Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 1 of 129
1 THOMAS P. O’BRIEN United States Attorney 2 CHRISTINE C. EWELL Assistant United States Attorney 3 Chief, Criminal Division DANIEL A. SAUNDERS (Cal. Bar # 161051) 4 [email protected] KEVIN M. LALLY (Cal. Bar # 226402) 5 [email protected] Assistant United States Attorneys 6 Violent & Organized Crime Section 1500 United States Courthouse 7 312 North Spring Street Los Angeles, California 90012 8 Telephone: (213) 894-2272/2170 Facsimile: (213) 894-3713 9 Attorneys for Plaintiff United States of America 10
11 UNITED STATES DISTRICT COURT
12 FOR THE CENTRAL DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, ) No. CR 05-1046(E)-DSF ) 14 Plaintiff, ) TRIAL MEMORANDUM ) 15 v. ) [18 U.S.C. § 371; 18 U.S.C. ) § 1001: False Statements; 18 16 ANTHONY PELLICANO, ) U.S.C. § 1028(a)(7): Identity MARK ARNESON, ) Theft; 18 U.S.C. 17 RAYFORD EARL TURNER, ) §§ 1030(a)(2)(B), KEVIN KACHIKIAN, and ) (c)(2)(B)(I): Unauthorized 18 ABNER NICHERIE, ) Computer Access of United ) States Information for Profit; 19 Defendants. ) 18 U.S.C. § 1030(a)(4): ) Computer Fraud; 18 U.S.C. 20 ) §§ 1343, 1346: Honest Services ) Wire Fraud; 18 U.S.C. 21 ) § 1512(c)(1): Destruction of ) Evidence; 18 U.S.C. § 1962©: 22 ) RICO; 18 U.S.C. § 1962(d): ) RICO Conspiracy; 18 U.S.C. 23 ) § 1963: RICO Forfeiture; 18 ) U.S.C. § 2511(a): Interception 24 ) of Wire Communications; 18 ) U.S.C. § 2512: Possession of 25 ) Wiretapping Device; 18 U.S.C. ) § 2(a): Aiding and Abetting] 26 ) ) Trial Date: March 5, 2008 27 ) Trial Time: 9:00 a.m. ) 28 ) Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 2 of 129
1 The United States, by and through its counsel of record,
2 Assistant United States Attorneys Daniel A. Saunders and Kevin M.
3 Lally, hereby files its Trial Memorandum for the above-captioned
4 case.
5 The government respectfully requests leave of the Court to
6 supplement or modify this memorandum as may be appropriate.
7 DATED: February 28, 2008
8 Respectfully submitted,
9 THOMAS P. O’BRIEN United States Attorney 10 CHRISTINE C. EWELL 11 Assistant United States Attorney Chief, Criminal Division 12
13 ______/s/______DANIEL A. SAUNDERS 14 KEVIN M. LALLY Assistant United States Attorneys 15 Attorneys for Plaintiff 16 United States of America
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2 Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 3 of 129
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2 TABLE OF CONTENTS
3 PAGE(S)
4 TABLE OF AUTHORITIES ...... viii
5 I. STATUS OF THE CASE...... 3
6 II. APPLICABLE STATUTES ...... 4
7 A. 18 U.S.C. § 1962(C) (RICO) (count one) ...... 4
8 1. Statutory Language...... 4
9 2. Elements...... 4
10 3. Applicable Law...... 5
11 a. Enterprise...... 5
12 b. Employed by or Associated with the Enterprise ...... 6 13 c. Conducted or Participated in the Affairs 14 of the Enterprise...... 7
15 d. Effect on Interstate Commerce...... 8
16 B. 18 U.S.C. § 1962(d)(RICO Conspiracy) (count two) .. . 8
17 1. Statutory Language...... 8
18 2. Elements ...... 8
19 3. Applicable Law ...... 9
20 C. 18 U.S.C. §§ 1343, 1346 (Honest Services WireFraud) (racketeering acts one through sixty-seven; counts 21 three through thirty-three)...... 1 2
22 1. Statutory Language...... 1 2
23 2. Elements ...... 1 2
24 3. Applicable Law...... 1 3
25 a. Parallel Construction of Fraud Statutes.. 1 3
26 b. Non-disclosure and False Disclosure by a Public Official...... 1 4 27
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2
3 c. Violations of State Law ...... 1 5
4 d. Proof of Loss Not Required ...... 1 6
5 e. Fraudulent Intent ...... 1 6
6 f. Co-Schemer Liability ...... 1 7
7 D. 18 U.S.C. § 1030(a)(2),(c)(2)(B)(1) (Unauthorized Computer Access Of United States Information For 8 Financial Gain) (counts thirty-four through sixty- four; seventy-seven through seventy-eight) .. . . . 1 8 9 1. Statutory Language...... 1 8 10 2. Elements...... 1 9 11 3. Applicable Law...... 1 9 12 E. 18 U.S.C. § 1028(a)(7) (Identity Theft) 13 (racketeering acts sixty-eight through ninety-two; counts sixty-five through sixty-nine, seventy-nine 14 through eighty-two, eighty-seven through ninety) .. 2 0
15 1. Statutory Language ...... 2 0
16 2. Elements...... 2 1
17 3. Applicable Law...... 2 1
18 F. 18 U.S.C. § 1030(a)(4) (Computer Fraud) (counts seventy through seventy-four, eighty-three through 19 eighty-six, ninety-one through ninety-four) . . . . 2 3
20 1. Statutory Language...... 2 3
21 2. Elements...... 2 3
22 3. Applicable Law...... 2 4
23 G. 18 U.S.C. § 371 (Conspiracy) (counts ninety-five, one-hundred-six) ...... 2 4 24 1. Statutory Language ...... 2 4 25 2. Elements...... 2 5 26
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2 3. Applicable Law...... 2 5 3 a. The Agreement...... 2 5 4 b. Participation in the Conspiracy...... 2 6 5 c. The Object...... 2 7 6 d. Overt Acts...... 2 8 7 e. Liability for Co-Conspirator Acts.. . . . 2 8 8 f. Proof of Conspiracy...... 3 0 9 g. Co-conspirator Declarations ...... 3 0 10 H. 18 U.S.C. § 2511 (Interception Of Wire 11 Communications) (counts ninety-six through one- hundred-four, one-hundred seven) ...... 3 4 12 1. Statutory Language...... 3 4 13 2. Elements...... 3 4 14 I. 18 U.S.C. § 2512(1)(b) (Manufacture/Possession Of 15 Wiretapping Device) (count one-hundred five) .. . . 3 4
16 1. Statutory Language...... 3 4
17 2. Elements...... 3 5
18 J. 18 U.S.C. § 1001 (False Statements) (counts one- hundred-eight, one-hundred-nine) ...... 3 5 19 1. Statutory Language ...... 3 5 20 2. Elements...... 3 6 21 3. Applicable Law ...... 3 6 22 K. 18 U.S.C. § 1512(c)(1) (Destruction Of Evidence) 23 (count one-hundred-ten)...... 3 9
24 1. Statutory Language...... 3 9
25 2. Elements ...... 3 9
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2 3. Applicable Law ...... 4 0 3 L. 18 U.S.C. § 2 (Aiding and Abetting and Causing an 4 Act to be Done) (all counts) ...... 4 0
5 1. Statutory Language...... 4 0
6 2. Elements...... 4 0
7 3. Applicable Law ...... 4 1
8 M. State Law Bribery (racketeering acts ninety-three through one-hundred twelve)...... 4 2 9 1. Statutory Language ...... 4 2 10 2. Elements...... 4 3 11 3. Applicable Law...... 4 3 12 N. RICO Forfeiture (Count one-hundred-eleven). . . . . 4 5 13 1. Elements...... 4 5 14 2. Applicable Law ...... 4 6 15 III. STATEMENT OF FACTS...... 4 9 16 A. THE ENTERPRISE ...... 4 9 17 B. THE WORKINGS OF THE ENTERPRISE...... 5 3 18 1. The Enterprise’s Investigation of Robert 19 Maguire (count 95 ¶ 67) ...... 5 3
20 2. The Enterprise’s Investigation of Jane Does 1-9 (racketeering acts 1-2, 5-7, and 69-72) .. . . 5 4 21 3. The Enterprise’s Investigation of Kissandra 22 Cohen (racketeering acts 26-27, 74; count 95 ¶ 72)...... 5 6 23 4. The Enterprise’s Investigation of Erin Finn 24 (racketeering acts 28-29, 75, 88; count 96; count 95 ¶¶ 73-74) ...... 5 7 25
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2
3 5. The Enterprise’s Investigation of Ami Shafrir (Racketeering Act 83; count 97; count 4 95 ¶ 76) ...... 5 9
5 6. The Enterprise’s Investigation of Lisa & Tom Gores (racketeering acts 32-33; count 98; 6 count 95 ¶ 78) ...... 6 0
7 7. The Enterprise’s Investigation of Vincent “Bo” Zenga racketeering acts 34-40, 89; counts 3-9, 8 34-40, 87, 91, 100; count 95 ¶¶ 80-81).. . . . 6 2
9 8. The Enterprise’s Investigation of Keith Carradine (racketeering acts 42-43; counts 10 10-11, 41-42, 102; count 95 ¶ 85)...... 6 4
11 9. The Enterprise’s Investigation of Aaron Russo (racketeering acts 50, 66-67, 84-87, 90; 12 counts 18, 49, 75-86, 88, 92, 101; count 95 ¶¶ 83-84) ...... 6 5 13 10. The Enterprise’s Investigation of Prosecution 14 Witnesses in The Murder Trial of Kami Hoss (racketeering acts 44- 47; counts 12-15, 15 43-46) ...... 6 7
16 11. The Enterprise’s Investigation of Pamela Miller (racketeering acts 53-54, 57, 60-61; 17 counts 21-22, 25, 28-29, 52-53, 56, 59-60).. . 6 8
18 12. The Enterprise’s Investigation of Anita Busch (racketeering acts 55, 56, 58, 59, 92; counts 19 23-24, 26-27, 54-55, 57-58, 90, 94, 104; count 95 ¶¶ 90-91) ...... 7 0 20 C. EFFORTS TO CONCEAL INVOLVEMENT IN, OR EVIDENCE OF, 21 THE ENTERPRISE ...... 7 2
22 1. Arneson False Statement (count 108) ...... 7 2
23 2. Turner False Statement (count 109)...... 7 3
24 3. Kachikian’s Destruction of the Telesleuth Wiretapping Program (count 110) ...... 7 4 25
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2 IV. EVIDENTIARY ISSUES...... 7 5 3 A. ADMISSIBILITY OF PHYSICAL EVIDENCE ...... 7 5 4 1. Authentication and Identification/Chain of 5 Custody ...... 7 5
6 a. Photographs ...... 7 7
7 b. Recorded Conversations ...... 7 7
8 c. Handwriting...... 8 0
9 2. Items Found In A Defendant’s Possession .. . . 8 0
10 3. Duplicates...... 8 1
11 4. Business Records ...... 8 1
12 5. Self-Authenticating Records ...... 8 3
13 6. Charts and Summaries ...... 8 3
14 B. ADMISSIBILITY OF WITNESS TESTIMONY ...... 8 8
15 1. Direct And Adopted Admissions By Party Opponent .90
16 2. Confession of a Co-Defendant/Bruton Considerations ...... 9 0 17 3. Expert Testimony ...... 9 0 18 4. Opinion Testimony of Non-Experts...... 9 1 19 5. Hearsay ...... 9 1 20 a. Definition ...... 9 1 21 b. Statements Not Introduced for the Truth 22 of the Matter Asserted (e.g., Effect on Hearer)...... 9 2 23 c. State of Mind Exception...... 9 2 24 d. Prior Inconsistent Statements ...... 9 2 25
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1 TABLE OF CONTENTS(CONTINUED) PAGE(S) 2 e. Prior Consistent Statements ...... 9 3 3 6. Hostile Witnesses ...... 9 4 4 7. Witness Invocation Of The Fifth Amendment Right 5 Against Self Incrimination ...... 9 5
6 8. Privilege Waiver Issues ...... 9 6
7 9. Cross-Examination of Defendant ...... 9 7
8 10. Cross Examination - General Witnesses .. . . . 9 8
9 11. Defendant's Character Witnesses ...... 9 9
10 12. Defendant’s Testimony Regarding Character/ Impeachment By Contradiction ...... 100 11 C. MISCELLANEOUS ...... 101 12 1. Judicial Notice ...... 101 13 2. Reciprocal Discovery...... 102 14 3. Waiver of Rule 12(b) Motions ...... 102 15
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1 TABLE OF AUTHORITIES
2 CASES: PAGE(S)
3 Alexander v. United States, 509 U.S. 544 (1993)...... 4 6 4 Arthur Anderson LLP v. United States, 5 544 U.S. 696 (2005)...... 4 0
6 Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir. 1993) ...... 8 2 7 Barsky v. United States, 8 339 F.2d 180 (9th Cir. 1964) ...... 8 5
9 Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003) ...... 101 10 Blumenthal v. United States, 11 332 U.S. 539 (1947)...... 2 6
12 Bourjaily v. United States, 483 U.S. 171 (1987)...... 31, 82 13 Braverman v. United States, 14 317 U.S. 49, 54 (1942)...... 2 7
15 Bruton v. United States, 391 U.S. 123 (1968)...... 9 0 16 Chavez v. United States, 17 275 F.2d 813 (9th Cir. 1960)...... 2 8
18 Crawford v. Washington, 541 U.S. 36 (2004) ...... 3 1 19 Diamond Shamrock Corp. v. Lumbermens Mutual Casualty Co., 20 466 F.2d 722 (7th Cir. 1972) ...... 8 8
21 Frohwerk v. United States, 249 U.S. 204 (1919)...... 2 7 22 Galleqo v. United States, 23 276 F.2d 914 (9th Cir. 1960) ...... 76, 77
24 Garlington v. O'Leary, 879 F.2d 277 (7th Cir. 1989) ...... 3 3 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 Glasser v. United States, 315 U.S. 60 (1942) ...... 1 1 4 H.J. Inc. v. Northwestern Bell Telephone Co., 5 492 U.S. 229 (1989)...... 7
6 Hall v. United Insurance Company of America, 367 F.3d 1255 (11th Cir. 2004) ...... 8 0 7 Haney v. Mizell Memorial Hosp., 8 744 F.2d 1467 (11th Cir. 1984) ...... 9 4
9 Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th Cir. 1989) ...... 8 2 10 Kungys v. United States, 11 485 U.S. 759 (1988)...... 3 7
12 La Porta v. United States, 300 F.2d 878 (9th Cir. 1962) ...... 8 3 13 Libretti v. United States, 14 516 U.S. 29 (1995) ...... 4 6
15 Lucero v. Stewart, 892 F.2d 52 (9th Cir. 1989)...... 7 7 16 Michelson v. United States, 17 335 U.S. 469 (1948)...... 99-100
18 Odom v. Microsoft Corporation, 486 F.3d 541 (9th Cir. 2007) ...... 5, 6 19 Ohio v. Roberts, 20 448 U.S. 56 (1980) ...... 8 2
21 Orsini v. O/S Seabrooke O.N., 247 F.3d 953 (9th Cir. 2001) ...... 9 2 22 Palos v. United States, 23 416 F.2d 438 (5th Cir. 1969) ...... 7 2
24 People v. Bringham, 72 Cal. App.2d 1, 6-7 (2d Dist. 1945)...... 4 4 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 People v. Pacheco, 263 Cal.App.2d 555, 557 (1968)...... 4 3 4 Pinkerton v. United States, 5 328 U.S. 640 (1946)...... 10, 28
6 Reves v. Ernst & Young, 507 U.S. 170 (1993)...... 7 7 Reyes v. United States, 8 383 F.2d 734 (9th Cir. 1967)...... 7 7
9 Richardson v. Marsh, 481 U.S. 200 (1987)...... 9 0 10 Russello v. United States, 11 464 U.S. 16 (1983)...... 4 7
12 Salinas v. United States, 552 U.S. 52 (1997) ...... 9-11 13 Securities Exchange Commission v. Franklin, 14 348 F.Supp.2d 1159...... 8 3
15 Sedima v. Imex Company Inc., 473 U.S. 479 (1985)...... 5 16 Sendejas v. United States, 17 428 F.2d 1040 (9th Cir. 1970) ...... 3 2
18 Tome v. United States, 513 U.S. 150 (1995)...... 9 3 19 United States v. Abbas, 20 504 F.2d 123 (9th Cir. 1974)...... 8 6
21 United States v. Abushi, 682 F.2d 1289 (9th Cir. 1982)...... 2 6 22 United States v. Amlani, 23 169 F.3d 1189 (9th Cir. 1999) ...... 9 6
24 United States v. Amrep Corp., 545 F.2d 797 (2d Cir. 1976)...... 1 7 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Andressan, 813 F.2d 1450 (9th Cir. 1987)...... 9 1 4 United States v. Antelope, 5 395 F.3d 1128 (9th Cir. 2005)...... 95, 96
6 United States v. Arambula-Ruiz, 987 F.2d 599 (9th Cir. 1993)...... 3 2 7 United States v. Arias-Villanueva, 8 998 F.2d 1491 (9th Cir. 1993)...... 3 3
9 United States v. Armijo, 5 F.3d 1229 (9th Cir. 1993)...... 9 3 10 United States v. Bagnariol, 11 665 F.2d 877 (9th Cir. 1981) ...... 8
12 United States v. Baker, 10 F.3d 1374 (9th Cir. 1993)...... 8 7 13 United States v. Bao, 14 189 F.3d 860 (9th Cir. 1999)...... 9 3
15 United States v. Barker, 735 F.2d 1280 (11th Cir. 1984) ...... 8 0 16 United States v. Barnes, 17 604 F.2d 121 (2d Cir. 1979)...... 3 4
18 United States v. Bassey, 613 F.2d 198 (9th Cir. 1979) ...... 78, 82 19 United States v. Baxter, 20 492 F.2d 150 (9th Cir. 1973)...... 2 6
21 United States v. Becker, 720 F.2d 1033 (9th Cir. 1983)...... 2 6 22 United States v. Berger, 23 473 F.3d 1080 (9th Cir. 2007)...... 3 6
24 United States v. Bernhardt, 840 F.2d 1441 (9th Cir. 1988)...... 1 6 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Bibero, 749 F.2d 586 (9th Cir. 1984)...... 3 0 4 United States v. Blackwell, 5 694 F.2d 1325 (D.C. Cir. 1982)...... 7 6
