United States v. Terry Christensen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-50531

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-8

TERRY CHRISTENSEN,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 08-50570

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-1

ANTHONY PELLICANO,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 09-50115

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-7

MARK ARNESON,

Defendant-Appellant.

2 UNITED STATES V. CHRISTENSEN

UNITED STATES OF AMERICA, No. 09-50125

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-2

RAYFORD EARL TURNER, AKA

Seal B,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 09-50128

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-6

ABNER NICHERIE,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 09-50159

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-3

KEVIN KACHIKIAN,

Defendant-Appellant.

UNITED STATES V. CHRISTENSEN 3

UNITED STATES OF AMERICA, No. 10-50434

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-2

RAYFORD EARL TURNER, AKA

Seal B,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 10-50462

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-7

MARK ARNESON,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 10-50464

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-1

ANTHONY PELLICANO, AKA Seal A,

Defendant-Appellant.

4 UNITED STATES V. CHRISTENSEN

UNITED STATES OF AMERICA, No. 10-50472

Plaintiff-Appellee,

D.C. No.

v. 2:05-cr-01046-

DSF-8

TERRY CHRISTENSEN,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

November 4, 2013—Pasadena, California

Filed August 25, 2015

Before: Raymond C. Fisher and Richard R. Clifton, Circuit

Judges, and Dana L. Christensen, Chief District Judge.*

Opinion by Judge Clifton;

Partial Concurrence and Partial Dissent by Chief District

Judge Christensen

*

The Honorable Dana L. Christensen, United States Chief District Judge

for the District of Montana, sitting by designation.

UNITED STATES V. CHRISTENSEN 5

SUMMARY**

Criminal Law

The panel affirmed in part, vacated in part, and remanded,

in a case in which six defendants were convicted of multiple

offenses stemming from a widespread criminal enterprise

offering illegal private investigation services in Southern

California.

The panel vacated Rayford Earl Turner’s conviction for

aiding and abetting computer fraud, Mark Arneson’s

convictions for computer fraud and unauthorized computer

access, and Anthony Pellicano’s convictions for aiding and

abetting both computer fraud and unauthorized computer

access. The panel also vacated Abner Nicherie’s conviction

for aiding and abetting a wire interception. The panel

affirmed the rest of the convictions, including the RICO

convictions of Pellicano, Arneson, and Turner for operating

Pellicano Investigative Agency’s (PIA’s) criminal enterprise,

attorney Terry Christensen’s convictions based on hiring that

enterprise to illegally wiretap a litigation opponent, and

Kevin Kachikian’s convictions for his role in PIA’s

wiretapping. The panel vacated the sentences imposed on the

defendants whose convictions were vacated in part –

Pellicano, Arneson, and Turner – and remanded for

resentencing on their remaining, affirmed convictions. The

panel remanded for further proceedings on the vacated counts

of conviction, including the possibility of retrial, as may be

appropriate, on those charges.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

6 UNITED STATES V. CHRISTENSEN

Regarding Pellicano’s, Arneson’s, and Turner’s

convictions for racketeering and RICO conspiracy, the panel

(1) held that the government presented sufficient evidence

from which the jury could conclude that Arneson and Turner

knew about the essential nature of their illegal enterprise with

Pellicano; and (2) rejected Pellicano and Arneson’s

challenges to (a) the bribery predicate acts upon which their

RICO convictions rest and (b) Pellicano’s challenge to the

predicate acts of honest services fraud.

The panel held that the jury instructions defining both

computer fraud and unauthorized computer access of United

States agency information under the Computer Fraud and

Abuse Act (CFAA) were plainly erroneous, and that the error

was prejudicial. The panel therefore vacated Turner’s

conviction for aiding and abetting computer fraud, Arneson’s

convictions for computer fraud and unauthorized computer

access, and Pellicano’s convictions for aiding and abetting

both computer fraud and unauthorized computer access. The

panel rejected Turner, Arneson, and Pellicano’s contention

that their convictions for identity theft and racketeering

cannot stand once the CFAA computer fraud and

unauthorized computer access convictions have been set

aside.

The panel rejected Kachikian’s challenges to the jury

instructions which, he argued, required reversal of his

convictions for conspiracy to intercept wire communications

and manufacturing and/or possessing a wiretapping device.

The panel vacated Nicherie’s conviction for aiding and

abetting wiretapping. The panel held that one of the

government’s two theories was improper, and that although

there was sufficient evidence to support a conviction on the

UNITED STATES V. CHRISTENSEN 7

other theory, the evidence was not so overwhelming to

conclude that the error was harmless.

The panel held that the substantial majority of recordings

that Pellicano secretly made of his conversations with

Christensen did not qualify for protection under the

attorney-client privilege, that production of the limited

portions that might have been privileged was harmless, and

that the recordings did not qualify for production under the

work product doctrine.

The panel held that the district court’s findings regarding

a juror’s untruthfulness and unwillingness during

deliberations to follow the law were not clearly erroneous,

that those findings provided cause for dismissing the juror,

and that neither dismissal of the juror nor the denial of the

defendants’ motion for a new trial was an abuse of discretion.

Affirming Christensen’s sentence, the panel rejected the

defendant’s challenges to an upward adjustment for

supervisory role, to an enhancement for economic gain, and

to an adjustment for abuse of a position of trust. The panel

held that Christensen’s sentence, which included an upward

departure for substantial harm not accounted for in the

Sentencing Guidelines, was not substantively unreasonable.

The panel rejected Pellicano’s argument that the matter

should be assigned to a different district judge.

The panel held that the district court did not err in

ordering Pellicano, Turner, and Arneson to forfeit

$2,008,250, which represents the proceeds they obtained from

their RICO enterprise. The panel rejected the defendants’

argument that they had a right to a jury trial on the forfeiture

8 UNITED STATES V. CHRISTENSEN

amount, that the district court used the incorrect standard of

proof, that the district court incorrectly calculated the amount,

and that liability should not have been joint and several.

The panel addressed others issues in a concurrently filed

memorandum disposition.

Concurring in part and dissenting in part, Chief District

Judge Christensen wrote that the district court erred by

dismissing the juror based on a determination that he was not

credible and had lied to the court on an unrelated issue

concerning his views on federal tax laws.

UNITED STATES V. CHRISTENSEN 9

COUNSEL

Seth M. Hufstedler (argued), Dan Marmalefsky (argued), and

Benjamin J. Fox, Morrison & Foerster LLP, Los Angeles,

California, for Defendant-Appellant Terry Christensen.

Steven F. Gruel (argued), San Francisco, California, for

Defendant-Appellant Anthony Pellicano.

Chad S. Hummel (argued) and Emil Petrossian, Manatt,

Phelps & Phillips LLP, Los Angeles, California; Becky

Walker James, Los Angeles, California, for Defendant-

Appellant Mark Arneson.

Karen L. Landau (argued), Oakland, California, for

Defendant-Appellant Rayford Lee Turner.

Katherine Kimball Windsor (argued), Pasadena, California,

for Defendant-Appellant Abner Nicherie.

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

Diego, California, for Defendant-Appellant Kevin Kachikian.

André Birotte Jr., United States Attorney, Central District of

California, Robert E. Dugdale, Chief, Criminal Division,

Kevin M. Lally (argued) and Joshua A. Klein (argued),

Assistant United States Attorneys, for Plaintiff-Appellee.

10 UNITED STATES V. CHRISTENSEN

OPINION

CLIFTON, Circuit Judge:

Six defendants appeal their criminal convictions

stemming from a widespread criminal enterprise offering

illegal private investigation services in Southern California.

At the center of this criminal enterprise was Pellicano

Investigative Agency, known as PIA. Defendant Anthony

Pellicano operated PIA, ostensibly as a legitimate private

investigation agency. But many of PIA’s investigation

methods were, in fact, illegal. Pellicano bribed Los Angeles

area police officers, such as Defendant Mark Arneson, for

access to confidential law enforcement databases. He

orchestrated wiretaps on investigative targets so he could

overhear their conversations with friends, family, medical

professionals, and legal counsel. He paid a telephone

company employee, Defendant Rayford Turner, for the

confidential technical information he needed for the wiretaps,

and hired a software developer, Defendant Kevin Kachikian,

to create custom software to record the conversations

Pellicano overheard. At the height of PIA’s success, scores of

people retained PIA for its often illegal services. Most

pertinent to this case, Defendant Terry Christensen, an

attorney, hired PIA to assist in litigation in which he

represented his client, Kirk Kerkorian, against Lisa Bonder.

Pellicano wiretapped Bonder’s telephone and frequently

discussed with Christensen what he heard. Defendant Abner

Nicherie also hired PIA to wiretap the husband of a woman

whose business Nicherie hoped to take over.

PIA’s criminal enterprise began to unravel in 2002, when

the FBI investigated PIA’s attempt to intimidate a reporter,

Anita Busch. This investigation led to a search, pursuant to a

UNITED STATES V. CHRISTENSEN 11

search warrant, of PIA’s offices. By 2003, the government

was investigating the widespread scope of PIA’s illegal

activities. A grand jury returned an indictment charging

Pellicano, Arneson, and Turner with crimes under the

Racketeer Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. § 1961 et seq., for their roles in operating PIA’s

criminal enterprise. The indictment also variously charged

Defendants with other crimes, including wiretapping,

computer fraud, honest services fraud, identity theft, and

conspiracy offenses. The case proceeded to two separate jury

trials, which resulted in the convictions of all six Defendants

on at least some counts. Defendants appeal their convictions.

In this opinion, we vacate Turner’s conviction for aiding

and abetting computer fraud, Arneson’s convictions for

computer fraud and unauthorized computer access, and

Pellicano’s convictions for aiding and abetting both computer

fraud and unauthorized computer access. We also vacate

Nicherie’s conviction for aiding and abetting a wire

interception. The rest of the convictions are affirmed,

including the RICO convictions of Pellicano, Arneson, and

Turner for operating PIA’s criminal enterprise, Christensen’s

convictions based on hiring that enterprise to illegally wiretap

Lisa Bonder, and Kachikian’s convictions for his role in

PIA’s wiretapping. We vacate the sentences imposed on the

defendants whose convictions were vacated in

part—Pellicano, Arneson, and Turner—and remand for

resentencing on their remaining, affirmed convictions. We

remand for further proceedings on the vacated counts of

conviction, including the possibility of retrial, as may be

appropriate, on those charges.

Defendants have raised a staggering number of issues on

appeal. Their briefs—fourteen in all—totaled over 900

12 UNITED STATES V. CHRISTENSEN

pages.1 Many of the issues raised on appeal do not warrant

discussion in a precedential opinion. We thus address many

issues in a concurrently filed memorandum disposition, in

which we affirm on all the issues covered in the

memorandum. In this opinion, we address those issues that

merit an extended discussion.

I. Background

These consolidated appeals arise out of the prosecution in

two separate trials of private investigator Defendant Anthony

Pellicano and several individuals associated with him.

Pellicano owned and operated Pellicano Investigative Agency

(“PIA”). He provided investigation services to clients in

connection with litigation and personal matters.

The factual core of this case is simple: PIA’s

investigations were often illegal. Pellicano wiretapped

investigative targets, for instance, and used proprietary

software called “Telesleuth,” which Defendant Kevin

Kachikian developed and updated over the course of several

years, to record wiretapped phone conversations. Pellicano

related the content of those conversations (e.g., by playing

recordings) to clients, who often used what they learned to

gain an advantage in litigation.

To get the technical information he needed to install the

wiretaps, Pellicano paid Defendant Rayford Turner, a

telephone company technician, to obtain cable-pairing data

from the telephone company, SBC. Turner himself did not

have access to SBC databases, but he paid other SBC

1

The government was similarly verbose. Its answering brief was nearly

700 pages.

UNITED STATES V. CHRISTENSEN 13

employees, non-parties Teresa Wright and Michele Malkin,

to access the databases and give Turner the information PIA

wanted. Turner then gave the information to Pellicano and

implemented wiretaps. Pellicano and PIA also paid an LAPD

officer, Defendant Mark Arneson, to search confidential

police databases for information about various investigative

targets and provide that information to PIA.2

PIA’s activity on behalf of client Robert Pfeifer concisely

illustrates how Pellicano, Arneson, and Turner operated the

illegal investigations. Pfeifer, not named as a party in this

case, retained PIA in July 2000 to influence his former

girlfriend, Erin Finn, to recant deposition testimony about

Pfeifer’s drug use. The evidence established that Pellicano

paid Arneson $2,500, and that Arneson accessed law-

enforcement databases to acquire criminal history and/or

information from the Department of Motor Vehicles (DMV)

on Pfeifer, Finn, and Finn’s friends and associates. Arneson

then gave this information to Pellicano. Turner provided

Pellicano with confidential subscriber information from SBC,

and a wiretap on Finn was initiated. The wiretap revealed

extensive information about Finn’s business, which Pfeifer

used to get her to recant her testimony.

Based on Pfeifer’s case and many others, the grand jury

returned an indictment charging Pellicano, Arneson, and

Turner with RICO violations. The indictment alleged that

they formed an enterprise for “the common purpose of

earning income through the conduct of diverse criminal

activities including, but not limited to, illegal wiretapping,

unauthorized access of protected computers, wire fraud,

2

Pellicano also paid at least one other police officer for information

from police databases. That person was not charged in this action.

14 UNITED STATES V. CHRISTENSEN

bribery, identity theft, and obstruction of justice.” The

predicate acts included bribery, honest services wire fraud,

and identity theft. Kachikian, the Telesleuth developer, was

not charged with RICO violations; he was charged with

conspiracy to intercept, interception of communications, and

possession of a wiretapping device.

The government also prosecuted two of PIA’s clients:

Defendants Abner Nicherie and Terry Christensen. Abner

Nicherie hired Pellicano to wiretap Ami Shafrir, the husband

of Sarit Shafrir, whose business Nicherie hoped to take over.

Nicherie went to PIA many times to listen to and transcribe

Ami Shafrir’s telephone conversations, which were in

Hebrew. The intercepted conversations included Ami

Shafrir’s confidential communications with his attorneys.

Terry Christensen hired Pellicano to wiretap Lisa Bonder.

Bonder was engaged in a child support dispute with

Christensen’s client, Kirk Kerkorian. A central part of

Christensen’s strategy was proving that the child involved in

the dispute was not his client’s biological child. A DNA test

eventually proved that another man was the father. While the

litigation was ongoing, Pellicano intercepted many of

Bonder’s conversations, including conversations with her

attorneys, family, and friends about the child support

litigation. The main evidence against Christensen consisted

of recordings of more than 30 phone conversations in which

he discussed with Pellicano the wiretap on Bonder. These

recordings, which Pellicano recorded secretly, were seized

from PIA’s offices.

The government’s investigation into PIA began when it

investigated threats against reporter Anita Busch. On the

morning of June 20, 2002, Busch went to her car on the street

UNITED STATES V. CHRISTENSEN 15

outside her home and found that her car had been vandalized.

The windshield had been punctured, a handwritten sign

reading “STOP” had been placed on the car, and a dead fish

and a rose had been left on the windshield. An informant

recorded his conversations with Alex Proctor, who stated that

Pellicano had hired him to vandalize Busch’s car. Based in

large part on the informant’s recordings, in November 2002,

the government obtained warrants to search PIA for evidence

that Pellicano was involved in the vandalism. The

government seized computers and data storage devices

pursuant to the warrant. After obtaining more evidence of the

widespread extent of PIA’s illegal investigations, the

government obtained more warrants in July 2003 and seized

additional records from the data storage devices previously

taken from PIA, including the Pellicano-Christensen

recordings.

A grand jury returned an indictment,3 and the Defendants

were prosecuted in two trials. The first trial included

(1) RICO and related charges against Pellicano, Arneson, and

Turner and (2) wiretapping and related charges against

Pellicano, Kachikian, and Nicherie. The second trial, in which

only Pellicano and Christensen were defendants, focused on

the Lisa Bonder wiretap.

The Defendants in the first trial (Pellicano, Arneson,

Turner, Kachikian, and Nicherie) were convicted on the

following charges:

3

The Fifth Superseding Indictment was the operative charging

document. The government filed a redacted Fifth Superseding Indictment

during the first trial, which dismissed some counts and renumbered the

remaining ones.

