United States v. Terry Christensen

Citations: 828 F.3d 763; 2015 WL 11120665Docket: 08-50531; 08-50570; 09-50115; 09-50125; 09-50128; 09-50159; 10-50434; 10-50462; 10-50464; 10-50472

Court: Court of Appeals for the Ninth Circuit; July 8, 2016; Federal Appellate Court

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The United States Court of Appeals for the Ninth Circuit addressed multiple appeals from six defendants convicted in a case involving a criminal enterprise that provided illegal private investigation services in Southern California. The court affirmed some convictions while vacating others and remanding for resentencing and further proceedings. Specifically, it vacated Rayford Earl Turner’s conviction for aiding and abetting computer fraud, as well as Mark Arneson’s convictions for computer fraud and unauthorized computer access, and Anthony Pellicano’s convictions for aiding and abetting both offenses. Additionally, Abner Nicherie’s conviction for aiding and abetting a wire interception was vacated.

The court affirmed the remaining convictions, including RICO convictions for Pellicano, Arneson, and Turner related to the Pellicano Investigative Agency's operations, as well as Terry Christensen's convictions for hiring the agency to illegally wiretap an opponent, and Kevin Kachikian's wiretapping convictions. Sentences for the vacated convictions were also vacated, with remand for resentencing on the affirmed convictions. The panel concluded that sufficient evidence existed for the jury to determine that Arneson and Turner were aware of their involvement in the illegal enterprise, rejecting their challenges to the bribery and honest services fraud predicate acts supporting their RICO convictions. The panel's opinion has been amended, and the request for rehearing was denied for the relevant appellants.

The panel found the jury instructions regarding computer fraud and unauthorized access under the Computer Fraud and Abuse Act (CFAA) to be erroneous and prejudicial, leading to the vacation of Turner’s, Arneson’s, and Pellicano’s convictions related to computer fraud and unauthorized access. The panel dismissed the defendants’ argument that their identity theft and racketeering convictions should also be overturned due to the CFAA convictions being set aside. Kachikian’s objections to the jury instructions concerning conspiracy to intercept wire communications were rejected, with the panel clarifying that under the Electronic Communications Privacy Act, the key issue is whether the defendant acted with intent to intercept communications, regardless of the purpose. Nicherie’s conviction for aiding and abetting wiretapping was vacated due to one improper government theory, although sufficient evidence existed for the other theory, which the panel deemed not harmless. 

Pellicano's recordings largely did not fall under attorney-client privilege, and the limited portions that might have been privileged were deemed harmless. The district court's findings on a juror's credibility issues were upheld, justifying the juror's dismissal and the denial of a new trial for the defendants. Christensen's sentence was affirmed, with the panel rejecting challenges related to upward adjustments and the reasonableness of the sentence. Pellicano’s request for reassignment to a different district judge was denied. The court also upheld the forfeiture order of $2,008,250 against Pellicano, Turner, and Arneson, dismissing their claims regarding the right to a jury trial on forfeiture, the standard of proof, calculation errors, and joint liability. Chief District Judge Christensen concurred in part and dissented in part, arguing the juror's dismissal was inappropriate based on credibility issues related to tax law views.

Karen L. Landau represented Defendant-Appellant Rayford Lee Turner, while Katherine Kimball Windsor and Benjamin L. Coleman represented Defendant-Appellants Abner Nicherie and Kevin Kachikian, respectively. The United States was represented by André Birotte Jr., Robert E. Dugdale, Kevin M. Lally, and Joshua A. Klein. A court order amended an opinion from August 25, 2015, specifically removing and replacing the last paragraphs on pages 41-43. 

The amended text clarified that Kachikian's defense argued he lacked criminal intent, believing Pellicano used his Telesleuth software lawfully. The jury was instructed that the government must prove Kachikian acted "intentionally," meaning purposefully and deliberately, under 18 U.S.C. 2511. Kachikian contended that "intentionally" required knowledge of unlawful conduct, referencing the change from "willfully" to "intentionally" in the 1986 Electronic Communications Privacy Act (ECPA). He claimed this change increased the mental state requirement for liability. 

The dissent of Chief Justice Rehnquist in Bartnicki v. Vopper was cited to support this view, highlighting confusion over the term "willfully." The Ninth Circuit had defined "willful" as an act done with "bad purpose," while other courts had misinterpreted it to include negligence. The amendment clarified that under ECPA, 18 U.S.C. 2511 and 2512 do not impose a duty to investigate the source of information, and a negligent disclosure does not incur liability. The focus is on whether the act of interception was conscious and deliberate, rather than the intent behind the act. The jury instruction was deemed sufficient for establishing intent under the statute, leading to the denial of Kachikian's petition for rehearing. The full court was informed of the rehearing petition, but no judges requested a vote for en banc consideration.

Kachikian is permitted to file a new petition for rehearing and rehearing en banc regarding the amended opinion. The petitions for panel rehearing and rehearing en banc submitted by Appellants Terry Christensen and Mark Arneson on November 13, 2015, have been denied. No judge has requested a vote on these petitions after the full court was informed, and no further petitions from Christensen or Arneson will be considered. Additionally, Christensen's Motion for Judicial Notice from the same date is granted.

The case involves six defendants appealing their criminal convictions related to Pellicano Investigative Agency (PIA), which operated illegally in Southern California. Anthony Pellicano led PIA, using bribery, illegal wiretaps, and other illicit methods to conduct investigations. Among the defendants, Christensen, an attorney, engaged PIA for assistance in litigation involving his client, leading to wiretaps on his opposing party. The criminal enterprise came to light during an FBI investigation in 2002, which culminated in a grand jury indictment for various crimes under the Racketeer Influenced and Corrupt Organizations Act (RICO), among others.

The court's ruling vacates certain convictions: Turner’s conviction for aiding computer fraud, Arneson’s convictions related to computer fraud and unauthorized access, Pellicano’s aiding and abetting convictions, and Nicherie’s conviction for aiding wire interception. However, the convictions for RICO and the hiring of PIA for illegal wiretapping remain affirmed for Pellicano, Arneson, Turner, Christensen, and Kachikian. Sentences for those with vacated convictions are also vacated, with a remand for resentencing on affirmed convictions and potential retrial on vacated counts. The defendants raised numerous issues on appeal.

Fourteen briefs totaling over 900 pages were submitted, with many appeal issues deemed unsuitable for discussion in a precedential opinion. A memorandum disposition affirms these issues concurrently. The opinion focuses on matters warranting extended discussion. 

The appeals involve the prosecution of private investigator Anthony Pellicano and associates for illegal investigations. Pellicano operated the Pellicano Investigative Agency (PIA), engaging in unauthorized activities, including wiretapping. He utilized software called 'Telesleuth,' developed by Kevin Kachikian, to record phone conversations, which were then shared with clients for litigation advantages. To facilitate wiretaps, Pellicano paid Rayford Turner, a telephone technician, who in turn bribed SBC employees for cable-pairing data. Pellicano also compensated LAPD officer Mark Arneson to access confidential police databases for investigative purposes.

A specific case involving client Robert Pfeifer illustrates their operations: Pfeifer hired PIA to influence his ex-girlfriend, Erin Finn, regarding her deposition about his drug use. Pellicano paid Arneson $2,500 to gather criminal history and DMV information on Finn and others, leading to a wiretap that revealed sensitive business information Finn had, which Pfeifer leveraged to coerce her testimony.

The grand jury indicted Pellicano, Arneson, and Turner for RICO violations, alleging their enterprise aimed to generate income through various criminal activities, including wiretapping and identity theft. Kachikian faced charges related to wiretapping but not RICO violations. Additionally, clients Abner Nicherie and Terry Christensen were prosecuted for hiring Pellicano to conduct wiretaps for personal gain, with Nicherie targeting Ami Shafrir and Christensen targeting Lisa Bonder amidst a child support dispute.