6 United States v. Blackwood, 878 F.2d 1200 (9th Cir. 1989)...... 7 5 7 United States v. Bohonus, 8 628 F.2d 1167 (9th Cir. 1980)...... 1 4
9 United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973)...... 7 9 10 United States v. Boone, 11 951 F.2d 1526 (9th Cir. 1991)...... 2 5
12 United States v. Brogan, 522 U.S. 398 (1998)...... 37, 38 13 United States v. Brooks, 14 473 F.2d 817 (9th Cir. 1973) ...... 9 2
15 United States v. Browne, 505 F.3d 1229 (11th Cir. 2007)...... 4 8 16 United States v. Burreson, 17 643 F.2d 1344 (9th Cir. 1981)...... 28, 86
18 United States v. Carlson, 423 F.2d 431 (9th Cir. 1970) ...... 8 0 19 United States v. Caporale, 20 806 F.2d 1487 (11 th Cir. 1986)...... 4 8
21 United States v. Casey, 444 F.3d 1071...... 4 7 22 United States v. Castillo, 23 181 F.3d 1129 (9th Cir. 1999)...... 101
24 United States v. Castro, 887 F.2d 998 (9th Cir. 1987) ...... 9 2 25 United States v. Castro, 26 89 F.3d 1443 (11th Cir. 1997)...... 1 1
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Castro, 972 F.2d 1107 (9th Cir. 1992)...... 3 0 4 United States v. Catabran, 5 36 F.2d 453 (9th Cir. 1982)...... 8 7
6 United States v. Chu Kong Yin, 935 F.2d 990 (9th Cir. 1991) ...... 7 5 7 United States v. Cloud, 8 872 F.2d 846 (9th Cir. 1989)...... 2 5
9 United States v. Corrado, 227 F.3d 543 (6th Cir. 2000) ...... 4 8 10 United States v. Crespo de Llano, 11 838 F.2d 1006 (9th Cir. 1987)...... 3 1
12 United States v. Cuozzo, 962 F.2d 945 (9th Cir. 1992) ...... 9 7 13 United States v. Cusino, 14 694 F.2d 185 (9th Cir. 1982) ...... 1 4
15 United States v. De Peri, 778 F.2d 963 (3rd Cir. 1985) ...... 8 5 16 United States v. De Bright, 17 730 F.2d 1255 (9th Cir. 1984) ...... 7 7
18 United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997) ...... 4 7 19 United States v. Diecidue, 20 603 F.2d 535 (5th Cir. 1979) ...... 1 1
21 United States v. Diggs, 649 F.2d 731 (9th Cir. 1981), ...... 1 7 22 United States v. Dixon, 23 562 F.2d 1138 (9th Cir. 1977)...... 3 2
24 U.S. v. Doe, 125 F.3d 1249 (9th Cir. 1997)...... 9 6 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Earles, 955 F.2d 1175 (8th Cir. 1992)...... 1 8 4 United States v. Echeverry, 5 759 F.2d 1451 (9th Cir. 1985) ...... 3 3
6 United States v. Edwards, 303 F.3d 606 (5th Cir. 2002) ...... 4 8 7 United States v. Elliott, 8 571 F.2d 880 (5th Cir. 1978) ...... 11, 12
9 United States v. Federbush, 625 F.2d 246 (9th Cir. 1980) ...... 1 8 10 United States v. Fern, 11 696 F.2d 1269 (11th Cir. 1983) ...... 3 9
12 United State v. Fernandez, 388 F.3d 1199 (9th Cir. 2004)...... 7, 8, 11 13 United States v. Fleishman, 14 684 F.2d 1329 (9th Cir. 1982)...... 30, 32, 90
15 United States v. Franco, 874 F.2d 1136 (7th Cir. 1989)...... 8 2 16 United States v. Frederick, 17 78 F.3d 1370(9th Cir. 1996)...... 9 3
18 United States v. Frega, 179 F.3d 793 (9th Cir. 1999)...... 14, 16, 44 19 United States v. Gay, 20 967 F.2d 322 (9th Cir. 1992) ...... 9 8
21 United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998) ...... 4 8 22 United States v. Gardner, 23 611 F.2d 770 (9th Cir. 1980) ...... 8 6
24 United States v. Garza, 980 F.2d 546 (9th Cir. 1992) ...... 25, 26 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Giese, 597 F.2d 1170 (9th Cir. 1979)...... 100, 101 4 United States v. Ginsburg, 5 773 F.3d 798 (7th Cir. 1985) ...... 4 8
6 United States v. Golden, 532 F.2d 1244 (9th Cir. 1976)...... 9 1 7 United States v. Goldfine, 8 538 F.2d 815 (9th Cir. 1976) ...... 38, 39
9 United States v. Goode, 814 F.2d 1353 (9th Cir. 1987)...... 9 5 10 United States v. Guzman, 11 849 F.2d 447 (9th Cir. 1988) ...... 2 7
12 United States v. Harrington, 923 F.2d 1371 (9th Cir. 1991)...... 7 6 13 United States v. Hathaway, 14 798 F.2d 902 (6th Cir. 1986)...... 8 2
15 United States v. Hegwood, 977 F.2d 492 (9th Cir. 1992)...... 2 6 16 United States v. Hernandez, 17 876 F.2d 774 (9th Cir. 1989) ...... 2 5
18 United States v. Hines, 472 F.3d 1038 (8th Cir. 2007)...... 2 2 19 United States v. Hoffman, 20 341 U.S. 479 (1951)...... 9 5
21 United States v. Hubbard, 96 F.3d 1227 (9th Cir. 1996) ...... 16, 27 22 United States v. Huber, 23 772 F.2d 585 (9th Cir. 1985) ...... 8 2
24 United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007)...... 2 2 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Indelicato, 800 F.2d 1482 (9th Cir. 1986)...... 2 8 4 United States v. Jackson, 5 155 F.3d 942 (8th Cir. 1998)...... 2 2
6 United States v. Jackson, 845 F.2d 880 (9th Cir. 1988) ...... 1 6 7 United States v. Jimenez, 8 507 F.3d 13 (1st Cir. 2007)...... 2 1
9 United States v. Johnson, 594 F.2d 1253 (9th cir. 1979)...... 8 3 10 United States v. Jones, 11 425 F.2d 1048(9th Cir. 1979)...... 1 6
12 United States v. King, 472 F.2d 1 (9th Cir. 1973)...... 7 3 13 United States v. King, 14 587 F.2d 956 (9th Cir. 1978) ...... 7 5
15 United States v. Klopf, 423 F.3d 1228 (11th Cir. 2005)...... 21, 22 16 United States v. Krasn, 17 614 F.2d 1229 (9th Cir. 1980)...... 2 9
18 United States v. Krasovich, 819 F.2d 253 (9th Cir. 1987) ...... 2 5 19 United States v. Larsen, 20 441 F.2d 512 (9th Cir. 1971) ...... 1 7
21 United States v. Layton, 720 F.2d 548 (9th Cir. 1983) ...... 3 2 22 United States v. Leal, 23 509 F.2d 122 (9th Cir. 1975) ...... 7 9
24 United States v. Lechuga, 888 F.2d 1472 (5th Cir. 1989)...... 32, 33 25
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Lemire, 720 F.2d 1327 ...... 8 7 4 United States v. Lewis, 5 787 F.2d 1318 (9th Cir. 1986)...... 2 9
6 United States v. Lopez-Lukis, 102 F.3d 1164 (11th Cir. 1997) ...... 1 6 7 United States v. Lothian, 8 976 F.2d 1257 (9th Cir. 1992)...... 1 8
9 United States v. Louderman, 576 F.2d 1383 (9th Cir. 1978)...... 1 4 10 United States v. Loya, 11 807 F.2d 1483 (9th Cir. 1987)...... 3 1
12 United States v. Luttrell, 889 F.2d 806 (9th Cir. 1989) ...... 25, 27, 28 13 United States v. Mann, 14 811 F.2d 495 (9th Cir. 1987) ...... 4 1
15 United States v. Marin, 669 F.2d 73 (2d Cir. 1982) ...... 8 9 16 United States v. Mason, 17 658 F.2d 1263 (9th Cir. 1981)...... 3 2
18 United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) ...... 7 8 19 United States v. Matthews, 20 505 F.3d 698 (7th Cir. 2007) ...... 4 0
21 United States v. McBane, 433 F.3d 344 (3d Cir. 2005)...... 3 8 22 United States v. McConney, 23 728 F.2d 1195 (9th Cir. 1984) ...... 1 7
24 United States v. McCollom, 664 F.2d 56 (5th Cir. 1981)...... 100 25
26
27
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. McKenna, 327 F.3d 830 (9th Cir. 2003)...... 3 7 4 United States v. McKoy, 5 771 F.2d 1207 (9th Cir. 1985)...... 4 1
6 United States v. McMillan, 508 F.2d 101 (8th Cir. 1974) ...... 7 7 7 United States v. Medina, 8 940 F.2d 1247 (9th Cir. 1991)...... 2 5
9 United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir. 1980) ...... 2 5 10 United States v. Melton, 11 689 F.2d 679 (7th Cir. 1982) ...... 1 7
12 United States v. Miller, 664 F.2d 94 (5th Cir. 1981)...... 3 4 13 United States v. Miller, 14 874 F.2d 1255 (9th Cir. 1989)...... 9 2
15 United States v. Miller, 984 F.2d 1028 (9th Cir. 1993)...... 103 16 United States v. Murray, 17 751 F.2d 1528 (9th Cir. 1985)...... 2 7
18 United States v. Myers, 847 F.2d 1408 (9th Cir. 1988)...... 8 5 19 United States v. Nakai, 20 413 F.3d 1019 (9th Cir. 2005)...... 8 9
21 United States v. Natale, 526 F.2d 1160 (2d Cir. 1975)...... 7 6 22 United States v. Nava, 23 404 F.3d 1119 (9th Cir. 2005)...... 4 7
24
25
26
27
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Nixon, 418 U.S. 683 (1974)...... 3 2 4 United States v. Olano, 5 62 F.3d 1180 (9th Cir. 1995)...... 29, 87
6 United States v. Oreto, 37 F.3d 739(1st Cir. 1994)...... 7 7 United States v. Ortega, 8 203 F.3d 675 (9th Cir. 2000) ...... 8 9
9 United States v. Ospina, 739 F.2d 448 (9th Cir. 1984) ...... 80, 88 10 United States v. Pacheco-Lovio, 11 463 F.2d 232 (9th Cir. 1972) ...... 8 1
12 United States v. Payne, 474 F.2d 603 (9th Cir. 1973) ...... 1 7 13 United States v. Pearce, 14 65 F.3d 22 (4th Cir. 1995) ...... 2 2
15 United States v. Peters, 962 F.2d 1410 (9th Cir. 1992)...... 1 7 16 United States v. Plunk, 17 153 F.3d 1011 (9th Cir.) ...... 7 8
18 United States v. Poliak, 823 F.2d 371 (9th Cir. 1987)...... 1 4 19 United States v. Poschatta, 20 829 F.2d 1477 (9th Cir. 1987)...... 8 6
21 United States v. Price, 623 F.2d 587 (9th Cir. 1980) ...... 1 7 22 United States v. Quintero-Barraza, 23 78 F.3d 1344 (9th Cir. 1996) ...... 102
24 United States v. Radseck, 718 F.2d 233 (7th Cir. 1983) ...... 8 5 25
26
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981) ...... 1 6 4 United States v. Ray, 5 930 F.2d 1368 (9th Cir. 1990)...... 8 2
6 United States v. Reed, 726 F.2d 570 (9th Cir. 1984) ...... 2 9 7 United States v. Reese, 8 775 F.2d 1066 (9th Cir. 1985)...... 2 6
9 United States v. Rogers, 466 U.S. 475 (1984)...... 3 6 10 United States v. Rone, 11 598 F.2d 564 (9th Cir. 1979) ...... 8
12 United States v. Ross, 321 F.2d 61 (2d Cir. 1963) ...... 7 9 13 United States v. Rrapi, 14 175 F.3d 742 (9th Cir. 1999) ...... 8 0
15 United States v. Rubino, 431 F.2d 284 (6th Cir. 1970)...... 8 5 16 United States v. Saavedra, 17 684 F.2d 1293 (9th Cir. 1982)...... 3 0
18 United States v. Santana-Camacho, 931 F.2d 966 (1st Cir. 1991)...... 9 9 19 United States v. Santiago, 20 837 F.2d 1545 (11th Cir. 1988)...... 3 3
21 United States v. Sawyer, 239 F.3d 31 (1st Cir. 2001)...... 14, 15 22 United States v. Sawyer, 23 607 F.2d 1190 (7th Cir. 1977)...... 7 9
24 United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996)...... 1 5 25
26
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Schmit, 881 F.2d 608 (9th Cir. 1989)...... 3 2 4 United States v. Scotto, 5 641 F.2d 47 (2d Cir. 1980) ...... 8
6 United States v. Service Deli Inc., 151 F.3d 938 (9th Cir. 1998) ...... 3 9 7 United States v. Shirley, 8 884 F.2d 1130 (9th Cir. 1989)...... 8 7
9 United States v. Simmons, 154 F.3d 765 (8th Cir. 1998) ...... 4 7 10 United States v. Skeet, 11 665 F.2d 983 (9th Cir. 1982) ...... 9 1
12 United States v. Skillman, 922 F.2d 1370 (9th Cir. 1990) ...... 8 1 13 United States v. Smith, 14 891 F.2d 703 (9th Cir. 1989)...... 2 7
15 United States v. Smith, 893 F.2d 1573 (9th Cir. 1990)...... 79, 81 16 United States v. Soulard, 17 730 F.2d 1292 (9th Cir. 1984)...... 8 8
18 United States v. Spawr Optical Research, Inc., 685 F.2d 1076 (9th Cir. 1982)...... 3 2 19 United States v. Stauffer, 20 922 F.2d 508 (9th Cir. 1990)...... 2 7
21 United States v. Stuart, 718 F.2d 931 (9th Cir. 1983) ...... 9 3 22 United States v. Sutcliffe, 23 505 F.3d 944 (9th Cir. 2007)...... 22, 23
24 United States v. Sutherland, 656 F.2d 1181 (5th Cir. 1981)...... 1 1 25
26
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Sutton, 426 F.2d 1202 (D.C. Cir. 1969) ...... 7 6 4 United States v. Taghipour, 5 964 F.2d 908 (9th Cir. 1992) ...... 7 7
6 United States v. Taylor, 802 F.2d 1108 (9th Cir. 1986) ...... 3 2 7 United States v. Thomas, 8 586 F.2d 123 (9th Cir. 1978) ...... 26, 78
9 United States v. Tille, 729 F.2d 615 (9th Cir. 1984)...... 3 3 10 United States v. Tipton, 11 964 F.2d 650 (7th Cir. 1992) ...... 8 0
12 United States v. Tornabene, 687 F.2d 312 (9th Cir. 1982) ...... 7 7 13 United States v. Torres, 14 908 F.2d 1417 (9th Cir. 1990)...... 7 8
15 United States v. Traylor, 656 F.2d 1326 (9th Cir. 1981)...... 3 2 16 United States v. Turkette, 17 452 U.S. 576 (1981)...... 5, 6
18 United States v. Turner, 528 F.2d 143 (9th Cir. 1975) ...... 77, 78 19 United States v. Umagat, 20 998 F.2d 770 (9th Cir. 1993) ...... 2 9
21 United States v. Vaccaro, 816 F.2d 443 (9th Cir. 1987)...... 4 1 22 United States v. Valles-Vallencia, 23 811 F. 2d 1232 (9th Cir. 1987)...... 8 8
24 United States v. Vasquez, 858 F.2d 1387 (9th Cir. 1988)...... 2 9 25
26
27
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Vaughn, 797 F.2d 1485 (9th Cir. 1986)...... 17, 41 4 United States v. Vavages, 5 151 F.3d 1185 (1998)...... 95, 96
6 United States v. Vega-Limon, 548 F.2d 1390 (9th Cir. 1977)...... 3 0 7 United States v. Vento, 8 533 F.2d 838 (3d Cir. 1976)...... 7 9
9 United States v. Villarreal, 253 F.3d 831 (5th Cir. 2001) ...... 2 2 10 United States v. Waymer, 11 55 F.3d 5641 (11th Cir. 1995)...... 1 5
12 United States v. Whitaker, 848 F.2d 914 (8th Cir. 1988)...... 3 9 13 United States v. Whittington, 14 783 F.2d 1210 (5th Cir. 1986)...... 8 0
15 United States v. Williams, 441 F.3d 716 (9th Cir. 2006) ...... 1 4 16 United States v. Williams, 17 989 F.2d 1061 (9th Cir. 1993)...... 3 2
18 United States v. Wood, 943 F.2d 1048 (9th Cir. 1991)...... 8 6 19 United States v. Woodward, 20 149 F.3d 46 (1st Cir. 1998)...... 1 5
21 United States v. Yarbrough, 852 F.2d 1522 (9th Cir. 1988)...... 32, 33 22 United States v. Yermian, 23 468 U.S. 63 (1984)...... 3 7
24 United States v. Young, 248 F.3d 260 (4th Cir. 2001) ...... 102 25
26
27
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1 TABLE OF AUTHORITIES (CONTINUED)
2 CASES: PAGE(S)
3 United States v. Zavala-Serra, 853 F.2d 1512 (9th Cir. 1988)...... 31, 32 4 Van Ripper v. United States, 5 13 F.2d 961 (2d Cir. 1926) ...... 7 7
6 Williamson v. United States, 512 U.S. 594 (1994)...... 8 7 7 Yates v. United States, 8 354 U.S. 298 (1957)...... 2 7
9 STATUTES: 10 5 U.S.C. § 101...... 1 9 11 18 U.S.C. § 2...... 3 9 12 18 U.S.C. § 371...... 1, 11, 25 13 18 U.S.C. § 1028(a)(7)...... 1, 21, 50 14 18 U.S.C. § 1030(a)(4)...... 1, 23 15 8 U.S.C. § 1030(e)(6)...... 1 9 16 18 U.S.C. § 1341...... 1 3 17 18 U.S.C. § 1343...... 13, 14, 50 18 18 U.S.C. § 1512...... 4 0 19 18 U.S.C. § 1961...... 6, 7, 9 20 18 U.S.C. § 1962...... 1 21 18 U.S.C. § 1962(d)...... 1, 8 22 18 U.S.C. § 2511 ...... 1, 34 23 18 U.S.C. § 2512...... 1, 50 24
25
26
27
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1 TABLE OF AUTHORITIES (CONTINUED)
2 RULES: PAGE(S)
3 California Penal Code Section 7...... 42, 43
4 California Penal Code Section 67 ...... 4 2
5 California Penal Code Section 68...... 4 2
6 Fed. R. Crim. Pro. 12(e)...... 102
7 Fed. R. Evid. 100...... 7 9
8 Fed. R. Evid. 104...... 8 2
9 Fed. R. Evid. 201...... 101
10 Fed. R. Evid. 405...... 100
11 Fed. R. Evid. 608...... 9 8
12 Fed. R. Evid. 613...... 9 2
13 Fed. R. Evid. 701...... 9 1
14 Fed. R. Evid. 702...... 9 0
15 Fed. R. Evid 704...... 9 0
16 Fed. R. Evid. 801...... 9 0
17 Fed. R. Evid. 801...... 92, 93, 94
18 Fed. R. Evid. 803...... 81, 92
19 Fed. R. Evid. 901...... 7 8
20 Fed. R. Evid. 902...... 8 4
21 Fed. R. Evid. 905...... 7 8
22 Fed. R. Evid. 1004...... 8 7
23
24
25
26
27
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1 I.