16 UNITED STATES V. CHRISTENSEN

Pellicano: RICO (18 U.S.C. § 1962(c));

RICO conspiracy (18 U.S.C. § 1962(d));

Honest-services wire fraud (18 U.S.C.

§§ 1343, 1346);

Unauthorized computer access of

United States agency information

(18 U.S.C. §§ 1030(a)(2)(B),

(c)(2)(B)(i));

Identity theft (18 U.S.C. § 1028(a)(7));

Computer fraud (18 U.S.C.

§ 1030(a)(4));

Conspiracy to intercept and use wire

communications (18 U.S.C. § 371);

Interception of wire communications

(18 U.S.C. § 2511(1)(a), (d)); and

Possession of a wiretapping device

(18 U.S.C. § 2512(1)(b)).

Arneson: RICO (18 U.S.C. § 1962(c));

RICO conspiracy (18 U.S.C. § 1962(d));

Honest services wire fraud (18 U.S.C.

§§ 1343, 1346);

Unauthorized computer access of

United States agency information

(18 U.S.C. § § 1030(a)(2)(B),

(c)(2)(B)(i));

Identity theft (18 U.S.C. § 1028(a)(7));

Computer fraud (18 U.S.C.

§ 1030(a)(4)).

Turner: RICO (18 U.S.C. § 1962(c));

RICO conspiracy (18 U.S.C. § 1962(d));

Identity theft (18 U.S.C. § 1028(a)(7));

Computer fraud (18 U.S.C.

UNITED STATES V. CHRISTENSEN 17

§ 1030(a)(4));

Conspiracy to intercept and use wire

communications (18 U.S.C. § 371);

Interception of wire communications

(18 U.S.C. § 2511(1)(a), (d)); and

False statements (18 U.S.C.

§ 1001(a)(2)).

Kachikian: Conspiracy to intercept and use wire

communications (18 U.S.C. § 371);

Possession of a wiretapping device

(18 U.S.C. § 2512(1)(b)).

Nicherie: Aiding and abetting interception of

wire communications (18 U.S.C.

§ 2511(a), (d)).

The jury acquitted Pellicano of one count of unauthorized

computer access, Turner of four counts of intercepting wire

communications, and Kachikian on all counts of intercepting

wire communications.

In the second trial, Pellicano and Christensen were each

convicted of one count of conspiracy to intercept and use wire

communications, 18 U.S.C. § 371, and one count of

interception of wire communications, 18 U.S.C.

§§ 2511(1)(a), (d).

Pellicano was sentenced to 180 months of imprisonment,

Arneson to 121 months, Turner to 121 months, Kachikian to

27 months, Nicherie to 21 months, and Christensen to 36

months. Pellicano, Arneson, and Turner were also ordered to

forfeit $2,008,250, jointly and severally.

18 UNITED STATES V. CHRISTENSEN

II. Standards of Review

We address the standard of review for most issues as we

discuss the relevant arguments below. Because they apply to

multiple issues in the case, we address the standards for plain

error and clear error review here at the outset.

When a defendant raises an argument for the first time on

appeal, the plain error standard of review applies. See Fed. R.

Crim. P. 52(b); United States v. Pelisamen, 641 F.3d 399, 404

(9th Cir. 2011). Plain error requires that (1) there was error;

(2) it was plain; and (3) the error affected substantial rights.

United States v. Olano, 507 U.S. 725, 732–35 (1993). When

confronted with plain error, an appeals court shall exercise its

discretion and reverse only if the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736 (internal quotation marks omitted)

(alteration in original). Plain error review applies on direct

appeal even where an intervening change in the law is the

source of the error. Johnson v. United States, 520 U.S. 461,

467–68 (1997); Pelisamen, 641 F.3d at 404.

We review for clear error a district court’s findings of

fact. A finding of fact is clearly erroneous only where it is

“(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.”

United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir.

2012) (citation and internal quotation marks omitted). Clear

error review is deferential, and “[w]here there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” United States v.

Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc)

(quotation omitted).

UNITED STATES V. CHRISTENSEN 19

III. Discussion

A. Sufficiency of RICO Enterprise

Pellicano, Arneson, and Turner were all convicted of

racketeering under the RICO statute, 18 U.S.C. § 1962(c),

and also of RICO conspiracy, 18 U.S.C. § 1962(d). They

argue that the evidence was insufficient to prove a single

RICO enterprise among Pellicano, PIA, Arneson, and Turner

because there was no evidence that Arneson and Turner knew

about each other’s roles in the enterprise. We are not

persuaded by this argument. The government presented

sufficient evidence from which the jury could conclude that

Arneson and Turner knew about the essential nature of their

illegal enterprise with Pellicano.

Defendants challenged the sufficiency of the evidence

supporting the RICO enterprise in a Rule 29 motion, which

the district court denied. The denial of a Rule 29 motion for

judgment of acquittal is reviewed de novo. United States v.

Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008). The court

“view[s] the evidence in the light most favorable to the

government and determine[s] whether any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (citation and internal

quotation marks omitted); see United States v. Nevils,

598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).

The RICO provision at issue here, 18 U.S.C. § 1962(c),

“makes it unlawful for any person employed by or associated

with any enterprise . . . to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs through

a pattern of racketeering activity.” Boyle v. United States,

556 U.S. 938, 943–44 (2009) (emphasis and internal

20 UNITED STATES V. CHRISTENSEN

quotation marks omitted). A RICO offense is established by

“proof of (1) conduct (2) of an enterprise (3) through a

pattern (4) of racketeering activity.” United States v.

Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2004) (citation and

internal quotation marks omitted).

RICO defines the term “enterprise” as “any individual,

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although

not a legal entity.” 18 U.S.C. § 1961(4). This expansive

definition is “not very demanding.” Odom v. Microsoft Corp.,

486 F.3d 541, 548 (9th Cir. 2007) (en banc). An associated-

in-fact enterprise is “a group of persons associated together

for a common purpose of engaging in a course of conduct.”

Id. at 552 (quoting United States v. Turkette, 452 U.S. 576,

583 (1981)). Such an enterprise has three elements: (1) a

common purpose, (2) an ongoing organization, and (3) a

continuing unit. Id.

“[I]t is sufficient that the defendant know the general

nature of the enterprise and know that the enterprise extends

beyond his individual role.” United States v. Eufrasio,

935 F.2d 553, 577 n.29 (3d Cir. 1991) (citation and internal

quotation marks omitted). Likewise, a RICO conspiracy

under § 1962(d) requires only that the defendant was “aware

of the essential nature and scope of the enterprise and

intended to participate in it.” Fernandez, 388 F.3d at 1230

(citation and internal quotation marks omitted). “[T]he point

of making the government show that the defendants ha[d]

some knowledge of the nature of the enterprise[ ] is to avoid

an unjust association of the defendant with the crimes of

others. ” United States v. Brandao, 539 F.3d 44, 52 (1st Cir.

2008). Nonetheless, the definition of a RICO enterprise has

“wide reach” and is to be “liberally construed to effectuate its

UNITED STATES V. CHRISTENSEN 21

remedial purposes.” Boyle, 556 U.S. at 944–45 (internal

quotation marks omitted) (holding that a RICO enterprise

does not need to have a formal, business-like structure or

hierarchy).

As the First Circuit has explained, “[t]he RICO net is

woven tightly to trap even the smallest fish, those

peripherally involved with the enterprise.” United States v.

Marino, 277 F.3d 11, 33 (1st Cir. 2002) (citation and internal

quotation marks omitted). For instance, this court affirmed a

RICO conspiracy conviction of the wife of a Mexican Mafia

member where the evidence showed that she “collected

protection money for the [enterprise] on behalf of her

husband,” “passed messages” among enterprise members,

“smuggled drugs into prison[,] and accepted payment for

drugs sold on the street.” Fernandez, 388 F.3d at 1230.

Defendants primarily argue that the evidence was

insufficient to prove that Arneson and Turner associated

themselves with the common purpose of the same alleged

enterprise because they did not know about each other’s roles

in it. We disagree. The common purpose alleged in the

indictment was “earning income through the conduct of

diverse criminal activities including, but not limited to, illegal

wiretapping, unauthorized access of protected computers,

wire fraud, bribery, identity theft, and obstruction of justice.”

The government presented ample evidence from which a

reasonable jury could find, at a minimum, that Arneson and

Turner were each aware of the “essential nature and scope”

of that enterprise and intended to participate in it.

Arneson’s role included illegally accessing law

enforcement databases and passing the information to

Pellicano. Turner’s role included illegally obtaining

22 UNITED STATES V. CHRISTENSEN

information from SBC to facilitate Pellicano’s wiretaps. The

jury heard evidence that Pellicano paid Arneson and Turner

for their roles in the enterprise. Witnesses testified that both

Arneson and Turner visited PIA, sometimes at the same time,

and even hid from a client together in PIA’s kitchen.

Although it was not required that either be aware of the

specific identity or activity of the other, in this instance the

evidence would have permitted a reasonable jury to infer that

they were.

Arneson also testified that Pellicano told him about phone

company sources and explained the Telesleuth wiretapping

software to him. Arneson testified that he thought Pellicano

was going to patent Telesleuth and sell it to law enforcement,

but a reasonable jury would not be required to credit this

testimony. The jury also heard evidence that Pellicano openly

told his clients about his illegal wiretapping and access to law

enforcement reports. A reasonable jury could have inferred

that Pellicano was equally open with Arneson and Turner. In

sum, a reasonable jury could easily infer that Arneson and

Turner knew about each other and knew about the essential

nature of the enterprise in which they were both participating

with Pellicano.

Moreover, the jury heard evidence about specific

instances in which Arneson and Turner coordinated their

activities with Pellicano. Boyle, 556 U.S. at 945–46

(explaining that an associated-in-fact enterprise may be

proven “by evidence of an ongoing organization, formal or

informal, and by evidence that the various associates function

as a continuing unit” (internal quotation marks omitted)). We

return to the example of Robert Pfeifer. As recounted in the

background section, above at 13, Pfeifer retained PIA in July

2000 to make his former girlfriend, Erin Finn, retract

UNITED STATES V. CHRISTENSEN 23

damaging deposition testimony about his drug use. The

evidence established that on July 20, 2000, Pellicano paid

Arneson $2,500, and that on August 2, 2000, Arneson

accessed law-enforcement databases to acquire

criminal-history and DMV information on Pfeifer, Finn, and

her friends and associates, which Arneson then provided to

Pellicano. That same day, Turner provided Pellicano with

confidential subscriber information from SBC, and a wiretap

on Finn was initiated. The government also introduced

evidence of other clients for whom Pellicano coordinated the

activities of Arneson and Turner.

Accordingly, this is not a case where Arneson and Turner

were unjustly associated with Pellicano and PIA or each

other. The evidence was sufficient to conclude that each

worked together with Pellicano and others to earn money

from criminal activities, including illegally accessing

confidential databases, bribery, and wiretapping. A

reasonable jury could find that Arneson and Turner each

knew about the essential nature of this enterprise. The district

court did not err in denying Defendants’ Rule 29 motion on

this issue.

B. California Bribery Predicate Acts

Pellicano and Arneson also appeal their RICO convictions

by challenging the predicate acts upon which those

convictions rest. To be liable under RICO, defendants “must

be guilty of a ‘pattern of racketeering activity,’ which

requires at least two separate racketeering acts (often called

‘predicate acts’).” United States v. Walgren, 885 F.2d 1417,

1424 (9th Cir. 1989) (citations omitted). Offenses that qualify

as “predicate acts” are listed in 18 U.S.C. § 1961(1),

including “any act . . . involving . . . bribery . . . which is

24 UNITED STATES V. CHRISTENSEN

chargeable under State law and punishable by imprisonment

for more than one year.” If convictions for the underlying

predicate acts are vacated, then the RICO conviction must

also be vacated. Walgren, 885 F.2d at 1424.

Here, the jury found that Arneson and Pellicano each

committed ten predicate acts of bribery under California law.

The predicate acts against Arneson were based on California

Penal Code § 68, which makes it a felony for either an

executive or ministerial officer to “receive[], or agree[] to

receive, any bribe, upon any agreement or understanding that

his or her vote, opinion, or action upon any matter then

pending, or that may be brought before him or her in his or

her official capacity, shall be influenced thereby.”4 Cal.

Penal Code § 68(a). The predicate acts of bribery against

Pellicano were based on California Penal Code § 67, a

parallel prohibition: § 67 prohibits giving bribes and § 68

prohibits receiving them. See People v. Hallner, 43 Cal.2d

715, 717, 718 (1954) (explaining that Penal Code § 67 and

§ 68 are “complementary statutes”).

4

The relevant language of § 68(a) reads as follows:

Every executive or ministerial officer, employee, or

appointee of the State of California, a county or city

therein, or a political subdivision thereof, who asks,

receives, or agrees to receive, any bribe, upon any

agreement or understanding that his or her vote,

opinion, or action upon any matter then pending, or that

may be brought before him or her in his or her official

capacity, shall be influenced thereby, is punishable by

imprisonment in the state prison for two, three, or four

years[.]

Cal. Penal Code § 68(a).

UNITED STATES V. CHRISTENSEN 25

Arneson argues that the evidence against him failed to

establish that his access of government databases could have

constituted “action upon any matter then pending, or that may

[have] be[en] brought before him . . . in his . . . official

capacity.” Cal. Penal Code § 68(a). The district court rejected

similar arguments in denying Arneson’s motion to strike the

state law bribery predicate acts against him. We agree with

the district court.

California law governs the state law predicate acts of

bribery charged in the indictment. United States v. Frega,

179 F.3d 793, 806 (9th Cir. 1999). We “review de novo a

district court’s determination of state law.” Salve Regina

College v. Russell, 499 U.S. 225, 231 (1991).

The jury heard evidence that Arneson accessed state and

federal law enforcement databases to investigate PIA’s

targets in exchange for payments from Pellicano. Arneson’s

database access occurred “in his official capacity.” To meet

this element, Arneson did not need to have “actual authority”

to access the databases to relay information to Pellicano, so

long as accessing the databases “[fell] within the general

scope of his duties and he [purported] to act in his official

capacity.” People v. Longo, 119 Cal.App.2d 416, 420 (Ct.

App. 1953); see also People v. Lips, 59 Cal.App. 381, 389

(Ct. App. 1922) (explaining that an officer acts in his official

capacity by “doing of such acts as properly belong to the

office and are intended by the officer to be official”).

The evidence, such as testimony about the LAPD

manual’s standards for using the databases, established that

accessing police databases was within the general scope of

Arneson’s duties. Just as improper action by an officer to free

a suspect in custody in exchange for money constituted action

26 UNITED STATES V. CHRISTENSEN

in the officer’s “official capacity,” so did Arneson’s use of his

position to access the databases. Lips, 59 Cal.App. at 384,

390 (affirming bribery conviction where officer apprehended

suspect but then agreed to release him in exchange for

money); see also People v. Markham, 64 Cal. 157, 159 (Cal.

1883) (explaining that because it is a duty of an officer to

arrest, an officer who is paid not to arrest someone is “bribed

with respect to a matter which might be a subject of his

official action”). Ample evidence at trial established that

Arneson used his official position as an LAPD officer to

access the databases. Access to the databases was restricted

by statute, regulation, and LAPD policy, and Arneson could

access them only because of his position as an officer. See

Cal. Penal Code § 11105(b) (providing that “[t]he Attorney

General shall furnish state summary criminal history

information to [certain persons, including peace officers], if

needed in the course of their duties”); 11 Cal. Code Reg.

§ 703(b) (providing that criminal records may be released “on

a need-to-know basis, only to persons or agencies authorized

by [law] to receive criminal offender record information”);

28 U.S.C. § 534(a)(4) (limiting access to federal government

database to certain statutorily enumerated parties, such as

“the States . . . and penal and other institutions”). Moreover,

when he accessed the databases, he used LAPD computer

terminals and LAPD-issued passwords. Every time he

accessed the databases, Arneson thus purported to act in his

official capacity. See Longo, 119 Cal.App.2d at 420.

