United States v. Christensen, No. 08-50531 (9th Cir. 2015)
Annotate this CaseDefendants are Anthony Pelicano, Mark Arneson, Rayford Turner, Abner Nicherie, Kevin Kachikian, and Terry Christensen. Defendants appealed their convictions for crimes stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. Defendants raised numerous issues on appeal. The court 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 court also vacated Nicherie’s conviction for aiding and abetting a wire interception; the court affirmed the remaining convictions, 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; the court vacated the sentences imposed on defendants whose convictions were vacated in part-Pellicano, Arneson, and Turner-and remanded for resentencing on their remaining, affirmed convictions; and the court remanded for further proceedings on the vacated counts of conviction, including the possibility of retrial, as may be appropriate, on those charges.
Court Description: 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. 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
The court issued a subsequent related opinion or order on July 8, 2016.
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