Arnesons conduct had resulted in unique

harm caused to the victims as described throughout the trial.
(Id.).
Given its assessment of the nature and circumstances of
the offense, the district court found that the Guidelines range
does not appropriately address the scope of [Arnesons] wrongful
conduct and the harm it caused and further noted that had it
921
not departed upward, [it] would vary upward in an equivalent

amount.
(Id. at 28).
The district court then addressed the other 3553(a)

factors against the trial evidence and the sentencing arguments
raised by the parties.
(Id. at 29).
As to the need to account
for unwarranted sentencing disparities under 3553(a)(6), the

district court expressly found that the circumstances of this
case are unique and attempts to compare it with other RICO cases,
other wiretap cases, other bribery or honest services cases, are
misguided.
(Id.).
It further found that Arneson and Stevens
were not similarly situated because Stevens had engaged in

criminal conduct that was far more limited in scope, had been
charged with a lesser offense, accepted responsibility by
pleading guilty, and cooperated pre- and post-indictment.
(Id.
at 30; CR 2144).
Finding that the sentence it was to impose was reasonable
and sufficient, but not greater than necessary to comply with the
purposes of 3553(a), the district court sentenced Arneson
to a high-end term of 121 months on the two RICO counts of
conviction.650
(Id. at 31).
The district court explained that a
high-end sentence was justified because Arnesons two-level

obstruction enhancement did not begin to account for [Arnesons]
650
Arneson was sentenced to the statutory maximum penalties

of 60 and 36 months on the remaining counts of conviction. (Id.
at 31).
922
repeated attempts to obstruct justice and because the district

court applied the lowest of the justified upward departure
increases supported by the record.
c.
(Id. at 30).
The sentence imposed by the district court was

substantively reasonable
i.
There is no unwarranted sentencing disparity
The crux of Arnesons claim that the district court abused

its discretion in imposing a 121-month sentence is that this
sentence represents an unwarranted sentencing disparity.
69-74).
(AOB
This claim is completely unfounded and fails on multiple
levels.
With Arneson, the district court had before it a defendant
who: (1) was convicted at trial of several dozen counts of
conviction, including RICO offenses that involved bribery, honest
services wire fraud, and identity theft based upon Arnesons
multi-year participation in a criminal enterprise that corrupted
the LAPD, as well as other law enforcement and public agencies,
and subverted the judicial process; (2) sought to obstruct the
judicial process at every stage by lying to his superiors who
inquired as to the nature of his relationship with Pellicano, the
FBI agents investigating his involvement in the enterprise, the
jury that would decide his case, and the USPO that would
923
recommend a sentence to the district court; and (3) failed to

accept responsibility at any time in the proceedings.
After
correctly calculating Arnesons Guidelines range and concluding

that an upward departure was warranted based on the unique
circumstances of this case, the district court directly
considered each of the 3553 factors, including 3553(a)(6).
The district courts finding that the circumstances of this case
are unique and attempts to compare it with other RICO cases,
other wiretap cases, other bribery or honest services cases, are
misguided is not clearly erroneous and the district court,
therefore, satisfied its obligation under 3553(a).651
Autrey,
555 F.3d at 876 (unless clearly erroneous, district courts

finding of dissimilarity between defendant being sentenced and
651
Before the district court, Arnesons 3553(a)(6) claim

was limited to comparing Arneson with Stevens and FBI agent
Rossini, who accessed Pellicano-related materials for his actress
girlfriend, a Pellicano associate, who in-turn funneled the
materials to Pellicanos counsel during the pendency of these
proceedings. (CR 2043; 2076). Arneson has abandoned his claim
that he was similarly situated to Rossini. As to his claim that
he was similarly situated to Stevens, the district courts
findings as to the dissimilarity between the two is directly
supported by the record, not clearly erroneous, and consistent
with prior precedent that defendants who accept responsibility,
cooperate, are less involved, and/or plead guilty to lesser
offenses are not similarly situated to those defendants who
proceed to trial (and commit perjury) for purposes of
3553(a)(6). Labonte, 520 U.S. at 761-62 (proper exercise of
prosecutorial discretion in charging decisions cannot create
unwarranted sentence disparity); Ressam, 679 F.3d at 1094-95
(trial defendant not similarly situated to co-defendants or other
individuals convicted of similar offenses who pled guilty and/or
cooperated).
924
other defendants sentenced in other cases will not cause

sentencing disparities to be deemed unwarranted).
Arneson simply ignores the district courts finding.
In a
misguided effort to bolster his unfounded claim that the sentence

imposed by the district court resulted in an unwarranted
sentencing disparity, Arneson cites, for the first time on
appeal, sentences received by a hodgepodge of purportedly
similarly situated defendants652 and Sentencing Commission
statistics as to the median sentences imposed for select
offenses, including RICO, in fiscal year 2008.
The specific sentences cited by Arneson, however, do not
render the district courts finding that Arneson was dissimilarly
situated clearly erroneous.
See, e.g., Treadwell, 593 F.3d at
1012 (finding that a district court need not, and,
as a
practical matter, cannot compare a proposed sentence to the

sentence of every criminal defendant who has ever been sentenced
before).
On the contrary, the case cites and newspaper articles
from which Arneson derives his sentencing information is of

little value in that Arneson has not and cannot show that he is
652
Several of these cases involved sentences imposed after

the district court sentenced Arneson (e.g., ). Under Arnesons
view of 3553(a)(6), the district courts in these cases would
have been required to account for the 180-month sentence imposed
by the district court when addressing 3553(a)(6) in their
cases. From the complete absence of any evidence that this was
done, it can be inferred that either the district court failed to
do so or did so and concluded that their defendants were not
similarly situated to Arneson.
925
similarly situated to the referenced defendants for purposes of

3553(a)(6), much less in a manner that would undermine the
district courts finding.653
See, e.g.,Dewey, 599 F.3d at 1017
(rejecting as meritless defendants efforts to establish

3553(a)(6) claim that was unaccompanied by evidence establishing
that the other defendant truly was similarly situated);
Treadwell, 593 F.3d at 1012 (discussing how case cites,
unaccompanied by the records in the cases are insufficient to
establish unwarranted sentence disparities).
Instead, these case
cites and articles do little more than show how a few district
courts exercised sentencing discretion in the discrete case
before them.654
Even less meritorious is the implication that the median
sentences imposed in 2008 to defendants convicted of select
offenses, including racketeering, could render the district
courts finding clearly erroneous.655
653
(AOB 74).
While Arneson
For example, Arneson cites a federal case involving a

defendant who pled guilty to a single count information that did
not include RICO, bribery or wiretapping (Norell).
654
Many of the sentences referenced by Arneson pre-dated
the Supreme Courts ruling in Booker that the Sentencing
Guidelines were advisory and therefore are of even more limited
value when assessing whether a district court, post-Booker,
created an unwarranted sentence disparity when imposing a
particular sentence that was not tethered to the Guidelines.
655
While Arneson committed numerous criminal offenses, it
is the RICO charge, not the honest services wire fraud, identity
theft, or computer fraud counts that was the most serious count
of conviction. While the Sentencing Commission tied a RICO
defendants Guidelines calculations to the offense levels
assigned to discrete racketeering acts, the offense of conviction
(continued...)
926
does not provide any information regarding the underlying RICO

case that gave rise to the median sentence he cites, one thing is
certain this individual is not similarly situated to Arneson.
As discussed above, it is well established that individuals who
accept responsibility are not similarly situated to individuals
who are charged with the same crime and proceed to trial.
Ressam, 679 F.3d at 1095.
The Sentencing Commission 2008
statistical report cited by Arneson shows that 92.2% of all RICO

defendants pled guilty during the prior fiscal year.
(Table 3).
Therefore, the individual who received the median sentence

necessarily pled guilty and cannot be considered similarly
situated to Arneson.656
Although also insufficient to allow for a
determination as to the substantial similarity of defendants, the

mean sentence for defendants convicted of RICO offenses during
this time period was 91.6 months nationally and 120.1 months in
this Circuit.
Arnesons 121-month RICO sentence was almost
identical to the average RICO sentence imposed in this Circuit

