Wednesday, November 21, 2012
Ninth Circuit Overturns Conviction Related to Pellicano Conspiracy
Panel Says Judge Allowed Improper Testimony by Grand Juror at Phone Company Employee’s Perjury Trial
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed the conviction of a former phone company employee convicted of lying to a grand jury about her involvement in the wiretapping conspiracy that led to the imprisonment of former private investigator Anthony Pellicano.
In a 2-1 decision, the panel said the foreman of the grand jury before which Joann Wiggan, who worked for SBC Communications, allegedly perjured herself should not have been allowed to testify as to his impressions of Wiggan’s credibility.
Wiggan was a facilities technician at SBC in 2004 when an FBI investigation revealed that Pellicano had used Ray Turner, a retired SBC employee, to engage in illegal wiretapping. An examination of Turner’s telephone records revealed that he had made numerous telephone calls to Wiggan’s voicemail account at SBC.
Pellicano was convicted in 2008 of illegally spying on celebrities, attorneys and prominent business executives, including actors Sylvestor Stallone and Steven Seagal, and is serving a 15-year sentence at a federal detention facility in Big Springs, Texas, according to the Bureau of Prisons.
Wiggan told the grand jury that she knew Turner, but hadn’t spoken to him in five years. When shown the records of Turner’s calls to her voicemail, Wiggan claimed that she had never received any messages from him.
A few days after her appearance in front of the grand jury, Wiggan told the prosecutor that she wished to correct some of her testimony, and in a second appearance testified that her husband had told her that he thought she had used her voicemail during the period in question.
When asked whether her prior testimony about the voicemail was true or false, Wiggan replied, “False. My husband said I did.”
Wiggan was indicted on five counts of perjury based on her testimony. At trial, she again stated that she could not recall having received any voicemail from Turner. She said most of the messages she received on voicemail were annoying complaints from her children, so she did not check it very often.
The jury acquitted Wiggan on all but one count of the indictment, on which it deadlocked. In 2009 Wiggan was tried again on the mistried charge and on new charges of having perjured herself during the first trial.
At Wiggan’s second trial, the government called the grand jury foreman, Thomas Venable, to testify, among other things, about Wiggan’s demeanor during her grand appearance. Venable stated a number of times that he and the other grand jurors did not think that Wiggan was credible or believable.
The jury convicted Wiggan on all counts, and Wiggan appealed on the grounds that the trial court had erred in permitting Venable to testify and that she had recanted her grand jury testimony.
The panel held that U.S. District Judge Dale Fischer, of the Central District of California, should have excluded Venable’s testimony because the danger of undue and unfair prejudice far outweighed its probative value.
Writing for the majority, Senior Judge Ferdinand F. Fernandez said:
“Whatever the ultimate validity of any particular decision to admit testimony from members of a grand jury that issued an indictment against a defendant might be, admitting that evidence is sensitive and even dangerous. It is redolent of peril to the fairness of the trial itself.”
The court, however, rejected another defense argument. It held that Fischer did not err when she determined Wiggan had not recanted her testimony during her second appearance before the grand jury.
Panel Rejected Claim
The panel rejected Wiggan’s claim, noting that although its reversal of Wiggan’s conviction made a decision regarding recantation unnecessary, the issue was likely to arise during any retrial.
The panel found that Wiggan’s statements during her second grand jury appearance were nothing more than an attempt to tailor her testimony to the evidence and, as such, did not constitute the necessary withdrawal and renunciation of her prior statements. It also held that repudiation is a matter for the court to decide, not the jury.
Judge Marsha S. Berzon concurred in the opinion by Fernandez.
Judge David M. Ebel, a Tenth Circuit senior judge sitting by designation, dissented, saying that there was no clear abuse of discretion by the trial court and that the panel should have given greater deference to its evidentiary rulings.
Assistant U.S. Attorney Max B. Shiner argued the case on the government’s behalf. San Diego lawyer Cristina Gabrielidis represented the defendant.
The case is United States v. Wiggan, 10-50114.
Copyright 2012, Metropolitan News Company