2 STATUS OF THE CASE
3 A. Trial is set for March 5, 2008, before the Honorable
4 Dale S. Fischer, United States District Court Judge.
5 B. The estimated time for trial is eight to ten weeks.
6 C. Defendant Anthony Pellicano, who is pro se, currently
7 is in custody. Defendants Mark Arneson, Rayford Earl Turner,
8 Kevin Kachikian, and Abner Nicherie, all of whom are represented
9 by retained counsel, are on bond.
10 D. Trial by jury has not been waived.
11 E. Absent any stipulations, the government expects to call
12 approximately 80 to 100 witnesses in its case-in-chief.
13 F. The Fifth Superseding Indictment (the “indictment”) is
14 in 111 counts. Defendant Pellicano is charged with RICO (count
15 1), RICO conspiracy (count 2), honest services wire fraud (counts
16 3-33, 75-76), unauthorized computer access of United States
17 agency information (counts 34-64, 77-78), identity theft (counts
18 65-69, 79-82, 87-90), computer fraud (counts 70-74, 83-86, 91-
19 94), conspiracy to intercept wire communications (counts 95,
20 106), interception of wire communications (counts 96-104, 107),
21 manufacturing and possessing a wiretapping device (count 105),
22 and RICO forfeiture (count 111). Defendant Arneson is charged
23 with RICO (count 1), RICO conspiracy (count 2), honest services
24 wire fraud (counts 3-33), unauthorized computer access of United
25 States agency information (counts 34-64), identity theft (counts
26 65-69), computer fraud (counts 70-74), making a false statement
27
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1 (count 108), and RICO forfeiture (count 111). Defendant Turner
2 is charged with RICO (count 1), RICO conspiracy (count 2),
3 identity theft (counts 87-90), computer fraud (counts 91-
4 94), conspiracy to intercept wire communications (count 95),
5 interception of wire communications (counts 96-104, 107), making
6 a false statement (count 109), and RICO forfeiture (count 111).
7 Defendant Kachikian is charged with conspiracy to intercept wire
8 communications (count 95), interception of wire communications
9 (counts 96-104, 107), manufacturing and possessing a wiretapping
10 device (count 105), and destruction of evidence (count 110).
11 Defendant Nicherie is charged with aiding and abetting the
12 interception of wire communications (count 97).
13 G. A copy of the Indictment is attached as Exhibit A.
14 II.
15 APPLICABLE STATUTES
16 A. 18 U.S.C. § 1962(c) (RICO) (count one)
17 1. Statutory Language
18 Title 18, United States Code, Section 1962(c) provides, in
19 pertinent part:
20 It shall be unlawful for any person employed by or
21 associated with any enterprise engaged in, or the activities of
22 which affect, interstate or foreign commerce, to conduct, or
23 participate, directly or indirectly, in the conduct of such
24 enterprise’s affairs through a pattern of racketeering activity
25 or collection of unlawful debt.
26 2. Elements
27
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1 For a defendant to be found guilty of RICO, the government
2 must prove the following: (1) there was an enterprise consisting
3 of a group of persons associated together for a common purpose of
4 engaging in a course of conduct; (2) the defendant was employed
5 by or associated with the enterprise; (3) the defendant conducted
6 or participated, directly or indirectly, in the conduct of the
7 affairs of the enterprise through a pattern of racketeering
8 activity or collection of unlawful debt; and (4) the enterprise
9 engaged in, or its activities in some way affected, commerce
10 between one state and another state or between a state or the
11 United States and a foreign country. See Ninth Circuit Model
12 Jury Instruction 8.16 (2003).
13 3. Applicable Law
14 The Supreme Court and the Ninth Circuit have both ruled that
15 “RICO is to be read broadly.” Sedima v. Imex Company Inc., 473
16 U.S. 479, 497 (1985); Odom v. Microsoft Corporation, 486 F.3d
17 541, 547 (9th Cir. 2007)(en banc). For example, the Supreme
18 Court has been unequivocal in its finding that the RICO statute
19 encompasses criminal conduct by both purely criminal enterprises
20 and enterprises that engage in both legitimate and criminal
21 behavior. United States v. Turkette, 452 U.S. 576, 581 (1981).
22 Similarly, in Sedima, the Supreme Court, recognizing that RICO
23 had evolved to be largely a tool of civil litigation, expressly
24 found that the RICO statute is not limited to classic organized
25 crime models but rather encompassed any and all conduct that
26
27
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1 satisfied the fundamental elements of the offense. Sedima, 473
2 U.S. 494-497.
3 a. Enterprise
4 As defined by the RICO statute, the term “enterprise”
5 includes “any individual, partnership, corporation, association,
6 or other legal entity, and any union or group of individuals
7 associated-in-fact.” 18 U.S.C. § 1961(4); see Odom, 486 F.3d at
8 548 (a single individual or legal entity can qualify as an
9 enterprise). To prove the existence of an associate-in-fact
10 enterprise, such as the one charged in the Indictment, the
11 government must establish the existence of an ongoing
12 organization, whether it be formally or informally organized,
13 acting with a common purpose and acting as a continuing unit.
14 Id. at 548, 552. To be acting as a continuing unit, it is not
15 necessary that every member be involved in each of the acts of
16 racketeering, that the predicate acts be interrelated in any way,
17 that the membership in the organization remain constant over
18 time, or that there be any ascertainable structure to the
19 organization. Id. at 551-52. Instead, the focus is on whether
20 the associates’ behavior consists of ongoing, as opposed to
21 isolated, activity. Turkette, 452 U.S. at 583; Odom, 486 F.3d at
22 545-52.
23 b. Employed by or Associated with the Enterprise
24 A person is “employed by” an enterprise when, for example,
25 the person is on the payroll of the enterprise and performs
26 services for the enterprise, holds a position in the enterprise,
27
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1 or has an ownership interest in the enterprise. A person is
2 “associated with” the enterprise if the person joins with other
3 members of the enterprise and knowingly aids or furthers the
4 activities of the enterprise, or conducts business with or
5 through the enterprise.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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1 c. Conducted or Participated in the Affairs of the Enterprise 2
3 A particular defendant participates, directly or indirectly,
4 in the conduct of the enterprise’s affairs by participating in
5 the operation or management of the enterprise by having some part
6 in directing the enterprise’s affairs. For a defendant to
7 participate in the operation or management of the enterprise, the
8 defendant need not exercise significant control over, or within,
9 the enterprise. Similarly, the defendant need not have had
10 either a formal position in the enterprise or have had primary
11 responsibility for the enterprise’s affairs as “[a]n enterprise
12 is ‘operated’ not just by upper management but also by lower-rung
13 participants in the enterprise who are under the direction of
14 upper management" or who carry out upper management's orders.
15 Reves v. Ernst & Young, 507 U.S. 170, 184 (1993); United States
16 v. Fernandez, 388 F.3d 1199, 1228 (9th Cir. 2004). Therefore,
17 “all who participate in the conduct of [the] enterprise, whether
18 they are generals or foot soldiers,” can be held legally
19 responsible under the RICO statute. United States v. Oreto, 37
20 F.3d 739, 751 (1st Cir. 1994).
21 The RICO statute defines a pattern of racketeering activity
22 as at least two racketeering acts within ten years of one
23 another. 18 U.S.C. § 1961(5). In order to form a pattern, the
24 two acts must be related to each other and pose a threat of
25 continuing activity. H.J. Inc. v. Northwestern Bell Telephone
26 Co., 492 U.S. 229, 238-40 (1989); Fernandez, 388 F.3d at 1221.
27
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1 To establish that the affairs of the enterprise were conducted
2 through a pattern of racketeering activity, evidence must exist
3 that “the predicate offenses are related to the activities of
4 th[e] enterprise.” United States v. Scotto, 641 F.2d 47, 54 (2d
5 Cir. 1980).
6 d. Effect on Interstate Commerce
7 The Ninth Circuit repeatedly has held that only a “de
8 minimis” effect on interstate commerce is required for a RICO
9 violation. Fernandez, 388 F.3d at 1218; United States v. Rone,
10 598 F.2d 564, 573 (9th Cir. 1979). It is the activities of the
11 enterprise, not each predicate act, which must affect interstate
12 commerce. United States v. Bagnariol, 665 F.2d 877, 892 (9th
13 Cir. 1981); Rone, 598 F.2d at 573.
14 B. 18 U.S.C. § 1962(d)(RICO Conspiracy) (count two)
15 1. Statutory Language
16 Title 18, United States Code, Section 1962(d) provides in
17 pertinent part:
18 It shall be unlawful for any person to conspire to violate
19 any of the provisions of subsection . . . (c).
20 2. Elements
21 For a defendant to be found guilty of RICO conspiracy, the
22 government must prove the following: (1) the defendant knowingly
23 agreed to conduct or participate, directly or indirectly, in the
24 conduct of the affairs of the charged enterprise through a
25 pattern of racketeering activity; (2) an enterprise would be
26 established as alleged in the indictment; (3) the enterprise or
27
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1 its activities would affect interstate commerce; and (4) the
2 defendant would be associated with the enterprise.
3 3. Applicable Law
4 The terms “enterprise”, “affecting interstate commerce”,
5 “pattern of racketeering activity” and “associated with the
6 enterprise” are the same as applied to the substantive RICO
7 offense. 18 U.S.C. § 1961. There exist three significant ways,
8 however, in which RICO conspiracy differs from a substantive RICO
9 offense.
10 First, to convict a defendant of RICO conspiracy, the
11 government is not required to prove that the alleged enterprise
12 was actually established, that the defendant was actually
13 associated with the enterprise, or that the enterprise or its
14 activities actually affected interstate commerce. Instead,
15 because the agreement to commit a RICO offense is the essence of
16 a RICO conspiracy offense, the government need only prove that if
17 the conspiracy offense were completed as contemplated, the
18 enterprise would be established, the defendant would be
19 associated with the enterprise, and the enterprise or its
20 activities would affect interstate commerce. Salinas v. United
21 States, 552 U.S. 52, 65 (1997).
22 Second, to convict a defendant of RICO conspiracy, the
23 government need not prove that individual enterprise members
24 personally had agreed to commit two racketeering acts or had
25 participated in the commission of the actual crimes. Salinas,
26 552 U.S. at 63 (upholding the sufficiency of a RICO conspiracy
27
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1 conviction of a sheriff’s deputy who facilitated scheme whereby
2 his boss received multiple kickbacks from a prisoner in exchange
3 for permitting unauthorized conjugal visits). Instead, the
4 government must only prove that the particular defendant agreed
5 that, at some point during the life of the conspiracy, a member
6 of the conspiracy would commit, on behalf of the conspiracy, at
7 least two related acts of racketeering, with the jury being
8 unanimous as to which type or types of predicate racketeering
9 activity the defendant agreed would be committed. Id. at 65. As
10 the Salinas Court stated:
11 A conspirator must intend to further an endeavor which, if completed, would satisfy all the elements of 12 a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the 13 criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts 14 necessary for the crimes completion . . .
15 A (RICO or other federal) conspiracy may exist even if a conspirator does not agree to commit or 16 facilitate each and every part of the substantive offense. The partners in the criminal plan must agree 17 to pursue the same criminal objective (here the operation of the RICO enterprise) and may divide up the 18 work, yet each is responsible for the acts of each other. See Pinkerton v. United States, 328 U.S. 640 19 (1946). If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to 20 provide support, the supporters are as guilty as the perpetrators. 21
22 Salinas, 522 U.S. at 62-65.
23 Third, to convict a defendant of a substantive RICO offense,
24 the government must prove that the defendant personally
25 participated in the operation or management of the enterprise.
26 However, such proof is not required to convict a defendant of a
27
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1 RICO conspiracy offense. Rather, a defendant may be convicted of
2 a RICO conspiracy offense provided that the defendant knowingly
3 agreed to facilitate a scheme which, if completed, would
4 constitute a RICO violation involving at least one conspirator
5 who would participate in the operation or management of the
6 enterprise. Fernandez, 388 F.3d at 1230.
7 In addition to the differences with substantive RICO, RICO
8 conspiracy also differs materially from the general conspiracy
9 statute set forth in 18 U.S.C. § 371. Specifically, while RICO
10 conspiracy incorporates the general law of conspiracy,1 Salinas,
11 552 U.S. at 63-65, Congress designed the statute to be broader in
12 scope than a Section 371 conspiracy. As the Fifth Circuit
13 explained:
14 We are convinced that through RICO, Congress intended to authorize the single prosecution of a multi-faceted, 15 diversified conspiracy by replacing the inadequate “wheel” and “chain” rationales with a new statutory 16 concept; the enterprise.
17 . . . RICO helps to eliminate this problem (diverse crimes by apparently unrelated individuals) by creating 18 a substantive offense which ties together these diverse parties and crimes. . . The gravamen of the conspiracy 19 charge in this case is not that each defendant agreed to commit (a specific crime), it is that each agreed to 20 participate, directly and indirectly, in the affairs of the enterprise . . . . 21
22 1 As with proof of any other type of conspiracy, the agreement need not be stated or written, but may be inferred from 23 circumstantial evidence or the defendant’s acts pursuant to the scheme. United States v. Diecidue, 603 F.2d 535 (5th Cir. 1979); 24 Glasser v. United States, 315 U.S. 60, 80 (1942). In addition, 25 there is no requirement that the defendant in a RICO conspiracy know the full scope of the conspiracy or even the identity of all 26 the conspirators. United States v. Castro, 89 F.3d 1443, 1451 (11th Cir. 1997); United States v. Sutherland, 656 F.2d 1181, 27 1190 (5th Cir. 1981).
28 -10- Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 38 of 129
1 United States v. Elliott, 571 F.2d 880, 902 (5th Cir. 1978)
2 (emphasis added). For example, unlike a Section 371 conspiracy,
3 the government need not establish that any overt acts were
4 committed. Salinas, 522 U.S. at 63.
5 C. 18 U.S.C. §§ 1343, 1346 (Honest Services WireFraud) (racketeering acts one through sixty-seven; counts 6 three through thirty-three)
7 1. Statutory Language
8 Title 18, United States Code, Section 1343, provides, in
9 pertinent part:
10 [W]hoever, having devised or intending to devise any scheme
11 or artifice to defraud, or for obtaining money or property by
12 means of false or fraudulent pretenses, representations, or
13 promises, transmits or causes to be transmitted by means of wire
14 . . . communication in interstate or foreign commerce, any
15 writings, signs, signals, pictures, or sounds for the purpose of
16 executing such scheme or artifice, shall be fined under this
17 title or imprisoned not more than 20 years, or both.
18 Title 18, United States Code, Section 1346, provides:
19 [F]or the purposes of this chapter, the term "scheme or
20 artifice to defraud" includes a scheme or artifice to deprive
21 another of the intangible right of honest services.
22 2. Elements
23 For a defendant to be found guilty of honest services wire
24 fraud, the government must prove the following: (1) a defendant
25 made up a scheme or plan to deprive the public of its right to
26 honest services; (2) the defendant acted with the intent to
27
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1 defraud, that is, with the intent to deprive the public of its
2 right to honest services; and (3) the defendant used, or caused
3 someone to use, a wire communication in interstate commerce to
4 carry out or to attempt to attempt to carry out the scheme or
5 plan. See Ninth Circuit Model Criminal Jury Instruction 8.102.
6 The use of a wire is caused when one knows that the wires
7 will be used in the ordinary course of business or when one can
8 reasonably foresee such use. It does not matter whether the
9 material sent over the wire itself constituted a deprivation of
10 the right to honest services so long as a wire was used as an
11 important part of the scheme, nor does it matter whether the
12 scheme or plan was successful or that any money or property was
13 obtained.
14 3. Applicable Law
15 a. Parallel Construction of Fraud Statutes
16 The mail fraud and wire fraud statutes share as a common
17 element the defendant's knowing participation in a fraudulent
18 scheme. 18 U.S.C. §§ 1341, 1343 ("scheme or artifice to defraud,
19 or for obtaining money or property by means of false or
20 fraudulent pretenses, representations, or promises"). “The only
21 difference between mail fraud and wire fraud is that former
22 involves the use of the mails and latter involves the use of
23 wire, radio, or television communication in interstate or foreign
24 commerce.” Ninth Circuit Model Criminal Jury Instruction 8.103,
25 Comment.
26
27
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1 Accordingly, courts applying these statutes generally have
2 given them parallel constructions so that fraud concepts
3 developed in the case law under Section 1341 and Section 1343 are
4 typically treated as interchangeable in criminal prosecutions.
5 See United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987)
6 (bank fraud, wire fraud, and mail fraud); United States v.
7 Cusino, 694 F.2d 185, 187 n.1 (9th Cir. 1982) (mail fraud and
8 wire fraud); United States v. Louderman, 576 F.2d 1383, 1387-88 &
9 n.3 (9th Cir. 1978) (same).
10 b. Non-disclosure and False Disclosure by a Public Official 11 Public officials have a duty to provide “honest services” to 12 the public. United States v. Frega, 179 F.3d 793, 802 (9th Cir. 13 1999). As the Ninth Circuit repeatedly has recognized, this 14 “theory of fraud most often is applied to cases involving bribery 15 of public officials” as “the requisite ‘scheme or artifice to 16 defraud’ is found in the deprivation of the public’s right to 17 honest and faithful government.” United States v. Williams, 441 18 F.3d 716, 723 (9th Cir. 2006); Frega, 179 F.3d at 803; United 19 States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980). A public 20 official’s non-disclosure of material information to his employer 21 can also satisfy the fraud standard set forth in Section 1346, as 22 the employer –- in this case the government –- has a right to 23 have its employees act honestly in the course of their duties. 24 Frega, 179 F.3d at 803; Bohonus, 628 F.2d at 1171-72. “[T]his 25 duty of disclosure arises not exclusively by statute, but also 26 from the general fiduciary duty a public official owes to the 27
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1 public.” United States v. Sawyer, 239 F.3d 31, 40 (1st Cir.
2 2001) (“Sawyer II”) quoting United States v. Woodward, 149 F.3d
3 46, 57 (1st Cir. 1998) (“Public officials . . . have fiduciary
4 duties under common law to ensure that the public receives their
5 honest service free of improper influence of corruption”));
6 United States v. Waymer, 55 F.3d 564, 571 (11th Cir. 1995) (“A
7 defendant’s breach of a fiduciary duty may be a predicate for a
8 violation of the mail fraud statute where the breach entails the
9 violation of a duty to disclose material information”).
10 c. Violations of State Law
11 Proof of honest services wire fraud “does not require proof
12 of a violation of any state law. Because the duty of honest
13 services owed by government officials derives from fiduciary
14 duties at common law as well as from statute, there is not need
15 to base a prosecution under § 1341 on allegations that the
16 defendant also violated state law.” Sawyer II, 239 F.3d at 41-
17 42. See also Waymer, 55 F.3d at 571 (“fraud, for purposes of a
18 mail fraud conviction, may be proved through the defendant’s non-
19 action or non-disclosure of material facts intended to create a
20 false and fraudulent representation”). However, “to say that
21 proof of a state law violation is not required is not the same as
22 saying that it is not permitted. Indeed, proving violations of
23 state law is one way a federal prosecutor might choose to
24 structure a prosecution for honest services [] fraud.” Sawyer
25 II, 239 F.3d at 42.
26
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1 d. Proof of Loss Not Required
2 Undisclosed, biased decision making for personal gain,
3 whether or not tangible loss to the public is shown, constitutes
4 a deprivation of honest services. United States v. Sawyer, 85
5 F.3d 713, 724 (1st Cir. 1996)(“Sawyer I”); see also Sawyer II,
6 239 F.3d at 39; United States v. Lopez-Lukis, 102 F.3d 1164, 1169
7 (11th Cir. 1997).