655
(...continued)
remains RICO.
656
Arnesons utilization of median sentences is flawed on
numerous additional levels. Most notably, tying 3553(a)
reasonableness to median sentences would limit the district
courts discretion beyond where it was when the Guidelines were
mandatory as it effectively would transform sentencing from an
individualized assessment of an appropriate sentence in light of
all 3553(a) factors to the mechanistic application of
statistical findings regarding the mid-point sentence imposed in
a given year. Over time, this would elevate 3553(a)(6) above
all other 3553(a) factors in direct contravention of the
dictates of the Supreme Court that no particular factor should
take precedent over others. Pepper, 131 S.Ct. at 1249.
927
and within the general range of RICO sentences imposed nationally

during this time period.
(finding that reasonableness covers a
range of sentences, not a fixed point).
Thus, to the extent that
the 2008 Sentencing Commission statistical report reflects on

sentencing disparities, it supports the reasonableness of the
sentence imposed by the district court in this case.
Additionally, the reasonableness of the 121-month sentence
is reflected in the fact that it, at a minimum, is at the low-end
of the applicable Guidelines range had Arneson been sentenced
using Guidelines that incorporated the post-2004 amendments to
2C1.1 (without accounting for the same departure/variance grounds
that warranted a six-level departure here), as even Arneson
acknowledged prior to trial.
Rodriguez, 630 F.3d 39, 42 (9th Cir. 2010) (finding that while
district court is precluded by ex post facto considerations from
incorporating into its Guidelines calculations post offense
Guidelines amendments that would increase the calculation,
district courts may consider such amendments when assessing the
reasonableness of a sentence pursuant to 3553(a)); United
States v. Gilmore, 599 F.3d 160, 165-66 (2010) (same).
Finally, Arnesons attempt to attack the district courts
three justifications for the upward variance takes the wrong
approach.
This Courts decision in Ellis, 641 F.3d at 421-23,
makes clear that point-by-point objections to the reasons the
928
district court gave for departing upward are beside the

point because [t]he question is whether the defendants
ultimate sentence is reasonable under the broad discretion
afforded the district court.
4.
Here it was.
Turners Sentence Should Be Affirmed Because It Was

Procedurally Sound and Substantively Reasonable
The district court calculated Turners total offense level

at 27 which, with his category II criminal history, yielded a
Guidelines range of 78-97 months.
516).
(3/3/09 RT 17, 23; JER 509,
After finding that nature and scope of the criminal
activity in which [Turner] participated is completely unaccounted

for by the Guidelines calculations, among other things that the
court expressly adopte[d] and incorporate[d] from the
governments sentencing papers, the court departed upward 3
levels to level 30.657
(3/3/09 RT 23-24; JER 516-17).
The court
also departed upward from criminal history category II to III

under USSG 4A1.3(a)(1) based on the facts that, (1) but for a
nunc pro tunc modification to one of defendants prior sentences,
he would have been in criminal history category III, and (2)
newly revised Criminal History Category substantially
under-represents the seriousness of defendants criminal history
or the likelihood that he will commit additional crimes.
657
Both the court and the government had used the term
departure instead of variance, and the government, moreover,
had cited USSG 5K2.0 in proposing a departure. (CR 2073 at 2629).
929
(3/3/09 RT 16-19; JER 509-12).
Those two departures resulted in
a Guidelines range of 121-151 months from which the court

selected the low end and sentenced Turner to 121 months.
RT 24, 32; JER 517, 525).
(3/3/09
Turner challenges the two departures,
arguing that [t]he district court committed procedural error,

requiring reversal.
(TOB 57).
Turners challenges are
meritless.
a.
Turners Claims of Procedural Error Are Properly

Evaluated for Substantive Reasonableness
As a threshold matter, in framing his challenges to his

sentence as claims of procedural error, Turner misframes the
issue.
In United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.
2006), this Court recognized that, for purposes of appellate

review, Booker effectively required appellate courts to
replace[] the scheme of downward and upward departures in
Chapter 5K with the requirement that judges impose a reasonable
sentence.
This was because, the Court explained, even if a
district court made a procedural error in applying a departure,

the court would be free on remand to impose exactly the same
sentence, which this Court would then review for reasonableness.
Id. at 987.
In United States v. Ellis, 641 F.3d 411, 421 (9th
Cir. 2011), this Court found [t]he same reasoning . . . equally

applicable to criminal history category departures under USSG
930
4A1.3.658
Thus, the question here is not whether the district
court misapplied 5K2.0 in departing upward in Turners offense

level or misapplied 4A1.3 in departing upward in his criminal
history category, but instead whether Turners ultimate sentence
falls within the broad range of sentences that would be
reasonable in the particular circumstances.
Treadwell, 593 F.3d
at 1015; see also Ellis, 641 F.3d at 423 (finding the defendants
point-by-point objections to the reasons the district court gave
for departing upward to be beside the point because [t]he
question is whether the defendants sentence is reasonable
under the broad discretion afforded the district court).
It
does.
b.
Turners Sentence Was Reasonable
Regardless whether this Court evaluates the reasonableness

of Turners ultimate sentence, as Ellis requires, or evaluates
Turners point-by-point objections to the reasons the district
court gave for departing upward, as Ellis forbids, the
district court abused no discretion here.
641 F.3d at 421-23.
This is because the same aggravating factors that inspired the

district court to depart and would establish the reasonableness
658
United States v. Higuera-Llamos, 574 F.3d 1206, 1212

(9th Cir. 2009), cited by Turner (TOB 60), is not the contrary
because, even there, this Court held that the decision to
increase the defendants sentence from a Criminal History
Category IV to a Category VI and to sentence him to thirty
months imprisonment was substantively reasonable.
931
of the courts departures if evaluated serially also easily

establish the reasonableness of the courts bottom line.
As established by the evidence and found by the jury, Turner
participated in the racketeering enterprise led by Pellicano for
at least six years and played an integral part in the
enterprises ability to systematically acquire confidential phone
company information and then, as part of the separate wiretapping
conspiracy, to wiretap unsuspecting investigative targets of
Pellicanos.
Without Turners ability to obtain confidential
phone company information for the enterprise and help implement

wiretaps at Pellicanos behest, the enterprise and Pellicano
would have been far less effective at prying into innocent
civilians lives -- in many cases to skew the outcome of PIA
clients criminal and civil court proceedings.
Turner contends that the district court abused its
discretion by basing its offense level departure on the number
of victims, the years of violations of phone company policy, and
completely outrageous intrusions into customers privacy.
63-64).
(TOB
That the district court based its departure on those
considerations and the Guidelines failure to capture them is

unassailable.
Equally unassailable, however, is the fact that
the district court was well within its broad sentencing

discretion to account for the Guidelines shortfall by departing
upward.
932
As the government explained in its sentencing position,

neither the wiretapping Guideline (USSG 2H3.1) nor the RICO
Guideline (USSG 2E1.1) that trumped the wiretapping Guideline
here account[s] for the duration of the wiretaps implemented by
[Turner] and Pellicano, the number of intercepted calls, or the
substantial non-monetary harm caused by [Turners] criminal
acts.
(CR 2073 at 34).
Although Turner was convicted of only
the wiretapping of five victims and the illegal database

inquiries on four of those victims, the evidence presented at
trial and credited by the jury makes clear that his victims
numbered in the hundreds -- if not thousands.
Former PIA
employee Lily LeMasters testified that she began working at PIA

in the summer of 1996 and learned within approximately six months
that Turner was Pellicanos source for phone company information,
meaning that Turner was Pellicanos source for at least six years
until Pellicano was arrested in November 2002 on his weapons
charges.
(3/18/08 (P.M.) RT 9, 61; GERT 2147, 2199).
Teresa
Wright testified that Turner made hundreds of requests of her

for illegal computer inquiries, which sometimes included multiple
phone numbers in the same request.
(3/27/08 (P.M.) RT 135-36).
Tarita Virtue testified that Pellicanos war room, which had

between five and seven iMacs, each wiretapping a separate phone
line, was at times operating at full capacity, with additional
wiretaps being conducted offsite.
933
(3/7/08 (P.M.) RT 130-31).
Turner appears to suggest the 10-level difference between

the RICO Guideline that drove his Guidelines calculations and the
wiretapping Guideline that effectively dropped out was already
sufficient to capture the aggravating factors identified by the
district court.
(TOB 65).
Not so.
Putting side whether a 10-
level swing would be sufficient to account for the number of

Turners wiretapping victims, it cannot possibly account for his
hundreds -- if not thousands -- of victims of identity theft for
which [n]o attempt was made to calculate [an] offense level[]
(TOB 65 n.15) or his key role in helping the enterprise achieve
its multi-faceted objectives.
(Nor would it take into account
his lie to the FBI about his knowledge of and involvement in the
enterprise).
In any event, how to address such issues are
uniquely commended to the district courts broad discretion,

which abused none here.
The district courts imposition of a sentence more than
double that recommended by the probation officer does not
establish otherwise.
(TOB 66).
As already explained in the
preceding section of this brief, such assertions overstate the

import of the USPOs sentencing recommendation.
The USPOs
sentencing recommendation, which district courts need not even

order, simply serves as a non-binding aide that the court may
consider when it exercises its statutory sentencing duties under
3553.
934
Nor does the fact that the court may have viewed the
culpability between Arneson and Turner equally evince an abuse
of discretion.
(TOB 65).
Both served important roles in the
enterprise, and both committed similar conduct of taking bribes

from Pellicano in exchange for unlawfully accessing confidential
restricted-access information from their respective employers.
To the extent that defendant argues that Arneson may be more
culpable because he was a police officer, who was both entrusted
by the public and had received training as to what behavior was
legal and illegal, Turner ignores his criminal history (Arneson
had none), which, contrary to Turners protestations, the
district court properly found to substantially under-represent[]
the seriousness of defendants criminal history or the
likelihood that he will commit additional crimes.
(3/3/09 RT
16-17; JER 509-10).