Arneson’s database inquiries also involved “matter[s]

then pending, or that may [have been] brought before him

. . . .” Cal. Penal Code § 68. California law “does not require

any specific action to be pending on the date the bribe is

received.” People v. Gaio, 81 Cal.App.4th 919, 929 (Ct. App.

2000) (citation and internal quotation marks omitted). As this

UNITED STATES V. CHRISTENSEN 27

court has explained, “[t]he use of the word ‘may’” in § 68

indicates that “payments designed to alter the outcome of any

matter that could conceivably come before the official are

within the prohibition of the statute.” Frega, 179 F.3d at 805

(citation and internal quotation marks omitted) (concluding

that “a bribe . . . intended to influence, generally, a judge’s

future actions with respect to matters that may come before

him, falls within the statute’s prohibitions”). Hence, the

matter of whether to “enforce the law against social vices is

always before” a police officer like Arneson. Gaio,

81 Cal.App.4th at 930. So too is the matter of whether to use

his position as an LAPD officer to investigate someone in the

Los Angeles area. Cf. Johnson v. United States, 333 U.S. 10,

14 (1948) (describing law enforcement as the “competitive

enterprise of ferreting out crime”). Arneson’s use of his office

to investigate someone, via confidential databases or

otherwise, necessarily involved a classic type of police

“matter”—investigation. See Gaio, 81 Cal.App.4th at 931

(holding that evidence was sufficient to support bribery

convictions because evidence established that payment was

given to influence “any one or more instances, types, or

courses of official action”).

Arneson’s theory that an act brought before an officer

must be discretionary finds no support in the cases he cites,

which state no such requirement. See, e.g., Hallner, 43 Cal.2d

at 717, 721 (reversing judgment that “executive officers of

the City of Los Angeles are not executive officers of this state

as defined in section 67 of the Penal Code”); see also People

v. Jackson, 42 Cal.2d 540 (1954). Section 68’s language also

forecloses this argument. Section 68 prohibits “ministerial

officers” from receiving a bribe. Cal. Penal Code § 68.

Ministerial acts under California law “leave nothing to the

exercise of discretion or judgment.” People v. Strohl,

28 UNITED STATES V. CHRISTENSEN

57 Cal.App.3d 347, 361 (Ct. App. 1976). An officer thus need

not be paid for a discretionary act to meet the elements of

§ 68. In any case, even if discretion were required, Arneson

had discretion over what type of investigation to conduct,

including what databases to use and what persons to look up.

Similarly, we reject Pellicano’s comparable arguments

that Arneson’s database searches were not “official” and not

sufficiently connected to a government proceeding. The

evidence was sufficient to find that Pellicano paid Arneson

bribes “with intent to influence him in respect to any act,

decision, vote, opinion, or other proceeding as such officer.”

Cal. Penal Code § 67. The database searches were the “acts”

that Pellicano influenced, and, as discussed, Arneson was

acting in his official capacity under § 68 when he accessed

the databases. Likewise, he was acting “as such officer”

under § 67.

Pellicano also argues that he could not have bribed

Arneson because Arneson was only misusing the resources of

his office, not the legal authority of that office. This

distinction finds no support in California case law. Moreover,

even if this were the right distinction, accessing the databases

was a misuse of Arneson’s legal authority. As discussed

above, he had the authority to access the databases only

because he was an officer. The district court did not err in

denying the motion to strike the predicate acts of bribery.

C. Honest Services Fraud Racketeering Acts and

Skilling

Pellicano also challenges the predicate acts of honest

services fraud. The jury found that Pellicano committed 46

such predicate acts and that Arneson committed 44 such acts.

UNITED STATES V. CHRISTENSEN 29

Honest services fraud entails a scheme or artifice to “deprive

another,” by mail or wire, “of the intangible right of honest

services.” 18 U.S.C. § 1346; see also 18 U.S.C. §§ 1341,

1343. Here, the government’s theory of honest services fraud

was that Pellicano’s payments to Arneson for access to police

databases defrauded the public of its right to Arneson’s

honest services as an officer.

After Pellicano and Arneson were convicted and

sentenced, and while their cases were on appeal, the Supreme

Court narrowed the scope of the honest services fraud statute.

See Skilling v. United States, 561 U.S. 358 (2010). Now, only

“fraudulent schemes to deprive another of honest services

through bribes or kickbacks supplied by a third party who had

not been deceived” constitute honest services fraud. Id. at 404

(emphasis added). Previously it had been held, in this circuit

and others, that failing to disclose a conflict of interest could

be a basis for honest services fraud, but that is no longer the

case. Id. at 411.

Pellicano argues that the predicate acts of honest services

fraud must be vacated because the jury instructions did not

reflect Skilling’s narrowing of the crime. We disagree.

The jury found that both Pellicano and Arneson

committed bribery predicate acts under California law. Under

Skilling, bribery remains a basis for honest services fraud. It

is apparent from the jury’s findings regarding bribery that the

Defendants would have been convicted on the bribery theory

of honest services fraud by itself. The references to the

invalidated conflict of interest theory in the jury instructions

and the government’s argument at trial therefore did not

prejudice Defendants. United States v. Wilkes, 662 F.3d 524,

544 (9th Cir. 2011) (holding that “the jury’s guilty verdict on

30 UNITED STATES V. CHRISTENSEN

the separate substantive count of bribery [under federal law]

confirms beyond any reasonable doubt that the jury would

have convicted [the defendant] of honest services fraud if the

court’s definition had been limited to the bribery basis that

Skilling expressly approved”; see also United States v.

Marcus, 560 U.S. 258, 262 (2010) (explaining that prejudice

requires a “reasonable probability” that the error in the

instructions “affected the outcome of the trial”).

Arneson also argues that under Skilling, only a bribe or

kickback as defined under federal law, as distinguished from

state law, may establish honest services fraud. The Fifth

Circuit has persuasively rejected a similar argument:

A fair reading of Skilling . . . reveals that the

Court was establishing a uniform national

standard by construing § 1346 to clearly

exclude conduct outside of bribery and

kickbacks, such as conflict-of-interest

schemes, not to establish federal law as the

uniform national standard for the elements of

bribery and kickbacks in § 1346 prosecutions.

Moreover, the Skilling Court further asserted

that “[o]verlap with other federal statutes does

not render § 1346 superfluous. The principal

federal bribery statute, [18 U.S.C.] § 201, for

example, generally applies only to federal

public officials, so § 1346’s application to

state and local corruption and to private

sector fraud reaches misconduct that might

otherwise go unpunished.” Accordingly, we

read Skilling as recognizing that § 1346

prosecutions may involve misconduct that is

also a violation of state law.

UNITED STATES V. CHRISTENSEN 31

United States v. Teel, 691 F.3d 578, 583–84 (5th Cir. 2012)

(citations and footnote omitted) (emphasis in original). We

agree with the Fifth Circuit. The district court did not err on

this issue. We affirm.

D. Jury Instruction Challenges

Whether jury instructions omit or misstate elements of a

statutory crime or adequately cover a defendant’s proffered

defense are questions of law reviewed de novo. United States

v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). We review a

district court’s formulation of jury instructions for abuse of

discretion. Id. “The trial court has substantial latitude so

long as its instructions fairly and adequately cover the issues

presented.” United States v. Hicks, 217 F.3d 1038, 1045 (9th

Cir. 2000). Jury instructions, even if imperfect, are not a

basis for overturning a conviction absent a showing that they

prejudiced the defendant. United States v. de Cruz, 82 F.3d

856, 864–65 (9th Cir. 1996).

1. Computer Fraud and Unauthorized Computer Access

Claims

Both computer fraud and unauthorized computer access

are crimes under the Computer Fraud and Abuse Act

(CFAA), 18 U.S.C. § 1030.5 Turner was convicted of aiding

5

18 U.S.C. § 1030(a) provides:

Whoever— . . . (2) intentionally accesses a computer

without authorization or exceeds authorized access, and

thereby obtains— . . . (B) information from any

department or agency of the United States; or . . .

(4) knowingly and with intent to defraud, accesses a

protected computer without authorization, or exceeds

32 UNITED STATES V. CHRISTENSEN

and abetting computer fraud by paying telephone company

employees, including Teresa Wright, to obtain cable pairing

information from the company’s computer system. This

information was then used to facilitate PIA’s wiretapping

activities. Arneson was convicted of unauthorized computer

access of United States agency information for accessing

confidential police databases to obtain information about

various PIA investigative targets. Pellicano was convicted of

aiding and abetting both computer fraud and unauthorized

computer access for his involvement with Arneson’s and

Turner’s activities.

Following the convictions, this court decided United

States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc).

Nosal held the term “exceeds authorized access,” an element

of both offenses under the CFAA, to be “limited to violations

of restrictions on access to information, and not restrictions

on its use.” Id. at 864. Based on Nosal, we vacate the

convictions under the CFAA.

Nosal was a former employee of the Korn/Ferry executive

search firm. He intended to start a competing enterprise and

asked several of his former colleagues to provide him with

confidential and proprietary information from the firm’s

computers. The Korn/Ferry employees were authorized to

access the information for purposes of doing their job, but the

use to which they put the information was unauthorized.

Nosal was charged with aiding and abetting computer fraud.

The district court dismissed the charges against Nosal for

authorized access, and by means of such conduct

furthers the intended fraud and obtains anything of

value. . . shall be punished as provided in subsection (c)

of this section.

UNITED STATES V. CHRISTENSEN 33

failure to state an offense, and we affirmed, noting that a

broader definition of the term “access” would allow criminal

liability to “turn on the vagaries of private policies.” Id. at

860.

The district court here instructed the jurors to return a

guilty verdict if they found that Turner “knowingly and

intentionally aided, counseled, commanded, induced, or

procured [a person] to commit the crime of computer fraud,”

defined in relevant part as “knowingly access[ing] without

authorization or exceed[ing] authorized access of a computer

. . . with the intent to defraud.” The court instructed further:

[A] defendant exceeds authorized access . . .

when the defendant accesses a computer with

authorization but uses such access to obtain

information in the computer that the

defendant is not entitled to obtain.

A defendant obtains information merely

by observing it on the computer and need not

remove the information from the computer to

have violated this section.

No defendant objected to these instructions at

trial, and thus our review is for plain error.6

Although it was not obvious to the district

court at the time, this definition of exceeding

authorized access was flawed in that it

allowed the jury to convict for unauthorized

6

As previously noted, the plain error standard applies on direct appeal

even where an intervening change in the law is the source of the error.

Johnson, 520 U.S. at 466–68.

34 UNITED STATES V. CHRISTENSEN

use of information rather than only for

unauthorized access. Such an instruction is

contrary to Nosal, and therefore the

instruction constituted plain error.

The error was also prejudicial. Not anticipating Nosal,

the government made no attempt to prove that Wright

accessed any databases that she was not authorized to access

in the course of doing her job. Although the government now

contends that Wright’s use of the code “ERR” upon logging

out in an attempt to cover her tracks constituted evidence of

unauthorized access, we are not persuaded. “ERR” was a

code that phone company employees were instructed to use

if they accessed an account by accident. The use of that code

did not necessarily prove that the employee was not

authorized to access the database. Wright might have used the

“ERR” code simply to divert suspicion as to what she was

doing. That use of the “ERR” code may have violated

company policy, but Wright may nonetheless have been

authorized to access the database. Under Nosal, unauthorized

use was not enough to support the convictions of Turner and

Pellicano for aiding and abetting computer fraud by Wright.

We reach a similar conclusion on the convictions

associated with Arneson’s misuse of information from the

LAPD database. The government contends that Nosal does

not preclude criminal liability under the CFAA for violations

of state or federal law that restrict access to certain types of

information. See, e.g., 28 C.F.R. § 20.33(d) (restricting the

dissemination of certain criminal history information). This

argument lacks merit. Those laws arguably prohibited

Arneson’s conduct based on the way the information was

used, as distinguished from the way it was accessed, but that

does not expand the reach of the CFAA. Congress has

UNITED STATES V. CHRISTENSEN 35

created other statutes under which a government employee

who abuses his database access privileges may be punished,

but it did not intend to expand the scope of the federal anti-

hacking statute. See Nosal, 676 F.3d at 857 & n.3 (refusing

to “transform the CFAA from an anti-hacking statute into an

expansive misappropriation statute,” and citing another

statute restricting the use of information under which a

defendant might properly be charged).

The jury instructions defining both computer fraud and

unauthorized computer access of United States agency

information were plainly erroneous under Nosal. The error

was prejudicial. We therefore vacate Turner’s conviction for

aiding and abetting computer fraud, Arneson’s convictions

for computer fraud and unauthorized computer access, and

Pellicano’s convictions for aiding and abetting both computer

fraud and unauthorized computer access. We remand for

further proceedings as may be appropriate. If the government

so decides, it may seek to retry the defendants on these

charges.

2. Identity Theft Claims

Turner, Arneson, and Pellicano contend that their

convictions for certain other offenses cannot stand once the

CFAA computer fraud and unauthorized computer access

convictions have been set aside. The convictions at issue are

for identity theft under 18 U.S.C. § 1028 and racketeering

(both the conspiracy and the substantive offense) under

18 U.S.C. § 1962(c)–(d).

Identity theft is defined as the knowing possession, use,

or transfer of a means of identification with the intent to

36 UNITED STATES V. CHRISTENSEN

commit another crime under either federal or state law.7

18 U.S.C. § 1028. Similarly, a racketeering conviction

requires the jury to find certain other criminal violations.

Here, to support a conviction for identity theft, the

government alleged criminal intent in the form of either

computer fraud under CFAA or unauthorized computer

access under the California Penal Code. Identity theft was

then identified as an underlying predicate act for the RICO

conviction. Defendants argue that the need to vacate their

CFAA convictions requires that the identity theft and RICO

convictions also be set aside.

Defendants’ arguments fail. The alleged errors are

subject to plain error review because timely objections were

not made at trial. Defendants cannot establish that the CFAA

error prejudiced them or affected their substantial rights in

connection with the identity theft and racketeering

convictions.

To return a guilty verdict for identity theft, the jurors were

instructed that they had to find criminal intent under either

the CFAA, 18 U.S.C § 1030(a)(4), or under California Penal

Code § 502(c)(2). While the jury instructions relating to the

CFAA were plainly erroneous, the instructions relating to the

California statute were not. Although a verdict that may be

based on a legally invalid ground must ordinarily be set aside,

7

In relevant part, the text of the identity theft statute reads:

“(a) Whoever, in a circumstance described in subsection (c) of this section

. . . (7) knowingly transfers, possesses, or uses, without lawful authority,

a means of identification of another person with the intent to commit, or

to aid or abet, or in connection with, any unlawful activity that constitutes

a violation of Federal law, or that constitutes a felony under any applicable

State or local law . . . shall be punished as provided in subsection (b) of

this section.” 18 U.S.C. § 1028.

UNITED STATES V. CHRISTENSEN 37

see Griffin v. United States, 502 U.S. 46, 58 (1991), reversal

is not required “if it was not open to reasonable doubt that a

reasonable jury would have convicted” the defendant on the

valid ground. Pelisamen, 641 F.3d at 406 (quoting United

States v. Black, 625 F.3d 386, 388 (7th Cir. 2010)) (internal

quotation marks omitted); see also Johnson, 520 U.S. at 470

(declining to exercise discretion to correct plain error where

evidence in support of guilt was “‘overwhelming’”).

We do not doubt that the jury would have convicted

Turner, Arneson, and Pellicano for identity theft on the valid

ground of underlying intent to violate the California Penal

Code. The statute provides:

(c) Except as provided in subdivision (h), any

person who commits any of the following acts

is guilty of a public offense . . . (2) Knowingly

accesses and without permission takes, copies,

or makes use of any data from a computer,

computer system, or computer network, or

takes or copies any supporting documentation,

whether existing or residing internal or

external to a computer, computer system, or

computer network.

Cal. Penal Code § 502.8 “Access” is defined as “to gain entry

8

Subdivision (h) exempts “acts which are committed by a person within

the scope of his or her lawful employment.” Cal. Penal Code § 502(h)(1).

“For purposes of this section, a person acts within the scope of his or her

employment when he or she performs acts which are reasonably necessary

to the performance of his or her work assignment.” Id. Defendants do not

argue that Wright and Arneson were acting within the scope of their

employment. Had they made this argument, we would have rejected it.