8 e. Fraudulent Intent
9 The intent to deprive the public of its right to the honest
10 services of the government official is an essential element of
11 the offense. See Ninth Circuit Model Criminal Jury Instruction
12 8.102; Frega, 179 F.3d at 803. In establishing the requisite
13 intent, the government need not prove the defendant had the
14 specific intent to use the mails or wires to commit the fraud.
15 If a defendant “does an act with knowledge that use of the mails
16 [or wires] will follow in the ordinary course of business, or
17 where such use can reasonably be foreseen, even though not
18 actually intended, then he ‘causes’ the mails to be used.” See
19 United States v. Hubbard, 96 F.3d 1227, 1229 (9th Cir. 1996)
20 (quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954)). See
21 also United States v. Bernhardt, 840 F.2d 1441, 1447 (9th Cir.
22 1988).
23 Fraudulent intent may be, and often must be, shown by
24 circumstantial evidence. See United States v. Rasheed, 663 F.2d
25 843, 848 (9th Cir. 1981); United States v. Jones, 425 F.2d 1048,
26 1058 (9th Cir. 1979). Due to the difficulty in proving intent,
27
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1 courts have traditionally held that "[a]ny proof, properly
2 connected to the defendants, which establishes the manner in
3 which the fraudulent scheme was carried into execution or the
4 intent of the parties in relation thereto is properly
5 admissible." United States v. Amrep Corp., 545 F.2d 797, 800 (2d
6 Cir. 1976); see also United States v. Jackson, 845 F.2d 880, 884
7 (9th Cir. 1988). Under this standard, evidence of similar
8 fraudulent conduct by the defendant which is not specifically
9 charged in the indictment remains admissible to prove intent and
10 a scheme to defraud. United States v. Payne, 474 F.2d 603, 604
11 (9th Cir. 1973); United States v. Larsen, 441 F.2d 512 (9th Cir.
12 1971).
13 f. Co-Schemer Liability
14 To be guilty of participation in a fraudulent scheme, a
15 defendant need not be the mastermind of the scheme. See United
16 States v. Price, 623 F.2d 587, 591 (9th Cir. 1980), overruled on
17 other grounds, United States v. DeBright, 730 F.2d 1255, 1260
18 (9th Cir. 1987). Nor is it necessary for the government to prove
19 that the defendant participated in every aspect of the scheme.
20 See United States v. Melton, 689 F.2d 679, 684 (7th Cir. 1982).
21 All that is required is proof beyond a reasonable doubt that the
22 defendant was a knowing participant in the scheme. See United
23 States v. Peters, 962 F.2d 1410, 1414 (9th Cir. 1992); United
24 States v. Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986); Price, 623
25 F.3d at 592; United States v. Diggs, 649 F.2d 731, 736 (9th Cir.
26 1981), overruled on other grounds, United States v. McConney, 728
27
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1 F.2d 1195 (9th Cir. 1984) (en banc); see also United States v.
2 Earles, 955 F.2d 1175, 1177 (8th Cir. 1992) (“One who knowingly
3 participates in an ongoing mail fraud scheme devised by another
4 is guilty of mail fraud”). Once it is established that the
5 defendant knowingly participated in the scheme, conspiratorial
6 principles of vicarious liability apply to render the defendant
7 liable for all of the fraudulent acts of his co-schemers that
8 were within the general scope of the scheme. See United States
9 v. Lothian, 976 F.2d 1257, 1262-63 (9th Cir. 1992); United States
10 v. Federbush, 625 F.2d 246, 253-254 (9th Cir. 1980); Amrep Corp.,
11 560 F.2d at 545.
12 D. 18 U.S.C. § 1030(a)(2),(c)(2)(B)(1) (Unauthorized Computer Access Of United States Information For Financial Gain) 13 (counts thirty-four through sixty-four; seventy-seven through seventy-eight) 14
15 1. Statutory Language
16 Title 18, United States Code, Sections 1030(a)(2),
17 (c)(2)(B)(1) provide, in pertinent part:
18 [W]hoever intentionally accesses a computer without
19 authorization, or exceeds authorized access, and thereby obtains
20 . . . . information from any department or agency of the United
21 States has committed a violation of this section.
22 * * * * *
23 [A] person who violates Section (a)(2) for purposes of
24 commercial profit or private financial gain shall be sentenced to
25 a fine, imprisoned not more than five years, or both.
26
27
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1 2. Elements
2 For a defendant to be found guilty of unauthorized computer
3 access of United States information for purposes of financial
4 gain, the government must prove the following: (1) the defendant
5 intentionally exceeded authorized access of a computer, that is,
6 it was the defendant’s conscious objective to exceed authorized
7 access to the computer; (2) by exceeding authorized access to a
8 computer, the defendant obtained information from any department
9 or agency of the United States; and (3) the defendant acted for
10 purpose of commercial advantage or private financial gain. Ninth
11 Circuit Model Criminal Jury Instruction No. 8.78.
12 3. Applicable Law
13 A defendant exceeds authorized access when the defendant
14 accesses a computer with authorization but uses such access to
15 obtain information in the computer that the defendant is not
16 entitled to obtain. 18 U.S.C. § 1030(e)(6). A defendant obtains
17 information merely by observing it on the computer and need not
18 remove the information from the computer to have violated this
19 section. Ninth Circuit Criminal Model Jury Instruction Nos.
20 8.77, 8.78 Comment. The term “department of the United States”
21 includes the United States Department of Justice, of which the
22 Federal Bureau of Investigation is a component. 18 U.S.C.
23 § 1030(e)(6), 5 U.S.C. § 101.
24
25
26
27
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1 E. 18 U.S.C. § 1028(a)(7) (Identity Theft) (racketeering acts sixty-eight through ninety-two; counts sixty-five through 2 sixty-nine, seventy-nine through eighty-two, eighty-seven through ninety) 3 1. Statutory Language 4 Title 18, United States Code, Section 1028(a)(7) provides, 5 in pertinent part: 6 [W]hoever [] knowingly transfers, possesses, or uses, 7 without lawful authority, a means of identification of another 8 person with the intent to commit, or to aid or abet, or in 9 connection with, any unlawful activity that constitutes a 10 violation of federal law, or that constitutes a felony under any 11 applicable State or local law, shall be fined under this title, 12 imprisoned not more than five years, or both. 13 Title 18, United States Code, Section 1028(c)(3) provides, 14 in pertinent part: 15 [Jurisdiction under Section 1028 exists when] either: (A) 16 the production, transfer, or use prohibited under this Section is 17 in or affects interstate or foreign commerce, including the 18 transfer of a document by electronic means. 19 Title 18, United States Code, Section 1028(d)(7) provides, 20 in pertinent part: 21 [T]he term “means of identification” means any name or 22 number that may be used, alone or in conjunction with any other 23 information, to identify a specific individual, including any: 24 (A) name, social security number, date of birth, official 25 State or government issued driver’s license or identification number, alien registration number, 26 passport number, employer or tax identification number;
27
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1 (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical 2 representation;
3 (C) unique electronic identification number, address, or routing code; 4 (D) telecommunication identifying information, such as an 5 electronic serial number or any other number or signal that identifies a specific telecommunications 6 instrument or account, or a specific communication transmitted from a telecommunications instrument; or 7 (E) access device, such as any card, plate, code, account 8 number, electronic serial number, mobile identification number, personal identification number, or other 9 telecommunications service, equipment or instrument identifier, or other means of account access that can 10 be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other 11 thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated 12 solely by paper instrument).
13 2. Elements
14 For a defendant to be found guilty of identity theft, the
15 government must prove the following: (1) the defendant knowingly
16 possessed, used or transferred, or caused to be possessed, used
17 or transferred, a means of identification of another person; (2)
18 in doing so, the defendant acted without lawful authority; (3)
19 the possession, transfer, or use was in a manner affecting
20 interstate commerce; and (4) defendant acted with the intent to
21 commit, or to aid or abet the commission of, any federal crime or
22 any felony under state or local law.
23 3. Applicable Law
24 Under Section 1028(a)(7), a defendant must know that he is
25 acting without lawful authority, not that the means of
26 identification belongs to an actual person. United States v.
27
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1 Jimenez, 507 F.3d 13, 18 n.3 (1st Cir. 2007). One way in which a
2 defendant can act without lawful authority is by using a means of
3 identification without the owner’s consent. See e.g., United
4 States v. Hurtado, 508 F.3d 603, 607-08 (11th Cir. 2007); United
5 States v. Hines, 472 F.3d 1038, 1039-40 (8th Cir. 2007) (finding
6 that defendant acted without lawful authority when he provided
7 name of third party to police as if it were his own).
8 To satisfy the jurisdictional element set forth in Section
9 1028(c)(3), only a minimal connection with interstate commerce is
10 required. United States v. Sutcliffe, 505 F.3d 944, 952-53 (9th
11 Cir. 2007); United States v. Klopf, 423 F.3d 1228, 1237-39 (11th
12 Cir. 2005); United States v. Bassey, 65 F.3d 22, 24-25 (4th Cir.
13 1995). To that end, a defendant “need only have the intent to
14 accomplish acts, which, if successful, would have affected
15 interstate or foreign commerce. The government, however, is not
16 required to prove that the defendant had knowledge of the
17 interstate nexus when he committed an act in violation of
18 1028(a).” Klopf, 423 F.3d at 1239 (finding that interstate nexus
19 satisfied by possession of fraudulent driver’s license, even if
20 not yet used); see also, United States v. Villarreal, 253 F.3d
21 831, 834-35 (5th Cir. 2001) (finding that focus is not on whether
22 the identification document actually traveled in interstate or
23 foreign commerce or whether transfer affected interstate commerce
24 but rather whether either would have been accomplished had the
25 defendant accomplished his intended goals); United States v.
26 Jackson, 155 F.3d 942, 947 (8th Cir. 1998) (interstate nexus
27
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1 established by showing that defendant’s scheme intended to use
2 means of identification to defraud businesses engaged in
3 interstate commerce).
4 As for the element that defendant acted with the intent to
5 commit, or to aid or abet the commission of, or in connection
6 with, any federal crime or any felony under state or local law,
7 the Ninth Circuit has held that the defendant need not actually
8 have caused another crime to be committed. All that is required
9 is that the defendant act with the requisite intent. Sutcliffe,
10 505 F.3d at 959-60.
11 F. 18 U.S.C. § 1030(a)(4) (Computer Fraud) (counts seventy through seventy-four, eighty-three through eighty-six, 12 ninety-one through ninety-four)
13 1. Statutory Language
14 Title 18, United States Code, Section 1030(a)(4), provides,
15 in pertinent part:
16 [W]hoever knowingly and with the intent to defraud, accesses
17 a protected computer without authorization, or exceeds authorized
18 access, and by means of such conduct furthers the intended fraud
19 and obtains anything of value shall be fined under this title,
20 imprisoned not more than five years, or both.
21 2. Elements
22 For a defendant to be found guilty of having committed the
23 offense of computer fraud, the government must prove the
24 following: (1) the defendant knowingly exceeded authorized access
25 of a computer that was used in interstate or foreign commerce or
26 communication; (2) the defendant did so with the intent to
27
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1 defraud, that is, an intent to deceive or cheat; (3) by exceeding
2 authorized access to the computer, the defendant furthered the
3 intended fraud; and (4) the defendant, by exceeding authorized
4 access to the computer, obtained anything of value. Ninth
5 Circuit Model Criminal Jury Instruction No. 8.81.
6 3. Applicable Law
7 While the definition of “exceeding authorized access”
8 uniformly applies to Sections 1030(a)(4) and (a)(2), the intent
9 needed to commit an offense under these two provisions differs.
10 Under Section 1030(a)(4), a defendant must have an intent to
11 defraud. Under Section 1030(a)(2), the defendant simply must act
12 with the intent to exceed the defendant’s authority to access the
13 computer. Ninth Circuit Model Criminal Jury Instruction Nos.
14 8.78, 8.81, Comment. Moreover, in the context of Section
15 1030(a)(4), intent to defraud exists when the computer is used to
16 obtain property of another, which property furthers the intended
17 fraud. Ninth Circuit Model Criminal Jury Instruction No. 8.81,
18 Comment.
19 G. 18 U.S.C. § 371 (Conspiracy) (counts ninety-five, one- hundred-six) 20 1. Statutory Language 21 Title 18, United States Code, Section 371, provides, in 22 pertinent part: 23 If two or more persons conspire either to commit any offense 24 against the United States, or to defraud the United States, or 25 any agency thereof in any manner or for any purpose, and one or 26 more of such persons do any act to effect the object of the 27
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1 conspiracy, each shall be fined not more than $10,000 or
2 imprisoned not more than five years, or both.
3 2. Elements
4 For a defendant to be found guilty of a Section 371
5 conspiracy, the government must prove the following: (1) an
6 agreement to accomplish an illegal objective; (2) one or more
7 overt acts in furtherance of the illegal objective; and (3) the
8 intent required to commit the underlying substantive offense. See
9 United States v. Garza, 980 F.2d 546, 552 (9th Cir. 1992); United
10 States v. Medina, 940 F.2d 1247, 1250 (9th Cir. 1991); United
11 States v. Luttrell, 889 F.2d 806 (9th Cir. 1989).
12 3. Applicable Law
13 a. The Agreement
14 “[T]he evidentiary requirement for establishment of an
15 agreement in the conspiracy context is considerably more lax than
16 in the case of an enforceable contract.” United States v.
17 Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). To support a
18 conspiracy conviction, “[t]he agreement need not be explicit; it
19 may be inferred from the defendant’s acts pursuant to a
20 fraudulent scheme or from other circumstantial evidence.” United
21 States v. Cloud, 872 F.2d 846, 852 (9th Cir. 1989). See also
22 United States v. Boone, 951 F.2d 1526, 1543 (9th Cir. 1991);
23 United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989).
24 The government need not prove direct contact between co-
25 conspirators or the existence of a formal agreement; instead, an
26 agreement constituting a conspiracy may be inferred from the acts
27
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1 of the parties and other circumstantial evidence indicating
2 concert of action for the accomplishment of a common purpose.
3 See Garza, 980 F.2d at 552-53; United States v. Hegwood, 977 F.2d
4 492 (9th Cir. 1992); United States v. Becker, 720 F.2d 1033, 1035
5 (9th Cir. 1983).
6 It is not necessary for the government to show that the
7 defendant knew “the exact scope of the conspiracy, the identity
8 and role of each of the co-conspirators, or the details of the
9 operations of any particular plan.” United States v. Thomas, 586
10 F.2d 123, 132 (9th Cir. 1978). However, the government must
11 prove that the defendant was aware of “the essential nature of
12 the plan.” Blumenthal v. United States, 332 U.S. 539, 557
13 (1947). See also United States v. Krasovich, 819 F.2d 253, 255-
14 56 (9th Cir. 1987). The key element of proof as to any specific
15 co-conspirator is the showing that he knew, or had reason to
16 know, of the participation of others in the illegal plan, and
17 that he knew, or had reason to know, that the benefits to be
18 derived from the operation were probably dependent upon the
19 success of the entire venture. United States v. Abushi, 682 F.2d
20 1289, 1293 (9th Cir. 1982); United States v. Baxter, 492 F.2d
21 150, 158 (9th Cir. 1973).
22 b. Participation in the Conspiracy
23 The government must show that a conspiracy between at least
24 two people existed and that the defendant was a member of the
25 conspiracy charged. United States v. Reese, 775 F.2d 1066, 1071
26 (9th Cir. 1985) (conspiracy must involve at least two people);
27
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1 United States v. Murray, 751 F.2d 1528, 1534 (9th Cir. 1985)
2 (charged defendant must be member of conspiracy). Once a
3 conspiracy is proven, evidence establishing beyond a reasonable
4 doubt the defendant's connection to that conspiracy -- even if
5 the connection is slight -- is sufficient to convict him of
6 knowingly participating in the conspiracy. Hubbard, 96 F.3d at
7 1227; United States v. Stauffer, 922 F.2d 508, 514-15 (9th Cir.
8 1990); United States v. Guzman, 849 F.2d 447, 448 (9th Cir.
9 1988).
10 c. The Object
11 It is well established that a conspiracy charge may allege
12 multiple objects. See United States v. Smith, 891 F.2d 703, 713
13 (9th Cir. 1989)(“the established rule is that a charge of
14 conspiracy to commit more than one offense may be included in a
15 single count without violating the general rule against
16 duplicity”). See also Braverman v. United States, 317 U.S. 49,
17 54 (1942); Frohwerk v. United States, 249 U.S. 204, 210 (1919);
18 United States v. Rabinowich, 238 U.S. at 78, 86 (1915). In such
19 cases, the government must prove that the defendant was engaged
20 in a conspiracy to commit at least one of the alleged objects.
21 See Luttrell, 889 F.2d at 810-11 (“Where the government charges a
22 defendant with a conspiracy to commit several substantive crimes,
23 the government must prove that the defendant was engaged in a
24 conspiracy to violate at least one criminal statute”). Where a
25 conspiracy with multiple objects is charged, a unanimity
26 instruction should be given. See Smith, 891 F.2d at 709
27
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1 (approving instruction that “the jury must unanimously agree upon
2 the same objective as having been proved beyond a reasonable
3 doubt”).
4 d. Overt Acts
5 “In criminal law an overt act is an outward act done in
6 pursuance of the crime and in manifestation of an intent or
7 design, looking toward the accomplishment of the crime.” Chavez
8 v. United States, 275 F.2d 813, 817 (9th Cir. 1960). The overt
9 act “need not be of itself a criminal act; still less need it
10 constitute the very crime that is the object of the conspiracy.”
11 Rabinowich, 238 U.S. at 86. “Nor need it appear that all the
12 conspirators joined in the overt act.” Id.; see also United
13 States v. Burreson, 643 F.2d 1344, 1348 (9th Cir. 1981) (same).
14 As the Supreme Court has explained: “[T]he function of the overt
15 act in a conspiracy prosecution is simply to manifest that the
16 conspiracy is at work, and is neither a project still resting
17 solely in the minds of the conspirators nor a fully completed
18 operation no longer in existence.” Yates v. United States, 354
19 U.S. 298, 334 (1957).
20 To obtain a conviction on a Section 371 conspiracy, the
21 government need prove only one of the overt acts charged in the
22 indictment. See Luttrell, 889 F.2d at 809; United States v.