In resisting this conclusion, Turner asserts that the
courts criminal history departure was unreasonable because the
three prior offenses that the district court relied on to impose
the departure (one of which technically did not score criminal
history points and another of which was remote in time) were all
minor and dissimilar to his offenses of conviction.659
659
(TOB 57-
After Turners initial PSR placed him in criminal

history category III, Turner obtained a nunc pro tunc order that
changed the probationary sentence issued 12 years earlier to a
fine only, effectively wiping out three points from his criminal
history calculation and reducing his criminal history category
(continued...)
935
58, 60-61, 63).
Turner misses the point.
Although Turner
largely is correct in his descriptions of his prior offenses, he

is wrong with respect to their purported dissimilarity; they were
all crimes, like his crimes in this case, of greed and
[dis]regard for the rights or property of others, as the
district court found.
(3/3/09 RT 19).
None of defendants
prior crimes was a youthful indiscretion and none even

arguably resulted from financial need insofar as his first -his 1986 theft of batteries from a K-Mart -- occurred when he
already had established a successful career at AT&T . . . for 12
659
(...continued)
from III to II. (Compare OTPSR 94-103 with RTPSR 94-101).
Turners alchemy was not lost on the district court:
While the minutes of the February 5th proceeding
suggest the nunc pro tunc order is being made to
correct a clerical error, the court reporters
transcript makes clear that such is not the case. The
transcript shows that the defendant was, indeed, on
probation and successfully completed probation. The
Superior Court judge, who is not the judge who
originally sentenced Defendant Turner, indicates that
he is satisfied that this trespass conviction is not
something that should be considered for purposes of the
federal sentencing.
The Court first made an order concerning the
termination of the probationary period, and when he was
advised that this would not accomplish all that defense
counsel wanted, the Superior Court instead ordered the
original sentence modified to reflect only a fine. . .
. [W]hile the sentence no longer impacts the Criminal
History Category, the fact of the crime remains, as
does the fact that defendant committed new crimes while
actually on probation.
(3/3/09 RT 19; JER 512.)
936
years where he had a steady salary plus significant overtime

and had already purchased two income-producing properties.
(3/3/09 RT 17, 29).
They were also similar in that regard to
additional criminal conduct that the government brought to the

courts attention in connection with his sentencing.
Specifically, the government submitted with its sentencing
position evidence from a then-pending mortgage fraud
investigation showing that in 2005 and 2006 -- a period when
Turner was on pretrial release in this case -- he reported to the
IRS total income of between only 5% and 6% of what he declared on
a series of residential loan applications.
(CR 2073 at 65-74).
The district court correctly noted that these documents signed

by [Turner] under penalty of perjury contain financial
information that appears irreconcilable and, because they were
uncontested by Turner, show that he continues to engage in
fraudulent or criminal conduct with regard to residential loan
applications or personal tax returns.
2).
(3/3/09 RT 26; CR 2170 at
Just as current events can jog the human memory or make
long-forgotten historical episodes relevant again, Turners

crimes of greed and [dis]regard for the rights or property of
others in this case and apparent more recent mortgage or tax
fraud made his prior crimes of greed and [dis]regard for the
rights or property of others -- however minor -- relevant to the
district courts selection of an appropriate sentence.
937
The
district court found that pattern relevant here and was not
unreasonable in doing so.
5.
Christensens Sentence Should Be Affirmed Because It

Was Procedurally Sound and Substantively Reasonable
Including various enhancements, Christensens Guidelines

offense level was 16, which, with his criminal history category
of I, yielded an advisory range of 21 to 27 months.
The district
court deemed the offense level to understate the offense and

varied upwards pursuant to its Booker discretion, imposing a
sentence of 36 months.
Christensen challenges the procedural and
substantive reasonableness of the sentence.
Procedurally, he
argues that the district court clearly erred by imposing (1) a

two-level enhancement under USSG 3B1.1(c) for managing
Pellicano (COB 71-73); (2) a two-level enhancement under USSG
3B1.3 for abusing his position of trust as a member of the bar
and officer of the court (COB 73-74); (3) a three-level increase
under USSG 2H3.1 for seeking economic gain (COB 74-75).
Substantively, or quasi-substantively, Christensen argues that
the district court lacked discretion to impose an aboveGuidelines sentence (COB 75-77), incorrectly weighed the
aggravating and mitigating factors (COB 77-79), and imposed a
substantively unreasonable sentence (COB 79-80).
None of these
claims has merit.

a.
USSG 3B1.1(c)S Two-level Role Enhancement

Properly Applied to Christensens Wiretapping
Convictions
938
Christensen argues that the district court erred by applying

USSG 3B1.1(c)s two-level enhancement based on its finding that
Christensen directed Pellicano.
(COB 71-73).
Christensen argues
that he could not have had a managerial role with respect to

Pellicano because the latter was engaged in his criminal
enterprise well before he was hired by Christensen.
(COB 72).
Christensens arguments are unavailing; he has not established

that the district courts application of the enhancement was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.
Treadwell, 593 F.3d
at 999.
From the outset, Pellicano described himself to Christensen,
in recorded calls, as working directly for [Christensen]. (Exh.
1A at 2).
Pellicano made clear, I work for you, you dont . . .
work for me (Ex. 4A at 14); Christensen was the boss (Exh. 13A
at 6) (Exh. 17A at 6) (28A at 9)), while Pellicano was just a
soldier (Exh. 28A at 6) (33A at 9) (33A at 20)).
Pellicano
therefore recognized that it was Christensen who had the allencompassing plan, which Christensen did not need to reveal -it was sufficient to direct Pellicano to fight the battle that
[Christensen was] asking [him] to fight.
(Ex 28A at 6)).
Christensen never suggested that the relationship was anything

other than one in which he was the general to Pellicanos
soldier.
To the contrary, Christensen agreed with Pellicanos
939
characterizations and told Pellicano to do [his] assignments

(19A at 3-4)) and to go on one more adventure (33A at 20)).
Moreover, at critical junctures, it was Christensen who would
tell Pellicano to continue with the illegal enterprise. (28A at
9-10, 29A at 20-21, 33A at 20)).
These conversations -- in which both Pellicano and
Christensen recognized that Pellicano was Christensens
subordinate, acting at the latters direction -- are just a
sampling of the voluminous evidence before the district court.
(11/24/08 RT 4) ([B]ecause I have presided over Mr.
Christensens trial, I am able to evaluate the relevant facts and
circumstances to a far greater degree than when I am sentencing
defendants who have entered into plea agreements.)).
In finding
that the enhancement applied, the district court explained that

it was Christensen who made the decision to employ wiretapping;
in other instances, Christensen hired Pellicano but told him not
to wiretap.
(RT 10/24/08 RT 35; JER 4578).
Christensen gave
Mr. Pellicano his assignments and told Mr. Pellicano when to

cease his activities, overriding Pellicanos preferences.
(Id.)
The court recognized that Pellicano repeatedly confirmed that

Mr. Christensen was the boss and that Pellicano was merely his
solider following orders.
(Id.)
Christensen argues that the district court impermissibly

reached outside the record to rely upon the way in which
940
attorneys normally handle paralegals.

