Tuesday, August 21, 2012
Court Upholds Year Prison Term for ‘Die Hard’ Director
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed movie director John McTiernan’s conviction and one-year prison sentence for lying about his hiring of now-imprisoned private investigator Anthony Pellicano to perform an illegal wiretap.
The panel said a recording of a conversation between the two men was admissible as evidence against McTiernan, director of such films as Predator, Die Hard, and The Hunt for Red October. And it rejected the defendant’s claim of bias on the part of U.S. District Judge Dale S. Fischer of the Central District of California.
This was the second time that the case was before the appeals court.
In October 2008, a different panel vacated McTiernan’s conviction and four-month prison sentence, ruling that a reasonable person in McTiernan’s position would not have pled guilty if he had been properly advised by counsel as to the possibility of suppressing the evidence incriminating him in the Anthony Pellicano wire-tapping scandal.
McTiernan, 61, falsely told agents from the Federal Bureau of Investigations that he had hired Pellicano as a private investigator one time in connection with his divorce from producer Donna Dubrow in the 1990s, but had no knowledge of Pellicano’s illicit wiretapping activities.
But once he learned that agents had a tape, he admitted that he had hired Pellicano in or around August 2000 and paid him at least $50,000 to conduct an illegal wiretap of two individuals, one of whom was Charles Roven, the producer of box-office flop Rollerball that McTiernan was directing at that time.
Pellicano installed the wiretaps, listened to the subjects’ business and personal telephone calls, and reported their contents to McTiernan. He also recorded his conversations with McTiernan.
FBI agents recovered the tape pursuant to a search warrant in the investigation and prosecution of Pellicano, who is now in federal prison in Big Spring, Texas and scheduled for release in 2019, according to government records.
In the recording, Pellicano informed McTiernan that he had intercepted “tons of stuff” from the wiretapped subjects’ phones. McTiernan instructed Pellicano to focus on instances where Roven was “saying one thing to the studio and saying something else to others,” and said that catching the producer “bad mouthing” the “studio guys” would “really be useful.”
McTiernan agreed to plead guilty to one count of lying to an FBI agent. He signed the agreement and a declaration, attesting that his attorney, John Carlton, had advised him of possible defenses and that he was satisfied with Carlton’s legal representation.
Eleven days before McTiernan was scheduled to be sentenced, San Diego attorney S. Todd Neal advised the government that he would be substituted for Carlton as McTiernan’s new counsel. Neal moved to withdraw McTiernan’s guilty plea and suppress the recording.
‘Criminal or Tortious Purpose’
The motion alleged that McTiernan was entitled to withdraw his plea because his former counsel had failed to obtain any discovery materials from the government prior to the time McTiernan entered his pre-indictment plea and failed to advise him that he could have sought to suppress the recording on the ground that it was made by Pellicano without McTiernan’s knowledge and consent and for an allegedly “criminal or tortious purpose,” in violation of 18 U.S.C. § 2515.
Fischer found that McTiernan’s alleged reasons for seeking withdrawal lacked credibility. She denied the motion and immediately proceeded to sentencing, imposing a term of four months imprisonment, followed by a two-year period of supervised release.
The Ninth Circuit reversed, directing that the judge hold an evidentiary hearing to determine whether the lack of advice regarding a possible suppression motion was a ‘fair and just reason” for McTiernan to withdraw his plea.
On remand, the government withdrew its opposition to the motion to withdraw the plea, which the judge granted. The government then brought a new indictment, adding an additional count of lying to the FBI, plus one count of perjury.
The perjury count was based on a declaration in which he claimed that Carlton had coached him on how to respond to the plea colloquy, whereas he had stated under oath at the time that no one told him what to say.
The defense twice moved to recuse the judge, claiming that comments she made during the course of the proceedings showed a bias against McTiernan. The motions were randomly assigned to Senior Judge Terry J. Hatter, who denied them.
Fischer denied the motion to suppress. The defendant then entered a conditional guilty plea, the government agreeing to recommend a sentence of no more than a year and the defendant reserving the right to appeal.
Senior Judge Ronald Lee Gilman of the Sixth Circuit, sitting by designation, said the motion to suppress was correctly denied because even if the recording was made—as the defense claimed—so that Pellicano could remind himself of crimes he intended to commit, that did not mean the creation of the recording was tortious or criminal.
Such a recording, Gilman explained, “is not essential to the actual execution of an illegal wiretap, unlike a recording of a conversation made for the purpose of blackmailing another person, which directly facilitates the criminal conduct of blackmail.”
Turning to the issue of judicial bias, the appellate jurist said Fischer’s comments, in which she described the defendant as having “lied in his declaration” supporting the motion for withdrawal of his guilty plea and being “clearly willing to lie whenever it suits his purpose,” were based on the defendant’s “known conduct.” Nor did those comments impact the defendant’s sentence, the judge said.
Judges Richard C. Tallman and N. Randy Smith joined the opinion.
Charles M. Sevilla argued the appeal for the defendant. Assistant U.S. Attorney Jean-Claude André represented the government.
The case is United States v. McTiernan, 10-50500.
Copyright 2012, Metropolitan News Company