23 Indelicato, 800 F.2d 1482, 1483 (9th Cir. 1986).
24 e. Liability for Co-Conspirator Acts
25 It is a well settled tenet of conspiracy law, known as
26 Pinkerton liability, that “a party to an unlawful conspiracy may
27
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1 be held responsible for substantive offenses committed by his co-
2 conspirators in furtherance of the unlawful project, even if the
3 party himself did not participate directly in the commission of
4 the substantive offense.” United States v. Vasquez, 858 F.2d
5 1387, 1393 (9th Cir. 1988). See also Pinkerton v. United States,
6 328 U.S. 640, 646-47 (1946); United States v. Olano, 62 F.3d
7 1180, 1199 (9th Cir. 1995). For Pinkerton liability to apply, it
8 is necessary that the substantive offense was within the scope of
9 the unlawful agreement, was committed in furtherance of the
10 conspiracy, and was reasonably foreseeable as a natural
11 consequence of the unlawful confederation. Pinkerton, 328 U.S.
12 at 647-48. See also United States v. Lewis, 787 F.2d 1318, 1323
13 (9th Cir. 1986)(“A co-conspirator is responsible for any act done
14 in furtherance of the conspiracy unless it could not reasonably
15 be foreseen as a natural consequence of the agreement”); United
16 States v. Reed, 726 F.2d 570, 580 (9th Cir. 1984)(“The law is
17 clear that a defendant may be convicted of the substantive acts
18 of his co-conspirators, as long as those acts are committed
19 pursuant to and in furtherance of the conspiracy”).
20 A conspirator who joins a pre-existing conspiracy is bound
21 by all that has gone on before in the conspiracy. See United
22 States v. Umagat, 998 F.2d 770, 772 (9th Cir. 1993) (“One may
23 join a conspiracy already formed and in existence, and be bound
24 by all that has gone before in the conspiracy, even if unknown to
25 him”). See also United States v. Bibero, 749 F.2d 586, 588 (9th
26
27
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1 Cir. 1984); United States v. Saavedra, 684 F.2d 1293, 1301 (9th
2 Cir. 1982).
3 f. Proof of Conspiracy
4 The order of proof in a conspiracy case is a matter
5 committed to the sound discretion of the trial judge. See United
6 States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir. 1982). "The
7 government does not have to present direct evidence.
8 Circumstantial evidence and the inferences drawn from that
9 evidence will sustain a conspiracy conviction." United States v.
10 Castro, 972 F.2d 1107, 1110 (9th Cir. 1992) (emphasis in
11 original).
12 When a defendant is charged with conspiracy, evidence
13 tending to show the existence of a conspiracy is admissible even
14 though such evidence does not implicate the defendant as the
15 defendant's conviction is conditioned upon proof of the
16 conspiracy. United States v. Vega-Limon, 548 F.2d 1390, 1391
17 (9th Cir. 1977). A conspiracy is presumed to continue until
18 there is affirmative evidence of abandonment, withdrawal,
19 disavowal, or defeat of the purposes of the conspiracy. United
20 States v. Bloch, 696 F.2d at 1215; United States v. Krasn, 614
21 F.2d 1229, 1236 (9th Cir. 1980).
22 g. Co-conspirator Declarations
23 Declarations by one co-conspirator during the course of and
24 in furtherance of the conspiracy may be used against another
25 conspirator because such declarations are not hearsay. See Fed.
26 R. Evid. 801(d)(2)(E). Further, statements made in furtherance
27
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1 of a conspiracy were expressly held by the Supreme Court in
2 Crawford v. Washington, 541 U.S. 36, 56 (2004) to be “not
3 testimonial” such that their admission does not violate the
4 Confrontation Clause. As such, the admission of co-conspirator
5 statements pursuant to Fed. R. Evid. 801(d)(2)(E) requires only a
6 foundation that: (1) the declaration was made during the life of
7 the conspiracy; (2) it was made in furtherance of the conspiracy;
8 and (3) there is, including the co-conspirator's declaration
9 itself, sufficient proof of the existence of the conspiracy and
10 of the defendant's connection to it. See Bourjaily v. United
11 States, 483 U.S. 171, 173, 181 (1987).
12 The government must prove by a preponderance of the evidence
13 that a statement is a co-conspirator declaration in order for the
14 statement to be admissible under Rule 801(d)(2)(E). Bourjaily,
15 483 U.S. at 176; United States v. Crespo de Llano, 838 F.2d 1006,
16 1017 (9th Cir. 1987). Whether the government has met its burden
17 is to be determined by the trial judge, and not the jury. United
18 States v. Zavala-Serra, 853 F.2d 1512, 1514 (9th Cir. 1988).
19 The trial court has discretion to determine whether the
20 government may introduce co-conspirator declarations before
21 establishing the conspiracy and the defendant's connection to it.
22 United States v. Loya, 807 F.2d 1483, 1490 (9th Cir. 1987). It
23 also has the discretion to vary the order of proof in admitting a
24 co-conspirator's statement. Id. The court may allow the
25 government to introduce co-conspirator declarations before laying
26 the required foundation under the condition that the declarations
27
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1 will be stricken if the government fails to ultimately establish
2 by independent evidence that the defendant was connected to the
3 conspiracy. Id.; United States v. Spawr Optical Research, Inc.,
4 685 F.2d 1076, 1083 (9th Cir. 1982); Fleishman, 684 F.2d at 1338.
5 It is not necessary for the defendant to be present at the
6 time a co-conspirator statement was made for it to be introduced
7 as evidence against that defendant. Sendejas v. United States,
8 428 F.2d 1040, 1045 (9th Cir. 1970). Similarly, declarations of
9 an unindicted co-conspirator made in furtherance of the
10 conspiracy may be used against a charged conspirator. United
11 States v. Nixon, 418 U.S. 683, 701 (1974); United States v.
12 Williams, 989 F.2d 1061, 1067 (9th Cir. 1993).
13 To be admissible under Fed. R. Evid. 801(d)(2)(E) as a
14 statement made by a co-conspirator in furtherance of the
15 conspiracy, a statement must "further the common objectives of
16 the conspiracy," or "set in motion transactions that [are] an
17 integral part of the [conspiracy]." United States v. Arambula-
18 Ruiz, 987 F.2d 599, 607-08 (9th Cir. 1993); United States v.
19 Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988). Such statements
20 are admissible whether or not they actually result in any benefit
21 to the conspiracy. Williams, 989 F.2d at 1068; United States v.
22 Schmit, 881 F.2d 608, 612 (9th Cir. 1989). Thus, co-conspirator
23 declarations need not be made to a member of the conspiracy to be
24 admissible under Rule 810(d)(2)(E) and can be made to government
25 informants and undercover agents. Zavala-Serra, 853 F.2d at 1516
26 (statements to informants and undercover agents); United States
27
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1 v. Tille, 729 F.2d 615, 620 (9th Cir. 1984) (statements to
2 informants); United States v. Echeverry, 759 F.2d 1451, 1457 (9th
3 Cir. 1985) (statements to undercover agent).
4 Courts have interpreted the "in furtherance of" requirement
5 broadly and have considered, among others, the following
6 co-conspirator declarations as being made "in furtherance of the
7 conspiracy":
8 1. statements made to induce enlistment in the conspiracy (United States v. Arias-Villanueva, 998 F.2d 1491, 1502 9 (9th Cir. 1993);
10 2. statements made to keep a conspirator abreast of a co-conspirator's activity, to induce continued 11 participation in a conspiracy, or to allay the fears of a co-conspirator. Arias-Villanueva, 998 F.2d at 1502; 12 3. statements made to prompt action in furtherance of the 13 conspiracy by either of the participants to the conversation. United States v. Layton, 720 F.2d 548, 14 556 (9th Cir. 1983);
15 4. statements related to the concealment of the criminal enterprise. Tille, 729 F.2d at 620); Garlington v. 16 O'Leary, 879 F.2d 277, 283 (7th Cir. 1989);
17 5. statements seeking to control damage to an ongoing conspiracy. Garlington, 879 F.2d at 283; 18 6. statements made to reassure members of the conspiracy's 19 continued existence. United States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988); 20 7. statements by a person involved in the conspiracy to 21 induce a buyer's purchase of contraband by assuring the buyer of the person's ability to consummate the 22 transaction. Echeverry, 759 F.2d at 1457;
23 8. statement identifying another co-conspirator as source for the contraband to be sold to purchaser. United 24 States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989);
25 9. "puffing", boasts and other conversation designed to obtain the confidence of another conspirator (or 26 apparent conspirator who actually was an undercover agent). United States v. Santiago, 837 F.2d 1545, 1549 27
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1 (11th Cir. 1988); United States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989); United States v. Miller, 2 664 F.2d 94, 98 (5th Cir. 1981); and
3 10. statements that refer to another conspirator as the boss, the overseer, or sir (United States v. Barnes, 4 604 F.2d 121, 157 (2d Cir. 1979).
5 H. 18 U.S.C. § 2511 (Interception Of Wire Communications) (counts ninety-six through one-hundred-four, one-hundred 6 seven)
7 1. Statutory Language
8 Title 18, United States Code, Section 2511(a)(1) provides,
9 in pertinent part:
10 [A]ny person who intentionally intercepts, endeavors to
11 intercept, or procures any other person to intercept, any wire,
12 oral or electronic communication shall be fined under this title
13 or imprisoned for not more than 5 years, or both.
14 2. Elements
15 For a defendant to be found guilty of interception of wire
16 communications, the government must prove the following: (1) the
17 defendant intercepted, endeavored to intercept or procured
18 another person to intercept or endeavor to intercept a wire, oral
19 or electronic communication; and (2) the defendant acted
20 intentionally, that is, deliberately and not negligently or
21 inadvertently. 18 U.S.C. § 2511(a)(1).
22 I. 18 U.S.C. § 2512(1)(b) (Manufacture/Possession Of Wiretapping Device) (count one-hundred five) 23 1. Statutory Language 24 Title 18, United States Code, Section 2512 provides, in 25 pertinent part: 26 [A]ny person who intentionally manufactures, assembles, 27 possesses or sells any electronic, mechanical, or other device, 28 -33- Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 61 of 129
1 knowing or having reason to know that the design of such device
2 renders it primarily useful for the purpose of surreptitious
3 interception of wire, oral, or electronic communications, and
4 that such device, or any component thereof, has been or will be
5 sent through the mail or transported in interstate or foreign
6 commerce shall be fined under this title or imprisoned not more
7 than five years, or both.2
8 2. Elements
9 For a defendant to be found guilty of the charge of
10 manufacturing or possessing a wiretapping device, the government
11 must prove the following: (1) the defendant manufactured,
12 assembled, possessed, or sold an electronic, mechanical, or other
13 device; (2) the defendant knew or had reason to know that the
14 design of such device rendered it primarily useful for the
15 purpose of the surreptitious interception of wire, oral, or
16 electronic communications; and (3) the defendant knew or had
17 reason to know that such device or any component thereof had been
18 or would be sent through the mail or transported in interstate or
19 foreign commerce. 18 U.S.C. § 2512(1)(b).
20 J. 18 U.S.C. § 1001 (False Statements) (counts one-hundred- eight, one-hundred-nine) 21 1. Statutory Language 22 Title 18, United States Code, Section 1001 provides, in 23 pertinent part: 24
25
2 26 Section 2512(2)(B) provides for a defense in the limited circumstance when the manufacturer or possessor has a 27 contract with a federal or state governmental authortity to lawfully possess the materials. No such contract existed here. 28 -34- Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 62 of 129
1 [W]hoever, in any matter within the jurisdiction of the
2 executive, legislative, or judicial branch of the government of
3 the United States, knowingly and willfully . . . (2) makes any
4 materially false, fictitious, or fraudulent statement or
5 representation . . . shall be fined under this title, imprisoned
6 not more than five years, or both.
7 2. Elements
8 For a defendant to be guilty of having made a false
9 statement, the government must prove the following: (1) the
10 defendant made a false statement in a matter within the
11 jurisdiction of a department of the United States; (2) the
12 defendant acted willfully, that is deliberately and with
13 knowledge that the statement was untrue; and (3) the statement
14 was material to the department’s activities or decisions. Ninth
15 Circuit Model Criminal Jury Instruction No. 8.66.
16 3. Applicable Law
17 Under Section 1001, the question of whether a matter comes
18 within the jurisdiction of a department of the United States –-
19 in this case, the Federal Bureau of Investigation –- is a matter
20 of law to be decided by the Court. Commentary, Ninth Circuit
21 Model Criminal Jury Instruction No. 8.66. Moreover, it is well
22 established that statements made to the Federal Bureau of
23 Investigation during the course of a criminal investigation are
24 statements made within the jurisdiction of that department.
25 United States v. Rogers, 466 U.S. 475, 479 (1984).
26
27
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1 To establish that a defendant has acted willfully, all that
2 must be proven is that the defendant deliberately told the
3 government agent a statement that the defendant knew to be
4 untrue. It is irrelevant whether, in doing so, the defendant
5 acted with the intention of influencing the government agent when
6 making the false statement. United States v. Yermian, 468 U.S.
7 63, 73 (1984).
8 The materiality of a false statement is tested at the time
9 the alleged false statement was made. United States v. McKenna,
10 327 F.3d 830, 839 (9th Cir. 2003).3 Furthermore, in assessing
11 whether a statement was material to the activities or decisions
12 of the Federal Bureau of Investigation, it is irrelevant whether
13 the agents knew at the time the statement was made that the
14 statement was false. Instead, the critical issue in determining
15 materiality is whether the false statement was of a type that
16 could have influenced the agency’s decisions or activities. For
17 example, in United States v. Brogan, 522 U.S. 398 (1998), the
18 Supreme Court considered whether an “exculpatory no” in response
19 to a question from federal agents about whether the defendant, a
20 union officer, had accepted impermissible cash payments was
21 material given that the agents knew at the time the statement was
22
23 3 McKenna involves an analysis of materiality in a 24 perjury context. However, in Kungys v. United States, 485 U.S. 25 759, 770 (1988), the Supreme Court found that “the federal courts have long displayed a quite uniform understanding of the 26 materiality concept as embodied in such statutes [including Sections 1001 and 1621].” See also, United States v. Berger, 473 27 F.3d 1080, 1098 (9th Cir. 2007) (same).
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1 made that the statement was false. In finding that the statement
2 was material, the Supreme Court stated:
3 We cannot imagine how it could be true that falsely denying guilt in a government investigation does 4 not pervert a governmental function. Certainly the investigation of wrongdoing is a proper 5 governmental function and; since it is the very purpose of an investigation to uncover the truth, 6 any falsehood relating to the subject of the investigation perverts that function. It could be 7 argued perhaps, that a disbelieved falsehood does not pervert an investigation. But making the 8 existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness 9 of the liar) would be exceedingly strange. . .
10 Brogan, 522 U.S. at 399-400. Similarly, in United States v.
11 Goldfine, 538 F.2d 815 (9th Cir. 1976), the Ninth Circuit
12 considered a challenge to materiality where the federal agents
13 knew the statement at issue to be false at the time it was made,
14 and therefore conceded they had not been misled or influenced by
15 the false statement. In concluding that the statement was
16 material, the Goldfine court stated:
17 We believe that the conduct Congress intended to 18 prevent by [Section] 1001 was the willful submission to federal agencies of false statements 19 calculated to induce agency reliance on action irrespective of whether actual favorable agency 20 action was, for other reasons, impossible. We think the test is the intrinsic capabilities of the 21 false statement itself, rather than the possibility of the actual attainment of its end as measured by 22 collateral circumstances.
23 Goldfine, 538 F.2d at 820-21 (quoting United States v. Quirk, 167 24 F.Supp. 462, 464 (E.D. Pa. 1958)). See also United States v. 25 McBane, 433 F.3d 344, 350-51 (3d Cir. 2005) (citing Goldfine for 26 proposition that the issue of materiality is not whether the 27
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1 government was misled but whether the statement was of a type
2 capable of influencing a reasonable decision maker); United
3 States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988) (citing
4 Goldfine for proposition that “it is irrelevant what the agent
5 who heard the statement knew at the time the statement was
6 made”); United States v. Fern, 696 F.2d 1269, 1273 (11th Cir.
7 1983) (citing Goldfine for the proposition that the fact that the
8 government is not influenced by the false statement is
9 immaterial). As the Ninth Circuit reiterated in United States v.
10 Service Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998), “the test
11 is the intrinsic capabilities of the false statement itself,
12 rather than the possibility of the actual attainment of its ends
13 as measured by collateral circumstances.”
14 K. 18 U.S.C. § 1512(c)(1) (Destruction Of Evidence) (count one- hundred-ten) 15 1. Statutory Language 16 Title 18, United States Code, Section 1512(c)(1) provides, 17 in pertinent part: 18 [W]hoever corruptly alters, destroys, mutilates, or conceals 19 a record, document, or other object, or attempts to do so, with 20 the intent to impair the object’s integrity or availability for 21 use in an official proceeding shall be fined under this title or 22 imprisoned not more than 20 years, or both. 23 2. Elements 24 For a defendant to be guilty of destruction of evidence, the 25 government must prove the following: (1) the defendant acted 26 corruptly; (2) the defendant altered, destroyed, mutilated or 27
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1 concealed a record, document or other object; and (3) the
2 defendant acted with the intent to impair the object’s
3 availability for use in an official proceeding. 18 U.S.C. §
4 1512(c)(1).
5 3. Applicable Law
6 For purposes of this provision, a defendant acts corruptly
7 when he intends to wrongfully impede the due administration of
8 justice. United States v. Matthews, 505 F.3d 698, 704-05 (7th
9 Cir. 2007); see also Arthur Anderson LLP v. United States, 544
10 U.S. 696, 705-06 (2005) (noting that the term corruptly is
11 usually associated with wrongful, depraved or evil conduct). An
12 official proceeding need not be pending or about to be instituted
13 at the time of the offense, but one must at least be
14 contemplated. 18 U.S.C. § 1512(f)(1); Arthur Anderson LLP, 544
15 U.S. at 707-08. Furthermore, there need not be any showing that
16 the item destroyed would have been admissible in any such
17 proceeding. 18 U.S.C. § 1512(f)(2).
18 L. 18 U.S.C. § 2 (Aiding and Abetting and Causing an Act to be Done) (all counts) 19 1. Statutory Language 20 Title 18, United States Code, Section 2, provides, in 21 pertinent part: 22 [W]hoever commits an offense against the United States or 23 aids, abets, counsels, commands, induces or procures its 24 commission, is punishable as a principal. 25 2. Elements 26 For a defendant to be guilty of aiding and abetting an 27
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1 offense, the government must prove the following: (1) the
2 underlying crime was committed by someone; (2) the defendant
3 knowingly and intentionally aided, counseled, commanded, induced
4 or procured that person to commit the crime; and (3) the
5 defendant acted before the crime was completed. Ninth Circuit
6 Model Criminal Jury Instruction No. 5.1 (2003)
7 3. Applicable Law
8 It is not a prerequisite to conviction for aiding and
9 abetting that the principal be convicted, indicted, or even
10 identified, although the government must prove that someone
11 committed the underlying crime. See United States v. Mann, 811
12 F.2d 495, 497 (9th Cir. 1987); United States v. Barnett, 667 F.2d
13 at 835, 841 (9th Cir. 1982). Instead, in order to establish a
14 defendant's guilt as an aider and abetter, the government must
15 prove that the defendant knowingly associated himself with a
16 criminal venture and by his participation in that venture sought
17 to make it succeed. See United States v. Vaccaro, 816 F.2d 443,
18 455 (9th Cir. 1987); United States v. Vaughn, 797 F.2d 1485, 1492
19 (9th Cir. 1986); United States v. McKoy, 771 F.2d 1207, 1215 (9th
20 Cir. 1985). Conscious assistance in the planning of a crime is a
21 sufficient basis for aider and abetter liability. See McKoy, 771
22 F.2d at 1216; United States v. Barnett, 667 F.2d 835, 841-842
23 (9th Cir. 1982).