simply inaccurate.
(COB 72).
But that is
Christensens attorney argued that
Christensens conversations with Pellicano were a typical type

of exchange between a customer and someone who has been
employed.
(10/24/08 RT 14).
It was thus Christensen who argued
about business relationships; the district court, expressly

responding to that extra-record argument, merely noted that the
way attorneys deal with paralegals, experts, contract lawyers,
investigators and others was different from that of a mere
customer.
(RT 10/24/08 RT 36; JER 4579).
a comment untethered from the record.
Moreover, this was not
The district court
explained the way in which Christensen directed and dug into

Pellicanos illegal wiretapping, behavior consistent with how an
attorney employs assistance.
(RT 10/24/08 RT 51-52; JER 4594-
4595).
The cases Christensen now cites are inapposite.
Christensen
first cites United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir.
1993), which held that one defendants statement that he was
partners with another defendant could not establish that the
first defendant had control over others.
(COB 72).
But being
a partner is not a position that entails control over others;

being the boss is.
Moreover, unlike Hoac, there was not a
single statement from a single individual; both Christensen and

Pellicano repeatedly recognized and acknowledged the boss/soldier
941
relationship.
Moreover, as the district court found, this was
not a matter of mere titles: Christensen actually did direct

Pellicano as to whether to engage in wiretapping, when to
continue doing so, and when to stop.
Moreover, in Hoac, the
defendant at issue was getting paid by his partner; here,

Christensen was the one paying Pellicano, a further factor
demonstrating who was in the position of control.660
Christensen
cites United States v. Varela, 993 F.2d 686, 691 (9th Cir. 1993),
but Varela -- which affirmed the enhancements application -merely stands for the boilerplate notion that a defendant must
have exercised some control over others involved in the
commission of the offense for the enhancement to apply.
Id. at
691 (quoting United States v. Mares-Molina, 913 F.2d 770, 773

(9th Cir. 1990)).
Given that Christensen indisputably exercised
some control -- at a minimum, the power of the purse -- Varela

cannot show clear error here.
Finally, Christensen cites the
First Circuits decision in United States Ramos-Paulino, 488 F.3d

459, 464 (1st Cir. 2007).
(COB 72-73).
There, the district
court did not base the enhancement on specific findings as to

whom the defendant may have organized, led, managed, or
660
The import of Hoac was simply that a defendant who

manages logistics, rather than people, should not receive a
leadership enhancement. See, e.g., United States v. Varela, 993
F.2d 686, 691 (9th Cir. 1993) (We followed Mares-Molina
[requiring that a defendant manage people] in Hoac, in which the
defendant was active in the commission of the offense, but to the
extent he managed anything, he managed a business, not people.).
942
supervised and the Court of Appeals, after search[ing] the

record (including the PSI Report) in an endeavor to identify any
such underlings, c[a]me up dry.
Id.
The only possible person
supervised by the defendant in Ramos-Paulino was a government

agent.
Id.
Here, the district court expressly based the
enhancement on Christensens supervision of Pellicano, who was

not a government agent.
In short, none of the authority cited by Christensen in any
way establishes clear error here, and the record has more than
enough evidence in it for the district courts finding not to be
illogical or implausible.
b.
USSG 3B1.3s Two-level Enhancement for Occupying a

Position of Trust Properly Applied
Section 3B1.3 of the Sentencing Guidelines provides for a

two-level enhancement [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.
USSG 3B1.3.
The guidelines contemplate that
individuals who abuse their positions of trust to facilitate the

commission or concealment of a crime generally are viewed as
more culpable.
Id., comment. (backgd.).
The district court found that Christensen acting in his

capacity as an attorney and especially an attorney involved in
litigation . . . occupie[d] a position of public trust.
(10/24/08 RT 37; JER 4580).
That conclusion is unassailable.

943
See United States v. Goldman, 447 F.3d 1094, 1095 (8th Cir. 2006)
(A defendant acting in his capacity as an attorney occupies a
position of public trust.); United States v. Hemmingson, 157
F.3d 347, 360 (5th Cir. 1998) ([A]ttorneys by definition occupy
a position of public trust.); United States v. Harrington, 114
F.3d 517, 519 (5th Cir. 1997) ([I]t cannot be gainsaid that
lawyers occupy a position of public trust.
It would be rank
folly to suggest otherwise.).

Relying on the Eighth Circuits decision in United States v.
Trice, 245 F.3d 1041, 1042 (8th Cir. 2001) (per curiam),
Christensen argues that the position must be one of public trust
relative to the victim.
into Trice.
(COB 74).
Christensen reads too much
Although that decision is a thin, two-page decision,
it does not concern an individual occupying a public trust.

Rather, it involved a board member who defrauded the United
States by falsely obtaining money through HUD.
Id.
Without
indicating whether it was analyzing the public or private trust

prong of USSG 3B1.3, the Eighth Circuit viewed the defendant as
merely engaging in an arms-length transaction with the United
States, who had reposed no trust in the defendant.
Id.
As the
district court recognized here, the public as a whole reposes

trust in attorneys as officers of the Court; our entire
justice system is based on theory that attorneys can be trusted
to act ethically and honor the principles that members of the
944
Bar [have] swor[n] to uphold.
(10/24/08 RT 38; JER 4581).
Lawyer jokes notwithstanding, the district courts analysis was

correct.
As a matter of law and practice, the public places
great trust in attorneys.
See, e.g., Cal. Bus. & Prof. Code
6001.1. (Protection of the public shall be the highest

priority for the State Bar of California.); United States v.
Franklin, 837 F. Supp. 916, 920 (N.D. Ill. 1993) (By conspiring
to obstruct the very judicial process that he had sworn to
defend, [the attorney-defendant] abused his position of public
trust.); cf. Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995)
(noting the historical importance of the public trust in the
attorney-client relationship).
Indeed, this Court approved the
same form of reasoning in United States v. Foreman, 926 F.2d 792,

796 (9th Cir. 1990): [P]olice officers are accorded public trust
to enforce the law.
The public, including fellow law enforcement
agents, expect that police officers will not violate the laws
they are charged with enforcing.
Christensen occupied a
position of trust, and Bonder-Kerkorian had the right to believe

that a lawyer representing a party adverse to her would not, in
order to gain litigative advantage, violate the law.
The only issue, therefore, is whether Christensen abused
that position in a manner that significantly facilitated either
the commission or the concealment of his offense.
As the
district court recognized, it was precisely in his capacity as an
945
attorney that Christensen was able to leverage funds -- first his

firms, then his clients -- to pay Pellicano to illegally
wiretap Bonder-Kerkorian.
(RT 10/24/08 RT 39; JER 4582).
As
part of that representation, Christensen knew what information

Pellicano should seek out and how to employ it.
39-40; JER 4582-83).
(RT 10/24/08 RT
In addition, Christensen attempted to
conceal the offense by consistently asserting attorney-client

privilege to thwart the governments investigation.
(10/24/08 RT
40; JER 4583).

Given these circumstances, it was not illogical or
implausible to conclude that defendant utilized his position as
an attorney to facilitate and to conceal the offense.
c.
USSG 2H3.1s Three-level Enhancement for Seeking

Financial Gain Properly Applied
Christensen contends that the district court clearly erred

in applying USSG 2H3.1s three-level enhancement -- which
applies if the offense was committed for direct or indirect
economic gain -- because Christensen supposedly acted only to
help Kerkorian prove that Kira was not Kerkorians child
independent of any effort to terminate child-support to Kiras
mother, Bonder-Kerkorian.
(COB 74-75).
Christensens argument
is flawed in numerous respects.

First, it focuses on the wrong partys intent.
Whether or
not Kerkorian was seeking economic gain, Christensen clearly

was: he was an attorney paid by Kerkorian, and Christensen
946
directed Pellicano to wiretap Bonder-Kerkorian as part of

Christensens servicing of Kerkorian.
found, Christensens conduct produced otherwise unobtainable

information, which, as Mr. Christensen acknowledged on May 14th,
made Mr. Kerkorian very happy.
Its always to an attorneyss
economic benefit to keep a client happy.

4575).
(11/24/12 RT 32; JER
Christensen fails to respond to this finding by the
district court or the courts resulting conclusion that the

enhancement would be appropriate even if the wiretapping were
aimed purely at discovering Kiras parentage for its own sake.
(See COB 74-75).
Christensens failure to challenge this
independent basis for the district courts holding in his

voluminous opening brief constitutes waiver, and is fatal to this
claim.
Second, even aside from this independent, unchallenged basis
for the enhancement, Christensens argument is unavailing.
As
the district court found, Christensen sought and received

information that was very helpful to the overall litigation
between Kerkorian and Bonder-Kerkorian, which had significant
financial significance.
(See RT 11/24/12 RT 29-34; JER 4572-77;
GER [Exh. 1A at 6-7] (Exh. 5A at 15); (Trial Exh. 14A at 8)]).

