Wednesday, August 26, 2015
Panel Upholds Christensen’s Conviction on Eavesdropping Charges
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed former powerhouse Los Angeles lawyer Terry N. Christensen’s conviction on charges of illegal eavesdropping and conspiracy.
Christensen—who practiced law in Los Angeles for more than 40 years at the famed Wyman Bautzer firm and at the firm he co-founded, Christensen Miller—was convicted along with former private investigator Anthony Pellicano, well known for his work on behalf of rich and famous clients. U.S. District Judge Dale Fischer of the Central District of California sentenced Christensen to three years in prison in 2008, but he has been free on bail pending appeal.
He has been under interim suspension from the State Bar since his conviction.
Christensen and Pellicano are among 14 persons convicted on charges arising from an FBI investigation that began in 2002 when Los Angeles Times reporter Anita Busch told police she had found a dead fish and a rose on her windshield with a sign reading “STOP” in 2002. She had been reporting on the financial troubles of Michael Ovitz’s talent agency, and the superagent had hired Pellicano to find the source of negative news stories.
A man named Alex Proctor told a government informant he had been hired by Pellicano to vandalize Bush’s car. Conversations recorded by the informant led to the issuance of warrants to search the Pellicano Investigative Agency for evidence of Pellicano’s involvement in the vandalism. Several months later, further warrants were obtained and agents seized additional records from data storage devices previously taken from the agency.
The latter seizures included recordings that Pellicano had secretly made of conversations with Christensen, who had hired him to investigate Lisa Bonder Kerkorian, the entertainment and hotel mogul’s ex-wife. That investigation produced evidence that the former tennis pro’s child was not Kerkorian’s, but it also led to the lawyer and Pellicano being indicted on charges of intercepting wire communications without the knowledge and consent of the participants.
The joint trial of Christensen and Pellicano was the second of two trials that led to the appeals decided yesterday by the court. In the first, Pellicano and four other defendants were charged with wiretapping and computer crimes arising from other investigations.
Pellicano, Judge Richard Clifton wrote yesterday for the Ninth Circuit, led a “widespread criminal enterprise” that bribed police for confidential information, paid a phone company technician to tap lines and hired a software developer to create the “Telesleuth” program that recorded conversations.
A former police officer, Mark Arneson; the phone company technician, Rayford Turner; the software developer, Kevin Kachikian; and a Pellicano client, Abner Nicherie, were the co-defendants in the first trial. Pellicano received an aggregate 15-year sentence after being convicted of 78 total counts in the two cases, while the others were sentenced to 21 months to 121 months each.
Kerkorian was never charged, nor were other high-profile clients whose names came up in media coverage, including Ovitz, Paramount Pictures Corp. Chairman Brad Grey, and comedian Chris Rock. Another high-profile lawyer, Bert Fields, acknowledged having used Pellicano’s services but denied any wrongdoing and was not charged.
Christensen’s attorneys, Seth Hufstedler and Dan Marmalefsky, told the appellate panel that Fischer had erred in allowing jurors to hear privileged conversations between him and Pellicano, and in removing a juror for allegedly failing to deliberate. They also said the sentence was excessive in light of federal guidelines and the U.S. Probation Office’s recommendation that he serve 10 months of home detention.
The judges, however, rejected the claims of privilege, saying very little of the recorded conversations dealt with the Bonder-Kerkorian child support litigation that Christensen had hired Pellicano to help with. To the extent that the recordings included privileged material, their admission was harmless because the non-privileged portions contained enough incriminating evidence to convict the investigator and the attorney of conspiracy and illegal wiretapping, Clifton wrote.
The panel also said the district judge acted within her discretion when she removed the juror identified in the opinion as Juror 7. Fischer took the step following an inquiry into claims by other jurors that Juror 7 had refused to deliberate, claiming that, because the government engages in wiretapping, it shouldn’t be illegal for private citizens to do it, statements the juror denied having made.
“We conclude that the district court’s findings regarding Juror 7’s untruthfulness and unwillingness to follow the law were not clearly erroneous,” Clifton said. “Those findings provided cause for dismissing the juror.”
The panel also upheld the sentence, saying the judge properly took into account Christensen’s “supervisory role” in his dealings with Pellicano, the fact that he committed the crime for economic gain, and his abuse of the trust placed in him as a member of the bar.
With respect to the first trial, Pellicano was ordered retried on two counts of aiding and abetting computer fraud and unauthorized computer access. The court also reversed two similar counts against Arneson and one count of aiding and abetting computer fraud against Turner.
With the major convictions against those men affirmed, federal prosecutors told The Associated Press they would probably ask a judge to impose the same sentences.
Abner Nicherie, the businessman sentenced to 21 months in prison for hiring Pellicano to spy on a rival, had his one count of aiding and abetting a wiretap thrown out. Prosecutors were considering whether to retry him.
The software developer’s convictions were also upheld.
Senior Judge Raymond C. Fisher concurred in the opinion. Chief District Judge Dana L. Christensen of the District of Montana, dissented with respect to the convictions in the second trial, arguing that the dismissal of Juror 7 based on credibility findings was an abuse of discretion.
Assistant U.S. Attorneys Kevin M. Lally and Joshua A. Klein argued the appeals for the government, with San Francisco attorney Steven F. Gruel representing Pellicano.
The case is United States v. Christensen, 08-50531.
Copyright 2015, Metropolitan News Company