A DNA test revealed that another man was the biological father of a child involved in ongoing child support litigation. During this process, Pellicano intercepted numerous conversations of Bonder, including those with her attorneys and family. Key evidence against Christensen consisted of over 30 secretly recorded phone conversations between him and Pellicano discussing the wiretap on Bonder, which were later seized from PIA’s offices. The government's investigation into PIA commenced following threats against reporter Anita Busch, who discovered her car vandalized with a sign and a dead fish. An informant recorded conversations implicating Pellicano in hiring someone to vandalize Busch’s car. Based on this information, the government secured search warrants for PIA, seizing computers and data storage devices. Additional evidence led to more warrants in July 2003, resulting in further seizures, including the recordings of Pellicano and Christensen.

Two trials ensued: the first involving multiple defendants facing RICO and wiretapping charges, leading to convictions for Pellicano, Arneson, Turner, Kachikian, and Nicherie on various counts, including RICO, wire fraud, identity theft, and unauthorized computer access. Acquittals occurred for some counts against Pellicano, Turner, and Kachikian. The second trial focused on Pellicano and Christensen, both convicted of conspiracy and interception of wire communications. Sentences included 180 months for Pellicano, 121 months for Arneson and Turner, 27 months for Kachikian, 21 months for Nicherie, and 36 months for Christensen. Additionally, Pellicano, Arneson, and Turner were ordered to forfeit $2,008,250 jointly and severally.

Standards of review for legal appeals highlight the application of the plain error and clear error standards. When a defendant raises an argument for the first time on appeal, the plain error standard applies, requiring the demonstration of (1) an error, (2) that it was plain, and (3) that it affected substantial rights. An appeals court may reverse only if the error significantly undermines the fairness, integrity, or public reputation of judicial proceedings. This standard is applicable even with intervening changes in law. Clear error review pertains to district court findings of fact, classified as clearly erroneous if they are (1) illogical, (2) implausible, or (3) unsupported by record inferences. Such review is deferential, allowing factfinder choices when two permissible views of evidence exist.

In the case concerning Pellicano, Arneson, and Turner, who were convicted under the RICO statute, the defendants challenged the sufficiency of evidence regarding the existence of a single RICO enterprise, arguing a lack of evidence showing mutual knowledge of roles among them. The court found sufficient evidence for the jury to conclude that Arneson and Turner were aware of the illegal enterprise's nature with Pellicano. The denial of their Rule 29 motion for judgment of acquittal was reviewed de novo, considering evidence in favor of the government. The RICO statute defines an enterprise broadly, encompassing various legal entities and groups associated for a common purpose. Essential elements for a RICO enterprise include a common purpose, ongoing organization, and continuity. Knowledge of the enterprise's general nature suffices for culpability, and a RICO conspiracy only requires awareness of the enterprise's essential nature and intent to participate. The expansive definition of a RICO enterprise is meant to fulfill its remedial objectives.

The First Circuit emphasizes that RICO's scope extends to even minor participants in a criminal enterprise. The court upheld a RICO conspiracy conviction against the wife of a Mexican Mafia member for her involvement in various criminal activities, demonstrating that peripheral involvement can still constitute a connection to the enterprise. Defendants Arneson and Turner challenge the sufficiency of evidence proving their association with the alleged enterprise, claiming they were unaware of each other's roles. However, the court disagrees, citing the indictment's assertion of a common purpose focused on generating income through diverse illicit activities such as illegal wiretapping and fraud. 

Evidence presented indicated that both Arneson and Turner were aware of the enterprise’s nature and intended to participate. Arneson was involved in illegally accessing law enforcement databases, while Turner obtained information from SBC to assist with wiretaps. They were compensated by Pellicano and exhibited coordination in their actions, including instances where they visited PIA together. Testimony also suggested that Pellicano was transparent with his clients about his illegal activities, implying he was similarly open with Arneson and Turner. 

Specific examples, such as their involvement in the case of client Robert Pfeifer, illustrated their collaboration, with Arneson accessing databases and Turner providing subscriber information leading to a wiretap. The evidence supports the conclusion that Arneson and Turner actively participated in the criminal enterprise, justifying the jury's findings. Consequently, the district court's denial of the defendants' Rule 29 motion was upheld.

Pellicano and Arneson challenge their RICO convictions by disputing the validity of the predicate acts of bribery on which the convictions are based. Under RICO, a "pattern of racketeering activity" requires at least two predicate acts, as defined by 18 U.S.C. § 1961(1), which includes state law bribery offenses punishable by over one year of imprisonment. The jury found both defendants committed ten predicate acts of bribery: Arneson's acts were based on California Penal Code § 68, which criminalizes the acceptance of bribes by public officials, while Pellicano's acts were based on California Penal Code § 67, which prohibits offering bribes. The relevant section of Penal Code § 68(a) stipulates that public officials who receive bribes with the understanding that their official actions will be influenced are subject to imprisonment for two to four years.

Arneson contends that the evidence does not demonstrate that his access to government databases constituted "action upon any matter then pending" in his official capacity. The district court dismissed this argument, affirming that California law governs the bribery predicate acts. Evidence presented indicated that Arneson accessed law enforcement databases for Pellicano in exchange for payments, which was deemed to occur "in his official capacity." It was clarified that Arneson did not need "actual authority" to access the databases, as long as the actions fell within his duties and he acted in an official capacity.

An officer acts in an official capacity when performing acts that are inherently part of their role and intended to be official. Evidence, including LAPD manual standards, confirmed that accessing police databases fell within Arneson’s duties. Similar to cases where officers engaged in improper actions, such as accepting bribes to release suspects, Arneson misused his position by accessing restricted databases. California laws and regulations restrict database access to authorized personnel, and Arneson accessed them using LAPD equipment and credentials. His inquiries involved matters that could potentially come before him, even if no specific action was pending at the time of the bribe. The law encompasses any influence on matters that may arise in an officer's duties. Thus, Arneson’s use of his official position for investigations, including accessing confidential databases, constitutes a classic police matter and supports the notion of bribery, as the law prohibits any attempt to influence an officer's official actions. His argument that only discretionary acts qualify for scrutiny is not supported by relevant legal precedents.

The court reversed a judgment regarding the status of executive officers in Los Angeles, asserting that they qualify as executive officers of the state under California Penal Code section 67. Section 68 prohibits "ministerial officers" from accepting bribes, and ministerial acts do not involve discretion. Even if discretion were involved, Arneson had the authority to decide the nature of his investigations and database usage. The court found sufficient evidence that Pellicano bribed Arneson to influence his official acts, specifically regarding database searches, which were deemed "official" acts connected to governmental proceedings. The distinction between misuse of office resources and legal authority is unsupported in California law; accessing the databases constituted a misuse of legal authority.

Additionally, Pellicano contested the predicate acts of honest services fraud, claiming the jury found 46 acts by him and 44 by Arneson. The government argued that Pellicano's bribes to Arneson deprived the public of his honest services. The Supreme Court's decision in Skilling v. United States narrowed the definition of honest services fraud to only include schemes involving bribes or kickbacks from uninformed third parties, eliminating prior bases like undisclosed conflicts of interest. Pellicano contended that the jury instructions were outdated and did not align with Skilling's ruling. However, the court maintained that the bribery acts under California law still qualified as honest services fraud.

The jury's findings on bribery indicate that the Defendants would have been convicted solely on the basis of honest services fraud related to bribery. The inclusion of a now-invalid conflict of interest theory in jury instructions and the government's trial arguments did not harm the Defendants' case. Citing United States v. Wilkes, it is affirmed that the jury's guilty verdict on the substantive count of bribery confirms that they would have convicted the Defendants of honest services fraud based on the bribery definition approved by the Skilling case. The excerpt also addresses Arneson's argument that only bribery or kickbacks as defined by federal law can support a claim of honest services fraud. The Fifth Circuit has countered this, indicating that Skilling established a uniform national standard excluding non-bribery conduct but did not restrict the definition of bribery and kickbacks to federal law. The Skilling decision acknowledges that 18 U.S.C. § 1346 can encompass misconduct that violates state law, thereby extending its application beyond federal statutes. The district court is affirmed in its handling of jury instruction challenges, noting that such challenges are evaluated for legal accuracy and discretion. Jury instructions must adequately cover presented issues, and even if flawed, do not justify overturning a conviction unless they prejudiced the defendant. Additionally, the excerpt confirms that both computer fraud and unauthorized computer access are offenses under the Computer Fraud and Abuse Act (CFAA), with Turner being convicted for aiding and abetting these crimes by bribing telephone company employees to access proprietary information.