Neither Wright’s nor Arneson’s database searches were necessary for the

38 UNITED STATES V. CHRISTENSEN

to, instruct, . . . or communicate with, the logical,

arithmetical, or memory function resources of a computer,

computer system, or computer network.” Cal. Penal Code

§ 502(b)(1).

Defendants argue that we should interpret the state statute

consistent with the federal statute as interpreted by Nosal, but

we disagree. The statutes are different. In contrast to the

CFAA, the California statute does not require unauthorized

access. It merely requires knowing access. Compare

18 U.S.C. § 1030(a)(2) with Cal. Penal Code § 502(c)(2).

What makes that access unlawful is that the person “without

permission takes, copies, or makes use of” data on the

computer. Cal. Penal Code § 502(c)(2). A plain reading of

the statute demonstrates that its focus is on unauthorized

taking or use of information. In contrast, the CFAA

criminalizes unauthorized access, not subsequent

unauthorized use. Nosal, 676 F.3d at 864.

Defendants argue that the state statute’s definition of

“access” does not cover mere use of the computer. They cite

Chrisman, 155 Cal.App.4th at 34–35, in which the California

Court of Appeal held that a police officer who logged in to a

police database to satisfy personal curiosity did not violate

the statute because § 502 “defines ‘access’ in terms redolent

of ‘hacking,’” and “[o]ne cannot reasonably describe

[Chrisman’s] improper computer inquiries about celebrities,

friends, and others as hacking.” Other California Court of

Appeal decisions point to a different conclusion, however.

performance of any legitimate work assignment. But see Chrisman v. City

of Los Angeles, 155 Cal.App.4th 29, 34–37 (2007) (policeman who logged

in to a police database to satisfy personal curiosity about celebrities was

acting within the scope of his employment).

UNITED STATES V. CHRISTENSEN 39

For example, in Gilbert v. City of Sunnyvale, 130 Cal.App.4th

1264, 1281 (2005), the court cited § 502(c)(2) in upholding

a police officer’s termination after he accessed a police

database and revealed to a third party the results of the

searches he ran. In another case, the court never doubted that

the defendant “accessed” information when he made a copy

of his employer’s proprietary source code and used it to found

a competing business. People v. Hawkins, 98 Cal.App.4th

1428 (2002).

We conclude that the term “access” as defined in the

California statute includes logging into a database with a

valid password and subsequently taking, copying, or using the

information in the database improperly. We base that

conclusion primarily on the plain language of the statute.

Otherwise, the words “without permission” would be

redundant, since by definition hackers lack permission to

access a database. The exception carved out in subdivision

(h) provides further support for our position. If access were

by definition unauthorized, there would be no need to exempt

employees acting within the scope of their lawful

employment. Accordingly, we find no error in the jury

instructions regarding unauthorized computer access under

California law.

Moreover, any error that might have infected the jury

instructions was not plain. “‘Plain’ is synonymous with

‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734

(citation omitted). A “court of appeals cannot correct an error

[under plain error review] unless the error is clear under

current law.” Id. State case law is yet undeveloped on this

issue: the California Supreme Court has never ruled on the

definition of access in § 502(c)(2), and thus the asserted error

was, and is, not clear. See Hagan v. Caspari, 50 F.3d 542,

40 UNITED STATES V. CHRISTENSEN

547 (8th Cir. 1995) (“[W]e are strongly inclined to agree . . .

that until the state’s highest court has spoken on a particular

point of state law, the law of the state necessarily must be

regarded as unsettled.”).

It is apparent from the jury verdict that the jury found

facts that supported a finding of criminal intent under the

California statute, so permitting the jury to rely on criminal

intent under the CFAA was harmless. The jury returned

guilty verdicts for the substantive offenses of computer fraud

and unauthorized computer access under the CFAA. Even

though those convictions must be set aside, the facts that the

jury necessarily found in returning those guilty verdicts

clearly evince intent under § 502. Specifically, the jury must

have found that Turner induced Wright to provide him with

confidential cable pairing information from the phone

company database and that Arneson provided Pellicano with

confidential criminal history information from the LAPD

database. The jury instructions defined unauthorized access

under § 502 as “the knowing access and taking, copying, or

making use of data or supporting documentation from a

computer, computer system, or computer network without

permission to do so.” Given the evidence presented and the

verdict rendered, the jury would necessarily have found

criminal intent to violate § 502.

Defendants have failed to show prejudice from the

erroneous instruction regarding felonious intent under the

CFAA as a predicate to identity theft. We affirm both the

identity theft and RICO convictions against this challenge.9

9

Defendants’ other challenges to the California law underlying identity

theft also fail. The statute of limitations argument fails because the

relevant statute of limitations is that of identity theft, not that of the

UNITED STATES V. CHRISTENSEN 41

3. Kachikian’s Wiretapping Claims

Kachikian presents a number of challenges to the jury

instructions and argues that they require reversal of his

convictions for conspiracy to intercept wire communications

in violation of 18 U.S.C. § 2511(1)(a), and manufacturing

and/or possessing a wiretapping device in violation of

18 U.S.C. § 2512(1)(b). We are not persuaded by his

arguments.

a. Intent under section 2511

The main theory of Kachikian’s defense was that

Kachikian lacked the required criminal intent because he

believed Pellicano was using his Telesleuth software for

lawful purposes. The court instructed the jury that the

government had to prove that “the defendant acted

intentionally, that is, purposefully and deliberately and not as

a result of accident or mistake.” This instruction was both

accurate and adequate.

underlying unauthorized computer access. Indeed, in order to commit the

crime of identity theft, one need only have the intent to commit a felony;

it is irrelevant whether or not the felony was actually committed.

18 U.S.C. § 1028(a)(7). The argument that the state statute is a “wobbler”

(i.e., it can be either a felony or misdemeanor depending on the

circumstances) fails because a California wobbler “is presumptively a

felony.” United States v. Salazer-Mojica, 634 F.3d 1070, 1073 (9th Cir.

2011). Finally, the argument regarding a lack of instruction to the jury as

to a required loss amount fails because the monetary amount limits a

different section of the statute. See Cal. Penal Code § 502(h)(2)

(modifying (c)(3)). Even were that not the case, the error is harmless, as

the jury would no doubt have found the information exchanged worth

more than $250.

42 UNITED STATES V. CHRISTENSEN

Kachikian argues that the court abused its discretion in

failing to instruct the jury that, in order to find him guilty, it

must find he intended to break the law. Kachikian never

proposed such an instruction, and thus our review is for plain

error.

Kachikian contends that the word “intentionally” in the

two statutes must be read to require a defendant to know that

his conduct is unlawful.10 He bases his argument on the

history of the wiretapping statutes. As originally enacted, the

statutes applied to any person who “willfully” intercepted a

wire communication or who “willfully” manufactured or

possessed a wiretapping device. In 1986, as part of the

Electronic Communications Privacy Act, Congress

substituted the word “intentionally” for the word “willfully”

in §§ 2511 and 2512. Kachikian argues that this substitution

was not intended to reduce the statute’s mental state

requirement, but rather to increase it. See Bartnicki v.

Vopper, 532 U.S. 514, 547 n.4 (2001) (Rehnquist, C.J.,

dissenting) (arguing that by changing the language in the

statute from “willful” to “intentional,” Congress intended to

increase the scienter requirement). Assuming that is correct

(and we reach no conclusion on whether it is), the statute

would require the intentional violation of a known legal duty.

Kachikian’s challenge fails regardless because he has not

established that he was prejudiced or that his substantial

rights were otherwise affected.

10

Section 2511 applies to anyone who “intentionally intercepts,

endeavors to intercept, or procures any other person to intercept or

endeavor to intercept, any wire, oral, or electronic communication.”

18 U.S.C. § 2511(1)(a). Section 2512 applies to anyone who

“intentionally . . . manufactures, assembles, possesses, or sells” a

wiretapping device. 18 U.S.C. § 2512(1)(b).

UNITED STATES V. CHRISTENSEN 43

Kachikian was acquitted of the crime of intercepting wire

communications in violation of § 2511. He was convicted

only of conspiring to intercept wire communications. In

instructing the jury, the district court defined the crime of

conspiracy as “the agreement to do something unlawful.”

The jury was told: “One becomes a member of a conspiracy

by willfully participating in the unlawful plan with the intent

to advance or further some object or purpose of the

conspiracy . . . . On the other hand, one who has no

knowledge of a conspiracy but happens to act in a way that

furthers some object or purpose of the conspiracy does not

thereby become a conspirator.”

A rational juror would have understood those instructions

to mean that in order to find Kachikian guilty, the jury had to

find that he agreed to do something unlawful and, in addition,

that he acted with the intent to further the unlawful

agreement. If, on the other hand, the jury found that

Kachikian acted without knowing that Pellicano’s intent was

unlawful, then it would not have found Kachikian guilty of

conspiracy.

“[T]he relevant inquiry is whether the instructions as a

whole are misleading or inadequate to guide the jury’s

deliberation.” United States v. Garcia-Rivera, 353 F.3d 788,

792 (9th Cir. 2003) (internal quotation marks omitted). We

think the instructions were adequate to guide deliberation.

The jurors were well aware of Kachikian’s defense that he did

not know of Pellicano’s unlawful intentions. The fact that the

jury convicted Kachikian of conspiracy meant that the jury

did not believe Kachikian’s version of the story.

44 UNITED STATES V. CHRISTENSEN

b. Intent under section 2512

Kachikian also argues that the court erred in instructing

the jury on the necessary criminal intent for the crime of

manufacturing a wiretapping device under § 2512. The

instructions required the government to prove that “the

defendant knew or had reason to know that the design of [the

mechanical or other] device rendered it primarily useful for

the purpose of the surreptitious interception of wire, oral, or

electronic communications.” Kachikian contends that the

instruction should have required proof that the defendant

knew the device would be used illegally. Kachikian

misunderstands the statute.

Section 2512 makes it a crime to “intentionally . . .

manufacture[], assemble[], possess[], or sell[] any electronic,

mechanical, or other device, knowing or having reason to

know that the design of such device renders it primarily

useful for the purpose of the surreptitious interception of

wire, oral, or electronic communications.” 18 U.S.C.

§ 2512(1)(b). “Intentionally,” as written in the statute,

modifies “manufactures, assembles, possesses, or sells.” It

does not modify “useful” or “use.” The crime lies in

intentionally manufacturing the device, knowing that it could

be primarily used for wiretapping. The statute does not

require intent or knowledge that the device would actually be

used unlawfully.

Kachikian argues to the contrary based on the statute’s

use of the word “surreptitious.” Specifically, he points out

that § 2512 covers devices “primarily useful for the purpose

of the surreptitious interception of wire, oral, or electronic

communications.” Id. (emphasis added). He proposed to the

district court that the jury be instructed that “surreptitious”

UNITED STATES V. CHRISTENSEN 45

interception meant “unauthorized, in other words unlawful”

interception. Under this theory, lawful intercepts by law

enforcement would not qualify as surreptitious. Kachikian’s

defense was that if he manufactured the wiretapping devices

believing that they would be used primarily for law

enforcement-authorized purposes, he would not be breaking

the law because he could not have “[had] reason to know that

the design of such device renders it primarily useful for . . .

surreptitious interception” of wire communications. Id.

The term “surreptitious” as used in the statute was aimed

at the secret nature of the interception, not the illegality of it.

That is the common understanding of the word. See United

States v. Lande, 968 F.2d 907, 910 (9th Cir. 1992) (holding

that equipment manufactured to intercept and descramble

satellite television programming met the “surreptitious”

element because the producers of satellite programming were

unable to detect the interception equipment); United States v.

Bast, 495 F.2d 138, 143 (D.C. Cir. 1974) (“The words

‘surreptitious interception’ connote[], in plain and ordinary

usage, ‘secret listening.’” (footnote omitted)). The relevant

perspective is that of the persons whose communications are

intercepted. In this context, “surreptitious interception”

means an interception of which the targets are unaware.

Even were we to accept Kachikian’s definition of

surreptitious, i.e., “secret and unauthorized; clandestine;

action by stealth or secretly,” United States v. Biro, 143 F.3d

1421, 1428 (11th Cir. 1993), that does not require us to accept

that “surreptitious interception” excludes wiretaps by law

enforcement. What matters is that the interception was not

authorized by the persons involved in the communication.

Accordingly, the court properly rejected Kachikian’s

instruction as to the meaning of the word “surreptitious.”

46 UNITED STATES V. CHRISTENSEN

Moreover, Kachikian’s interpretation does not make sense

in light of the rest of the statute. Congress carved out an

exception in § 2512(2)(b) for private citizens who

manufacture wiretapping devices under government contract.

That exception provides: “It shall not be unlawful under this

section for . . . an officer, agent, or employee of, or a person

under contract with, the United States, a State, or a political

subdivision thereof, [to manufacture or possess a wiretapping

device].” 18 U.S.C. § 2512(2)(b). Kachikian does not fit

within that exception, and he does not contend otherwise.

That exception would be unnecessary if lawful government

wiretaps were, by definition, not covered by the statute

because they are not surreptitious. Were that the case, the

manufacture of wiretapping devices under government

contract would already be exempt from criminal liability

under § 2512(1).

Kachikian also tries to support his argument by

contending that the phrase “electronic, mechanical, or other

device,” as found in § 2512, is a term of art that excludes

devices destined for use by law enforcement. He bases this

on the definition found in the statute: “‘electronic,

mechanical, or other device’ means any device or apparatus

which can be used to intercept a wire, oral, or electronic

communication other than . . . [a device] being used by a

provider of wire or electronic communication service in the

ordinary course of its business, or by an investigative or law

enforcement officer in the ordinary course of his duties.”

18 U.S.C. § 2510(5)(a). Though he did not propose such an

instruction, Kachikian claims that the court should have

instructed the jury that, in order to prove that Kachikian was

guilty of the crime, the government would have to prove he

did not intend for law enforcement to possess the device.

UNITED STATES V. CHRISTENSEN 47

Once again, Kachikian misunderstands the language of

the statute. The verb “to use” is in the present, not the future,

tense. The exception applies to devices being used, not to be

used. A device that “can be used” to intercept wire

communications is not removed from the reach of the

criminal statute until it is actually “being used” by law

enforcement. It is irrelevant, therefore, whether or not

Kachikian may have intended Telesleuth to be used by law

enforcement. At the time Kachikian acted, he knew that his

creation was not in fact being used by law enforcement, so

there can be no prejudice from a lack of instruction on

wiretapping devices for use by law enforcement.

Furthermore, an instruction that defines “electric, mechanical,

or other device” as a device not for use by law enforcement

would have improperly shifted the burden of proof to the

government to show that the type of device Pellicano used

was never meant for use by law enforcement. It was not plain

error for the court not to have issued such an instruction.

A mistaken belief that Kachikian was manufacturing the

device for law enforcement was no defense under § 2512.

Kachikian argued that he manufactured the device for another

purpose, without knowing that it could potentially be used as

a wiretapping device, but the instruction as given

contemplated that defense, and the jury was not persuaded by

it. Theoretically, he might have had a valid defense if either

(1) he did not intentionally manufacture the device (e.g., he

manufactured it by accident), or (2) he was a government

employee or under government contract to manufacture the

device. Kachikian did not argue or present any evidence in

support of either of these defenses at trial, however, so the

lack of an instruction covering those circumstances was not

an abuse of discretion.

48 UNITED STATES V. CHRISTENSEN

c. Good-faith instruction

At trial, Kachikian proposed the following instruction:

“That Defendant Kevin Kachikian actually believed, even if

mistakenly, that Defendant Pellicano intended to market the

Telesleuth software and related hardware components to law

enforcement is a complete defense [to all counts with which

he was charged] because Mr. Kachikian would not possess

the requisite ‘knowledge’ and ‘intent’ to be convicted of these

offenses.” The district court declined to give the proposed

instruction. That decision was not erroneous.

The proposed instruction was not a proper statement of

the law. It would have required the jury to acquit Kachikian

if he believed that Pellicano intended to sell to law

enforcement, even if he also knew that Pellicano was

planning to use the software and other devices for illegal

wiretapping. It was also incorrect because, as explained

above, it did not matter whether Kachikian believed Pellicano

intended to market the device to law enforcement. He did not

fit the exception provided within the statute, and the statute

does not broadly exclude potential law enforcement usage.