There was no error at all, let alone clear error, in the district
courts finding.
d.
The District Court Had Discretion to Vary Upward
947
Christensen contends that the district court lacked

discretion to vary above the Guidelines range on account of the
non-monetary harm Christensen caused, namely his invasion of his
victims attorney-client privilege and privacy interests.
75-76).
(COB
Christensen rests this argument on the theory that 18
U.S.C. 3553(b) permits the district court to depart from the

Guidelines only when the Guidelines have not taken a factor into
account.
(COB 75).
state of the law.
Christensen is simply mistaken as to the
As the Supreme Court through Booker,
Kimbrough, and Spears has instructed, . . . sentencing judges can

reject any Sentencing Guideline, provided that the sentence
imposed is reasonable.
United States v. Mitchell, 624 F.3d
1023, 1030 (9th Cir. 2010) (emphasis in original).
Accordingly,
[i]n analyzing challenges to a courts upward and downward

departures . . . we do not evaluate them for procedural
correctness, but rather, as part of a sentences substantive
reasonableness.
Cir. 2011).
United States v. Ellis, 641 F.3d 411, 421 (9th
Thus, 3553(b)(1)s requiring [the district] court
to impose a sentence within the Sentencing Guidelines range

unless it found that [the] Sentencing Commission had not
accounted for relevant mitigating or aggravating factors was
invalidated by [Booker].
1140, 1146 (9th Cir. 2011).
United States v. Sykes, 648 F.3d

Christensens arguments as to the
district courts power to impose an above-Guidelines sentence are
948
thus simply part of the substantive reasonableness analysis

below.
e.
Christensens 36-month Sentence Was Substantively

Reasonable
Christensen argues that his three-year sentence for

directing an extensive, illegal wiretapping scheme was
substantively unreasonable.
(COB 75-80).
Although this argument
comes in various forms -- that there was no basis for an aboveGuidelines sentence (COB 75-77); that the district court
overvalued certain 3553(a) factors (COB 77) and undervalued
others (COB 77-79); and that the sentence was greater than was
necessary (COB 79-80) -- ultimately, the question is simply
whether the three-year sentence was reasonable.
It was.
At the offense level and criminal history category

calculated by the district court -- before the courts upward
Booker variance -- the high end of Christensens Guidelines range
was 27 months.661
Christensen received a 36-month sentence -- in
effect, nine months above the Guidelines range.
As this Court
has recognized, a minor variance from the Guidelines -- such as
661
Christensen asserts that [t]he guidelines prescribe a

baseline prison term of 4-10 months. (COB 79). This is based
on the presumption that all of the enhancements contested by
Christensen in this appeal were clearly erroneous. If this Court
were to find all of those enhancements clearly erroneous, there
would be no reason to perform the substantive reasonableness
analysis at all because the sentence would obviously be
procedurally unreasonable. The substantive reasonableness
analysis must begin from the Guidelines range as determined by
the district court.
949
the nine-month variance here -- needs relatively little

justification.
See Carty, 520 F.3d at 991-92.
Here, the nine-
month variance and three-year sentence was adequately justified

by the extensive reasoning from the district court, which spanned
almost 20 pages of transcript.
(11/24/08 RT 41-59; JER 4584-
4601).
The courts reasoning comprised too many examples and
details to repeat here in full, but it contained three main
strands.
First, the Court recognized the outrageous nature of a
successful member of the bar and officer of the court employing

illegal methods to violate the attorney-client privilege and
privacy of his opponents in litigation.
JER 4596).
(E.g.,11/24/08 RT 53;
It is almost unimaginable that an attorney of such
stature and ability could violate his sacred oath as an attorney

and commit crimes such as these.
It defies explanation.
(Id.)
This is not mere duplication of the abuse of public trust;

rather, it was the particular nature of the wrongdoing -invading the attorney-client privilege for tactical advantage -coupled with defendants stature and experience as an attorney
that so offended the court.
(E.g., 11/24/08 RT 42-43, 46, 49,
56; 4585-86, 4589, 4592, 4598).
Christensen swore to uphold the
law and presented himself to others, opposing counsel, partners

and associates who viewed him as a mentor as someone who could be
relied on to treat our system of justice and his ethical
950
obligations with respect.
Yet he showed disrespect for the
system and the law on a grand scale.
If he is not punished for
this egregious conduct, then others will lose respect for the
justice system as well.
(11/24/08 RT 56; JER 4598).
Next, the court considered the remorselessness and even glee

with which Christensen committed his offense.
Christensen
laugh[ed] when receiving attorney-client privileged information

(11/24/08 RT 29; JER 4572), declared that wiretapping was fun to
do, (11/24/08 RT 51; JER 4594), or was exceedingly pleased with
himself when he heard that [the opposing attorneys and Ms.
Bonder-Kerkorian] considered him public enemy number one
(11/24/08 RT 50; JER 4593).
As the court explained, [n]ot for
one moment on any of those recordings does he express the

slightest regret or remorse for his illegal, unethical, and
unprofessional actions.
(Id.)
Finally, the court recognized the impact Christensens

offense had on his victims, many of whom had testified at trials
or submitted letters.
(11/24/08 RT 3-4; ).
As the court
explained, Christensen not only had Pellicano intercept a large

number of calls (in the hundreds), but also calls involving a
large number of people -- Ms. Bonder-Kerkorian herself, her
lawyers, her family, and her friends.662
662
(11/24/08 RT 43; JER
Subsequent editions of the Guidelines expressly endorse

an above-Guidelines sentence where the offense . . . resulted in
a substantial invasion of privacy interest. E.g., USSG 2H3.1,
(continued...)
951
4586).
Early in the hearing, an attorney for Kira addressed the
court, explaining how the campaign to disprove her paternity -orchestrated through Christensen and Pellicanos wiretapping -destroyed who she was and ha subjected her to a life of possible
shame for no reason other than to achieve Mr. Christensens
desire . . . to satisfy Mr. Kerkorian.
(11/24/08 RT 27-28; ).
The court noted how Christensens invasion of their personal

privacy harmed the victims, recalling the victims testimony at
trial that the crime would have a lifelong impact upon them.
(11/24/08 RT 45-46; JER 4588-89).
The court further explained
that the crime not merely had deprived the victims of their
privacy, but had also deeply harmed their trust of the legal
system.
(11/24/08 RT 46; JER 4589).
The court ultimately wove these three strands together into

a single concise statement of why a three-year sentence was
appropriate here: Mr. Christensen deliberately, repeatedly, and
happily violated the most fundamental canon of the legal
profession, the attorney-client privilege.
The invasion of
privacy perpetrated at his direction was enormous.

56; JER 4598).
(11/24/08 RT
Moreover, the crime marred the legal profession
in the eyes of the public.
(11/24/08 RT 46; JER 4588).
There
is no question that the [Guidelines range] does not begin to

account for the scope of this particular crime, the invasion of
662
(...continued)
comment. (n.5(B)) (2013).
952
the attorney-client privilege, and the direct and collateral

damage to the justice system, as well as the massive invasion of
privacy it represents.
(11/24/08 RT 44; JER 4586).
Christensen complains that the district court failed to

credit Christensen for his public service [as a prominent
attorney] and successful law practice and instead used his
status as a successful attorney against him in a manner not
contemplated by section 3553(a).
(COB 79).
But Christensen
fails to explain how 3553(a) forbids consideration of personal

characteristics as aggravating, rather than mitigating, factors.
Indeed, 18 U.S.C. 3661 makes clear that [n]o limitation shall
be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which
a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.
The district court did not ignore Christensens personal
history (COB 77; 11/24/08 RT 49; JER 4592); it simply did not
find his personal history sufficient to mitigate his offense.
The court explained why Christensens prominence, his legal
experience, and leadership position in the legal community made
his crime worse; while Christensen may feel otherwise, it is the
district courts prerogative to weigh the sentencing factors.
See, e.g., Towery v. Ryan, 673 F.3d 933, 945 (9th Cir. 2012)
(How much weight should be given proffered mitigating factors is
953
a matter within the sound discretion of the sentencing judge.).