PIA's wiretapping activities were facilitated using information obtained by Arneson, who was convicted for unauthorized access to confidential police databases regarding PIA's investigative targets. Pellicano was convicted for aiding Arneson and Turner in computer fraud and unauthorized access. The court referenced United States v. Nosal, which clarified that "exceeds authorized access" under the CFAA pertains only to violations of access restrictions, not usage restrictions. In Nosal, a former Korn/Ferry employee was dismissed of charges for aiding and abetting computer fraud because he did not exceed authorized access, despite using information inappropriately. The district court's jury instructions mistakenly allowed a conviction based on unauthorized use rather than unauthorized access, which was contrary to the Nosal ruling. Since no objections were raised during the trial, the review was for plain error. This flawed instruction was prejudicial as the government failed to prove unauthorized access by Wright during her job, despite claiming her use of code “ERR” indicated an attempt to cover her tracks.

The "ERR" code was used by phone company employees to indicate accidental access to an account, but its use did not conclusively demonstrate unauthorized access to the database. Wright's potential use of this code to deflect suspicion does not negate her possible authorization to access the database. The case of Nosal established that unauthorized use alone cannot support convictions for aiding and abetting computer fraud, which applies to the convictions of Turner and Pellicano concerning Wright's actions. Similarly, the convictions related to Arneson's misuse of LAPD database information were deemed erroneous. The government argued that violations of laws restricting access to information could incur liability under the CFAA, but this argument was rejected, as Congress did not intend the CFAA to be applied broadly beyond its anti-hacking purpose. The jury's instructions regarding computer fraud and unauthorized access were incorrect and prejudicial, leading to the vacating of convictions against Turner, Arneson, and Pellicano. The case is remanded for further proceedings, allowing the government the option to retry the defendants.

Regarding identity theft claims under 18 U.S.C. § 1028 and racketeering under 18 U.S.C. § 1962, the defendants contended that the invalidation of their CFAA convictions necessitated the same for these offenses. Identity theft requires knowing possession or use of identification means with intent to commit another crime, while racketeering necessitates proof of additional criminal violations. The defendants argued that the reliance on their CFAA convictions for establishing criminal intent invalidated their identity theft and RICO convictions. However, their claims were dismissed as they did not demonstrate that the CFAA errors prejudiced their rights. Although the CFAA jury instructions were erroneous, the California statute instructions were valid, thus sustaining the identity theft convictions despite the flawed basis of the CFAA charges.

Knowingly transferring, possessing, or using another person's means of identification without lawful authority to commit or facilitate unlawful activity violating federal law or state/local felony is punishable under 18 U.S.C. § 1028. In United States v. Christensen, the court ruled that a jury’s conviction is valid if there is no reasonable doubt regarding the defendant's guilt based on legitimate grounds. Specifically, overwhelming evidence supported the jury's conviction for identity theft under the California Penal Code. 

California Penal Code § 502 criminalizes knowingly accessing, without permission, data from a computer or network, including copying or utilizing supporting documentation. The statute defines "access" as gaining entry to computer resources. An exemption exists for actions performed within the scope of lawful employment, but defendants Wright and Arneson did not argue they were acting within this scope, and their database searches were deemed unnecessary for their job functions.

The court rejected the defendants' argument to interpret the California statute consistently with federal law under the Computer Fraud and Abuse Act (CFAA), noting that California's statute requires only knowing access, not unauthorized access as required by the CFAA. The unlawful aspect of accessing data under California law is tied to taking or using information without permission. The California Court of Appeal’s previous ruling in Chrisman indicated that mere curiosity without unauthorized access does not constitute a violation, though other decisions suggest a broader interpretation of unlawful access under the state law.

The court examined the scope of "access" under California law, particularly in the context of unauthorized computer access. It referenced multiple cases, including *Chrisman v. City of Los Angeles* and *Gilbert v. City of Sunnyvale*, to illustrate instances where individuals were either within or outside the bounds of their employment when accessing databases. The definition of "access" includes logging in with a valid password and improperly using information from the database. The court emphasized that the statutory language makes it clear that unauthorized access is not inherently defined as lacking permission, as the statute provides exceptions for employees acting within their lawful duties. 

The court also affirmed that the jury's findings supported a conclusion of criminal intent under the relevant California statute despite some jury instructions potentially being erroneous regarding the Computer Fraud and Abuse Act (CFAA). The jury's guilty verdicts for computer fraud and unauthorized access were deemed harmless errors since the facts established intent under California law. The jury determined that the defendants induced others to provide confidential information from databases, which constituted a violation of the statute. The court upheld the convictions for identity theft and RICO, dismissing the defendants' challenges related to the California law on identity theft.

The argument regarding the statute of limitations is dismissed, as the applicable statute pertains to identity theft rather than the case of UNITED STATES V. CHRISTENSEN. Kachikian raises several challenges to jury instructions related to his convictions for conspiracy to intercept wire communications under 18 U.S.C. 2511(1)(a) and for manufacturing or possessing a wiretapping device under 18 U.S.C. 2512(1)(b), but these challenges do not convince the court. 

Kachikian's defense centers on his claim of lacking criminal intent, believing that Pellicano used his Telesleuth software lawfully. The court finds the jury was properly instructed that the government needed to demonstrate Kachikian's intentional conduct, distinguishing it from accidental or mistaken actions. For identity theft, only the intent to commit a felony is necessary, regardless of whether the felony was completed. Kachikian's assertion regarding the California statute being a "wobbler" (a charge that can be a felony or misdemeanor) fails, as such statutes are typically considered felonies. 

His argument about the jury's lack of instruction on the required loss amount is also rejected, as this pertains to a different statute section and any potential error would be deemed harmless, with the jury likely determining the exchanged information's value exceeded $250. Kachikian further argues that "intentionally" in sections 2511 and 2512 implies knowledge of illegality, suggesting that the change from "willfully" to "intentionally" in the 1986 ECPA was meant to heighten the mental state requirement. He cites a dissenting opinion in Bartnicki v. Vopper, which indicates confusion over the term "willfully" prior to the ECPA, but the court does not find this persuasive in altering the jury's understanding of the required intent.

Under 18 U.S.C. § 2512(1)(b), liability arises for those who manufacture, assemble, possess, or sell a wiretapping device. The interpretation of "willful" in federal statutes allows a judge to classify acts as 'willful' even without intentional commitment. The change from “willfully” to “intentionally” clarifies that the statutes (specifically §§ 2511 and 2512) do not require a duty to investigate the source of intercepted information; negligent disclosure of such information does not incur liability. The term “intentional” refers to actions taken with purpose, stressing that the individual's state of mind pertains only to conduct and outcomes, independent of any malicious intent. Consequently, in assessing liability under § 2511, the focus is on whether the defendant acted with awareness and deliberation aimed at intercepting communications.

Regarding § 2512, the jury instruction mandated the government to demonstrate that the defendant knew or should have known that the device was designed for the surreptitious interception of communications. Kachikian's argument that knowledge of illegal use was needed is incorrect; the statute criminalizes the intentional act of manufacturing a device that is primarily useful for wiretapping, without necessitating proof of intent for unlawful use. The term “surreptitious” pertains to the device's capabilities, not the user's intentions.