It was enough that he knew the device could be used

primarily to intercept wire communications. Accordingly, the

court did not abuse its discretion in rejecting the proposed

instruction.

d. Supplemental instruction

Counsel for Kachikian stated in closing—even after the

court rejected his erroneous interpretation of

surreptitious—that law enforcement wiretaps are not

surreptitious because “those who have their calls intercepted

. . . are notified at the end of the wiretap.” The court

UNITED STATES V. CHRISTENSEN 49

thereafter issued a supplemental jury instruction to cure

counsel’s misstatement of the law: “[W]ith regard to Count

77, in determining the meaning of ‘surreptitious,’ it is not

relevant that notification of the interception may later be

given.” In doing so, the court did not abuse its discretion or

violate any procedural rule. See Fed. R. Crim. P. 30 advisory

comm. n. to 1987 amend. (“[T]he court retains power . . . to

add instructions necessitated by the arguments.”).

e. Recording oneself

Kachikian argues that the district court erred in failing to

instruct the jury on the wiretapping exception set forth in

§ 2511(2)(d), which specifies that it is not a violation of the

statute to record one’s own telephone conversations.11 He

bases this contention on the fact that the jury convicted him

of conspiring to wiretap, yet simultaneously acquitted him of

all counts charging him with the substantive crime of

wiretapping. Kachikian presented no such instruction, so

review is for plain error.12

11

The full text reads: “It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire, oral, or electronic

communication where such person is a party to the communication or

where one of the parties to the communication has given prior consent to

such interception unless such communication is intercepted for the

purpose of committing any criminal or tortious act in violation of the

Constitution or laws of the United States or of any State.” 18 U.S.C.

§ 2511(2)(d).

12

Kachikian argues that review should be de novo because he objected

to a supplemental instruction defining the “object” of the conspiracy as not

limited to the substantive wiretapping counts, but rather “interception of

wire communications” generally. However, his objection complained that

the supplemental instruction created a variance from the indictment’s

charged scope of agreement, not that it allowed conviction for helping

50 UNITED STATES V. CHRISTENSEN

Theoretically, if Kachikian were guilty of conspiring to

intercept wire communications, and if one of his co-

conspirators were guilty of the crime of interception of wire

communication, and if the substantive wiretapping violations

were foreseeable as a necessary or natural consequence of the

conspiracy, then Kachikian should have been found guilty of

the crime of illegal interception. See Pinkerton v. United

States, 328 U.S. 640, 645 (1946). The jurors were instructed

as much. According to Kachikian, the inconsistent verdict

shows that the jurors mistakenly believed that Pellicano’s

recording of his own conversations was illegal, and because

Kachikian admitted he knew Pellicano was using Telesleuth

to record his own calls, they convicted him for conspiracy

even though they did not believe Kachikian intended to help

Pellicano wiretap others.

In substance, the argument is less a complaint about an

error in the instructions than it is about a potentially

inconsistent verdict, but an inconsistent verdict is not in itself

a sufficient reason to set aside a conviction. See United

States v. Powell, 469 U.S. 57, 66 (1984). A conviction for

conspiracy is not necessarily inconsistent with a failure to

convict on substantive charges. See United States v. Fiander,

547 F.3d 1036, 1040–41 (9th Cir. 2008). Perhaps the jury

believed the evidence sufficient to show Kachikian conspired

with Pellicano to illegally wiretap someone, but insufficient

Pellicano record his own calls. Kachikian proposed no instruction relating

to the affirmative defense contained in 18 U.S.C. § 2511(2)(d), and the

court had no duty to issue such an instruction sua sponte. See United

States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997) (upholding non-

instruction on statutory exception and noting this circuit’s “well-settled

rule that a defendant bears the burden of proving he comes within an

exception to an offense”).

UNITED STATES V. CHRISTENSEN 51

to show that he conspired as to the specific individuals and

instances named in the indictment.

There was, in any event, no obvious error in the

instructions, if there was error at all. See Johnson, 520 U.S.

at 467 (citing Olano, 507 U.S. at 734) (noting that “plain”

error is synonymous with “clear or obvious” error).

Kachikian did not argue at trial that he believed Pellicano

intended only to record his own conversations. See United

States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) (“A

failure to give a jury instruction, even if in error, does not

seriously affect the fairness and integrity of judicial

proceedings if the defense at trial made no argument relevant

to the omitted instruction.”).

For these reasons, we affirm Kachikian’s conviction

against his jury instruction challenges.

E. Nicherie’s Conviction for Aiding and Abetting

Wiretapping

Nicherie was convicted for aiding and abetting

wiretapping. He argues that his conviction must be

overturned because subsequent developments in the law have

invalidated one of the two theories presented by the

prosecution, and it is impossible to know which theory the

jury relied on in returning a guilty verdict. He also argues

that there was insufficient evidence to establish illegal

activity on his part within the relevant time period. Under the

statute of limitations, any conviction must be based on

conduct after October 26, 2000. We agree that one of the

government’s theories was improper. There was sufficient

evidence to support a conviction on the other theory, but the

evidence was not so overwhelming to cause us to conclude

52 UNITED STATES V. CHRISTENSEN

that the error was harmless. As a result, we vacate the

conviction.

During trial, the government presented two distinct

theories of Nicherie’s guilt on the charge of aiding and

abetting wiretapping, arguing that either could support a

conviction. One was that he hired Pellicano to wiretap Ami

Shafrir. The other was that he listened to and translated

recordings of Shafrir’s intercepted phone calls.13 In order to

convict, the jury had to find that Nicherie either (1) paid

Pellicano for wiretapping services after October 26, 2000, or

(2) listened to and translated recordings of an ongoing

wiretap after October 26, 2000.

The government’s first theory was valid. If the jury found

that Nicherie hired Pellicano to do the wiretapping during the

relevant period of time, meaning after October 26, 2000, he

could properly be convicted of aiding and abetting the

interception. Nicherie argues that the evidence was

insufficient to support a conviction on that theory, but we

disagree. The evidence included testimony from Sarit Shafrir

that Nicherie told her he had hired a private investigator

“[a]round August of 2000 until December, January of 2001,”

and testimony from Tarita Virtue that Pellicano told her that

the Nicherie brothers retained PIA to perform wiretapping

services at “the end of 2000, beginning of 2001.” The

government also introduced evidence that Nicherie paid

Pellicano to wiretap prior to the relevant period and argued

13

In closing, the government postulated: “It is proved that Defendant

Nicherie hired Defendant Pellicano for the purpose of wiretapping Ami

Shafrir, and that he knowingly aided and abetted that wiretapping by

hiring him, by paying him, and by sitting in the Pellicano Investigative

Agency lab and listening to and translating the intercepted conversations.”

UNITED STATES V. CHRISTENSEN 53

that this meant Nicherie had both the desire and the means to

do so during the relevant period. This evidence included

checks to Pellicano from Gedese Management, which Sarit

Shafrir testified was one of Nicherie’s shell companies. She

also testified that the checks were signed by Nicherie. We

conclude that the evidence presented was sufficient for a

rational jury to find that Nicherie aided and abetted the wire

interception by procuring Pellicano’s services within the

statute of limitations period.

The second theory, however, was rendered legally

defective by this court’s later ruling in Noel v. Hall, 568 F.3d

743 (9th Cir. 2009), in which we held that playing a recording

of a previously intercepted wire communication did not

amount to a new interception in violation of the Wiretap Act.

“No new interception occurs when a person listens to or

copies the communication that has already been captured or

redirected. Any subsequent use of the recorded conversation

is governed not by the prohibition on interception, but by the

prohibition . . . on the use and disclos[ure] of intercepted wire

communications.” Id. at 749 (second alteration in original)

(internal quotation marks omitted).

The instructions given to the jury allowed conviction for

aiding and abetting a wire interception based on the theory

that translating a recording of a previously intercepted wire

communication constituted a crime.14 Because Nicherie did

14

The instructions were as follows:

In order for Defendant Nicherie to be found guilty

of aiding and abetting the interception of wire

communications, the Government must prove each of

the following elements beyond a reasonable doubt.

54 UNITED STATES V. CHRISTENSEN

not object to the jury instruction at trial, we review for plain

error, as discussed above at 18. On direct review, changes in

the law between the time of trial and the time of appeal are

applied to illuminate error even if the error might not have

been apparent at the time of the trial. “[I]t is enough that an

error be ‘plain’ at the time of appellate consideration.”

Johnson, 520 U.S. at 468.

The error in the jury instructions was plain under Noel.

The crime of wiretapping was complete when the recording

was made, and replaying the recording did not constitute a

new interception. Because “a defendant may not be

convicted of aiding and abetting a completed offense,” United

States v. Lopez, 484 F.3d 1186, 1191 (9th Cir. 2007) (en

banc), Nicherie’s subsequent listening and translating did not

in itself constitute aiding and abetting the interception of wire

communication under § 2511(1)(a) of the Wiretap Act, the

offense for which he was charged and convicted.

First, the crime of interception of wire

communications was committed by someone.

Second, Defendant Nicherie knowingly and

intentionally aided, counseled, commanded, induced, or

procured that person to commit the crime of

interception of wire communications.

And third, Defendant Nicherie acted before the

crime was completed.

. . . . If you find from the evidence that the

interception of wire communications of Ami Shafrir

occurred, you must further find that the offense

continued after October 26, 2000.

UNITED STATES V. CHRISTENSEN 55

The government argues that the conviction was not

inconsistent with Noel because the evidence permitted the

jury to find that Nicherie’s review and translation of the

recordings occurred while the wiretap hardware remained in

place, after October 26, 2000, so that his actions aided the

continuation of the wiretapping. Yet each discrete

interception is a violation of the statute, and thus each

recording is associated with a completed crime. A conviction

for aiding and abetting interception therefore cannot be based

only on review and translation of previously recorded

communications. As Noel specifically held, subsequent use

of the recorded conversation, including listening to and

translating its contents, is governed by the prohibition on use

and disclosure of intercepted conversations. Misuse of

previously intercepted information is not what Nicherie was

charged with or convicted of doing.

Even though there was sufficient evidence for the jury to

convict on the first “procurement theory,” the evidence was

not so overwhelming that the instructional error regarding the

second “listening and translating” theory was harmless. See

United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir.

2009) (erroneous jury instruction was not harmless when

evidence in support of the proper ground was “ambiguous”);

cf. Johnson, 520 U.S. at 469–70 (reversal for erroneous jury

instruction was unwarranted where supporting evidence was

“overwhelming”). It is reasonably possible that the jury

rejected the non-time-barred evidence supporting the first

theory and convicted instead on the second theory. Therefore

we conclude that Nicherie’s substantial rights were affected

by the instructional error, as the jury’s verdict may have been

based on a factual finding that did not support the conviction.

See Harrison, 585 F.3d at 1161. The plain error standard is

satisfied.

56 UNITED STATES V. CHRISTENSEN

As a result, we vacate Nicherie’s conviction for aiding

and abetting a wire interception and remand for such further

proceedings as may be appropriate. If the government so

decides, it may seek to retry Nicherie on the charge.

F. Attorney-client privilege and work product

doctrine

As described above, the enforcement of a search warrant

for PIA’s offices in November 2002 led to the discovery of

recordings Pellicano had secretly made of his phone calls

with Christensen. In the recorded calls Pellicano and

Christensen discussed the wiretap on Lisa Bonder, the ex-

wife of Kirk Kerkorian, whom Christensen represented in

child support litigation. The government subsequently

obtained a broader warrant permitting the seizure of the

recordings, and they became key evidence of the Bonder

wiretap in the second trial.

Pellicano and Christensen argue that the recordings of

their conversations discussing the Bonder wiretap should not

have been released to the prosecutors in this case and

thereafter admitted into evidence in the second trial because

their conversations were protected under the attorney-client

privilege. Defendants argue that Christensen hired Pellicano

as a private investigator to assist Kerkorian in litigation

against Bonder. Because the recordings reflected

conversations between Christensen and Pellicano discussing

the litigation and revealing confidences of Christensen’s

client, Kerkorian, they contend that the attorney-client

privilege protected the recordings. They also argue that we

should reverse the district court because it failed to follow the

procedures for handling the investigation of potentially

UNITED STATES V. CHRISTENSEN 57

privileged materials established in United States v. Zolin,

491 U.S. 554 (1989).

Although we agree that the district court initially erred in

not applying Zolin, the district court recognized its own error

and reconsidered its decision under the correct framework.

Any error in not applying Zolin earlier in the case was

harmless.

We affirm the result of the district court’s reconsidered

Zolin analysis. The substantial majority of the recordings did

not qualify for protection under the attorney-client privilege,

and production of the limited portions that might have been

privileged was harmless. Neither did the recordings qualify

for protection under the work product doctrine.

1. Standard of Review

“Whether an evidentiary showing is sufficient to allow in

camera review under the Zolin test is a mixed question of law

and fact subject to de novo review.” In re Grand Jury

Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); see also

Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 829 (9th Cir.

1994). Once an adequate showing under Zolin’s first step has

been made, “the decision whether to engage in in camera

review rests in the sound discretion of the district court.”

Zolin, 491 U.S. at 572. Under Zolin’s second step, “‘rulings

on the scope of the privilege,’ including the crime-fraud

exception, ‘involve mixed questions of law and fact and are

reviewable de novo, unless the scope of the privilege is clear

and the decision made by the district court is essentially

factual; in that case only clear error justifies reversal.’” In re

Napster, Inc. Copyright Litigation, 479 F.3d 1078, 1089 (9th

58 UNITED STATES V. CHRISTENSEN

Cir. 2007) (citation omitted), abrogated on other grounds by

Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).

2. Reconsideration under the correct Zolin process

After the government obtained the Pellicano-Christensen

recordings, it recognized that the recordings could contain

privileged information. So, it set up a system to screen the

recordings for privilege. The district court described that

system:

Recognizing that Pellicano regularly engaged

in work relating to legal matters and at the

behest of attorneys, the government

established a separate group of attorneys and

investigators—the “filter team”—to screen

items for privilege before the items were

released to the team investigating the

underlying case.

Among the materials seized were

numerous recordings of phone conversations

between Christensen and Pellicano. The filter

team believed that the conversations were not

privileged and were in furtherance of a crime.

The team [filed an ex parte application] for a

court order stating such and allowing the team

to release the recordings to those investigating

the underlying case.

The district court then granted a court order permitting the

filter team to release the recordings.

UNITED STATES V. CHRISTENSEN 59

Christensen argues that in granting the court order, the

district court did not follow the correct process under Zolin to

determine that the Pellicano-Christensen recordings were not

privileged or work product protected. Zolin requires a district

court to follow a two-step ex parte process to determine

whether the crime-fraud exception applies to potentially

privileged materials, such as the Pellicano-Christensen

recordings. 491 U.S. at 572. First, “the judge should require

a showing of a factual basis adequate to support a good faith

belief by a reasonable person that in camera review of the

materials may reveal evidence to establish the claim that the

crime-fraud exception applies.” Id. (citation and internal

quotation marks omitted). Second, if the government makes

such a preliminary showing based on evidence other than the

potentially privileged materials themselves, the court may

conduct an in camera review to determine whether the

materials are privileged and, if so, whether the crime-fraud

exception applies. Id.

In initially releasing the Pellicano-Christensen recordings

to government investigators, the district court did not follow

Zolin’s two-step process. The government filed an ex parte

application seeking a crime-fraud ruling on the Pellicano-

Christensen recordings that cited their content. The district

court granted the application without referencing or applying

Zolin. Later realizing its error, the district court reconsidered

the issue under the correct two-step process in ruling on a

motion by Christensen to dismiss the indictment or suppress

the recordings.15 The district court concluded that the

government made a sufficient showing under step one of

15

Christensen filed a motion to recuse the district judge because she had

been exposed to the content of the recordings. The motion was denied by

a different district judge.

60 UNITED STATES V. CHRISTENSEN

Zolin to warrant in camera review. The district court then

conducted an in camera review of the recordings and held

that (1) the recordings were neither attorney-client privileged

nor work product protected, and (2) even if they were, the

crime-fraud exception applied.