Christensen similarly asserts that the district court held his
financial success against him (COB 79), but that is simply not so
-- the district court noted Christensens wealth in rejecting his
argument that his dependents would be left devastated were
defendant to go to prison (11/24/08 RT 50-51; JER 4593-94) and,
passingly, to explain why Christensens request for home
detention was inadequate (11/24/08 RT 58; JER 4600 (Home
detention in an 8000-square foot home is not punishment.
In
fact, I wouldnt consider it just punishment no matter where the

defendant lived.).
Such consideration is entirely appropriate,
especially where, as here, it has de minimis weight.663

Christensens notion that his professional success requires a
court to show leniency when he commits a crime is mistaken; that
is especially so in a case where he was using crime to advance
his professional career.
Christensen likewise quarrels with the district courts
consideration of the character he showed in the recorded calls,
and asserts that the court improperly considered his aspersions
on other members of the bar and on Ms. Bonder-Kerkorian.
663
(COB
Christensen misunderstands the district court when he

argues that the court somehow gave presumptive weight to the
Sentencing Guidelines -- from which it varied -- because it
indicated that Christensens background was not extraordinary
enough to merit a sentencing reduction. (COB 78). The courts
point was that Christensens positive personal characteristics
were not very mitigating in light of the serious nature of the
offense. (11/24/08 RT 50, 57-58; JER 4593, 4599-4600).
954
77).
It is unclear what weight, if any, these factors had, but
they were appropriately considered to rebut Christensens selfcharacterization as a kind man and pillar of the legal community:
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.
(11/24/08 RT 45; JER 4588).
This conduct also revealed his moral blindness, in criticizing

the tactics of others even while employing the illegal wiretaps.
(11/24/08 RT 51; JER 4594).
Ultimately, there was ample support for a mildly aboveGuidelines, three-year sentence.
X.
THE COURTS FORFEITURE ORDER WAS PROPER

Arnesons and Turners sentences included a joint and
several $2,008,250 personal money judgment of forfeiture, which

represented the proceeds they obtained through their racketeering
activity.
(ER 489.)
Arneson argues that the court erroneously
refused to allow the jury to determine the nexus between the

money judgment issued against [him] and his alleged RICO
violations and erroneously applied the preponderance of the
evidence standard to the criminal forfeiture issues.
78.)
(AOB 77-
Arneson and Turner both argue that the money judgment is
improperly joint and several.
(AOB 78; TOB 56.)
955
Finally,
Arneson and Turner argue that the court erroneously calculated

the money judgments amount by basing it on the enterprises
gross receipts instead of its net profits.
(AOB 77; TOB 54.)
Each argument fails.

1.
Standard of Review
This Court review[s] de novo the district courts

interpretation of federal forfeiture law.
United States v.
Newman, 659 F.3d 1235, 1242-43 (9th Cir. 2011).

2.
Defendants Were Not Entitled to Have a Jury

Determine the Amount of the Money Judgment
In a RICO prosecution, the procedural rules governing

criminal forfeiture proceedings are set out in 18 U.S.C. 1963
(which applies specifically to criminal forfeiture sought for
violation of 1962) and Federal Rule of Criminal Procedure 32.2
(which governs criminal forfeiture proceedings generally,
including those under 1963).
Several clarifying amendments to
Rule 32.2 took effect on December 1, 2009, including a

restructuring of the rule and a re-drafting of certain
provisions, including the one relating to a defendants right to
have a jury determine the nexus between an offense and specific
property sought for forfeiture.
These amendments applied to
cases pending at the time of the amendment, and therefore should

apply here.664
664
When procedural rules are amended,

(continued...)
956
Rule 32.2 allows the government to seek either or both of

two distinct types of criminal forfeiture: forfeiture of specific
property and entry of a personal money judgment of forfeiture.
Compare Rule 32.2(b)(1) (2008) with Rule 32.2(b)(1)(A) (2010);665
see also United States v. Casey, 444 F.3d 1071, 1076 (9th Cir.
2006) (describing the two types of criminal forfeiture orders).
Here, the government sought only a personal money judgment of
forfeiture.
While there is no Constitutional right to have a
664
(...continued)
the Supreme Court may fix the extent such rule shall
apply to proceedings then pending, except that the
Supreme Court shall not require the application of such
rule to further proceedings then pending to the extent
that, in the opinion of the court in which such
proceedings are pending, the application of such rule
in such proceedings would not be feasible or would work
injustice, in which event the former rule applies.
28 U.S.C. 2074(a). In its March 26, 2009, order amending Rule
32.2, the Supreme Court stated that the amendments should be
applied in all proceedings thereafter commenced and, insofar as
just and practicable, all proceedings then pending. Order
Amending Federal Rules of Criminal Procedure (Mar. 26, 2009),
available at <http://www.supremecourt.gov/orders/courtorders/
frcr09.pdf>. As explained below, application of the changes to
the Rule implicated here were not of the type that would result
in infeasibility or injustice.
665
The relevant language of the Rule was unchanged by the

2009 revisions, and provides:
If the government seeks forfeiture of specific
property, the court must determine whether the
government has established the requisite nexus between
the property and the offense. If the government seeks
a personal money judgment, the court must determine the
amount of money that the defendant will be ordered to
pay.
957
jury determine any issue in the forfeiture phase of a criminal

prosecution (see United States v. Libretti, 516 U.S. 29, 49
(1995) (right to a jury verdict on forfeitability does not fall
within the Sixth Amendments constitutional protection)), where
the government seeks the forfeiture of specific property, a
defendant has a limited right under Rule 32.2 to a jury
determination of certain factual issues.
(2008)666 with Rule 32.2(b)(5)(A) (2010).667
Compare Rule 32.2(b)(4)

The re-drafting of
this particular provision in 2009 was intended to clarify the

procedure for requesting a jury determination and avoid an
inadvertent waiver of the right to a jury in the forfeiture
phase.
See Rule 32.2 advisory committee notes (2009 amend.).
The idea was to encourage parties and courts to make the decision
early in a case so that the jury could be warned that it might
have additional tasks to perform after returning a verdict.
666
The cited portion of the former Rule provided:
Upon a partys request in a case in which a jury

returns a verdict of guilty, the jury must determine
whether the government has established the requisite
nexus between the property and the offense committed by
the defendant.
667
The revised portion of the Rule provides:
In any case tried before a jury, if the indictment or

information states that the government is seeking
forfeiture, the court must determine before the jury
begins deliberating whether either party requests that
the jury be retained to determine the forfeitability of
specific property if it returns a guilty verdict.
958
Id.
However, both the former and current versions of the Rule

limit the right to a jury determination to the nexus between the
underlying offense and specific property sought for forfeiture.
This is clear from the Rules plain language: the former Rule
refers to the requisite nexus between the property and the
offense; the revised Rule refers to the forfeitability of
specific property.668
The government did not seek the forfeiture
of specific property here.669
It sought only a personal money
668
The Advisory Committee explicitly noted the two types of

forfeiture orders in its notes concerning the 2009 amendments,
pointing out that one of the reasons for the amendments was to
clarify those differences. See Rule 32.2 advisory committee
notes (2009 amend.) (Subdivision (b)(1) recognizes that there
are different kinds of forfeiture judgments in criminal cases.
One type is a personal money judgment for a sum of money; another
is a judgment forfeiting a specific asset.).
669
An order forfeiting specific property requires the

government to demonstrate that the property sought for forfeiture
(seized currency or bank funds, for example, or a car) had a
certain connection to the underlying offense (e.g., the property
constituted or was traceable to proceeds of the offense, was used
to facilitate the offense or, in the RICO context, was acquired
or maintained in violation of 1962, or afforded a source of
influence over the RICO enterprise). A money judgment of
forfeiture does not refer to any particular asset. It is an
order requiring the defendant to pay to the government an amount
equal to how much he received in connection with the commission
of the crime. Casey, 444 F.3d at 1077. The money judgment
permits the court to order the forfeiture of property where the
defendant has disposed of the specific assets subject to
forfeiture, or otherwise made them unavailable for forfeiture.
Id. As explained by the Seventh Circuit in United States v.
Ginsberg, 773 F.2d 798, 802 (7th Cir. 1985) (en banc),
[A] racketeer who dissipates the profits or proceeds of
his racketeering activity on wine, women, and song has
profited from . . . crime to the same extent as if he
had put the money in his bank account. Every dollar
(continued...)
959
judgment, and there is no right to a jury determination of the