Kachikian proposed an interpretation of "surreptitious" interception for the jury, defining it as “unauthorized, in other words unlawful” interception, which would exclude lawful law enforcement intercepts. His defense claimed that he manufactured wiretapping devices with the belief they would be used primarily for legal, law enforcement purposes, suggesting he lacked reason to know they were designed for unlawful interception. The statute's use of "surreptitious" refers to the secretive nature of the interception, not its legality, aligning with common legal interpretations, such as in United States v. Lande, which established that equipment used for undetectable interception qualifies as surreptitious. The definition of surreptitious interception focuses on the targets' lack of awareness regarding the interception. The court rejected Kachikian's proposed instruction, stating that even if "surreptitious" were defined as secret and unauthorized, it does not exclude law enforcement wiretaps, as what matters is whether the interception was authorized by the involved parties. Additionally, the statute includes an exception for private citizens manufacturing wiretapping devices under government contract, which Kachikian does not qualify for. His assertion that the term "electronic, mechanical, or other device" excludes devices for law enforcement use is unsupported, as the statute specifies such devices are not covered when used by law enforcement in the ordinary course of duty.

Kachikian argued that the jury should have been instructed that the government needed to prove he did not intend for law enforcement to possess the Telesleuth device to establish his guilt. However, the court found this argument flawed, noting that the statute’s language emphasizes the present use of a device rather than its potential future use. The relevant exception applies only when a device is actively being used by law enforcement, not when it could be used. Kachikian was aware that the device was not currently in use by law enforcement, so instructions regarding its intended use were deemed unnecessary.

Moreover, Kachikian's suggestion that he manufactured the device for a different purpose without knowing it could be used for wiretapping was addressed by the jury through existing instructions, which they found unpersuasive. He could have had a valid defense only if he either did not intentionally manufacture the device or was acting under government contract, neither of which he substantiated at trial. Thus, the court's refusal to give specific instructions on these defenses was not considered an abuse of discretion.

Kachikian also proposed a good-faith instruction asserting that his belief in Pellicano's intentions to sell the Telesleuth to law enforcement should absolve him of liability. The court rejected this, determining that it did not accurately reflect the law. The proposed instruction would have improperly required the jury to acquit Kachikian based solely on his belief while ignoring his knowledge of the device's potential for illegal use. The court concluded that Kachikian's awareness of the device's primary function as a wiretapping tool sufficed to uphold the charges against him, and thus, the court acted within its discretion in rejecting the proposed instruction.

The court addressed an issue regarding jury instructions related to the definition of "surreptitious" in the context of wiretapping law. It clarified that the timing of notification about the interception does not affect the determination of surreptitiousness, and concluded that the court did not abuse its discretion by issuing a supplemental jury instruction. Kachikian argued that the court erred by not instructing the jury on the wiretapping exception in 18 U.S.C. § 2511(2)(d), which allows individuals to record their own conversations legally. Despite being acquitted of substantive wiretapping charges, Kachikian was convicted of conspiracy to wiretap. His defense posited that the inconsistent verdict indicated the jury mistakenly viewed his co-conspirator’s self-recording as illegal, leading to his conspiracy conviction without the intent to assist in wiretapping others. Kachikian’s complaint centered on the jury instructions rather than a true error, highlighting that inconsistent verdicts alone do not warrant conviction reversal. Additionally, the court noted that Kachikian failed to propose a jury instruction regarding the statutory exception, and thus the court was not obligated to provide one sua sponte. The ruling emphasized that a conviction for conspiracy can exist independently of substantive charge acquittals, as supported by precedents.

The jury may have found sufficient evidence to establish that Kachikian conspired with Pellicano to engage in illegal wiretapping, but not enough to link him to specific individuals or instances mentioned in the indictment. There was no clear error in the jury instructions, and Kachikian did not argue during the trial that he believed Pellicano's intentions were limited to recording his own conversations. An omission of a jury instruction does not significantly compromise the fairness of the trial if the defense did not address the relevant issue. Consequently, Kachikian's conviction is upheld.

Nicherie was convicted for aiding and abetting wiretapping but contends that his conviction should be overturned due to subsequent legal changes affecting one of two prosecution theories, making it unclear which theory the jury relied upon. He also claims insufficient evidence of his illegal actions within the statute of limitations, which requires conduct to have occurred after October 26, 2000. The court agrees that one theory was improper; however, there was adequate evidence to support the other theory, yet it was not so compelling as to render the error harmless, leading to a vacating of Nicherie's conviction.

The prosecution presented two theories for Nicherie's guilt: hiring Pellicano to wiretap Ami Shafrir and listening to the intercepted calls. For conviction, the jury needed to find he either paid Pellicano for wiretap services or listened to the recordings after the cutoff date. The first theory, if supported by evidence of hiring Pellicano during the relevant period, could uphold the conviction. Despite Nicherie's claims of insufficient evidence, testimonies indicated he had engaged Pellicano’s services around the relevant timeframe, justifying the prosecution's arguments.

Evidence presented included checks from Gedese Management to Pellicano, with Sarit Shafrir testifying that Gedese was a shell company owned by Nicherie, and that the checks were signed by him. The court found the evidence sufficient for a rational jury to conclude that Nicherie aided and abetted wire interception by engaging Pellicano's services within the statute of limitations. However, a subsequent legal ruling in Noel v. Hall established that merely playing a recording of a previously intercepted communication does not constitute a new interception under the Wiretap Act. Hence, any use of the recorded conversation falls under the prohibition against disclosing intercepted communications rather than interception itself. 

The jury instructions allowed for a conviction of aiding and abetting wire interception based on the theory that translating a recording of a previously intercepted wire constituted a crime. Since Nicherie did not object to these instructions at trial, the court reviewed for plain error. Changes in law from trial to appeal can reveal errors that may not have been obvious earlier. The jury instructions were deemed erroneous under the precedent set in Noel, as the crime of wiretapping was complete upon recording, and replaying the recording did not amount to a new interception. 

Nicherie's subsequent actions of listening to and translating the recordings did not equate to aiding and abetting wire interception as defined by 18 U.S.C. § 2511(1)(a). The government argued that Nicherie's review and translation occurred while the wiretap hardware was still operational, potentially aiding the continuation of the wiretap. However, since each discrete interception constitutes a violation, a conviction for aiding and abetting cannot solely rely on the review and translation of previously recorded communications.

Subsequent use of a recorded conversation, including its listening and translation, is prohibited under laws governing intercepted communications. Nicherie was not charged with misusing previously intercepted information. Although evidence supported a conviction under the first “procurement theory,” the instructional error regarding the second “listening and translating” theory was significant enough to affect Nicherie’s substantial rights, as the jury may have based its verdict on unsupported factual findings. The standards for plain error were met, resulting in the vacating of Nicherie’s conviction for aiding and abetting a wire interception, with a remand for potential retrial by the government.

Regarding attorney-client privilege, recordings made by Pellicano of conversations with Christensen, which discussed a wiretap related to the client Kerkorian, were deemed critical evidence in the second trial. The defendants argued that these conversations were protected by attorney-client privilege and that the district court failed to adhere to procedural standards set in United States v. Zolin for handling potentially privileged materials. Although the court initially erred in not applying Zolin, it later corrected this oversight, and any prior error was deemed harmless, leading to the affirmation of the district court’s decision following its reconsideration under the appropriate framework.

The majority of the recordings in question did not receive protection under attorney-client privilege or the work product doctrine, and the release of any potentially privileged portions was deemed harmless. The standard of review for determining the sufficiency of evidence for in camera review follows the Zolin test, which involves a mixed question of law and fact subject to de novo review. If an adequate showing is made, the decision to conduct in camera review is at the district court’s discretion. Rulings on the scope of privilege, including the crime-fraud exception, are also mixed questions of law and fact and generally subject to de novo review, unless the privilege scope is clear, in which case only clear error warrants reversal.