The district court did not err in reconsidering privilege

and crime-fraud issues under the correct Zolin framework

after it had erroneously considered the content of the

recordings in its initial ruling on the government’s ex parte

application. United States v. de la Jara, 973 F.2d 746 (9th

Cir. 1992), is instructive. There, the district court admitted a

letter to the defendant from his attorney after ruling sua

sponte that the letter fell within the crime-fraud exception. Id.

at 748. The district court did not follow Zolin in admitting the

letter. This court affirmed on the ground that the defendant

had waived the attorney-client privilege. Id. at 749. Had it not

affirmed on that ground, the court explained, it “would be

required to remand the case to the district court” to properly

apply Zolin. Id. at 749 n.1. As the district court in the present

matter rightly pointed out, if we would remand for a district

court to fix a mistake in applying Zolin’s two-step process

after the court saw the potentially privileged document,

“surely [it’s] acceptable for the district court to correct its

own mistake before the appeal.”

We routinely trust juries to follow limiting instructions

when evidence is erroneously admitted. See United States v.

Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining that

jurors are presumed to have “follow[ed] the district court’s

limiting instructions”). We similarly trust district judges to

put evidence out of their minds. The granting of a motion to

strike evidence in a bench trial does not routinely result in a

mistrial simply because the district judge has already heard

UNITED STATES V. CHRISTENSEN 61

the evidence that should not have been presented. Instead, the

district judge is expected to disregard the improper evidence.

District judges are especially adept at reconsidering prior

decisions, as they are asked to do so all the time. See C.D.

Cal. L.R. 7-18 (explaining standard for reconsideration).

Moreover, it is analytically easy for a judge to separate

what is appropriate to consider at each step of the Zolin

analysis. At step one, the judge may consider only evidence

other than the potentially privileged material itself. At step

two, the judge must also consider the content of the material.

There is no reason to believe this analytical framework

cannot be applied properly just because the judge got a sneak

peek at step-two evidence.

In sum, although it was error for the district court not to

follow Zolin’s two-step process, de la Jara, 973 F.2d at 749,

the error was harmless because the district court properly

reconsidered its decision under the correct standard as soon

as the error was brought to its attention. See United States v.

Chen, 99 F.3d 1495, 1503 (9th Cir. 1996) (holding that the

government’s error in submitting potentially privileged

material with an ex parte application for Zolin crime-fraud

determination was harmless because the district judge

explicitly disregarded the allegedly privileged materials). It

makes no difference that in Chen the district judge caught the

mistake in the government’s submission before issuing an

order, whereas here the district judge corrected the error after

issuing an order stating the crime-fraud exception applied. In

both cases, the defendants got what they were entitled to: a

62 UNITED STATES V. CHRISTENSEN

district court properly applying Zolin without considering the

content of the potentially privileged materials.16

3. Zolin’s first step

The district court did not err in holding that the

government met its minimal burden under Zolin’s first step.

Zolin’s first step requires “a factual basis adequate to

support a good faith belief by a reasonable person that in

camera review of the materials may reveal evidence to

establish the claim that the crime-fraud exception applies.”

Zolin, 491 U.S. at 572 (citation and internal quotation marks

omitted). The government must make only “a minimal

showing that the crime-fraud exception could apply.” Grand

Jury Investigation, 974 F.2d at 1071. “Some speculation is

required under the Zolin threshold.” Id. at 1073. The

threshold is “not . . . a stringent one” because “in camera

review of documents is a much smaller intrusion on the

attorney-client privilege than full disclosure.” Id. at 1072. The

first step is meant only “to prevent ‘groundless fishing

expeditions.’” Id. at 1073.

The district court correctly held that the government made

a step-one showing. A reasonable person could believe, in

good faith, that the crime-fraud exception may have applied

to the recordings based on the following:

16

We reject Christensen’s argument that the district court improperly

considered the content of the recordings even when reconsidering the

issue. The court expressly considered only the “non-privileged evidence”

the government submitted, and the court’s analysis did not refer to the

content of the recordings.

UNITED STATES V. CHRISTENSEN 63

1. Evidence that Christensen represented Kerkorian in a

child support dispute with Bonder.

2. Evidence that Christensen’s firm had paid Pellicano

$186,000 near the time of the recorded conversations

at issue.

3. An FBI record reflecting Pellicano’s former

girlfriend’s statement that Pellicano told her he was

listening to Bonder’s conversations.

As the district court explained, this evidence “raised the

inference that the $186,000 was, at least in part, in exchange

for illegal wiretapping services.”17 We agree. Although the

district court’s analysis required “some speculation” that

Christensen, in a misguided attempt to represent Kerkorian

vigorously, hired Pellicano to wiretap Bonder, such

speculation was permitted under Zolin’s first step. Id. at

1072–73.

The district court also had additional evidence before it to

conclude that Zolin’s first step was met. The government

produced evidence that Pellicano recorded many other

persons with whom he discussed wiretapping. This evidence

would support a good faith belief by a reasonable person that

the Pellicano-Christensen recordings might contain similar

discussions about wiretapping, especially in the context of

Christensen’s representation of Kerkorian and the large sums

of money Christensen’s firm had paid Pellicano. The affidavit

also recounted testimony from former PIA employees that

17

The rules of evidence do not apply to a court’s preliminary

determination on whether a privilege exists. Fed. R. Evid. 104(a).

64 UNITED STATES V. CHRISTENSEN

“confirmed the widespread use of wiretapping in Pellicano’s

investigations.”

We conclude that the government made the requisite

“minimal showing” that the Pellicano-Christensen recordings

might contain evidence showing the crime-fraud exception

applied to any privileged communications within them. Cf.

Grand Jury Subpoena 92-1(SJ), 31 F.3d at 830 (holding that

the government met Zolin’s first step in case involving illegal

exports where affidavit based on “testimony of two former

employees . . . as well as on telephone records, invoices, and

other documentary evidence” established that a corporation

used an export license to disguise illegal exports and sought

its counsel’s legal assistance in furtherance of the scheme).

4. Zolin’s second step

Under Zolin’s second step, the district court conducts an

in camera review to determine whether the materials are

privileged and, if so, whether the government has made a

prima facie showing that the crime-fraud exception applies.

Zolin, 491 U.S. at 572; see also United States v. Bauer,

132 F.3d 504, 509 (9th Cir. 1997). The district court here

concluded that “[n]early all of the communications appear not

to be protected by the attorney-client privilege . . . . No more

than a few statements in the approximately six hours of tape

recordings even arguably reveal what might be confidential

information from or concerning Kerkorian.” To the extent

that a small portion of the recordings might otherwise have

qualified as confidential, the district court concluded that they

were not privileged because they did not relate to legal

advice, were in furtherance of illegal activity, or fell within

the crime-fraud exception.

UNITED STATES V. CHRISTENSEN 65

We agree with the district court that the attorney-client

privilege applied at most to limited portions of the Pellicano-

Christensen recordings. We do not find it necessary to

consider the crime-fraud exception, because it is apparent that

the production of those portions was harmless. Extensive

incriminating evidence of the illegal wiretapping was

available within the portion of the recordings not covered by

the attorney-client privilege. The small fraction of the

recordings that might have entailed privileged

communications was not so large or intertwined with the rest

of the recorded conversations as to require the extension of

the privilege over all of the recordings. As for the work

product doctrine, Defendants waived any argument that this

doctrine applied by failing to raise the issue in their briefs.

Even if we were to reach the issue, we agree with the district

court that the work product doctrine did not apply to the

illegal wiretapping. In the end, we conclude that the district

court did not err in releasing the recordings under Zolin’s

second step or in permitting use of the recordings at the

second trial.

5. Attorney-client privilege

“The attorney-client privilege protects confidential

disclosures made by a client to an attorney . . . to obtain legal

advice . . . as well as an attorney’s advice in response to such

disclosures.” Chen, 99 F.3d at 1501 (citation and internal

quotation marks omitted); see also Bauer, 132 F.3d at 507

(explaining that the “attorney-client privilege is a two-way

street”).18 The purpose of the attorney-client privilege is to

18

The attorney-client privilege has eight elements:

“(1) When legal advice of any kind is sought (2) from

66 UNITED STATES V. CHRISTENSEN

“encourage full and frank communication between attorneys

and their clients and thereby promote broader public interests

in the observance of law and administration of justice.”

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Clients must be able to consult their lawyers candidly, and the

lawyers in turn must be able to provide candid legal advice.

Chen, 99 F.3d at 1499–1501.

A communication from the attorney to the client that does

not contain legal advice may be protected if it “directly or

indirectly reveal[s] communications of a confidential nature

by the client to the attorney.” In re Fischel, 557 F.2d 209, 212

(9th Cir. 1977) (holding that attorney-client privilege did not

protect attorney’s summaries of client’s business

transactions). Further, a communication from the attorney to

a third party acting as his agent “for the purpose of advising

and defending his clients” also may be protected if it reveals

confidential client communications. United States v. Judson,

322 F.2d 460, 462 (9th Cir. 1963); see also United States v.

Jacobs, 322 F. Supp. 1299, 1303 (C.D. Cal. 1971); Paul R.

Rice, Attorney-Client Privilege in the United States § 3:3

(2014) (explaining that “courts have extended the privilege to

confidential communications . . . from the attorney to the

agent, and from the agent to the attorney (provided that the

communications not from the client reveal prior confidences

of the client)”). The government does not dispute that

a professional legal adviser in his or her capacity as

such, (3) the communications relating to that purpose,

(4) made in confidence (5) by the client, (6) are, at the

client’s instance, permanently protected (7) from

disclosure by the client or by the legal adviser

(8) unless the protection be waived.”

United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002).

UNITED STATES V. CHRISTENSEN 67

communications between a lawyer and a private investigator

retained by that lawyer to assist the lawyer’s representation

of a client may be covered by the privilege.

“The claim of privilege must be made and sustained on a

question-by-question or document-by-document basis; a

blanket claim of privilege is unacceptable. The scope of the

privilege should be ‘strictly confined within the narrowest

possible limits.’” United States v. Lawless, 709 F.2d 485, 487

(9th Cir. 1983) (quoting 8 Wigmore, Evidence § 2291). An

entire document or set of documents may be privileged when

it contains privileged portions that are “so inextricably

intertwined with the rest of the text that they cannot be

separated.” United States v. Chevron Corp., 1996 WL

264769, *5 (N.D. Cal. Mar. 13,1996) (citing Resolution Trust

Corp. v. Diamond, 773 F. Supp. 597, 601 (S.D.N.Y. 1991)).

In contrast, “[i]f the nonprivileged portions of a

communication are distinct and severable, and their

disclosure would not effectively reveal the substance of the

privileged legal portions, the court must designate which

portions of the communication are protected and therefore

may be excised or redacted (blocked out) prior to disclosure.”

Rice, Attorney-Client Privilege § 11:21.

Based on our review of the recording transcripts, we agree

with the district court’s assessment that “[n]o more than a few

statements in the approximately six hours of tape recordings

even arguably reveal what might be confidential information

from or concerning Kerkorian.” Christensen’s argument to

the contrary is remarkably unspecific. Christensen contends

that two examples cited by the district court did, in fact,

reflect confidential client communications: the terms that

client Kerkorian would be willing to offer or accept to resolve

the litigation and the fact that Kerkorian was putting his faith

68 UNITED STATES V. CHRISTENSEN

in the mediator. He also asserts, in a footnote, that “[t]he

Recordings contain other statements by Christensen that

reference privileged communications from his client,

including statements about Kerkorian’s litigation objections,

his desires to identify Kira’s biological father, and other

references to the ongoing litigation.” That assertion is

accompanied by a citation to nine pages from the transcripts

of the recordings.

That claim is overbroad. The district court questioned, for

example, whether the terms that Kerkorian was willing to

offer were actually confidential, noting that those terms might

have been communicated by that time to Bonder’s counsel.

Christensen has not argued to the contrary to us. Aside from

that example, it is not nearly enough simply to contend, as

Christensen has, that discussions between Pellicano and

Christensen included “references to the ongoing litigation.”

References to the litigation would not necessarily entail the

revelation of information confidential to Kerkorian. Indeed,

from our review, most such references in the recordings did

not.

More importantly, the bulk of the discussion was simply

not about Kerkorian. The district court described the

recorded communications, referring to Bonder by her married

name, Bonder Kerkorian:

The communications focus on two main

topics. The first is Bonder Kerkorian herself.

For the most part, Pellicano conveys to

Christensen the content and tone of

communications between Bonder Kerkorian

and others, including attorneys, friends, and

the mediator. Pellicano expresses his own

UNITED STATES V. CHRISTENSEN 69

personal feelings concerning Bonder

Kerkorian and her lawyers, and provides his

own thoughts and advice to Christensen on

how Christensen should handle various

aspects of the litigation. This subject matter is

permeated with the “fruits” of the

conversations overheard by Pellicano –

apparently through illegal wiretapping.

The second, related topic is the true

parentage of Kira Kerkorian. The majority of

this discussion focuses on [a named person].

While much of this discussion incorporates

the content of Bonder Kerkorian’s telephone

conversations (Pellicano repeats that Bonder

Kerkorian stated [the named person] is a

“candidate” for Kira’s father, but she later

told the mediator he is the father, etc.), a

substantial portion also documents Pellicano’s

apparent efforts to act as a “go-between” to

negotiate a deal between [the named person]

and Kerkorian.

Christensen did not contest this description. That discussion

did not involve confidential disclosures made by Kerkorian

to Christensen. There is no attorney-client privilege in favor

of Kerkorian over any of that discussion.

The transcripts of the recordings totaled approximately

370 pages. Our review indicates that less than 10 percent of

those pages contained information that may have been

confidential to Kerkorian. Christensen has not shown that the

potentially privileged portions of the recordings were

“inextricably intertwined” with the remainder of the

70 UNITED STATES V. CHRISTENSEN

recordings such that they could not be separated, and it does

not appear to us that they were. See Chevron, 1996 WL

264769 at *5. Those potentially privileged pages could have

been separated from the nonprivileged pages without

indirectly revealing client confidences or removing necessary

context from the nonprivileged pages.

Even disregarding the possibility that the crime-fraud

exception applied to negate the privilege, any error in

producing and admitting those portions was harmless. See

United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir.

1991) (“A nonconstitutional evidentiary error will be reversed

for an abuse of discretion only if the court’s ruling more

likely than not affected the verdict.”). Christensen and

Pellicano repeatedly and frequently discussed their illegal

wiretapping of Bonder throughout the nonprivileged portions

of the recordings. That was the evidence that was

incriminating, and it was not protected by any privilege.

In sum, the vast majority of the Pellicano-Christensen

recordings were not privileged, the remaining portions could

have been severed, and any error in admitting the potentially

privileged portions was harmless. The district court correctly

concluded the attorney-client privilege did not apply.

6. Work product protection

Neither Christensen nor Pellicano has presented a

separate argument on appeal that the district court should

have withheld the recordings or denied their admission into

evidence based on the work product doctrine. Christensen’s

briefs referred to the attorney work product doctrine only to

support his argument that he had standing to object to the

UNITED STATES V. CHRISTENSEN 71

seizure of the recordings.19 Pellicano’s briefs made no

reference to the doctrine whatsoever. They have, therefore,

waived the issue on appeal. See Miller v. Fairchild Indus.,

Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of

Appeals will not ordinarily consider matters on appeal that

are not specifically and distinctly argued in appellant’s

opening brief.”).

Even if defendants’ vague references to the doctrine were

deemed sufficient to raise the issue, we agree with the district

court that the work product doctrine did not apply here.

“The work product doctrine, codified in Federal Rule of

Civil Procedure 26(b)(3), protects from discovery documents

and tangible things prepared by a party or his representative

in anticipation of litigation.” In re Grand Jury Subpoena

(Torf), 357 F.3d 900, 906 (9th Cir. 2004) (citation and

internal quotation marks omitted). It requires documents to

have “two characteristics: (1) they must be prepared in

anticipation of litigation or for trial, and (2) they must be

prepared by or for another party or by or for that other party’s

representative.” Id. at 907 (citation and internal quotation

marks omitted). “At its core, the work-product doctrine

shelters the mental processes of the attorney, providing a

privileged area within which he can analyze and prepare his

client’s case.” United States v. Nobles, 422 U.S. 225, 238

(1975). The privilege under the doctrine is not absolute.