amount of a personal money judgment under either the former
version of Rule 32.2 (See United States v. Tedder, 403 F.3d 836,
841 (7th Cir. 2005) (Rule 32.2 does not entitle the accused to a
jurys decision on the amount of the forfeiture)), or the
current version (United States v. Phillips, Nos. 11-30195+, --F.3d ---, 2012 WL 6700220, *14 (9th Cir. Dec. 26, 2012)).
Because a defendant is not entitled to a jury determination of
the amount of a personal money judgment he will be required to
pay, the district court properly determined the amount of the
money judgment here.
3.
Preponderance of the Evidence Is the Proper Standard

for Forfeiture Determinations
Criminal forfeiture is an element of a convicted defendants

sentence, not a substantive element of a criminal offense.
Libretti, 516 U.S. at 39.
In support of his argument that the
standard of proof in criminal forfeiture proceedings is beyond a

reasonable doubt, Arneson cites United States v. Pelullo, 14 F.3d
881, 906 (3d Cir. 1994); United States v. Cauble, 706 F.2d 1322,
1348 (5th Cir. 1983); and United States v. Spilotro, 680 F.2d
612, 618 (9th Cir. 1982).
Each of those cases was decided
669
(...continued)
that the racketeer derives from illicit activities and
then spends on such items as food, entertainment,
college tuition, and charity, is a dollar that should
not have been available for him to spend for those
purposes.
960
before, and was subsequently overruled by, the Supreme Court in

Libretti, which established that, because criminal forfeiture is
an element of sentencing, the proper standard is the
preponderance of the evidence.
See Phillips, 2012 WL 6700220, at
*13 n.14 (reaffirming that Apprendi v. New Jersey, 530 U.S. 466
(2000), did not change the rule that forfeiture need only be
proven by a preponderance of the evidence, thus implying that
Apprendi did not upset the rule of Libretti.).
The standard is
the same in all criminal cases, including RICO cases.
United
States v. Najjar, 300 F.3d 466, 485-86 (4th Cir. 2002); United
States v. DeFries, 129 F.3d 1293, 1312 (D.C. Cir. 1997).
4.
The Forfeiture Money Judgments Were Properly Ordered

Joint and Several
It is well-established that defendants who are jointly

convicted of a conspiracy offense are jointly and severally
liable for a personal money judgment entered following that
conviction.
See, e.g., United States v. Roberts, 660 F.3d 149,
165 (2d Cir. 2011) (conspiracy conviction triggers mandatory

forfeiture liability that is joint and several among all
conspirators).
context.
This is particularly true in the racketeering
See United States v. Fruchter, 411 F.3d 377, 384 (2d
Cir. 2005) (applying joint and several liability for criminal

forfeiture of proceeds from racketeering enterprise, and holding
that criminal forfeiture can reach even proceeds derived from
conduct forming the basis for a charge of which the defendant was
961
acquitted if the conduct fell within the affairs of the

racketeering enterprise).
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.
Id. (citing United States v. Edwards, 303 F.3d 606,
643 (5th Cir. 2002)).
Where a defendant is aware of the scope
of the racketeering enterprise, its proceeds were necessarily

foreseeable to him.
Id. at 385.
Fruchter is one in a long line of cases imposing joint and

several forfeiture liability on defendants convicted of a RICO
conspiracy and requiring forfeiture of all proceeds of the
enterprise.
See, e.g., United States v. Browne, 505 F.3d 1229,
1278 (11th Cir. 2007); United States v. Corrado, 227 F.3d 543,
553 (6th Cir. 2000) (Corrado I); United States v. Simmons, 154
F.3d 765, 769-70 (8th Cir. 1998); Fleischauer v. Feltner, 879
F.2d 1290, 1301 (6th Cir. 1989) (collecting cases); United States
v. Caporale, 806 F.2d 1487, 1507 (11th Cir. 1986) (joint and
several liability is not only consistent with the [RICO]
statutory scheme, but in some cases will be necessary to achieve
the aims of the legislation.).
The common thread that runs
through these opinions is the recognition of the expansive scope

of the RICO statute, particularly the forfeiture provisions.670
670
See also United States v. Busher, 817 F.2d 1409, 1413

(continued...)
962
In Corrado I, the court noted the Supreme Courts holding that

the supporters [of a RICO conspiracy] are as guilty as the
perpetrators, and so long as they share a common purpose,
conspirators are liable for the acts of their co-conspirators.
227 F.3d at 554 (quoting Salinas v. United States, 552 U.S. 52,
64 (1997)) (internal quotation marks omitted).
It further noted
that a RICO conspirators liability is based not just on his own

commission of the underlying racketeering acts, but on his
knowledge and agreement that one or more of his co-conspirators
will engage in racketeering activity.
Id.
The only question, then, is whether the amount of the

forfeiture money judgment here, representing the proceeds of the
enterprise as determined by the district court, was foreseeable
by Arneson and Turner, and that question turns on whether they
were, in Fruchters words, aware of the scope of the
racketeering enterprise.
411 F.3d at 385.
The evidence
demonstrates that they were.

Arnesons argument that the proper standard is what
percentage of the proceeds were reasonably foreseeable to [him]
(AOB 78) is too limited, and the authorities on which he relies,
including Fruchter, Edwards, and Corrado I, do not support this
contention.
Each of those cases focused on the defendants
670
(...continued)
(9th Cir. 1987) (Section 1963s forfeiture provisions are
purposely broad, designed to totally separate a racketeer from
the enterprise he operates).
963
knowledge of the activities of the enterprise, not on the amount

of proceeds the defendant reasonably expected the activities to
generate.
Nor does Arnesons argument find support in the other
cases he relies on.
In United States v. McHan, 101 F.3d 1027,
1042-43 (4th Cir. 1996), the Court, applying the criminal

forfeiture statute governing drug cases, ordered the forfeiture
of all property used to facilitate the drug operations of
defendant.
In United States v. Hurley, 63 F.3d 1, 22 (1st Cir.
1995), the court noted the statutory narrow safe harbor in the
criminal forfeiture statute governing money laundering and other
financial crimes (18 U.S.C. 982(b)(2)) that was available to a
mere[] . . . intermediary who handled but did not retain the
property [subject to forfeiture], but found that there is no
counterpart safe harbor provision in RICO.
As the 11th Circuit
pointed out in Browne, to saddle the Government with a

requirement to determine the precise allocation of racketeering
proceeds between defendants would substantially impair the
effectiveness of the [forfeiture] remedy, as offenders would
simply have to mask the allocation of the proceeds to avoid
forfeiting them altogether.
Browne, 505 F.3d at 1278 (internal
quotes and citations omitted).
Even where similar issues may be
resolved differently under other statutory schemes -- joint and

several liability for conspiracy convictions is not among them -those do not necessarily apply in the RICO context.
964
Caporale,
806 F.2d at 1508 (RICO represents a radical departure from

common law notions of liability and punishment in criminal law in
a number of respects).
The imposition of joint and several
forfeiture liability on convicted RICO conspirators is proper,

and was properly ordered here.
5.
The District Courts Calculation of the Money

Judgment Was Proper
Finally, Arneson and Turner argue that the court erroneously

calculated the money judgment of forfeitures amount by
determining the enterprises gross receipts instead of its net
profits.
(AOB 77; TOB 55.)
As indicated by the discussion
above, the RICO forfeiture provisions are among the broadest in

the United States Code, intended, in this Courts words, to
totally separate a racketeer from the enterprise he operates.
Busher, 817 F.2d at 1413.
Section 1963s plain language
demonstrates that those provisions are intended to reach all of

the assets acquired by a convicted defendant as a result of his
underlying involvement in the enterprise, not just the profit
realized.
See 1963(a)(1) (authorizing forfeiture of any
interest acquired or maintained in violation of 1962);

1963(a)(2) (authorizing forfeiture of any interest in, security
of, claim against, or property or contractual right of any kind
affording a source of influence over the enterprise); and
1963(a)(3) (authorizing forfeiture of any property constituting,
or derived from, any proceeds which the defendant obtained,
965
directly or indirectly, as a result of racketeering activity)

(emphasis added).
mandatory.
Moreover, forfeiture under 1963 is
See Alexander v. United States, 509 U.S. 544, 562
(1993) (a RICO conviction subjects the violator not only to

traditional, thought stringent, criminal fines and prison terms,
but also mandatory forfeiture under 1963).
In support of his argument that proceeds, as used in
1963, means net profits, Turner mistakenly relies on United
States v. Santos, 553 U.S. 507 (2008).
In Santos, the Court
addressed whether Congresss use of the term proceeds in 18