After the government acquired the Pellicano-Christensen recordings, it recognized potential privilege concerns and established a “filter team” to screen these recordings. This team concluded that the conversations were not privileged and were related to criminal activity, subsequently seeking a court order to release the recordings for further investigation. However, Christensen contended that the district court did not adhere to the Zolin process before granting the order, which requires a two-step ex parte process. Initially, the court must obtain a factual basis to support a reasonable belief that an in camera review may reveal evidence supporting the crime-fraud exception. The district court initially failed to apply this process when it granted the government’s application based on the recordings' content. Upon realizing the mistake, the court reconsidered the issue under the proper two-step process in response to Christensen's motion to dismiss or suppress the recordings.

The district court determined that the government met the criteria for an in camera review under the Zolin framework. Upon review, the court concluded that the recordings in question were not protected by attorney-client privilege or work product doctrine, and even if they were, the crime-fraud exception applied. The court corrected its earlier misapplication of the Zolin process, where it had improperly considered the content of the recordings in its initial ruling on the government’s ex parte application. Citing United States v. de la Jara, the court noted that the earlier case admitted a letter under the crime-fraud exception without following the Zolin process. The current court emphasized that if it would have remanded the case for proper application of Zolin had the attorney-client privilege not been waived, it similarly found it acceptable for the district court to rectify its mistake prior to the appeal. The court expressed confidence in judges’ ability to disregard improper evidence and recalled that motions to strike do not automatically lead to mistrials in bench trials. Furthermore, the judge is capable of applying the two-step Zolin analysis correctly despite prior exposure to potentially privileged material. Ultimately, while there was an error in not following the Zolin process, this error was deemed harmless as the district court rectified its decision under the correct standard once the error was identified, aligning with precedents such as United States v. Chen.

The district court did not err in determining that the government met its minimal burden under Zolin’s first step for applying the crime-fraud exception. Zolin’s first step requires a factual basis to support a reasonable belief that an in camera review may reveal evidence relevant to the crime-fraud exception. The threshold for this showing is not stringent and allows for some speculation, as it is designed to prevent baseless inquiries into privileged materials. The court concluded that a reasonable person could in good faith believe that the crime-fraud exception might apply to recordings based on: (1) Christensen’s representation of Kerkorian in a child support case involving Bonder, (2) a substantial payment from Christensen’s firm to Pellicano around the time of the recorded conversations, and (3) an FBI record indicating that Pellicano was listening to Bonder’s conversations. The evidence suggested a potential inference that the payment could be linked to illegal wiretapping services, which was permissible speculation under Zolin. Additionally, the government provided evidence that Pellicano had recorded others discussing wiretapping, supporting a reasonable belief that similar discussions could exist in the Christensen recordings. The district court properly considered only non-privileged evidence in its analysis, adhering to the evidentiary rules regarding preliminary privilege determinations.

The government demonstrated a minimal showing that the Pellicano-Christensen recordings potentially contained evidence justifying the application of the crime-fraud exception to otherwise privileged communications. The district court performed an in camera review and found that most communications were not protected by attorney-client privilege, with only a few statements hinting at confidential information related to Kerkorian. Those that might qualify as confidential were deemed not privileged because they pertained to illegal activities or did not involve legal advice. The court agreed that the attorney-client privilege applied to only limited portions of the recordings, and it found the release of those portions harmless given the extensive incriminating evidence of illegal wiretapping present in the non-privileged segments. Additionally, the defendants forfeited any claims regarding the work product doctrine by not raising it in their briefs. Even if considered, the district court ruled that the work product doctrine did not apply to the illegal wiretapping. Ultimately, the district court did not err in releasing the recordings or allowing their use in the second trial. The attorney-client privilege aims to encourage candid communication between clients and attorneys, protecting confidential disclosures made for legal advice, including responses from attorneys that may reveal client communications.

Attorney-client privilege does not extend to an attorney's summaries of a client’s business transactions. Communications from the attorney to a third party acting as an agent can be protected if they disclose confidential client information. The attorney-client privilege comprises eight elements, including the necessity for legal advice sought from a professional in confidence, with protection from disclosure unless waived by the client. Communications between a lawyer and a private investigator for client representation may be covered by this privilege. Claims of privilege must be specific to each question or document rather than broad, and the privilege should be narrowly defined. A document can be entirely privileged if confidential portions are inseparable from non-privileged content. Conversely, if non-privileged portions are distinct, the court must identify and redact them before disclosure. Upon reviewing transcripts of recordings, the court found minimal statements that could be considered confidential regarding Kerkorian, with Christensen’s claims being overly broad. Specific examples cited by Christensen regarding confidential terms and statements about ongoing litigation were noted but deemed insufficient to support his argument.

The district court raised concerns about the confidentiality of terms Kerkorian was reportedly willing to offer, suggesting those terms may have already been shared with Bonder’s counsel. Christensen did not contest this point. Furthermore, Christensen's argument that discussions between Pellicano and Christensen included references to ongoing litigation was insufficient, as such references did not inherently reveal confidential information belonging to Kerkorian. Most of the recorded discussions, described by the court, centered on two primary topics: Bonder Kerkorian and the parentage of Kira Kerkorian. Pellicano relayed communications from Bonder Kerkorian, expressed personal opinions, and provided advice to Christensen, all of which stemmed from conversations obtained through illegal wiretapping. The discussions regarding Kira’s parentage often involved Pellicano negotiating between Bonder Kerkorian and a named individual, without revealing confidential disclosures from Kerkorian to Christensen. The court found that less than 10% of 370 pages of transcripts contained potentially confidential information, and Christensen failed to demonstrate that these privileged portions were inseparably intertwined with the nonprivileged material. The court determined that even if the crime-fraud exception applied to privilege, any error in admitting the recordings was harmless, as the nonprivileged content, which included discussions of illegal wiretapping, was the incriminating evidence not protected by privilege.

The majority of the Pellicano-Christensen recordings were deemed non-privileged, and any error in admitting potentially privileged parts was considered harmless. The district court correctly determined that attorney-client privilege did not apply. Neither Christensen nor Pellicano argued on appeal that the recordings should be excluded under the work product doctrine. Christensen only referenced the doctrine to assert standing against the seizure of the recordings, while Pellicano did not mention it at all, leading to a waiver of the issue on appeal. The Court of Appeals typically does not consider unargued matters. Even if the issue were raised, the district court found the work product doctrine inapplicable. This doctrine, outlined in Federal Rule of Civil Procedure 26(b)(3), protects documents prepared in anticipation of litigation but requires that such documents be created either by or for a party or their representative. The doctrine aims to safeguard attorneys' mental processes, but it is not absolute; it can be overridden if justification for production is shown. Importantly, the doctrine does not protect illegal actions by attorneys, as its purpose is to maintain the integrity of the adversary process. An attorney’s unethical conduct, such as secretly recording conversations with witnesses, can negate the protection afforded by the work product doctrine.

An attorney cannot invoke the work product doctrine to avoid criminal prosecution for illegal actions related to their professional duties. Prior cases indicate that unethical behavior can nullify work product protection. In the case of United States v. Christensen, the attorney's illegal actions to secure personal information about an opponent during trial preparation disqualified the application of the work product doctrine. The court ruled that allowing such privilege would contradict the doctrine's purpose, which aims to prevent unfair legal practices. Consequently, the district court appropriately admitted the recordings into evidence.

Additionally, during the trial involving defendants Christensen and Pellicano, Juror 7 was dismissed after the court found that he refused to follow the law and had misled the court. An alternate juror was seated, and the jury was instructed to restart deliberations, leading to guilty verdicts for both defendants. They contended that Juror 7's dismissal was improper and argued for a new trial. The appellate review of juror dismissal and new trial motions is for abuse of discretion, with factual findings reviewed for clear error. The district court's decision to dismiss Juror 7 will be upheld unless it is shown that the court clearly misjudged the situation.