Where it facially applies, it may be overridden if the party

19

In particular, Christensen argued that the attorney work product

doctrine confirmed that he personally had a legitimate expectation of

privacy in the recordings. We do not reach that issue of standing, for we

reject the challenges to the seizure on the merits. The issue is discussed

in the separately filed memorandum disposition, at 8–9.

72 UNITED STATES V. CHRISTENSEN

that seeks the otherwise protected materials “establish[es]

adequate reasons to justify production.” Hickman v. Taylor,

329 U.S. 495, 512 (1947); see Fed. R. Civ. P. 26(b)(3)(A)(ii).

“[T]he purpose of the work product privilege is to protect

the integrity of the adversary process.” Parrott v. Wilson,

707 F.2d 1262, 1271 (11th Cir. 1983); see also Admiral Ins.

Co. v. U.S. Dist. Ct., Dist. of Az., 881 F.2d 1486, 1494 (9th

Cir. 1989) (“The conditional protections afforded by the

work-product rule prevent exploitation of a party’s efforts in

preparing for litigation.”). Not surprisingly, it does not apply

to foster a distortion of the adversary process by protecting

illegal actions by an attorney. Because its purpose “is to

protect the integrity of the adversary process[,] . . . it would

be improper to allow an attorney to exploit the privilege for

ends that are antithetical to that process.” Parrott, 707 F.2d

at 1271 (holding an attorney’s unethical conduct in secretly

recording conversations with witnesses vitiated the work

product protection as to those recordings) (citing Moody v.

I.R.S., 654 F.2d 795, 800 (D.C. Cir. 1981)); see also In re

Doe, 662 F.2d 1073, 1078 (4th Cir. 1981) (“No court

construing [the work product] rule . . . has held that an

attorney committing a crime could, by invoking the work

product doctrine, insulate himself from criminal prosecution

for abusing the system he is sworn to protect.”). Indeed, as

some of the above precedents indicate, conduct by an attorney

that is merely unethical, as opposed to illegal, may be enough

to vitiate the work product doctrine. Parrott, 707 F.2d at

1271–72; Moody, 654 F.2d at 800 (“[A]t least in some

circumstances, a lawyer’s unprofessional behavior may

vitiate the work product privilege.”).

Here, the recordings reflected Christensen’s illegal

attempt to obtain intimate personal information about an

UNITED STATES V. CHRISTENSEN 73

opponent in litigation as part of his preparation for trial. The

Supreme Court has recognized that the work product

protection was necessary to avoid such “unfairness and sharp

practices . . . in the giving of legal advice and in the

preparation of cases for trial.” Hickman, 329 U.S. at 511. “It

would indeed be perverse . . . to allow a lawyer to claim an

evidentiary privilege to prevent disclosure of work product

generated by those very activities the privilege was meant to

prevent.” Moody, 654 F.2d at 800. The work product doctrine

did not apply here. The district court did not err by making

the recordings available to the prosecutors or admitting them

into evidence at trial.20

G. Juror 7’s dismissal

Shortly after deliberations began in the second trial,

involving defendants Christensen and Pellicano, the court

received a series of handwritten notes from members of the

jury complaining about one particular juror, identified as

Juror 7, and suggesting that he was unwilling to follow the

law because he disagreed with it. After inquiring into the

matter, the court found that the juror in question would not

follow the law and, in addition, that the juror had lied to the

court. Based on those two independent grounds, the court

dismissed the juror in question, seated an alternate, and

instructed the jury to begin its deliberations over again. The

reconstituted jury reached verdicts finding Christensen and

20

We assume Kerkorian was not involved in, or aware of, Christensen

and Pellicano’s criminal conduct. The illegal nature of Christensen’s

actions, therefore, does not vitiate Kerkorian’s interest in non-disclosure

of Christensen’s work product. Kerkorian has not shown, however, that

the disclosure of work product in the recordings “traumatize[d] the

adversary process more than the underlying legal misbehavior.” Moody,

654 F.2d at 801; Parrott, 707 F.2d at 1271–72.

74 UNITED STATES V. CHRISTENSEN

Pellicano guilty. Those defendants argue that the dismissal

of Juror 7 was improper and that the court improperly denied

their subsequent motion for a new trial based on the dismissal

of the juror.

We review for abuse of discretion both the dismissal of a

juror after deliberations have commenced and the denial of a

motion for a new trial based on such a dismissal. United

States v. Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007);

United States v. King, 660 F.3d 1073, 1076 (9th Cir. 2011).

The district court’s factual findings relating to the issue of

juror misconduct are reviewed for clear error. Vartanian,

476 F.3d at 1098. “The decision to excuse a juror is

committed to the district court’s discretion and we must

affirm unless we are left with the definite and firm conviction

that the court committed a clear error of judgment in reaching

its conclusion after weighing the relevant factors.” United

States v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998) (quoting

United States v. Egbuniwe, 969 F.2d 757, 761 (9th Cir. 1992)

(internal quotation marks omitted)).

We conclude that the district court’s findings regarding

Juror 7’s untruthfulness and unwillingness to follow the law

were not clearly erroneous. Those findings provided cause

for dismissing the juror. Neither the dismissal of Juror 7 nor

the denial of defendants’ motion for a new trial was an abuse

of discretion.

A court may dismiss a juror during deliberations for good

cause. Fed. R. Crim. P. 23(b)(3). Each of the two

independent grounds cited by the district court in this case for

discharging Juror 7—that he was not willing to follow the

law, and that he had lied to the court—may justify the

discharge of a juror.

UNITED STATES V. CHRISTENSEN 75

A juror’s intentional disregard of the law, often in the

form of juror nullification, can constitute good cause for

dismissal of the juror. See Merced v. McGrath, 426 F.3d

1076, 1080 (9th Cir. 2005) (noting that “trial courts have the

duty to forestall or prevent such conduct” by, inter alia,

dismissal of an offending juror (quoting United States v.

Thomas, 116 F.3d 606, 616 (2d Cir. 1997))). A juror engages

in nullification by refusing to return a guilty verdict “in the

teeth of both law and facts,” id. at 1079 (quoting Horning v.

Dist. of Columbia, 254 U.S. 135, 138 (1920)), or by voting to

acquit a criminal defendant “even when the government has

proven its case beyond a reasonable doubt,” United States v.

Powell, 955 F.2d 1206, 1212–13 (9th Cir. 1992); see also

United States v. Simpson, 460 F.2d 515, 519 (9th Cir. 1972)

(rejecting the argument that juries should be given more

freedom to grant acquittals against the law, also known as

“conscience verdicts”). Though we recognize the

phenomenon, we also recognize that juror nullification is

a violation of a juror’s sworn duty to follow

the law as instructed by the court—trial courts

have the duty to forestall or prevent such

conduct, whether by firm instruction or

admonition or, where it does not interfere with

guaranteed rights or the need to protect the

secrecy of jury deliberations, . . . by dismissal

of an offending juror from the venire or the

jury.

Merced, 426 F.3d at 1079–80 (alteration in original) (quoting

Thomas, 116 F.3d at 616).

In contrast, it is not permissible to discharge a juror based

on his views regarding the sufficiency of the evidence.

76 UNITED STATES V. CHRISTENSEN

United States v. Symington, 195 F.3d 1080, 1085 (9th Cir.

1999). Removal in such a case violates a defendant’s Sixth

Amendment right to a unanimous verdict from an impartial

jury. Id.

In Symington, after five days of deliberation in a criminal

financial fraud trial, the jury sent the judge a note

complaining about a juror who would not participate in

deliberations. Id. at 1082–83. The judge wrote back to the

jurors reminding them of their duty to deliberate. A few days

later the jury sent another, more detailed note explaining why

“the majority of the jurors sincerely feel that the juror in

question cannot properly participate in the discussion.” Id. at

1083. After discussing the matter with counsel for both sides,

the judge separately questioned each member of the jury to

determine the nature of the problem. The other jurors stated

that Juror Cotey, a woman apparently in her mid-70’s, was

confused and unfocused during deliberations, and that she

“just seem[ed] to have her mind set.” Id. at 1084. When the

judge questioned Cotey, she stated that “she was willing to

discuss elements of the case with the other jurors, but that she

became intimidated when everyone talked at once and

demanded that she justify her views as soon as she stated

them.” Id. She also “noted that the other jurors’ frustration

with her might be because ‘I can’t agree with the majority all

the time . . . . And I’m still researching and looking for more

in the case.’” Id. The judge decided to dismiss Cotey because

she was “either unwilling or unable to deliberate with her

colleagues.” Id.

We reversed, holding that “if the record evidence

discloses any reasonable possibility that the impetus for a

juror’s dismissal stems from the juror’s views on the merits

of the case, the court must not dismiss the juror.” Id. at 1087

UNITED STATES V. CHRISTENSEN 77

(emphasis in original). In other words, the available evidence

must be “sufficient to leave one firmly convinced that the

impetus for a juror’s dismissal is unrelated to [his or her]

position on the merits.” Id. at 1087 n.5. After reviewing the

record, we concluded that, in light of the limited evidence

available, “the district court could not have been ‘firmly

convinced’ that the impetus for Cotey’s dismissal was

unrelated to her position on the merits of the case.” Id. at

1088 n.7. Because “[t]he statements of some jurors indicated

that their frustration with Cotey may have derived more from

their disagreement with her on the merits of the case, or at

least from their dissatisfaction with her defense of her views,”

dismissal in that case was improper. Id. at 1084.

It may be difficult to determine whether a juror’s alleged

unwillingness to deliberate stems from his views on the

merits or his views on the law. “[A] court may not delve

deeply into a juror’s motivations because it may not intrude

on the secrecy of the jury’s deliberations.” Id. at 1086

(alteration in original) (quoting United States v. Brown,

823 F.2d 591, 596 (D.C. Cir. 1987)). This creates “special

challenges” for the trial judge attempting to determine

whether a problem between or among deliberating jurors

stems from disagreement on the merits of the case. Id.

We “generally defer to the district court’s good cause

determinations” because “the district court is in the best

position to evaluate the jury’s ability to deliberate.”

Vartanian, 476 F.3d at 1098 (alteration and quotation marks

omitted) (quoting Beard, 161 F.3d at 1194); see also United

States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006) (“[W]e

emphasize that a district court, based on its unique

perspective at the scene, is in a far superior position than this

78 UNITED STATES V. CHRISTENSEN

Court to appropriately consider allegations of juror

misconduct, both during trial and during deliberations.”).

Lying to the court about matters related to potential bias

may also constitute good cause for dismissal of a juror. See

Vartanian, 476 F.3d at 1098–99. In Vartanian, one juror was

observed on multiple occasions speaking to the defendant’s

family and counsel. This fact was brought to the attention of

the court during deliberations via a note from the jury

foreperson. Id. at 1096. When questioned about her contacts,

the juror assured the court that they were minimal, but

interviews with other jurors revealed that the contacts were

much more extensive. The judge found that the juror in

question had “not been forthcoming and entirely truthful with

the court and had entirely minimized her contacts.” Id. at

1097 (internal quotation marks and alteration omitted).

Ultimately, the court concluded that it was “unwilling to trust

[the juror] to be a fair and impartial juror and dismissed her

from service.” Id. (internal quotation marks omitted). On

appeal, we concluded that “the impetus for the jurors’

complaints about [the juror in question] was not her

willingness to deliberate, but her misconduct outside of the

jury deliberation room.” Id. at 1098. We affirmed the

conviction, noting in particular that “the record amply

supports the district court’s findings that [the juror] was

‘untruthful with the court’ and ‘untrustworthy.’” Id. at 1099.

We afford “special deference” to a trial court’s adverse

credibility finding because the determination of credibility is

“largely one of demeanor.” Patton v. Yount, 467 U.S. 1025,

1038 (1984). This deference need not be tempered by the

concerns raised in Symington about the inappropriateness of

intruding into deliberations because the evaluation of

credibility will not usually require that kind of inquiry. When

UNITED STATES V. CHRISTENSEN 79

the concern involves the possibility that a juror has lied to the

court, the district court will not always suffer from the same

lack of investigative power that limits the court’s ability to

inquire into problems among deliberating jurors. Symington,

195 F.3d at 1086.

With these legal principles and the standard of review in

mind, we turn to the facts of this case. The concern over

Juror 7 developed very quickly. Just over an hour after

deliberations began, the first note emerged from the jury

room. It came from Juror 9:

Jury Stan #7 dosen’t agree with the law, about

wire tapping. “Understands what the law is

but dosen’t agree.” States “witness never tell

the truth.” States “if its ok the government to

wire tap + not get caught, then its ok for

him.”21

At the bottom was a request for help signed by Juror 1, the

foreperson: “We are unable to move forward[;] we need

assistance.” A separate piece of paper signed by Juror 3 and

sent concurrently stated:

Wire Tap

If its OK for the government to do it and not

get caught.

Then it’s should be OK for him. Stan #7.

21

The notes are quoted verbatim, including spelling and grammatical

errors.

80 UNITED STATES V. CHRISTENSEN

In response, the court brought the jury back into the

courtroom and reread the following instruction:

It is your duty to find the facts from all the

evidence in the case. To those facts you will

apply the law as I give it to you. You must

follow the law as I give it to you, whether you

agree with it or not.

Later that day, the court received another note from Juror

9. It recited some of Juror 7’s responses to questions from

other jurors. For example:

Q: “What evidence do you need?”

A: “I want Ray Turner here + to say he wire

tapped.”

[. . .]

Q: “Do you believe [wiretapping] is illegal?”

A: “In the law we don’t have to pay federal

taxes, just state taxes.”

The bottom portion of the note, signed by Juror 1, explicitly

requested an alternate juror because Juror 7 “will not talk

about evidence or the law;” “will not participate in

deliberations;” and is “ANTI-government.” The final note

was unsigned and quoted Juror 7 calling the case “a joke”

because “no one died” and announcing, “I don’t treat this

case seriously.”

UNITED STATES V. CHRISTENSEN 81

The court and counsel discussed the question of whether

statements attributed to Juror 7 indicated his views on the

merits or his views on the validity of the law. The court

indicated an intent to question a selection of jurors

individually.22 The next morning, after receiving briefing

from the parties on the issue, it correctly decided to do so.23

See Bell v. Uribe, 748 F.3d 857, 867 (9th Cir. 2014) (“The

remedy for allegations of juror misconduct is a prompt

hearing in which the trial court determines the circumstances

of what transpired, the impact on the jurors, and whether or

not the misconduct was prejudicial.”); see also Boone,

458 F.3d at 329 (“[W]here . . . credible allegations of jury

nullification . . . arise[] during deliberations, a district court

may, within its sound discretion, investigate the allegations

through juror questioning or other appropriate means.”).

22

The court said: “I know there is at least one Ninth Circuit case on the

approach the Court should take. I don’t believe that I merely excuse a

juror because one or two jurors contend that he is refusing to deliberate.

I do believe there is now a colloquy that is required of either [Juror 7] or

[Juror 7] plus others. . . . The inquiry will relate to whether he is willing

to follow the law and whether he is willing to deliberate.”

23

The court explained: “I have read the emails that were sent last night,

two from the Government and one from the defense, and I have read the

cases that were cited by both sides, and I have also read a number of other

cases along the same lines. . . . I’ve concluded that the information

contained in the notes requires me, or at the very least, permits me to

question one or more jurors, and I have determined that that’s the course

I should take.”

82 UNITED STATES V. CHRISTENSEN

Juror 7 was the first to be examined.24 He denied

24

THE COURT: Okay. I have a couple of notes from the

jury. I assume that you know that?

THE JUROR: Actually, no, I don’t.

THE COURT: Did you write me a note?

THE JUROR: No.

THE COURT: Okay. I have a note from — apparently

from a juror that suggests that you have said, “If it’s

okay for the Government to do it and not get caught,

then it should be okay for him.” And at the same time

I got a note with a little bit different language

suggesting that you said, “If it’s okay for the

Government to wiretap and not get caught, then it’s

okay for him.” Did you say those things or something

like those things?