24
25
26
27
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1 M. State Law Bribery (racketeering acts ninety-three through one-hundred twelve) 2 1. Statutory Language 3 California Penal Code Section 67 (giving or offering a 4 bribe) provides, in pertinent part: 5 [E]very person who gives or offers any bribe to any 6 executive officer of this state, with intent to influence him in 7 respect to any act, decision, vote, opinion or other proceeding 8 as to such officer is punishable by imprisonment in the state 9 prison for two, three or four years . . . . 10 California Penal Code Section 68 (asking for or receiving a 11 bribe) provides, in pertinent part: 12 [E]very executive or ministerial officer, employee or 13 appointee of the State of California, county or city therein or 14 political subdivision thereof, who asks, receives, or agrees to 15 receive, any bribe, upon any agreement or understanding that his 16 vote, opinion, or action upon any matter then pending, or which 17 may be brought before him in his official capacity, shall be 18 influenced thereby, is punishable by imprisonment in the state 19 prison for two, three or four years . . . . 20 California Penal Code Section 7(6) defines bribe as: 21 [A]nything of value or advantage, present or prospective, or 22 any promise or undertaking to give any, asked, given, or 23 accepted, with a corrupt intent to influence, unlawfully, the 24 person to whom it is given, in his or her action, vote, or 25 opinion, in any public or official capacity. 26 California Penal Code Section 7(3) defines corruptly as: 27
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1 [A] wrongful design to acquire or cause some pecuniary or
2 other advantage to the person guilty of the act or omission
3 referred to, or some other person.
4 2. Elements
5 In order for a defendant to be found guilty of giving or
6 offering a bribe under California Penal Code Section 67, the
7 government must prove the following: (1) the defendant gave or
8 offered a bribe; (2) the defendant did so with the specific
9 intent corruptly to influence another person in his official
10 capacity as to some act, decision, vote, opinion or other
11 proceeding; and (3) the person to whom the bribe was given or
12 offered was an executive officer of the State of California.
13 In order for a defendant to be guilty of asking for or
14 receiving a bribe, the government must prove the following: (1)
15 the defendant was an executive officer; (2) the defendant asked
16 for, received, or agreed to receive, a bribe; and (3) the
17 defendant’s request for, receipt of, or agreement to receive a
18 bribe was upon an agreement or understanding that his official
19 action would be influenced thereby.
20 3. Applicable Law
21 It is well established that a police officer qualifies as an
22 “executive officer” under Sections 67 and 68 of the California
23 Penal Code. People v. Pacheco, 263 Cal. App. 2d 555, 557 (1968)
24 (recognizing that the term executive officer as used in the
25 bribery statutes has “long been held to include police
26 officers”).
27
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1 It is equally well established that “linkage between a
2 payment and a specific official decision is not required under
3 California bribery law.”4 Frega, 179 F.3d at 805. Therefore,
4 under Section 67, the offense of bribery of an executive officer
5 is complete when the gift or offer is made with the corrupt
6 intent required. Id. at 805. Similarly, under Section 68, the
7 crime is complete when the executive officer “asks, receives or
8 agrees to receive any bribe. No action on the part of the
9 victim, such as payment, delivery or otherwise, is necessary to
10 complete the offense.” People v. Bringham, 72 Cal. App.2d 1, 6-7
11 (2d Dist. 1945). As a result, the question of intent must focus
12 on the party that offers or seeks the bribe and not on the victim
13 who is asked to receive or to pay the bribe and thus, there need
14 not be a meeting of the minds between the two parties. Id.
15 It is essential to the crime of bribery that the subject
16 matter upon which the bribe is to operate actually exists and has
17 been or can be brought before the executive officer. It is not
18 necessary, however, that the proposed act which is influenced or
19 done by the bribe be a part of the performance of the duties
20 imposed by law upon the officer in question. It is sufficient
21 that the act sought to be influenced is within the general scope
22 of the officer’s duties and within his apparent ability to
23 perform. CALJIC 7.10.
24
25
4 26 In this regard, the California bribery statutes differ from the federal bribery/anti-gratuity statutes. Frega, 179 F.3d 27 at 805.
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1 N. RICO Forfeiture (Count one-hundred-eleven)
2 Title 18, United States Code, Section 1963(a)(1) provides,
3 in pertinent part:
4 [W]hoever violates any provision of section 1962 of this
5 chapter shall be fined under this title or imprisoned not more
6 than twenty years, or both, and shall forfeit to the United
7 States, irrespective of any provision of State law, any interest
8 the person has maintained in violation of section 1962.
9 Title 18, United States Code, Section 1963(a)(3) provides,
10 in pertinent part:
11 [W]oever violates any provision of section 1962 of this
12 chapter . . . shall forfeit to the United States, irrespective of
13 any provision of State law any property constituting, or derived
14 from, any proceedings which the person obtained, directly or
15 indirectly, from racketeering activity or unlawful debt
16 collection in violation of Section 1962.
17 Title 18, United States Code, Section 1963(m) provides, in
18 pertinent part:
19 [I]f any of the property described in subsection (a), as a
20 result of any act or omission of the defendant: (1) cannot be
21 located upon the exercise of due diligence; (2) has been
22 transferred or sold to, or deposited with, a third party; (3) has
23 been placed beyond the jurisdiction of the court; (4) has been
24 substantially diminished in value; or (5) has been comingled with
25 other property which cannot be divided without difficulty; the
26 court shall order the forfeiture of any other property of the
27
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1 defendant up to the value of any property described in paragraphs
2 (1) through (5).
3 1. Elements
4 For a RICO forfeiture judgment to be imposed against a
5 defendant convicted under Sections 1962(c) or (d), the government
6 must prove the following: (1) it is more likely than not that the
7 property at issue was acquired or maintained through racketeering
8 activity; or (2) it is more likely than not that the property
9 constitutes the proceeds of racketeering activity.
10 2. Applicable Law
11 The Supreme Court has recognized that “Congress plainly
12 intended forfeiture of assets to operate as punishment for
13 criminal conduct in violation of the federal drug and
14 racketeering laws . . . .” Libretti v. United States, 516 U.S.
15 29, 38-39 (1995). The forfeiture provisions set forth in Section
16 1963 operate in personam against the assets of the defendant and
17 serve as part of the defendant’s sentence following conviction.5
18 Libretti, 516 U.S. at 38-39; Alexander v. United States, 509 U.S.
19 544, 559 (1993).
20 Section 1963(a)(1) provides for forfeiture of interests that
21 the enterprise acquired or maintained, legitimately or
22 illegitimately, in the course of its racketeering activity.
23
24 5 As forfeiture relates to sentencing and not the 25 question of guilt or innocence, the government respectfully submits that the trial should be bifurcated with the forfeiture 26 proceeding being tried to the same jury immediately following the return of either a RICO or RICO conspiracy conviction against 27 defendants Pellicano, Arneson and/or Turner.
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1 Russello v. United States, 464 U.S. 16, 22 (1983). Although
2 Section 1963(a)(1) was construed by the Supreme Court in Russello
3 as providing for the forfeiture of the enterprise’s proceeds,6
4 Congress codified the Russello holding in Section 1963(a)(3),
5 which effectively allows for money judgments by expressly
6 extending the reach of RICO forfeiture to all illicitly obtained
7 proceeds directly or indirectly obtained by the enterprise as
8 well as any property purchased using such proceeds. Furthermore,
9 Section 1963(m) permits forfeiture of substitute assets up to the
10 value of the illicitly obtained proceeds in the event that the
11 defendant lacks sufficient funds to satisfy the forfeiture
12 judgment. Likewise, if the defendant no longer has assets at the
13 time forfeiture is ordered, the court can issue a monetary
14 judgment to be satisfied out of future earnings of the
15 individual. See e.g., United States v. Casey, 444 F.3d 1071,
16 1073-74 (upholding monetary judgment in Section 853 forfeiture7
17 against individual who had spent all of the illicitly obtained
18 funds and noting that “requiring imposition of a money judgment
19 on a defendant who currently possesses no assets furthers the
20 remedial purposes of the forfeiture statute by ensuring that all
21 6 Under Section 1963(a)(3), the term proceeds encompasses 22 the gross, not net, receipts of the racketeering activity. See, e.g., United States v. Simmons, 154 F.3d 765 (8th Cir. 1998) 23 (defendant liable for gross amount of bribe and cannot deduct overhead expenses); United States v. DeFries, 129 F.3d 1293, 24 1314-15 (D.C. Cir. 1997) (RICO forfeiture includes federal taxes 25 paid on salaries earned through racketeering activity).
7 26 See United States v. Nava, 404 F.3d 1119, 1124 n.1 (9th Cir. 2005) (noting that section 853 is “substantially identical” 27 to RICO forfeiture).
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1 eligible criminal defendants receive the mandatory forfeiture
2 sanction Congress intended and disgorge all ill-gotten gains,
3 even those already spent”); United States v. Ginsburg, 773 F.3d
4 798, 802 (7th Cir. 1985) (en banc) (finding that “a racketeer who
5 dissipates the profits or proceeds of his racketeering activity
6 on wine, women and song has profited from . . . crime to the
7 same extent as if he had put the money in his bank account”).
8 As RICO forfeiture serves as a part of a defendant’s
9 sentence, the government’s burden of proof is set at the
10 preponderance of the evidence standard. United States v. Garcia-
11 Guizar, 160 F.3d 511, 517 (9th Cir. 1998) (applying preponderance
12 standard in analogous Section 853 proceeding); United States v.
13 Corrado, 227 F.3d 543, 553 (6th Cir. 2000) (preponderance
14 standard applies to RICO forfeiture proceedings). Furthermore,
15 RICO forfeiture judgments apply jointly and severally to all
16 defendants who are convicted under Section 1962. United States
17 v. Browne, 505 F.3d 1229, 1278-79 (11th Cir. 2007) (citing
18 holding in United States v. Caporale, 806 F.2d 1487 (11th Cir.
19 1986) that “imposition of joint and several liability in a
20 forfeiture order upon RICO co-conspirators is not only
21 permissible but necessary [] to effectuate the purpose of the
22 forfeiture provision”); United States v. Edwards, 303 F.3d 606,
23 643-44 (5th Cir. 2002) (same); Corrado, 227 F.3d at 553 (same).
24
25
26
27
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1 III.
2 STATEMENT OF FACTS
3 The government intends to introduce evidence at trial to
4 establish the following facts, among others:
5 A. THE ENTERPRISE
6 Operating under a veneer of legitimacy created by his
7 position as the head of Pellicano Investigative Agency (“PIA”),
8 defendant Anthony Pellicano (“Pellicano”) obtained a vaunted
9 reputation as a private investigator who reliably obtained
10 information that other investigators could not. As a result,
11 Pellicano was able to charge PIA’s clients fees that started at
12 $25,000 and frequently escalated into the hundreds of thousands
13 of dollars.
14 Underneath this veneer, however, was a racketeering
15 enterprise that prospered by trafficking in illegally acquired
16 confidential personal information.8 Through systematic bribes
17 paid to both law enforcement and telephone company employees,
18 Pellicano created a network of associates who would provide him
19 with access to confidential law enforcement and telephone company
20 information that he was not legally entitled to possess. For
21 example, to obtain ready access to confidential criminal history
22 information (i.e., rap sheets) and police reports, Pellicano paid
23 Sergeant Mark Arneson (“Arneson”) of the Los Angeles Police
24 8 25 As witness testimony will establish that Pellicano often demanded and received cash payments, the $2,079,250 in RICO 26 forfeiture sought in count one-hundred-eleven constitutes a conservative calculation of the proceeds collected by the 27 enterprise in connection with the charged conduct.
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1 Department (“LAPD”) a monthly retainer of $2,500,9 as well as
2 additional cash payments. In return, Arneson, after being
3 provided with names of investigative targets, would access LAPD’s
4 protected law enforcement databases to acquire criminal history
5 and other confidential information on the targets, which he then
6 would fax to Pellicano.10 Moreover, to conceal the fact that
7 Arneson illegally was providing Pellicano with this information,
8 Pellicano implemented procedures at PIA whereby Arneson would be
9 shielded from the public when at PIA’s offices and whereby the
10 information faxed to PIA by Arneson would be reformatted so that
11 the original documents could be shredded and the remaining
12 documents would have no mention of Arneson as the source of the
13 information.11
14
9 15 If limited just to payments made by check, Pellicano paid Arneson $8,875 in 1997, $47,915 in 1998, $38,325 in 1999, 16 $34,500 in 1999, $32,250 in 2001, and $27,500 in 2002. A series of the $2,500 monthly payments serve as the basis of racketeering 17 acts 93 through 112, which charge either offering or receiving a bribe. 18 10 From 1999 (as far back as LAPD retained records) 19 through Pellicano’s arrest in 2002, Arneson conducted more than 2,500 inquiries on more than 300 Pellicano investigative targets. 20 The numbers of inquiries exceeds the number of investigative targets because the same name may be run against multiple law 21 enforcement databases (e.g., NCIC, DMV, etc.) or a series of inquiries would be made using multiple iterations of the same 22 name. Given that several databases were used, several different statutes were violated by Arneson’s runs. For example, inquiries 23 made on California-based databases violated the identity theft provisions of 18 U.S.C. § 1028(a)(7), while those that traveled 24 across state lines also violated the wire fraud provisions set 25 forth in 18 U.S.C. §§ 1343, 1346.
11 26 Occasionally, these internal procedures would break down. For example, recovered from PIA’s computers were scanned 27 computer printouts of DMV and criminal history information for
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1 Furthermore, as Arneson was not always available and further
2 lacked access to police reports in areas outside of LAPD’s
3 jurisdiction, Pellicano developed other sources in other law
4 enforcement agencies. For example, Pellicano utilized Beverly
5 Hills Police Officer Craig Stevens to occasionally conduct
6 database inquiries and obtain police reports on his behalf.
7 Stevens has pled guilty to two counts of honest services wire
8 fraud, four counts of computer fraud, and one count of making a
9 false statement to the FBI in connection with having illegally
10 provided Pellicano with confidential information from protected
11 law enforcement databases.
12 In addition to his paid sources at local police departments,
13 Pellicano also had paid sources at SBC who would provide him with
14 confidential telephone company information, such as subscriber
15 information, telephone bills, and cable pair information, which,
16 in turn, could be used to implement a wiretap. As with Arneson,
17 defendant Rayford Earl Turner served as Pellicano’s “on-call”
18 source at SBC.12 However, as Turner lacked access to SBC’s
19 confidential databases, he, in turn, developed sources with the
20 requisite access, including Teresa Wright and Michelle Malkin.
21 Wright has pled guilty to computer fraud in connection with
22 Bryan Lourd and Kevin Huvane bearing Arneson’s name and a date of 23 August 10, 2001, which comports with the date when Arneson conducted database inquiries on these individuals. 24 12 25 While Pellicano employees will testify that Turner frequently received cash payments, Pellicano’s bank records 26 reflect payments to Turner of $10,100 in 1997, $8,625 in 1998, $8,975 in 1999, $4,000 in 2000, $3,080 in $2001 and $1,875 in 27 2002.
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1 illegally transferring SBC confidential information to Turner,
2 and both Wright and Malkin will testify that they provided such
3 information to Turner during and after his retirement from SBC.
4 Finally, while historical confidential information was
5 valuable to the enterprise and its clients, the gold standard for
6 confidential information was real-time private communications,
7 and such information could only be systematically obtained
8 through illegal wiretaps. To that end, Pellicano and defendant
9 Kevin Kachikian (“Kachikian”) devised and constructed wiretapping
10 hardware and software that they called “Telesleuth.” Beginning
11 in approximately 1995, Pellicano and Kachikian built
12 approximately 50 of the Telesleuth interface boxes13 and, over the
13 years, Kachikian continued to provide Pellicano with technical
14 assistance for the Telesleuth program as problems would arise
15 during Pellicano’s illegal use of this program. With the
16 additional aid of Turner, Pellicano repeatedly implemented
17 wiretaps against investigative targets and thereby
18 surreptitiously stole their most intimate and confidential
19 secrets. This information was used to the personal or litigative
20 benefit of PIA’s clients, which, in turn, permitted the
21 enterprise to both maintain its vaunted reputation and thrive
22 financially.
23
24
25
13 26 This conduct serves as the basis for count one-hundred- five, which charges a violation of 18 U.S.C. § 2512 27 (manufacturing or possessing a wiretapping device).
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1 B. THE WORKINGS OF THE ENTERPRISE14
2 1. The Enterprise’s Investigation of Robert Maguire (count 95 ¶ 67) 3 In 1996, Susan Reddan Maguire initiated divorce proceedings 4 from Los Angeles real estate developer Robert Maguire. In August 5 1996, Ms. Maguire was advised by her attorneys that: (1) 6 Pellicano should be retained to obtain evidence confirming Robert 7 Maguire’s ongoing affair with his mistress, Rosa Serrano; and (2) 8 to rebut Mr. Maguire’s persistent claims that his real estate 9 empire was on the verge of bankruptcy and that he therefore 10 lacked the necessary resources to provide Ms. Maguire with the 11 settlement to which she believed she was entitled after two 12 decades of marriage. During the course of this investigation, 13 confidential information regarding multiple investigative targets 14 was acquired through, among other means, confidential database 15 inquiries and illegal wiretaps. For these services, Ms. Maguire 16 paid PIA hundreds of thousands of dollars in cash, checks and 17 jewelry. 18 Ms. Maguire will testify that, during the course of this 19 representation, Pellicano: (1) showed her lists of telephone 20 numbers and addresses, which he claimed to have obtained from 21 sources in the phone company; (2) provided her with a DMV 22 photograph of Rosa Serrano; (3) played her wiretapped telephone 23 calls that Robert Maguire had with his psychiatrist, various 24
25 14 Given the number of counts at issue, the government has 26 not addressed every count but rather has provided a representative overview of the type of evidence that will be 27 presented at trial.
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1 business associates, and Rosa Serrano, as well as calls that Rosa
2 Serrano had with members of her family; (4) advised her that he
3 had set up the wiretapping program in a house in Pasadena near
4 where Robert Maguire was living with Rosa Serrano during the
5 divorce proceedings; and (5) repeatedly warned her of the legal
6 problems that would arise should she disclose the existence of
7 the wiretapping.