The district court's findings regarding Juror 7's dishonesty and refusal to adhere to the law were upheld as not clearly erroneous, justifying the juror's dismissal. The court's decisions to dismiss Juror 7 and deny the defendants' motion for a new trial were deemed not an abuse of discretion. Under Fed. R. Crim. P. 23(b)(3), a juror can be dismissed for good cause during deliberations, which was supported by the two reasons provided: the juror's unwillingness to follow the law and his deceit towards the court. Juror nullification, where a juror fails to return a guilty verdict despite the law and evidence, can be grounds for dismissal, as trial courts have a duty to prevent such conduct.

In contrast, dismissing a juror based on their views regarding the evidence's sufficiency is impermissible and violates a defendant’s Sixth Amendment right to an impartial jury. This principle was illustrated in *United States v. Symington*, where a juror's dismissal was reversed because it was likely based on her views about the case's merits, rather than her ability to deliberate. The court emphasized that any reasonable possibility of a dismissal stemming from a juror's merit-based views must be avoided.

Available evidence must convincingly demonstrate that a juror's dismissal is not influenced by their stance on the case's merits. The district court could not be firmly convinced that Juror Cotey's dismissal was unrelated to her views on the case, particularly as some jurors' frustration seemed linked to their disagreement with her defense. There is inherent difficulty in distinguishing whether a juror's reluctance to deliberate is due to their opinion on the case or the law, and courts must avoid probing too deeply into jurors' motivations to protect the confidentiality of deliberations. Trial judges face unique challenges in assessing juror dynamics and are typically granted deference in their determinations of good cause for juror dismissal. A juror's dishonesty regarding bias can also justify dismissal. In a cited case, a juror misrepresented her interactions with the defendant's family, leading the court to conclude that her lack of honesty undermined her impartiality. The appellate court upheld the dismissal, noting that the primary concern stemmed from the juror's misconduct rather than her willingness to deliberate, and emphasized the importance of the trial court's credibility assessments, which are often based on the juror's demeanor.

Deference to juror conduct does not necessitate extensive inquiry into deliberations unless there are allegations of juror dishonesty. In this case, concerns regarding Juror 7 arose shortly after deliberations began, highlighted by notes from other jurors indicating that Juror 7 disagreed with the law on wiretapping and was not participating in deliberations. Specifically, Juror 7 expressed views suggesting that if the government could wiretap without consequence, then he should be able to do so as well. Subsequent notes from Jurors 1 and 9 requested assistance and indicated that Juror 7 was not engaging in discussions about evidence or the law and was characterized as “ANTI-government.” The court responded by reiterating the jury's duty to apply the law as instructed, regardless of personal beliefs. Following further notes indicating Juror 7's lack of seriousness about the case, the court decided to conduct individual questioning of jurors to understand Juror 7's stance better. The court recognized the necessity of investigating allegations of juror misconduct, particularly concerning potential jury nullification, and indicated that the inquiry would focus on Juror 7's willingness to follow the law and engage in deliberation.

Emails from both the Government and defense, along with various case citations, prompted the court to question jurors regarding allegations of misconduct. Juror 7 was the first examined and denied making statements attributed to him in notes from other jurors, which suggested he claimed it was acceptable for a defendant to act as the Government does regarding wiretapping. Juror 7 explained that the note might have arisen from another juror's anger over his disagreement with the majority's views. He clarified that he could not base his decisions solely on circumstantial evidence.

Subsequent questioning of five additional jurors revealed a consensus that Juror 7 had indeed made comments similar to those reflected in the notes, particularly regarding wiretapping and federal tax obligations. Juror 1, the foreperson, recalled Juror 7 stating that if the Government could wiretap without consequences, then a private citizen should be able to do the same. Juror 9 and others confirmed that Juror 7 expressed skepticism about wiretapping and federal tax law. After reviewing the evidence and testimony, the court determined there was just cause to dismiss Juror 7, concluding that he was unwilling to follow the law in the case, as corroborated by the statements and confirmations from other jurors.

The court determined that Juror No. 7 had lied to the Court, which constituted an independent basis for his dismissal. In contrast, the court found the remaining five jurors credible. Juror No. 7 failed to disclose relevant information during voir dire, specifically regarding his feelings about the charges and his knowledge of wiretapping laws. The district court recognized the standards set forth in Symington, concluding that Juror 7's dismissal was due to his views on the law rather than the case's merits. The judge stated there was no reasonable likelihood that the jurors’ request for an alternate was influenced by Juror 7's opinions on the case. The court adhered to the principle of jury deliberation secrecy, instructing jurors not to discuss their deliberations or share unsolicited information. Despite this, the court confirmed through five jurors that Juror 7 expressed disagreement with wiretapping laws, leading to the conclusion that his dismissal was justified. Juror 7’s claims of not commenting on wiretapping laws were contradicted by the other jurors, prompting the court to assess him as not credible, a finding deemed not clearly erroneous. The court noted that the first inquiry from the jurors occurred just one hour into deliberations, suggesting that the other jurors likely did not base their requests on Juror 7's disagreement regarding the evidence, in contrast to the longer deliberations seen in Symington.

Juror 7 expressed strong disagreement with wiretapping laws during deliberations, leading to concerns from other jurors that were primarily focused on his legal views rather than the evidence presented. A dissenting opinion suggested that the other jurors may have pressured Juror 7 due to his status as a holdout regarding the evidence; however, it was established that Juror 7’s comments did not pertain to the evidence but rather to his belief about the federal government’s role in presuming innocence. Juror 1's statement about differing views was deemed irrelevant as it did not address evidence directly. The court found that Juror 7’s credibility was undermined by conflicting testimonies from five other jurors, leading to the conclusion that his dismissal was justified and did not raise the concerns noted in previous cases. Juror 3 expressed discomfort with Juror 7’s comments, indicating a lack of collusion against him. The dissent argued that the court erred by not explicitly asking Juror 7 if he could follow the law, suggesting this oversight warranted reversal. However, previous rulings indicate that a juror’s assurance of impartiality is not conclusive and that juror misconduct requires a thorough investigation into the circumstances rather than blind acceptance of a juror’s claims.

A criminal defendant is presumed innocent, but the prosecution must prove guilt. If a juror is found to have engaged in misconduct, their claims of innocence or ability to follow the law should not automatically protect them from dismissal if other evidence suggests otherwise. The district court has a duty to prevent jury nullification, which supports its authority to question jurors thoroughly. In this case, the court determined that Juror 7 was not impartial based on an independent assessment, which included comparisons with statements from five other jurors indicating Juror 7’s unwillingness to follow the law, including a claim about federal tax obligations that implied non-compliance with wiretapping laws. The court's findings regarding Juror 7's credibility and conduct were appropriate and not clearly erroneous. The dissent failed to adequately contest the standard of review applied to these findings. The dissent's argument that dishonesty only matters if it indicates a lack of impartiality does not negate the district court’s conclusions regarding Juror 7’s behavior.

The district court referenced the Dyer decision while denying a motion for a new trial, focusing on claims of juror misconduct related to Juror 7, who allegedly failed to disclose prejudicial comments made by a prosecutor. The Dyer case involved a juror who answered questions during voir dire dishonestly, having concealed her brother’s murder, which led to a conviction and death sentence for a defendant. The court granted habeas relief in that case due to the juror's dishonesty impacting her impartiality.

In the current case, Juror 7's statements during voir dire regarding wiretapping laws were scrutinized. He did not disclose his personal views on these laws despite being questioned directly, which suggested a potential bias that could undermine his role as an impartial juror. The district court found that Juror 7's falsehoods were material to his ability to adhere to the law, justifying his dismissal. The court's factual findings indicated no reasonable likelihood that his dismissal stemmed from implied bias, which aligned with the principles established in Dyer.

Following Juror 7's dismissal, the remaining jurors reached guilty verdicts. Christensen's subsequent motion for a new trial included declarations from several jurors about the jury's deliberations prior to Juror 7's removal, but the court determined that these developments did not warrant overturning the convictions from the second trial.

