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United States of America v. John Mctiernan

August 20, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN MCTIERNAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding D.C. No. 2:06-cr-00259-DSF

The opinion of the court was delivered by: Gilman, Circuit Judge:

FOR PUBLICATION

Argued and Submitted July 13, 2012-Pasadena, California

Before: Ronald Lee Gilman,*fn1 Richard C. Tallman, and N. Randy Smith, Circuit Judges.

Opinion by Judge Gilman

COUNSEL

OPINION

John McTiernan, a famous Hollywood movie director, hired former private investigator Anthony Pellicano in 2000 to illegally wiretap the telephone conversations of two individuals. Six years later, when the Federal Bureau of Investigation (FBI) questioned McTiernan about Pellicano's activities, McTiernan claimed that he knew nothing about any wiretapping. But the FBI had obtained a digital recording (the Recording) that Pellicano had made-unbeknownst to McTiernan-of a telephone conversation in which the two men discussed an illegal wiretap. Caught red-handed, McTier- nan pleaded guilty to one count of making a material false statement to the FBI.

Shortly thereafter, McTiernan engaged new counsel who convinced him to seek the withdrawal of his guilty plea, which the district court eventually allowed. McTiernan was indicted again, this time on two counts of making a material false statement to the FBI and on one count of making a false statement to the district court during his guilty-plea hearing. His motions to suppress the Recording and to recuse United States District Judge Dale S. Fischer were denied. McTiernan then conditionally pleaded guilty to all three counts, reserving his right to appeal the district court's adverse rulings. He was sentenced to 12 months' imprisonment and ordered to pay a $100,000 fine. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

This case returns to us for a second time. In the first decision, the undisputed facts were summarized as follows:

On February 13, 2006, McTiernan was interviewed by telephone by Special Agent Stanley Ornellas of the Federal Bureau of Investigation ("FBI") in connection with an investigation into former private investigator Anthony Pellicano's use of illegal wiretapping. Ornellas asked whether McTiernan had knowledge of Pellicano's wiretapping activities and [whether he] had previously discussed wiretapping with Pellicano. In response, McTiernan stated that he had never discussed wiretapping with Pellicano, that Pellicano had never mentioned his ability to wiretap telephone calls, and that he had used Pellicano's services only once, in connection with his divorce.

The responses made to Special Agent Ornellas' inquiries were false. McTiernan later admitted that he had hired Pellicano in or around August 2000 and paid him at least $50,000 to conduct an illegal wiretap of two individuals, one of whom was Charles Roven, the producer of a movie that McTiernan was then directing. Pellicano installed the wiretaps, listened to the subjects' business and personal telephone calls, and reported their contents to McTiernan.

Several weeks after Ornellas interviewed McTiernan, the government contacted McTiernan and suggested that he retain . . . an attorney. On March 4, 2006, McTiernan retained the services of John Carlton, Esq. On March 16, 2006, McTiernan met with Carlton and the government regarding McTiernan's statements to Special Agent Ornellas. At that meeting, the government revealed its evidence of discussions between McTiernan and Pellicano regarding the wiretapping. The evidence included a digital recording that Pellicano had made of a telephone conversation between himself and McTiernan (the "Recording"). The Recording, which was made on August 17, 2000, was recovered by the FBI from Pellicano's computer pursuant to a search warrant in the related investigation and prosecution of Pellicano, who was charged with over one-hundred Racketeer Influenced and Corrupt Organizations (RICO) Act violations, bribery of police officers, and wiretapping. In the Recording, Pellicano informed McTiernan, who at that time was directing a movie in Canada, that he had intercepted "tons of stuff" and that he could not "even listen to all of them." McTiernan instructed Pellicano to focus on instances where the producer was "saying one thing to the studio and saying something else to others," and said that catching the producer "bad mouthing" the "studio guys" would "really be useful."

On March 24, 2006, McTiernan entered into a written plea and cooperation agreement with the government, in which he agreed to plead guilty to a forthcoming information charging him with making a false statement [to an FBI agent] in violation of 18 U.S.C. § 1001(a)(2). .

On April 17, 2006, . . . . the district court conducted McTiernan's Rule 11 [of the Federal Rules of Criminal Procedure plea] hearing. . .

The court [ ] questioned McTiernan about his attorney's representation and read aloud the stipulated factual basis from McTiernan's plea agreement. McTiernan confirmed that he and his attorney had discussed his case candidly and that his attorney had considered and advised McTiernan as to the existence of any possible defenses. McTiernan also confirmed that he understood the consequences of his plea and that he was competent to make the plea. He then allocated [sic] to the facts, admitting that he knowingly made false statements to the FBI agent.

United States v. McTiernan, 546 F.3d 1160, 1163-64 (9th Cir. 2008).

The district court also asked McTiernan whether Carlton, his attorney, had advised him on how he should answer any of the court's questions during the plea hearing. McTiernan told the court: "No, he did not, ma'am." Satisfied with McTiernan's answers during the plea hearing, the court accepted his guilty plea.

Two months later, and "eleven days before McTiernan was scheduled to be sentenced, S. Todd Neal, Esq. [ ], advised the government that he would be substituted for Carlton as McTiernan's new counsel." Id. at 1164. McTiernan's sentencing was continued so that Neal could properly prepare for the hearing. Two months later, McTiernan filed a motion to withdraw his guilty plea, indicating that he would seek to suppress the Recording if given the opportunity. As detailed by this court's decision on his previous appeal,

McTiernan claimed that he was entitled to withdraw his plea because his former counsel had provided ineffective assistance. Specifically, McTiernan claimed that his former counsel (1) failed to obtain any discovery materials from the government prior to the time McTiernan entered his pre-indictment plea; and (2) failed to advise him that he could have sought to suppress the Recording on the ground that the Recording was made by Pellicano without McTiernan's knowledge ...


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