8 Several PIA employees also will testify as to the
9 wiretapping that occurred during the course of this
10 investigation. For example, former PIA employee Lily LeMasters
11 will testify that: (1) she listened to and translated several
12 calls between Rosa Serrano and her Spanish-speaking family
13 members for Ms. Maguire; (2) she went with Pellicano to rent a
14 studio apartment in the Pasadena area, near where Robert Maguire
15 was living; (3) Pellicano set up a computer in the apartment,
16 telling her that it was for the Maguire case; and (4) while at
17 the apartment on another occasion to check on the computer, she
18 heard Pellicano call Turner and instruct him to come by the
19 apartment.
20 2. The Enterprise’s Investigation of Jane Does 1-9 (racketeering acts 1-2, 5-7, and 69-72) 21
22 In October 1998, John Gordon Jones was charged by the Los
23 Angeles County District Attorney's Office with raping nine women
24 whom he allegedly met at nightclubs, drugged, and sexually
25 assaulted. PIA was hired to assist in the defense of Jones, who
26 was acquitted following trial in 2001. During the course of this
27
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1 investigation, confidential information regarding multiple
2 investigative targets, including the rape victims, was acquired
3 through, among other means, protected law enforcement database
4 inquiries.15
5 The identities of the rape victims, who were identified at
6 trial only as “Jane Does One Through Nine,” were obtained from
7 Deputy District Attorney Kerlin and matched with inquiries run by
8 Arneson, whom Kerlin will testify had no involvement to the
9 Jones’ prosecution.16 For example, on January 11, 1999, Arneson
10 conducted NCIC database inquiries on Jane Doe Four and Jane Doe
11 Five. On January 21, 1999, Arneson conducted a DMV database
12 inquiry on Jane Doe Three. On January 22, 1999, Arneson
13 conducted a DMV database inquiry on Jane Doe Two. On January 25,
14 1999, Arneson conducted NCIC database inquiries on Jane Doe Six
15 and Jane Doe Seven. On February 9, 1999, Arneson conducted an
16 NCIC database inquiry on Jane Doe Eight and a DMV database
17 inquiry on Julie Westby, who was the roommate of Jane Doe One.
18 On February 22, 1999, Arneson conducted a DMV database inquiry on
19 Jane Doe One.
20
21 15 From documents generated during the course of the criminal and civil cases arising from the Jones matter, as well 22 from statements made by Jones’ attorneys, it is known that illegal wiretapping occurred in this case. However, due to 23 statute of limitations issues, no wiretapping charge was filed.
24 16 Pellicano employees have stated that, in late 1999 or 25 early 2000, Pellicano became so concerned that Deputy District Attorney Karla Kerlin was going to execute search warrants at his 26 offices that he ordered that all files be examined and purged of DMV information, placing particular emphasis on documents that 27 could be tied back to Arneson.
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1 Additional evidence of the illicit database inquiries will
2 be presented in the form of documents obtained from the files of
3 Jones’ defense attorneys, which include: (1) reports on PIA
4 letterhead, dated February 23, 1999, giving personal address and
5 DMV information for Jane Does One and Eight, as well as for Julie
6 Westby; and (2) a summary of information on Jane Doe Two that
7 included DMV and other personal information that was attributed
8 to the “Pellicano Report.”
9 3. The Enterprise’s Investigation of Kissandra Cohen (racketeering acts 26-27, 74; count 95 ¶ 72) 10 In the spring of 2000, attorney Edward Masry hired PIA to 11 investigate Kissandra Cohen, a former associate who had filed a 12 sexual harassment and wrongful termination suit against Masry 13 after being terminated on December 26, 1999. During the course 14 of this investigation, confidential information regarding 15 multiple investigative targets was acquired through, among other 16 means, protected law enforcement database inquiries and illegal 17 wiretaps. For these services, Masry paid PIA $34,250. 18 On May 15, 2000, Arneson conducted NCIC database inquiries 19 on Kassandra Cohen [sic] and her father, Michael Cohen, and 20 further conducted a DMV database inquiry on Kissandra’s mother, 21 Mandy Cohen. Former PIA employee LeMasters will testify that she 22 recalled reformatting DMV reports on Kissandra Cohen and seeing a 23 DMV photo of her. 24 With respect to the use of illegal wiretaps, a summary of 25 intercepted calls recovered from PIA’s computers will be 26 introduced at trial. In addition, former PIA employees LeMasters 27
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1 and Tarita Virtue will testify that they personally listened to
2 wiretapped calls involving Cohen. Of note, Virtue will testify
3 that she listened to hundreds of Cohen’s telephone calls over
4 approximately a two-month period in the summer of 2000, including
5 calls between Cohen and her own attorney in which they discussed
6 legal strategy and case developments. Virtue also recalled a
7 conversation in which Cohen told her mother that she had sued the
8 dog groomer at Petco who had harmed her dog. Cohen will testify
9 that, in mid-2000, shortly after she had filed her lawsuit
10 against Masry, she began noticing strange clicking and buzzing
11 noises on her phone, as well as random disconnections. Cohen
12 also will testify about telephone conversations that she had in
13 mid-2000 with Petco management and potential witnesses regarding
14 an injury to her family’s dog that had occurred while the dog was
15 being groomed at Petco and which resulted in Cohen’s father
16 filing suit against Petco.
17 4. The Enterprise’s Investigation of Erin Finn (racketeering acts 28-29, 75, 88; count 96; count 95 18 ¶¶ 73-74)
19 In approximately July of 2000, former music executive Robert
20 Pfeifer hired PIA to investigate Erin Finn, a former girlfriend
21 of Pfeifer’s who had served as a witness against him in pending
22 civil litigation. During the course of this investigation,
23 confidential information regarding multiple investigative targets
24 was acquired through, among other means, protected law
25 enforcement database inquiries and illegal wiretaps. For these
26 services, Pellicano was paid $100,000.
27
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1 Pfeifer made his initial payment of $25,000 to PIA on July
2 28, 2000. On August 2, 2000, Arneson conducted NCIC database
3 inquiries on Erin Finn and associates Peter Kuhns, David Holly,
4 and Deborah Krey. Furthermore, on August 18, 2000, Arneson
5 conducted DMV and local databases inquiries on Aaron Mestman, who
6 also had been assisting Pfeifer in matters relating to Finn.
7 With respect to the use of illegal wiretaps, Pfeifer has
8 pleaded guilty to aiding and abetting the illegal wiretapping of
9 Finn and further has admitted that he hired Pellicano to wiretap
10 Finn. In addition, considerable additional evidence of the
11 wiretap exists, which includes, but is not limited to the
12 following: (1) on August 2, 2000 (date of the Arneson inquiries
13 of Finn and her associates), SBC employee Teresa Wright, at the
14 request of Turner, conducted a database inquiry on SBC’s
15 proprietary BOSS system on Erin Finn and entered “ERR” to serve
16 as cover for the illicit inquiry; (2) Finn, after receiving
17 anonymous e-mails reflecting the subject matter of telephone
18 conversations that she had with her attorney, attempted to defeat
19 the interception of her calls by playing talk radio into her
20 phone for hours at a time; (3) former PIA employee Virtue will
21 testify that she was tasked with listening to and transcribing
22 the wiretapped calls, including the calls in which Finn attempted
23 to defeat the program by playing her radio non-stop into the
24 receiver; and (4) documents recovered from Pellicano’s computer
25 contain summaries of calls involving Finn, including a call
26 between Finn and her friend Richard Weilburg that states: “At
27
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1 the end of the call, both parties hear a ‘click’ and become
2 concerned that Erin’s phone might be tapped.”
3 5. The Enterprise’s Investigation of Ami Shafrir (Racketeering Act 83; count 97; count 95 ¶ 76) 4 In the spring of 2000, brothers Daniel and Abner Nicherie 5 hired PIA to investigate Ami Shafrir in connection with a 6 business dispute between the parties. During the course of this 7 investigation, confidential information regarding multiple 8 investigative targets was acquired through, among other means, 9 protected law enforcement database inquiries and illegal 10 wiretaps. For these services, the Nicheries paid PIA $154,000. 11 Beverly Hills Police Officer Craig Stevens, who has pled 12 guilty in this case to multiple felonies arising from the 13 database inquiries that he conducted on Pellicano’s behalf, will 14 testify that he conducted an NCIC database inquiry for 15 information regarding Ami Shafrir at Pellicano’s request on 16 February 1, 2000. With respect to the use of illegal wiretaps, 17 admissions by defendant Nicherie, third-party witnesses and PIA 18 employees will establish the use of wiretaps in this 19 investigation. Specifically, during multiple interviews, Abner 20 Nicherie admitted that, after he and his brother Daniel17 retained 21 the services of PIA, he would go to the offices of PIA to 22 translate intercepted calls involving Ami Shafrir, including 23
24 17 Daniel Nicherie has pleaded guilty to multiple counts 25 of fraud and to aiding and abetting the wiretapping of Ami Shafrir. Specifically, Daniel Nicherie admitted in his guilty 26 plea that Pellicano wiretapped Ami Shafrir with Daniel Nicherie’s knowledge and approval, and that he listened to and translated 27 the intercepted conversations at Pellicano’s office.
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1 calls between Shafrir and his attorney, that were in Hebrew.
2 Similarly, Sarit Shafrir, who was Ami Shafrir’s wife but who at
3 the time was in a relationship with Abner Nicherie, will testify
4 that Abner translated wiretapped calls for Pellicano and that, on
5 occasion, he would play some of the calls for her. In addition,
6 former PIA employee Virtue will testify that she saw the Nicherie
7 brothers listening to wiretapped calls, which she knew to be in a
8 foreign language.
9 6. The Enterprise’s Investigation of Lisa & Tom Gores (racketeering acts 32-33; count 98; count 95 ¶ 78) 10 At the end of 2000, venture capitalist Alec Gores hired PIA 11 to investigate the nature of his wife Lisa’s relationship with 12 his younger brother, Tom. During the course of this 13 investigation, confidential information regarding investigative 14 targets Lisa and Tom Gores was acquired through, among other 15 means, protected law enforcement databases inquiries and illegal 16 wiretaps. For these services, Alec Gores paid PIA at least 17 $160,000.18 18 As was the Enterprise’s practice, Pellicano, after being 19 retained, tasked Arneson with conducting criminal history 20 database inquiries on Lisa and Tom Gores. On January 3, 2001, 21 Arneson conducted NCIC database inquiries for information on Lisa 22
23 18 This amount is based upon wire transfers provided by 24 Alec Gores to Pellicano. Gores will testify that, in addition to 25 this amount, he: (1) made several large cash payments to Pellicano during the course of the investigation; (2) paid for a 26 Pellicano family trip to Hawaii at Pellicano’s request, as a bonus for his work on the case; and (3) provided Pellicano with a 27 loan of $50,000, which Pellicano never has repaid.
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1 Gores, Tom Gores, Tewisik Gores (a misspelling of Tom Gores'
2 middle name), and Lisa Cobb (Lisa Gores' maiden name). In
3 addition, reformatted California DMV reports for Tom and Lisa
4 Gores, dated January 15, 2001, were recovered from Pellicano’s
5 computers.
6 With respect to the use of illegal wiretaps, Alec Gores will
7 testify that in early 2001, Pellicano confirmed the nature of the
8 relationship between Tom and Lisa, and in connection with doing
9 so, played him wiretapped calls involving these individuals on
10 approximately three separate occasions. In addition, during the
11 November 21, 2002 search of PIA, the FBI seized, among other
12 items, a compact disc containing a recording of a telephone call
13 between Lisa Gores and Tom Gores. Both Lisa and Tom Gores will
14 testify that the recording in question was, in fact, a telephone
15 call between the two that was intercepted without their consent.
16 In addition, Lisa Gores will testify that, after Alec Gores
17 confronted Tom and Lisa with evidence gathered by Pellicano, she
18 received several telephone calls from Pellicano, who advised her,
19 among other things, that he had been listening to her telephone
20 calls from an apartment in the “Valley” which he had set up as a
21 listening post. Additional evidence of the wiretap will come in
22 the form of documents that were recovered from PIA’s computer.
23 For example, the government will introduce a one-page list of
24 “phone data” including Alec Gores’ contact information and
25 entries for “Lisa’s Line,” “Cell,” “Car,” and “Home Line” and a
26 separate one-page cost breakdown with headings for “Tom” and
27
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1 “House” and itemized entries such as “Rent” ($13,200), “Setup”
2 ($15,000 per line), “1st Line 4 Weeks @ $2500,” and “2nd Line 4
3 Weeks @ $2500,” with a total cost of $138,200.
4 7. The Enterprise’s Investigation of Vincent “Bo” Zenga (racketeering acts 34-40, 89; counts 3-9, 34-40, 87, 5 91, 100; count 95 ¶¶ 80-81)
6 In July 2000, screenwriter Vincent Bo Zenga sued Brad Grey
7 for breach of contract and fraud. The defense team representing
8 Grey retained PIA in early February 2001.19 During the course of
9 the subsequent investigation, confidential information regarding
10 multiple investigative targets was acquired through, among other
11 means, protected law enforcement database inquiries and illegal
12 wiretaps. For these services, Grey’s attorneys paid Pellicano
13 $25,000, which cost was then passed on to Grey as part of the
14 firm’s monthly bill for litigation costs.
15 Again, Pellicano, at the outset of the investigation, tasked
16 Arneson with obtaining criminal history information on the
17 investigative targets. On February 6, 2001, Arneson conducted an
18
19 19 Grey, upon the advice of his attorneys, previously had hired PIA in January 1999 in connection with a civil proceeding 20 involving former client Garry Shandling. On January 20, 1999, Arneson conducted NCIC databse inquiries for information on 21 Garry Shandling and his personal assistant Mariana Grant, and conducted a DMV database inquiry for information on Shandling’s 22 accountant Warren Grant. On February 10, 1999, Arneson conducted an NCIC database inquiry for information on Shandling’s private 23 investigator James Nielsen, Nielsen’s wife, daughter, and investigative partner. On March 4, 1999, Arneson conducted an 24 NCIC database inquiry for information on Shandling’s friends 25 Kevin and Linda Nealon and Shandling’s girlfriend Linda Doucett. On March 9, 1999, Arneson conducted an NCIC database inquiry for 26 information on Shandling’s friend Gavin DeBecker. These inquiries serve as the foundation for racketeering acts 3-4, 8, 27 10-13.
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1 NCIC database inquiry on Vincent Zenga and his brother, Jerome
2 Zenga. Notably, a report on Vincent Zenga containing reformatted
3 DMV and criminal history information as of 2/6/0020 was recovered
4 from Pellicano’s computers. In addition, on February 13, 2001,
5 Arneson conducted an NCIC database inquiry for information on
6 Jessica Schutte. The following day, Arneson conducted NCIC
7 database inquiries on Stacy Codikow and Paul Durazzo. Schutte,
8 Codikow, and Durazzo were all associates of Zenga whose
9 depositions were noticed during the litigation, with Codikow’s
10 deposition taking place on the very day, February 14, 2001, that
11 Arneson conducted the database inquiry on Codikow. In addition,
12 on February 20, 2001, Arneson conducted an NCIC database inquiry
13 for information on Zorianna Kit, Zenga’s wife, who was deposed in
14 March 2001. Finally, on March 13, 2001, Arneson conducted an
15 NCIC database inquiry on Gregory Dovel, Zenga’s attorney.
16 With respect to the use of illegal wiretaps, SBC employee
17 Teresa Wright will testify that she accessed the SBC proprietary
18 BOSS database to obtain information on Bo Zenga's telephone
19 number on February 13, 2001. Wright also will testify that she
20 obtained this information for Turner, which is corroborated by
21 the fact that Turner’s home phone records reflect that he called
22 Wright twice on that date. In addition, numerous summaries of
23 Zenga’s intercepted telephone calls, including calls between
24 Zenga and his attorneys, were recovered from PIA’s computers and
25
26 20 The year identifier of 00 appears to be a typographical 27 error.
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1 PIA former employee Virtue will testify that she listened to
2 hundreds of Zenga’s phone calls over a two-to-three-month period.
3 8. The Enterprise’s Investigation of Keith Carradine (racketeering acts 42-43; counts 10-11, 41-42, 102; 4 count 95 ¶ 85)
5 In approximately February 2001, Sandra Carradine hired PIA
6 to investigate her husband in connection with property issues in
7 her then-pending divorce proceedings. During the course of this
8 investigation, confidential information regarding multiple
9 investigative targets was acquired through, among other means,
10 protected law enforcement database inquiries and illegal
11 wiretaps.
12 Specifically, on April 26, 2001, Arneson conducted an NCIC
13 database inquiry for information on Keith Carradine and his
14 girlfriend, Hayley Dumond.21 As to the use of illegal wiretaps,
15 Sandra Carradine, who pled guilty to perjury for lying about the
16 existence of PIA-implemented wiretaps when questioned before the
17 grand jury, has since admitted that Pellicano wiretapped Keith
18 Carradine’s telephone and that Pellicano played wiretapped
19 conversations for her. Carradine’s admissions are corroborated
20 by a telephone conversation recovered from Pellicano’s computer,
21 dated May 17, 2001, in which Pellicano told Sandra Carradine that
22 “what I’m hoping to get the next time I go and gather all this
23 stuff that I’m gathering is that there is a conversation between
24 he and Hayley.” Pellicano and Carradine then discussed the
25
21 26 On this date, Arneson also conducted a DMV inquiry on Jude Green, who was in divorce proceedings with Pellicano client 27 Leonard Green.
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1 contents of the conversation he had just played for her. In
2 doing so, Pellicano reminded Carradine that he “had to do this
3 twice” because “they cut the f****** cables.”
4 9. The Enterprise’s Investigation of Aaron Russo (racketeering acts 50, 66-67, 84-87, 90; 5 counts 18, 49, 75-86, 88, 92, 101; count 95 ¶¶ 83-84)
6 Hedge fund manager Adam Sender entered into a contract with
7 movie producer and Nevada gubernatorial candidate Aaron Russo
8 that called for the two to create a movie production company.
9 Ultimately, after Sender spent more than $1,000,000 in start-up
10 costs, the production company never materialized and Sender hired
11 attorney Bertram Fields to represent him in a civil suit against
12 Russo. On Fields’ recommendation, Sender retained PIA in March
13 of 2001. During the course of the subsequent investigation,
14 confidential information regarding multiple investigative targets
15 was acquired through, among other means, protected law
16 enforcement database inquiries and illegal wiretaps. For these
17 services, Sender paid PIA $500,000.
18 Of this amount, Sender wired an initial $25,000 payment to
19 PIA on March 30, 2001. On April 2, 2001, SBC employee Wright
20 queried the SBC proprietary BOSS database for information on
21 Aaron Russo and his wife, Heidi Gregg, on behalf of Turner. Two
22 days later, Beverly Hills Police Officer Craig Stevens conducted
23 DMV database inquiries on Russo, Gregg, and Russo’s two sons,
24 Maxwell and Samuel. Reformatted DMV reports for Max Russo and
25 Sam Russo (dated April 12, 2001) and for Heidi Gregg (dated April
26 17, 2001) were recovered from Pellicano’s computers. Stevens
27
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1 further conducted NCIC database inquiries for information on Max
2 Russo on November 9, 2001, and conducted a separate NCIC database
3 inquiry on Adam Sender on December 18, 2001. Stevens, who has
4 pled guilty to multiple felony counts relating to these database
5 inquiries, has admitted that he conducted all of these inquiries
6 for Pellicano.