The lower court ruled that juror declarations were inadmissible under Federal Rule of Evidence 606(b), which prevents jurors from testifying about deliberation statements. Defendants contended that this rule did not apply as they were questioning juror dismissal rather than verdict validity; however, this argument was dismissed based on precedent from *United States v. Decoud*. The court concluded that statements from Juror 7 indicated bias against the federal government, highlighting numerous inconsistencies between his testimony and that of other jurors. The court found Juror 7 had likely lied during examination and voir dire, and emphasized that even if the juror declarations were admissible, they would not affect the established credibility findings. 

In the sentencing section, the appellate court reviews the district court’s interpretation of the Sentencing Guidelines de novo, its application for abuse of discretion, and factual findings for clear error. A sentence may be overturned if it is substantively unreasonable or procedurally erroneous. Procedural errors include miscalculating the Guidelines range, neglecting to consider relevant factors, or failing to adequately explain the sentence. 

Defendant Christensen was convicted for conspiracy and interception of wire communications, receiving a 36-month concurrent sentence, within the 30-37 month range recommended by the advisory Guidelines. The court calculated a total offense level of 19, including a three-level upward departure due to factors inadequately addressed in the Guidelines. Without this departure, the offense level would have been 16, suggesting a range of 21-27 months. Christensen argued the offense level was incorrectly calculated and that his sentence was substantively unreasonable; however, the court affirmed the sentence.

Christensen contests three elements of the district court's offense level calculation under the Sentencing Guidelines. First, he objects to a two-level upward adjustment for occupying a supervisory role over Pellicano. The court found that Christensen was responsible for Pellicano's conduct and actively supervised him during the criminal activities, particularly directing him to wiretap a phone line, which required a coordinated effort. The court's factual findings were deemed not clearly erroneous, as they were logical and supported by the record.

Second, Christensen challenges a three-level economic gain enhancement under § 2H3.1, arguing that the wiretap's purpose was not for direct financial gain. However, the court determined that the wiretap was intended to provide a tactical advantage in litigation—an indirect economic gain. It was noted that Christensen's motivations were tied to his own economic interests in maintaining client satisfaction, a finding upheld by the court.

Lastly, Christensen disputes a two-level upward adjustment for abuse of a position of trust under § 3B1.3. The court concluded that he abused a public trust, which significantly facilitated the crime's commission and concealment. Although Christensen did not hold a traditional position of trust relative to the wiretap victims, the court recognized the broader implications of trust within the legal community and the justice system, asserting that attorneys are expected to act ethically and maintain trustworthiness.

Attorneys are expected to trust one another to refrain from illegal or unethical behavior, fundamental to the integrity of the legal system. In the case of United States v. Christensen, the defendant, an attorney, argued against the application of a sentencing enhancement for abuse of trust under section 3B1.3, asserting that he did not use his attorney status to commit or conceal his crime and that the trust relationship must be between him and the victim, Lisa Bonder. He contended that merely being an attorney was insufficient for the enhancement. The district court acknowledged the complexity of applying this enhancement to the case but ultimately ruled that Christensen's attorney status significantly facilitated the commission of the offenses, including conspiracy to intercept wire communications. The court found no clear error in its conclusion that Christensen's position contributed meaningfully to the offenses, given that the motivation for the wiretapping was linked to his representation of Kerkorian in a child support dispute with Bonder. The court indicated that even without the enhancement, it would have imposed a similar sentence through an upward variance, as attorneys who abuse their positions warrant greater culpability than those without such authority.

Christensen's involvement as Kerkorian's attorney was pivotal in the wiretapping of Bonder, suggesting that the conspiracy would not have transpired without his participation. The court rejected Christensen's argument that the U.S. Sentencing Guidelines § 3B1.3 enhancement for abuse of position of trust should only apply in cases where the violation occurs between the defendant and the victim. Instead, the court emphasized that the guidelines reference a broader concern of public or private trust, encompassing interests beyond those of a specific client. The enhancement has been upheld in previous cases involving attorneys, even when the direct victim was not the client. For example, in United States v. Kubick and United States v. Goldman, enhancements were affirmed for attorneys aiding in fraudulent schemes, with the courts recognizing that attorneys occupy a position of public trust, and their actions can harm the legal system. The enhancement under § 3B1.3 applies when an attorney uses their special skills to facilitate a crime, as long as it significantly contributes to the offense. However, mere attorney status is insufficient for the enhancement; it must be shown that the position of trust was abused or special skills were misused in the commission or concealment of the offense.

The district court's decision to impose a three-level upward departure in Christensen's sentencing was affirmed, as it was not found to be clearly erroneous. The court justified this departure by highlighting that the base offense level did not adequately reflect the severity of the crime, particularly regarding the invasion of attorney-client privilege and the resulting damage to the justice system. Christensen's deliberate attempts to access protected information and the number of individuals affected by the privacy invasion were significant factors in this decision. The Sentencing Guidelines allow for such departures, specifically referencing U.S.S.G. 5K2.0(a)(2) and a 2007 application note from U.S.S.G. 2H3.1, which recognizes cases where the calculated offense level underestimates the seriousness of the offense. Under 18 U.S.C. 3553(b), district courts can adjust sentences based on aggravating or mitigating circumstances not accounted for by the Sentencing Commission. Following the precedent set by United States v. Booker, district courts now have broader discretion in sentencing, allowing them to consider factors outlined in 18 U.S.C. 3553(a) and to depart from the Guidelines as deemed appropriate. The court emphasized that the procedural correctness of relying on an application note added post-offense is not subject to review, distinguishing it from other adjustments in the total offense level.

Decisions to deviate from the Guidelines range are assessed for substantive reasonableness rather than procedural correctness, applying an abuse of discretion standard that grants significant deference to the district court's sentencing decisions. Relief from a sentence can only occur in rare instances where the appellate court is firmly convinced of a clear error in judgment regarding the relevant factors. The overarching criterion for reasonableness is whether the district court's considerations align with the factors outlined in 18 U.S.C. § 3553(a). The district court's determinations under § 3553(a) are afforded substantial deference due to its superior knowledge of the case and defendant.

In Christensen's case, he objected to a three-level upward departure for substantial harm not addressed by the Guidelines, specifically criticizing the district court’s reliance on a 2007 application note to § 2H3.1, which was absent in the 2001 Guidelines applicable to his offenses. However, the appellate court does not review for procedural regularity in this context. The district court's factual findings, which indicated that Christensen's actions involved deliberate efforts to invade attorney-client privilege and privacy, were not disputed. The court also did not err in its assessment of Christensen's personal history and character, concluding that they did not warrant a downward variance, as he was not significantly different from others in similar positions. The record demonstrates that the court engaged in a rational and meaningful consideration of all relevant factors.

The court conducted an individualized assessment of defendant Christensen, noting the shocking and disdainful nature of his recorded telephone conversations, which contrasted with the positive letters from his friends and family. The court found no clear error in the district court's judgment regarding sentencing, affirming Christensen's sentence. For defendants Pellicano, Arneson, and Turner, their convictions for computer fraud and unauthorized access were vacated, but other convictions were upheld. Consequently, their sentences for the affirmed convictions were also vacated, allowing for resentencing. The court reiterated its customary practice to remand for resentencing when some counts are vacated. Pellicano’s request for reassignment to a different judge for resentencing was denied, as no evidence suggested bias. Additionally, the defendants were ordered to forfeit $2,008,250 from their RICO enterprise. Their challenges regarding the right to a jury trial, the standard of proof, the calculation of the forfeiture amount, and joint and several liabilities were rejected, affirming the forfeiture ruling.

Defendants claimed the right to a jury trial for determining the forfeiture amount, but the court clarified that there is no constitutional requirement for a jury in forfeiture cases, citing previous rulings. Specifically, federal law and Rule 32.2 do not mandate a jury determination for personal money judgments related to forfeiture. The court stated that forfeiture is part of sentencing and must only be supported by a preponderance of the evidence, not beyond a reasonable doubt. 