U.S.C. 1956(a)(1) intended the word to mean gross receipts or
profits.
A plurality concluded that Congresss use of the term
without defining it in the statute rendered the meaning

ambiguous, leading the plurality to conclude that there is no
more reason to think that proceeds means receipts than there
is to think that proceeds means profits.
Id. at 514.
Applying the rule that ambiguous criminal laws must be

interpreted in favor of defendants, and concluding that the
profits definition of proceeds is always more defendantfriendly than the receipts definition, the plurality held that
proceeds in 1956(a)(1) meant profits.
Id.
Turner argues
that the term proceeds in 1963 is used in the same manner

as in 1956 and that the term, therefore, is equally
ambiguous.
(TOB 55.)
966
Not so.
The only similarity between the money laundering
statute considered in Santos and 1963 is that neither contains

an explicit definition of the term proceeds.
However, unlike
the money laundering statute, 1963 cannot reasonably be

characterized as ambiguous in its description of the scope of the
forfeiture authority Congress intended to provide.
As
demonstrated above, the statute, especially paragraph (a)(3),

contains numerous expansive terms (any property constituting, or
derived from, any proceeds . . . obtained, directly or
indirectly, from racketeering activity), and no limiting
terms.671
The statute has been interpreted for decades as having
been intended to reach any and all property acquired or

maintained as a result of the underlying activity, whether as
proceeds or otherwise.
See, e.g., Busher, 817 F.3d at 1413
(forfeiture under 1963 extends to the convicted persons

entire interest in the enterprise); United States v. Segal, 495
F.3d 826, 838-39 (7th Cir. 2007) (defendants entire interest in
671
As this Court and the Supreme Court have made clear time
and again, [r]ead naturally, the word any has an expansive
meaning, that is, one or some indiscriminately of whatever
kind. United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting
Websters Third New International Dictionary 97 (1976)); see also
United States v. Monsanto, 491 U.S. 600, 609 (1989)
(characterizing statutory reference in forfeiture statute to any
property as comprehensive, broad, and unambiguous);
Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004)
(reversing district courts dismissal of ISP customers
unauthorized computer access claim on the basis that they were
third parties to the unauthorized access notwithstanding that
statute provided a cause of action to any person who suffers
damage or loss by reason of a violation of this section).
967
the enterprise forfeitable under 1963(a)); Angiulo, 897 F.2d at

1211 (any interest in an enterprise, including the enterprise
itself, are subject to forfeiture in their entirety, regardless
of whether some portions of the enterprise are not tainted by the
racketeering activity); United States v. Porcelli, 865 F.2d
1352, 1364 (2d Cir. 1989) (a RICO enterprise found in violation
of section 1962 is indivisible and is forfeitable in its
entirety); United States v. Anderson, 782 F.2d 908, 918 (11th
Cir. 1986) (all of a convicted RICO defendants interest in the
enterprise is forfeitable, regardless of whether those assets
were themselves tainted by use in connection with the
racketeering activity).
Under the circumstances, there is no
support for Turners argument that the interpretation of 1963

should be guided by Santos.672
Nor does Turner cite any authority
at all for his argument that the government was required to prove
the profits of the RICO enterprise.
(TOB 56.)
Arneson, in arguing that the money judgment should have been

calculated based on the enterprises net income, offers a list
of cases, but none supports his argument for limiting the money
judgments amount.
In United States v. Genova, 333 F.3d 750 (7th
672
Turner also relies on this Courts decision in United

States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009), another
money laundering case, and seeks to limit 1963 through an
application of Van Alstynes merger analysis. (TOB 55-56.)
However, Turner provides no explanation why Van Alstynes factbased merger analysis under the money laundering statute has any
bearing on the meaning of the term proceeds in the RICO
forfeiture statute.
968
Cir. 2003), the court excluded a specific category of payments

from forfeiture in a bribery scheme case on the ground that the
payments were neither gross nor net proceeds.
Id. at 761.
In
United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002), the
court, interpreting 18 U.S.C. 1956(a)(1), reached the same
conclusion later reached by the Santos plurality, but that
conclusion does nothing to inform the inquiry under 1963, as
already explained.
Both 1963(a)s plain language and the
overwhelming weight of the authority interpreting it compel the

conclusion that the statute was intended to require the
forfeiture of the gross proceeds obtained as a result of the
underlying racketeering activity.
The money judgment of
forfeiture was properly determined and entered by the district

court.
IV
CONCLUSION
For the foregoing reasons, defendants convictions and
sentences should be affirmed.
Dated: March 5, 2012
Respectfully submitted,
ANDR BIROTTE JR.
United States Attorney
ROBERT E. DUGDALE
Assistant United States Attorney
Chief, Criminal Division
/s/ Kevin M. Lally
KEVIN M. LALLY
969
JOSHUA A. KLEIN
Assistant United States Attorneys
Attorneys for Plaintiff-Appellee
UNITED STATES OF AMERICA
970
STATEMENT OF RELATED CASES

The government is not aware of any pending related cases.
971
Form 8.
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and (6). This brief is 235,815
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pages, excluding the portions exempted by Fed. R. App. P.
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pursuant to Circuit Rule 29-2(c)(2) or (3) and is
words,
lines of text or
pages, excluding the portions
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This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or
Unrepresented Litigant
/s/ KEVIN M. LALLY

("s/" plus typed name is acceptable for electronically-filed documents)
Date
March 5, 2013
If filing a brief that falls within the length limitations set forth at Fed. R. App. P.
32(a)(7)(B), use Form 6, Federal Rules of Appellate Procedure.
9th Circuit Case Number(s) 08-50531++

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*********************************************************************************
CERTIFICATE OF SERVICE
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
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Mar 5, 2013
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Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 1 of 1057

Nos. 08-50531, 08-50570, 09-50115, 09-50125, 09-50128,

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 2 of 1057

STATEMENT OF THE CASE

NATURE OF THE CASE, COURSE OF THE PROCEEDINGS,

JURISDICTION, TIMELINESS, AND BAIL STATUS . . . . .

III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . .

THE FIRST TRIAL . . . . . . . . . . . . . . . . . .

RICO/Computer Information Counts . . . . . . .

The Governments Case

Arnesons Testimony and Crossexamination . . . . . . . . . . . .

The Pellicano Enterprise in Action -A Case Study . . . . . . . . . . . . . . . . .

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 3 of 1057

TABLE OF CONTENTS (Continued)

THE SECOND TRIAL

Implementation of the Wiretap

Intercepted Communications Relating

Termination of the Wiretap . . . . . . . . . .

PELLICANOS AND CHRISTENSENS CHALLENGES

Factual Background . . . . . . . . . . . . . . 107

Warrants and Searches . . . . . . . . . . 108

The November 2002 Warrant

The January 2003 Warrant . . . . . . 109

The July 2003 Warrant

The District Court and This Court

The District Courts Rejection of

The District Courts Rejection of

Pellicanos State-Court Conviction

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 4 of 1057

TABLE OF CONTENTS (Continued)

Defendants Challenges to the November 2002

Christensen Has No Standing to Protest

Standard of Review . . . . . . . . . 131

Christensens Appeal Should Be Denied

Christensen Cannot Turn His Ethical

Pellicano Cannot Relitigate the Validity

Evaluated on the Merits, the

The Supreme Courts Later Scheidler

The Agents Were

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 5 of 1057

TABLE OF CONTENTS (Continued)

As Multiple Court Have

(ii) Christensens Contrary

(iii)Any Error in the Warrant

The District Court Properly Denied

Standard for Franks Hearing

None of Defendants Complaints

The District Court Did Not

(ii) The District Court Did Not

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 6 of 1057

TABLE OF CONTENTS (Continued)

The July 2003 Warrant Was Neither

The Warrants Structure Defined and

The Warrant Was Sufficiently

The Warrant Was Not Overbroad

Even If the Warrants Were Overbroad

Any Overbreadth Was Harmless . . . . 205

THE COURT NEITHER CLEARLY ERRED IN DECLINING

The Court Properly Placed the Burden

This Courts Rejection of Christensens

McTiernan Also Requires Rejection of

Case: 08-50531, 03/05/2013, ID: 8538482, DktEntry: 138, Page 7 of 1057

TABLE OF CONTENTS (Continued)

Factual Background . . . . . . . . . . . . . . 219