[. . .]

THE JUROR: Well, I didn’t say if the Government can

wiretap, then he can, whoever “he” referred to. He

wrote that note probably based on anger and emotions

towards me.

THE COURT: Toward you?

THE JUROR: Yes. He was angry because I disagreed

with the majority of the jurors.

[. . .]

THE COURT: Okay. Did you say that you don’t agree

with the law about wiretapping?

THE JUROR: No, I didn’t say that. I said that I cannot

agree to judge my decision on circumstantial evidence.

UNITED STATES V. CHRISTENSEN 83

knowledge of the notes from other jurors and disavowed the

statements attributed to him regarding both wiretapping and

tax laws. Juror 7 suggested that the juror who wrote one of

the notes was angry because Juror 7 disagreed with the

majority of jurors and because he “c[ould not] agree to judge

[his] decision on circumstantial evidence.”

The court then questioned five other jurors who all

confirmed that the statements in the notes, including “it

should be okay for him” to wiretap, and “we don’t have to

pay federal taxes,” were “more or less what [Juror 7] said.”

Juror 1, the foreperson, was “not 100 percent sure [of what

was said] because everybody in the room talks at the same

time,” but recalled hearing Juror 7 say something about not

having to pay federal taxes and confirmed that Juror 7 had

said “if it’s okay for the government to wiretap and not get

caught, then it’s okay for him.” Juror 9 told the court that she

[. . .]

THE COURT: Okay. And after the jury went back to

deliberate, I received another note, and that note

suggests that perhaps someone said to you, “If you

knew someone was wiretapping and the law said it was

illegal, do you believe it’s illegal?” And that your

response was, “In the law we don’t have to pay federal

taxes, just state taxes.” Did you say something like

that?

THE JUROR: I don’t recall that. At all. That doesn’t

make sense to me. I couldn’t answer to specific

questions of wiretapping with the federal taxes.

THE COURT: So you didn’t —

THE JUROR: I didn’t say anything about taxes.

84 UNITED STATES V. CHRISTENSEN

wrote down Juror 7’s statements contemporaneously as he

made them; Juror 3 also wrote down Juror 7’s statements.

Juror 2 told the court that “the words weren’t exactly [as

written in the notes],” but that was “the substance” of Juror

7’s statements. “[H]e said if the federal government can do

it and not be found guilty, then a private citizen shouldn’t be.

That’s what it was.” Juror 11 likewise confirmed that Juror

7 had expressed doubt about both wiretapping and federal tax

law.

After hearing from the parties, the court found there was

just cause to dismiss Juror 7. The court found that “Juror No.

7 is not willing to follow the law and will not follow the law

in this case.” That finding was “based on the statements that

[were] in the notes and that the [other] jurors confirmed.”

The court also found that “Juror No. 7 has lied to the Court,”

citing that as “an independent ground[] for excusing him.”

In the process, the court specifically found “that the five

other jurors are credible and that Juror No. 7 is not.” The

court also found that Juror 7 had lied by omission during voir

dire when he did not speak up in response to either the

question by the court as to whether any juror had “any

feelings about the particular charges against the defendants,”

or the question by Pellicano as to whether any of the jurors

had “any knowledge of [wiretapping laws] or . . . any

opinions on [them].”

The district court was aware of the standard set out in

Symington. The court concluded that the impetus for

dismissal stemmed not from Juror 7’s views on the merits of

the case but from his views on the law. In issuing the ruling,

the judge stated, “I don’t believe there is a reasonable

possibility that even the impetus for the jurors[’] notes or

UNITED STATES V. CHRISTENSEN 85

their request for an alternate stems from Juror No. 7’s views

on the merits.”

Because the court “‘may not intrude on the secrecy of the

jury’s deliberations,’” Symington, 195 F.3d at 1086 (quoting

Brown, 823 F.2d at 596), the court’s inquiry was necessarily

constrained. The court rightly instructed each juror

questioned not to volunteer information beyond what the

court asked and not to discuss the content of deliberations or

any juror’s views on the merits. Indeed, when questioning

the jurors, the court repeatedly had to cut them off mid-

sentence to prevent them from running afoul of this

instruction. Nevertheless, because the court was able to

confirm from five separate jurors that Juror 7 had made

statements expressing disagreement with the wiretapping

laws, its inquiry was “sufficient to leave one firmly convinced

that the impetus for [Juror 7’s] dismissal is unrelated to [his]

position on the merits.” Id. at 1087 n.5.

We acknowledge that the court’s finding regarding Juror

7’s unwillingness to follow the law is arguably in conflict

with Juror 7’s statement during questioning that he disagreed

with the other jurors because he “cannot agree to judge [his]

decision on circumstantial evidence.” Yet Juror 7 also denied

having made statements about the validity of wiretapping and

federal tax laws, whereas every one of the other five jurors

questioned confirmed that he had in words or substance.

Based on this discrepancy, the district court concluded that

Juror 7 was not credible. That finding was not clearly

erroneous. See Vartanian, 476 F.3d at 1098.

Under these circumstances, it appears to us highly

unlikely that the other jurors were motivated by Juror 7’s

disagreement with their views on the merits. The first notes

86 UNITED STATES V. CHRISTENSEN

appeared little more than an hour after deliberations began.

That is very early in the process, especially after a

complicated and lengthy trial. By contrast, in Symington, the

first note came after five days of deliberations. 195 F.3d at

1083; see also Brown, 823 F.2d at 592, 594 (holding that the

district court’s dismissal of a juror after five weeks of

deliberations violated the defendant’s right to a unanimous

jury, because the record evidence suggested the juror found

the evidence insufficient for a conviction). The longer period

of time in Symington is consistent with a juror attempting to

engage in deliberations on the merits but unable to convince

his or her cohort. In contrast, one hour is unlikely to have

been enough time for the jurors to have ascertained such a

difference in their views on the evidence.

Furthermore, unlike in Symington, there is not

“considerable evidence to suggest that the other jurors’

frustrations with [Juror 7] derived primarily from the fact that

[he] held a position opposite to theirs on the merits of the

case.” Symington, 195 F.3d at 1088. Juror 7 made it clear

from the beginning of deliberations that he did not agree with

the wiretapping laws. All of the concerns expressed by the

other jurors related to Juror 7’s views on the law, not the

evidence.25 Cf. id. at 1084 (observing that other jurors’

25

The dissenting opinion, below at 118–119, expresses the view that

there was a reasonable possibility that the other jurors ganged up on Juror

7 because he was a holdout based on his view of the evidence. It asserts

that no statements by other jurors refute that proposition and points

specifically to a statement by Juror 1 on “how their views on the evidence

differed prior to being cut off by the court.” Actually, the juror cut

himself off, and the comment that he attributed to Juror 7 was not about

evidence at all: “He stated that if the federal government charges

someone, they’re innocent.” Not surprisingly, Juror 1 went on to say that

the comment “floored everybody in the room.” That does not at all

UNITED STATES V. CHRISTENSEN 87

testimony suggested that they viewed the dismissed juror “as

an obstacle to reaching a verdict”). The only reference to

Juror 7’s view of the evidence was his own statement during

questioning about the inadequacy of circumstantial evidence,

but, as stated above, in light of the contradictory testimony of

five other jurors, the court validly discounted Juror 7’s

credibility. Furthermore, just as in Vartanian, the existence

of such a passing reference does not necessarily evoke the

concerns cited in Symington or preclude discharge of the juror

for good cause. See Vartanian, 476 F.3d at 1099 (observing

that a passing reference to the dismissed juror’s view that the

defendant was innocent did not evoke the concern raised in

Symington because the basis for the juror’s dismissal was her

misconduct, not her views on the merits of the case).

In addition, we note that at least one other juror expressed

regret as to what happened. Juror 3 stated that Juror 7’s

comments made her feel “uncomfortable.” When the court

asked whether Juror 3 had heard Juror 7’s comment regarding

taxes, Juror No. 3 answered, “Unfortunately, yes.” That did

not sound like a juror who was looking for a way to get rid of

a holdout.

The situation presented here was thus significantly

different from the one found problematic in Symington. Like

the district court, we think it unlikely that Juror 7 was a lone

holdout, ganged up on by other jurors who did not agree with

or understand his views on the sufficiency of the evidence.

suggest that the differences had to do with differing views of the evidence.

The problem with Juror 7 identified by the other jurors was that he was not

willing to follow the law.

88 UNITED STATES V. CHRISTENSEN

The dissenting opinion concludes that the district court

erred by failing to ask Juror 7 point-blank whether he was

willing to follow the law. According to the dissent, below at

114, the question of “whether he could follow the law as

instructed by the court” was “the most appropriate question”

that should have been asked. The dissent repeats that

proposition multiple times, see below at 115 & 116–117,

culminating with the assertion, at 119 that the failure to ask

that question before dismissing Juror 7 based on a lack of

credibility was an “obvious error” that “alone is worthy of

reversal.”

We have previously held, however, that “[a] juror’s

assurance that he or she can render a fair and impartial verdict

is not dispositive.” Egbuniwe, 969 F.2d at 762 (citing Murphy

v. Florida, 421 U.S. 794, 800 (1975)). Rather, the proper

response to allegations of juror misconduct is a “prompt

hearing in which the trial court determines the circumstances

of what transpired.” Bell, 748 F.3d at 867. The law does not

require a district court to accept as true whatever it might be

told by someone whose conduct has been called into question.

A criminal defendant is presumed innocent, but the

prosecutor is permitted to prove the contrary. If a juror can

be discharged for misconduct, it makes no sense to let that

juror’s statements that “I did not say that” and “I can follow

the law” serve as an automatic free pass, if other evidence

supports findings to the contrary. Such a limitation on the

district court’s freedom to question jurors would be flatly

inconsistent with its affirmative “duty” to “forestall or

prevent [jury nullification].” Merced, 426 F.3d at 1080

(citation and internal quotation marks omitted).

The possibility that Juror 7 might have responded by

saying that he would apply the law as instructed is not enough

UNITED STATES V. CHRISTENSEN 89

to require the district court to leave him on the jury if the

court has otherwise made findings that would constitute good

cause for his removal. The “‘determination of impartiality,

in which demeanor plays such an important part, is

particularly within the province of the trial judge.’”

Egbuniwe, 969 F.2d at 762 (quoting Ristaino v. Ross,

424 U.S. 589, 595 (1976)). For this reason, the judge “is

required to make an independent assessment.” Id. The

district court was not required to take Juror 7’s word for it.

An independent assessment is what the district court made

in this case. It compared Juror 7’s version of events with

descriptions by five other jurors and determined that Juror 7

was not willing to follow the law. At the same time, the court

noted the fact that Juror 7 had lied to the court was an

independent ground for excusing him.

The grounds for dismissal cited by the district court were

appropriate and permissible. As described above, at 74,

77–79, those findings are reviewed for clear error, and we

“generally defer” to these determinations of good cause. The

dissent does not contest the standard of review but does not

apply it either. For example, it complains, below at 118, that

our majority opinion “fails to point to any solid evidence in

the record demonstrating that Juror 7 was engaging in

nullification.” That approach to reviewing the district court’s

finding has it backwards. To set the finding aside, we have

to be persuaded that the finding by the district court that Juror

7 was “not willing to follow the law and will not follow the

law in this case” was clearly erroneous. See Egbuniwe,

969 F.2d at 761. As described above, at 79–85, the five

jurors the district court questioned and found credible

reported statements that Juror 7 had made expressing

disagreement with the wiretapping law as a matter of

90 UNITED STATES V. CHRISTENSEN

principle. They also reported that Juror 7 had stated, in

response to a question about whether he believed the

wiretapping law was valid, that “in the law, we don’t have to

pay federal taxes, just state taxes.” The district court

reasonably concluded that Juror 7 made this statement to

suggest that the Defendants in this case did not have to

comply with the wiretapping laws. The court’s finding that

Juror 7 would not follow the law was thus not clearly

erroneous.

Neither was the finding by the district court that Juror 7

had “lied to the court.” The dissenting opinion, below at

119–120, characterizes that finding as “clear error,” but not

because it concludes that Juror 7’s responses to the court’s

inquiry were truthful. Rather, the dissent takes the position

that “even an intentionally dishonest answer” does not matter

unless it “bespeak[s] a lack of impartiality,” citing Dyer v.

Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc), and

noting that the district court cited that decision in denying a

motion for new trial.26 The dissent contends, below at 120,

26

The district court did cite to and quote from Dyer, but in connection

with a different argument involving an entirely different claim of juror

misconduct: a claim based on the alleged failure of one juror to admit that

potentially prejudicial comments by a prosecutor had been overheard. That

issue is discussed and Defendants’ argument rejected in the memorandum

disposition filed together with this opinion, at 27–29. We note, moreover,

that our decision in Dyer was that bias should be attributed to a juror who

had answered in the negative to the usual questions during voir dire as to

whether any relatives or close friends had ever been the victim of crime

or accused of any offense other than traffic cases. It was later discovered

that her brother had previously been shot and killed, but not until after she

sat as a juror in a murder trial and joined a verdict that convicted the

defendant and sentenced him to death. Our court granted habeas relief,

concluding that the juror’s lies during voir dire warranted an inference of

implied bias. Dyer, 151 F.3d at 981. The point of Dyer was not that a

UNITED STATES V. CHRISTENSEN 91

that “even assuming Juror 7 lied about the federal tax

statement, rather than failing to recall saying it as he stated

during the questioning by the court, this falsehood does not

necessarily bespeak a lack of impartiality.”

Here, however, Juror 7’s statements about taxes were

made in response to questions about whether he believed

wiretapping laws were valid. Credible testimony from

multiple jurors also confirmed that Juror 7 stated that “[i]f it’s

okay for the government to wiretap and not get caught, then

it’s okay for him.” Yet Juror 7 failed to mention his views

about the wiretapping laws even though he was pointedly

asked about them during voir dire.27 Although

Dyer concerned potential juror bias, not nullification, just as

in that case, Juror 7’s lies were material and spoke squarely

to the fundamental question of his willingness to follow the

law and discharge his duty as a juror. Dismissal on this basis

was thus proper.

The district court’s factual findings were not clearly

erroneous, and they supported its conclusion that there was no

reasonable possibility that the impetus for dismissal stemmed

juror’s lies should be disregarded.

27

During voir dire, the district court specifically asked: “Will anyone

have any difficulty following my instructions and applying the law to this

case whether you approve or disapprove of the law as I state it to you?”

and “Other than what you have heard already, do you have any feelings

about the particular charges against these defendants that would make it

difficult for you to be a fair and impartial juror in the case?” Defendant

Pellicano asked: “Have any of you formed any opinion about the term

‘wiretapping’ from reading the newspapers and the government’s new. . .

legislation regarding wiretapping? Anybody have any knowledge of that

or have any opinions on it?”

92 UNITED STATES V. CHRISTENSEN

from Juror 7’s views on the merits of the case. Accordingly,

the dismissal of Juror 7 does not give reason to set aside the

convictions from the second trial or to require a new trial on

those charges.

After Juror 7 was dismissed, the jury returned guilty

verdicts. Christensen subsequently moved for a new trial.

The motion was accompanied by declarations from several

jurors regarding what happened in the jury room prior to

Juror 7’s dismissal. The lower court correctly held that the

juror declarations were barred from consideration by Federal

Rule of Evidence 606(b), which prohibits a juror from

testifying about statements made during deliberations.

Defendants argue that Rule 606(b) does not apply because

they were inquiring into the juror dismissal rather than the

validity of the verdict, but that distinction was rejected in

United States v. Decoud, 456 F.3d 996, 1018–19 (9th Cir.

2006).

The court then denied the motion. It found that Juror 7’s

statements, as quoted in the notes, “suggest[ed] a bias on his

part against the federal government.” The court noted the

“numerous discrepancies between Juror No. 7’s testimony

and that of the other jurors” and reiterated its finding that

Juror 7 “lied during the Court’s examination and most likely

during voir dire with regard to issues that were relevant to his

bias in the case.” It added: “The submitted juror

declarations—even if they were not barred by Federal Rule

of Evidence 606(b), which they are—do not undermine the

Court’s previous findings as to the credibility of the jurors

qu

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