Regarding the calculation of forfeiture, the district court determined that "proceeds" refer to gross receipts instead of net profits under 18 U.S.C. § 1963(a)(3), leading to a forfeiture order of $2,008,250 based on client payments. This interpretation aligns with some circuits that have held "proceeds" to mean gross receipts, supported by legislative history indicating Congress intended the term to encompass all income derived from illegal activities, thereby reducing the burden on the government to prove net profits. The court affirmed this broad interpretation to ensure the effectiveness of RICO's remedial purposes.

The term "proceeds" in 18 U.S.C. § 982(a)(2), a criminal forfeiture statute, refers to "receipts" rather than "profits," as concluded in the case reference. Arneson and Turner heavily cite United States v. Santos, 553 U.S. 507 (2008), which interpreted "proceeds" in a money laundering statute concerning payments to individuals involved in an illegal gambling enterprise. The critical legal question was whether "proceeds" encompassed gross receipts or was limited to profits. The Supreme Court found the term ambiguous and, applying the rule of lenity, ruled in favor of the defendant, defining "proceeds" as profits, not gross receipts.

Subsequent to Santos, 18 U.S.C. § 1956 was amended to explicitly define "proceeds" to include gross receipts from unlawful activities. Defendants cite Santos to argue for a similar interpretation in 18 U.S.C. § 1963(a)(3), but the issue in Santos pertained to criminal liability for money laundering rather than the amount of forfeiture. The Second Circuit, in Peters, 732 F.3d 98–99, rejected the argument that Santos necessitated a different interpretation in § 982(a)(2), affirming that "proceeds" refers to gross receipts for forfeiture. The court also noted that Justice Stevens's concurrence in Santos, which defined "proceeds" as "receipts" in broader contexts, held significance under Marks v. United States, emphasizing the need to prevent overlap between violations of the illegal lottery statute and the money laundering statute.

Justice Stevens concurred with the plurality that violations of the money-laundering statute do not merge with violations of other statutes, differing from the treatment of the criminal forfeiture statute, which is punitive rather than a substantive offense. The risk of double jeopardy is absent when section 982(a)(2) pertains to funds from predicate offenses. RICO forfeiture similarly serves as punishment without merging issues, as defined proceeds do not lead to dual offenses. Arneson's claim that the proceeds were unforeseeable is dismissed, as the legal standard requires only that the criminal conduct was foreseeable to the defendant, not specific proceeds. Evidence showed Arneson was aware of the RICO enterprise's scope, justifying joint and several liability for co-defendants. The court affirmed the district court's decision on RICO forfeiture. 

In conclusion, the district court's handling was commendable. The convictions for aiding and abetting computer fraud were vacated for Turner, and similar convictions were vacated for Arneson and Pellicano, while other convictions were affirmed but their sentences vacated. Christensen and Kachikian's convictions and sentences were upheld, and Nicherie's conviction for aiding a wire interception was vacated and remanded. The ruling is affirmed in part, vacated in part, and remanded for further proceedings.

Chief District Judge Christensen concurs with most of the majority opinion but dissents regarding the dismissal of Juror 7 in the trial of defendants Christensen and Pellicano. He argues that the district court erred in dismissing Juror 7, asserting that the dismissal was based on an erroneous determination of the juror's credibility concerning unrelated personal views on federal tax laws. After one hour of deliberation in a lengthy trial, the court received a confusing note from multiple jurors, prompting extensive interviews focused on whether Juror 7 had lied. However, the critical question of whether Juror 7 could follow the court's instructions was never posed. Christensen emphasizes that Juror 7’s expressed doubts about the evidence should not have led to his dismissal, as such doubts do not equate to a refusal to follow legal instructions. He cites case law underscoring that a juror should only be dismissed for clear misconduct or an intent to disregard the law, and that doubts about a defendant’s guilt must not result in dismissal. The judge asserts that Juror 7’s concerns about the government's case were valid and not a basis for dismissal. He concludes that the dismissal of Juror 7 violated the Sixth Amendment right to a unanimous jury verdict, and the court must carefully assess any requests for juror removal during deliberations.

The court's investigative authority is constrained to protect the confidentiality of jury deliberations and uphold the integrity of the deliberative process. If evidence suggests a juror's dismissal relates to their views on the case, the juror cannot be dismissed; instead, the jury should either resume deliberations or a mistrial should be declared. The focus of the inquiry should be on whether the juror is capable of following the law and willing to deliberate. In this case, the district court deviated from this focus during its interviews, particularly with Juror 7, whom it did not ask about his ability to follow the law or deliberate, but rather sought confirmation of allegations in jury notes. Juror 7 denied making statements attributed to him related to wiretapping and federal tax issues, indicating dissatisfaction with the government's case and disagreement with the majority of jurors. The established precedent mandates that the district court should have directed Juror 7 to return to deliberations or declared a mistrial, especially given the early stage of deliberations where miscommunication was likely. The court’s decision to interview additional jurors compromised the secrecy necessary for free deliberation, which is a critical component of the judicial process.

The district court's inquiry regarding Juror 7 was improperly broad, focusing on whether he had truthfully answered questions about his comments on federal tax law, rather than the core issues of his ability to follow the law and willingness to deliberate. This approach transformed a focused investigation into a distraction. Additionally, the responses from the other jurors suggested a disagreement with Juror 7's views on the government's case rather than evidence of juror nullification. The court failed to directly ask Juror 7 if he could adhere to the law, which is essential before dismissing a juror based on the opinions of others. The judge's conclusion that Juror 7 was not credible and therefore would not follow the law lacked the requisite solid evidence of nullification and was an error warranting reversal. Furthermore, the court's assertion that Juror 7 had lied was erroneous since dishonesty during voir dire does not automatically disqualify a juror unless it indicates a lack of impartiality. Precedents cited by the majority do not support the dismissal based solely on perceived dishonesty unless it directly relates to impartiality, as demonstrated in the case of Vartanian, which involved misconduct outside the jury room.

Assuming Juror 7 lied about a federal tax statement, this does not automatically suggest a lack of impartiality. His opinions on federal tax law do not reflect his willingness to adhere to the wiretapping law as instructed by the court. Despite the court's skepticism regarding Juror 7's credibility, the record indicates he may have been a holdout influenced by dissenting fellow jurors concerning the evidence. Juror 7 denied making statements attributed to him and claimed his fellow jurors were upset due to his differing opinions. He expressed that he could not decide based on circumstantial evidence, which suggests that the other jurors sought his dismissal based on his views of the case's merits rather than his legal understanding.

No juror statements directly contradict Juror 7's claims, and Juror 1 noted a disagreement regarding evidence. Jury notes further indicated that Juror 7 was perceived as "anti-government" and had a "need" for more evidence. The majority's assertion that concerns about Juror 7 stemmed solely from his legal views is unconvincing. The evidence does not definitively clarify the motivations behind the push to dismiss him, and quick jury notes do not conclusively indicate nullification. It is equally plausible that Juror 7 maintained his stance on the insufficiency of the government's evidence. Speculation about the jury's deliberation dynamics, such as impatience after a lengthy trial, raises concerns about the propriety of dismissing a juror under uncertain circumstances. The district court failed to ascertain whether Juror 7 was willing to follow the law and engage in deliberations, which left the appellate court to make unfounded assumptions based on deliberation length and subsequent jury conviction after Juror 7's removal.

The district court's failure to question Juror 7 directly about his willingness to deliberate and follow the law violated the Defendants' Sixth Amendment right to a unanimous and impartial jury. The removal of Juror 7 was based on insufficient inquiry and unfounded assumptions, undermining the integrity of the jury process. The potential outcome of a hung jury, which would protect the defendants' rights, was disregarded. The situation was complicated by other jurors pressuring the court to remove Juror 7 due to his dissenting views on the government's case, leading to an abuse of discretion by the court. This removal likely had a chilling effect on the remaining jurors’ deliberations. Consequently, a dissenting opinion argues for the reversal of the convictions of defendants Christensen and Pellicano and the vacating of their sentences.