7 With respect to the use of illegal wiretaps, Sender will
8 testify that, during the course of the litigation, Pellicano
9 played him five to ten recordings of wiretapped telephone calls
10 between Russo, his sons, and his political contacts. In doing
11 so, Pellicano identified the calls as being recorded telephone
12 calls that he reviewed every twenty-four hours and instructed
13 Sender not to discuss the calls with anyone. In addition, PIA
14 employees will testify that they personally listened to thousands
15 of wiretapped calls involving Russo, his wife, family and
16 political backers. Furthermore, a 78-page report on Aaron Russo
17 recovered from PIA’s computers, captioned “RUSSO MATTER Complete
18 Notes as of 08/01/2001,” which includes numerous summaries and
19 excerpts of Russo’s telephone conversations, will be introduced
20 into evidence.
21 Moreover, two PIA employees will testify about how this
22 wiretap was used to serve legal process on Russo outside of the
23 Giuseppe Franco Salon in Beverly Hills on April 21, 2001. After
24 learning that Russo would be at this location from the wiretap,
25 the employees traveled to the salon, where they subsequently
26
27
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1 chased Russo through several buildings before effecting service
2 on him.
3 After a default judgment was entered against Russo, Russo
4 claimed that he had never been served with the subpoena. On
5 March 14, 2002, Patrick Theohar, a hairstylist formerly employed
6 at Giuseppe Franco’s, signed a declaration for Russo regarding
7 the events of April 21, 2001, in which he stated that he had seen
8 Russo refuse to take the envelope from the process server. On
9 March 15, 2002, Arneson conducted an NCIC database inquiry (as
10 well as DMV, fingerprint, and out-of-state warrant checks) on
11 Theohar. According to LAPD records, officers from LAPD Pacific
12 Division (where Arneson was stationed) went to Theohar’s
13 residence the next day to arrest him on an outstanding warrant.
14 Theohar was not at home. On March 18, Theohar filed a second
15 declaration recanting his earlier one. No further attempts were
16 made to arrest him on this outstanding warrant.
17 10. The Enterprise’s Investigation of Prosecution Witnesses in The Murder Trial of Kami Hoss (racketeering acts 44- 18 47; counts 12-15, 43-46)
19 On trial for murder in connection with the death of Sandra
20 Rodriguez, who plunged to her death from the balcony of the Long
21 Beach Hyatt following a night of partying, Kami Hoss hired PIA to
22 investigate potential prosecution witnesses. During the course
23 of this investigation, confidential information regarding
24 multiple investigative targets was acquired through, among other
25 means, protected law enforcement database inquiries. For these
26
27
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1 services, Hoss, who was acquitted of all charges, paid PIA
2 $60,000.
3 Hoss’ first payment consisted of a $25,000 check dated
4 August 14, 2001. Ten days later, Pellicano engaged in a recorded
5 phone conversation with Arneson, in which Arneson discussed
6 criminal history and DMV information he had obtained on victim
7 Sandra Rodriguez. In the same recorded call, Pellicano asked
8 Arneson to conduct checks on Ester Pina, Mirella Lavorin, and
9 Carrie Cagle, who were potential witnesses in the case. On the
10 same date –- August 24, 2001 –- Arneson conducted NCIC database
11 inquiries for information on Ester Pina, Mirella Lavorin, Carrie
12 Cagle, and Sandra Rodriguez. Furthermore, DMV information on all
13 five individuals was recovered from PIA’s computers and former
14 PIA employee Denise Ward will testify that, while reviewing the
15 Kami Hoss files to obtain information for Pellicano, she saw that
16 Pellicano had criminal history and DMV information, including
17 photographs, on every person in the case file, with Arneson's
18 name and serial number at the top of every printout.
19 11. The Enterprise’s Investigation of Pamela Miller (racketeering acts 53-54, 57, 60-61; counts 21-22, 20 25, 28-29, 52-53, 56, 59-60)
21 In April 2002, Canadian publishing heiress Taylor Thomson
22 hired PIA to investigate Pamela Miller, who had served as her
23 child’s nanny, and Michael Kolesa, the child’s father, after
24 Miller had advised Kolesa about Miller’s concerns with the
25 child’s care under Thomson. During the course of this
26 investigation, confidential information regarding multiple
27
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1 investigative targets was acquired through, among other means,
2 protected law enforcement database inquiries. For these
3 services, Thomson paid PIA $50,000.
4 Pellicano’s bank records reflect an initial $25,000 check
5 from Thomson dated April 2, 2002. The following day, Arneson
6 conducted an NCIC database inquiry for information on Pamela
7 Miller. Also on that date, in a recorded conversation recovered
8 from Pellicano’s computer, Pellicano tells Jennifer Megarry,
9 Thomson’s personal assistant, that “we did a nationwide search
10 for any criminal records, we found her driver’s license
11 information from Pennsylvania . . . , no criminal record here,
12 got her driver’s license and information here, found where her
13 parents are, got a ton of information.”
14 In another recorded conversation dated April 18, 2002,
15 Pellicano tells Megarry that he needs a retainer of $25,000 to
16 investigate Kolesa, apart from what he was already paid to
17 investigate Miller. Pellicano’s bank records reflect a second
18 $25,000 check from Thomson dated April 19, 2002. On that same
19 date, Arneson conducted an NCIC database inquiry for information
20 on Kolesa. Approximately one month later, on May 16, 2002,
21 Arneson conducted NCIC database inquiries for information on
22 Andrew Miller (Pamela’s brother) and Richard and Joyce Miller
23 (Pamela’s parents)22 and also requested DMV photographs of Richard
24 and Joyce Miller by Express Mail. Reformatted DMV reports on
25
22 26 These inquiries were conducted at the same time that Arneson also conducted database inquires of Anita Busch and 27 Bernard Weinraub.
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1 Pamela, Andrew, Joyce and Richard Miller subsequently were
2 recovered from PIA’s computers.
3 12. The Enterprise’s Investigation of Anita Busch (racketeering acts 55, 56, 58, 59, 92; counts 23-24, 4 26-27, 54-55, 57-58, 90, 94, 104; count 95 ¶¶ 90-91)
5 In May of 2002, PIA was retained by attorneys representing
6 Michael Ovitz to assist in separate lawsuits against Ovitz’s
7 business, Artists Management Group (“AMG”), by sports promoter
8 Arthur Bernier and sports agent James Casey.23 During the course
9 of this representation, confidential information regarding
10 multiple investigative targets was acquired through, among other
11 means, protected law enforcement databases inquiries. PIA was
12 paid $25,000 for its services in each case.
13 In addition to the specific matters for which PIA was
14 retained, Pellicano and Ovitz discussed individuals within the
15 entertainment community who were the source of bad press against
16 Ovitz. During these conversations, Ovitz and Pellicano discussed
17 Ovitz’s belief that New York Times writer Bernard Weinraub had
18 been recycling negative stories about him and that, on occasion,
19 he was assisted by Los Angeles Times writer Anita Busch.
20 AMG billing records reflect that the payments for the
21 Bernier and Casey litigation matters were made on May 10, 2002.
22 On May 9, 2002, Arneson conducted an NCIC database inquiry for
23 information on Arthur Bernier. On May 16, 2002, Arneson
24
25 23 At the same time, PIA was retained in connection with a 26 trademark lawsuit brought by Warner Scott, for which PIA was paid an additional $25,000. No charges have been filed in connection 27 with this retention.
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1 conducted NCIC database inquiries for information on James Casey,
2 Anita Busch, and Bernard Weinraub. On that same day, Arneson
3 also requested DMV photos for Casey, Busch, and Weinraub by
4 Express Mail.24 Reformatted DMV reports on Bernier, Casey, and
5 Busch, as well as a six-page computer printout showing all of
6 their respective runs, were recovered from Pellicano’s computers,
7 with the Casey and Busch reports being dated May 31, 2002.
8 Also on May 16, 2002, SBC employee Teresa Wright conducted
9 an inquiry on the SBC proprietary BOSS database for information
10 on Anita Busch, entering “ERR” as her reason for access. Wright
11 has pleaded guilty to computer fraud for conducting this inquiry
12 unlawfully, has admitted that she did so on Turner’s behalf, and
13 further has stated that she used the term “ERR” (error) to
14 “cover” for the inquiries that she conducted on Turner’s behalf.
15 Turner’s home telephone records reflect that he called Wright
16 twice on May 16, 2002, and Wright called Turner three times on
17 the same date. Turner had retired from SBC months earlier.
18 After noticing persistent problems with her telephone line,
19 Busch, on November 5, 2002, contacted SBC and asked the phone
20 company to investigate the problem. Later that day, SBC
21 technician Clifford Shillingford discovered a wiretap on Busch’s
22 telephone and further confirmed that there was no court order
23 authorizing the wiretap. Shillingford then had the wiretap
24
25 24 As discussed above, Arneson, during this series of 26 inquiries, also obtained information for Pellicano investigative targets in the Taylor Thomson/Pamela Miller investigation and 27 further sought DMV information for Miller’s parents.
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1 removed. Shortly thereafter, however, Busch’s problems with her
2 telephone line returned, which led Busch to recontact SBC. On
3 November 18, 2002, SBC employee Teresa Henry discovered yet
4 another unauthorized wiretap on Busch’s telephone.
5 C. EFFORTS TO CONCEAL INVOLVEMENT IN, OR EVIDENCE OF, THE ENTERPRISE 6
7 1. Arneson False Statement (count 108)
8 On July 9, 2003, Mark Arneson, who previously had resigned
9 from the LAPD rather than participate in a compelled interview
10 with Internal Affairs regarding his database inquiries, was
11 interviewed at the United States Attorney’s Office in the
12 presence of his counsel. The interview was governed by a
13 standard “proffer” agreement providing that Arneson’s statements
14 could not be used against him as long as he was completely
15 truthful. He was not.
16 Specifically, when asked about his inquiries of law
17 enforcement databases on the name “Anita Busch,” Arneson
18 affirmatively asserted that his inquiries on Busch were related
19 to a legitimate gambling investigation he was working on in his
20 capacity as a vice squad detective in the LAPD Pacific Division.
21 Arneson stated that as part of that investigation he and other
22 detectives conducted surveillances at previously identified
23 gambling and organized crime hangouts, including Enzo’s Pizzeria
24 and Matteo’s Restaurant. Arneson recalled seeing a woman he
25 believed to have been Busch at Enzo’s and Matteo’s on repeated
26 occasions, and said that he conducted inquiries on her in order
27
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1 to determine whether or not she was involved in gambling or other
2 organized crime activities. Arneson further claimed that no
3 surveillance reports were generated documenting his observations
4 of Busch, and said that whatever documentation he received as a
5 result of his inquiries would have been discarded when Busch was
6 eliminated as a potential suspect in the investigation.
7 The evidence will show that this Arneson’s story regarding
8 Busch was a complete fabrication. For example, Busch will
9 testify that she has never eaten at Enzo’s Pizzeria, and did not
10 eat at Matteo’s Restaurant on or around May 16, 2002, the date
11 that Arneson conducted his computer inquiries of Busch and his
12 daily report indicated that he spent the day in an alcohol sales
13 decoy operation and in “prostitution” enforcement. Moreover, as
14 noted above, Arneson conducted these database inquiries as part
15 of a series of runs that he conducted on PIA investigative
16 targets, including occasional Busch writing partner Bernard
17 Weinraub.
18 2. Turner False Statement (count 109)
19 On January 28, 2003, Turner was interviewed by the FBI.
20 During the interview, Turner denied assisting Pellicano in
21 wiretapping telephones or in making telephone company information
22 on subscribers available to Pellicano. Turner further maintained
23 that his outside work for Pellicano was limited to sweeping
24 Pellicano’s telephones for bugs about three times a year and
25 working in Pellicano’s forensic lab identifying voices. Turner’s
26 statements are flatly contradicted by former SBC employees Teresa
27
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1 Wright and Michelle Malkin, who both will testify that they
2 provided proprietary SBC customer information to Turner,25
3 including at times when Turner no longer worked at SBC, so that
4 such information could be provided to Pellicano. In addition,
5 several former Pellicano employees will testify that Turner was
6 Pellicano’s source for SBC phone company information who provided
7 PIA with confidential SBC customer information and assisted
8 Pellicano with the implementation of wiretaps. According to
9 these witnesses, Pellicano would regularly instruct them to page
10 Turner with a code, at which time they would provide Turner with
11 lists of names or telephone numbers provided by Pellicano.
12 Shortly thereafter, Turner would fax toll records or other
13 confidential telephone company information to Pellicano’s office.
14 3. Kachikian’s Destruction of the Telesleuth Wiretapping Program (count 110) 15
16 Kachikian was subpoenaed to appear before the grand jury on
17 April 17, 2003. Pursuant to the terms of the subpoena, Kachikian
18 was directed to produce “all documents related to the creation
19 and/or utilization of the ‘Telesleuth’ software program,
20 including software, source codes, manuals, encryption data,
21 correspondence, etc.” Kachikian brought none of the requested
22 materials to the grand jury, stating that he had returned the
23 materials to Pellicano or destroyed them after the search warrant
24 was executed at PIA in November 2002 and Pellicano was arrested
25 on explosives charges. Kachikian then proceeded to explain that,
26
25 27 Both women were fired for doing so.
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1 in approximately December 2002 or January 2003, acting out of
2 paranoia, he deleted the entire Telesleuth program from his
3 computer and used a Norton wipe program to ensure that the code
4 could not be recovered with retrieval software. Kachikian
5 further explained that, in connection with wiping the code from
6 his drive, he also broke and threw away his CD backup to this
7 program, thereby leaving him with none of the Telesleuth
8 materials responsive to the grand jury subpoena.
9 IV.
10 EVIDENTIARY ISSUES
11 A. ADMISSIBILITY OF PHYSICAL EVIDENCE
12 1. Authentication and Identification/Chain of Custody
13 Federal Rule of Evidence 901(a) provides that "[t]he
14 requirement of authentication or identification as a condition
15 precedent to admissibility is satisfied by evidence sufficient to
16 support a finding that the matter in question is what its
17 proponent claims." As such, issues of authenticity and
18 identification are treated under Rule 901 as simply "a special
19 aspect of relevancy." Fed. R. Evid. 901(a) (Advisory Committee
20 Notes).
21 Rule 901(a) only requires the government to make a prima
22 facie showing of authenticity or identification "so that a
23 reasonable juror could find in favor of authenticity or
24 identification." United States v. Chu Kong Yin, 935 F.2d 990,
25 996 (9th Cir. 1991); see also United States v. Blackwood, 878
26 F.2d 1200, 1202 (9th Cir. 1989); United States v. Black, 767 F.2d
27
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1 1334, 1342 (9th Cir. 1985). Once the government meets this
2 burden, "the credibility or probative force of the evidence
3 offered is, ultimately, an issue for the jury." Black, 767 F.2d
4 at 1342.
5 The authenticity of proposed exhibits may be proven by
6 circumstantial evidence. United States v. Natale, 526 F.2d 1160,
7 1173 (2d Cir. 1975); United States v. King, 472 F.2d 1, 9-11 (9th
8 Cir. 1973). Moreover, the prosecution need only prove a rational
9 basis from which the jury may conclude that the exhibits did, in
10 fact, belong to the defendant. Federal Rule of Evidence 401(a);
11 United States v. Blackwell, 694 F.2d 1325, 1330 (D.C. Cir. 1982);
12 United States v. Sutton, 426 F.2d 1202 (D.C. Cir. 1969).
13 To be admitted into evidence, a physical exhibit must be in
14 substantially the same condition as when the crime was committed.
15 The court may admit the evidence if there is "a reasonable
16 probability the article has not been changed in important
17 respects." United States v. Harrington, 923 F.2d 1371, 1374 (9th
18 Cir. 1991). This determination is to be made by the trial judge
19 and will not be overturned except for clear abuse of discretion.
20 Factors the court may consider in making this determination
21 include the nature of the item, the circumstances surrounding its
22 preservation, and the likelihood of intermeddlers having tampered
23 with it. See United States v. Kaiser, 660 F.2d 724, 733 (9th
24 Cir. 1981); Galleqo v. United States, 276 F.2d 914, 917 (9th Cir.
25 1960).
26
27
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1 In establishing chain of custody as to an item of physical
2 evidence, the government is not required to call all persons who
3 may have come into contact with the piece of evidence. Reyes v.
4 United States, 383 F.2d 734 (9th Cir. 1967); Gallego, 276 F.2d at
5 917. Moreover, a presumption of regularity exists in the
6 handling of exhibits by public officials. Kaiser, 660 F.2d at
7 733; United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.
8 1984) (en banc); Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991).
9 Therefore, to the extent that alleged or actual gaps in the chain
10 of custody exist, such gaps go to the weight of the evidence
11 rather than to its admissibility. Gallego, 276 F.2d at 917.
12 a. Photographs
13 Photographs may be authenticated by a witness who
14 "identif[ies] the scene itself [in the photograph] and its
15 coordinates in time and place." See Lucero v. Stewart, 892 F.2d
16 52, 55 (9th Cir. 1989).
17 b. Recorded Conversations26
18 Audio recordings are admissible upon a showing that “the
19 recording is accurate, authentic and generally trustworthy.”
20 United States v. King, 587 F.2d 956, 961 (9th Cir. 1978).
21 The Ninth Circuit has held that recordings:
22 26 Transcripts of recorded English language conversations, 23 such as the ones that will be introduced by the government at trial, may be used to assist the court and the jury in 24 identifying speakers and in following the recordings and do not 25 constitute evidence. United States v. Taghipour, 964 F.2d 908, 910 (9th Cir. 1992) (transcripts may be used during trial and may 26 be used by juries in deliberation); United States v. Tornabene, 687 F.2d 312, 317 (9th Cir. 1982); United States v. Turner, 528 27 F.2d 143, 167 (9th Cir. 1975).
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1 [a]re sufficiently authenticated under Federal Rule of Evidence 901(a) if ‘sufficient proof has been 2 introduced so that a reasonable juror could find in favor of authenticity or identification. [Citing 3 cases.] This is done by proving a connection between the evidence and the party against whom the evidence 4 is admitted, and can be done by both direct and circumstantial evidence. 5
6 United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir.
7 1995), modified, 98 F.3d 1100 (9th Cir. 1996) (allowing into
8 evidence recordings of the torture of DEA Special Agent Camarena
9 which were in the possession of a co-defendant).
10 Rule 901(b)(5) sets a low threshold for voice identifications
11 offered to determine the admissibility of recorded conversations.
12 Under this rule, audio recordings may be authenticated by persons
13 who are not parties to the recorded conversation, as long as the
14 person can identify the voices on the recording. Fed. R. Evid.
15 905(b)(5); Torres, 908 F.2d at 1425; United States v. Thomas, 586
16 F.2d 123, 133 (9th Cir. 1978). A witness’s opinion testimony in
17 this regard may be based upon his having heard the voice on
18 another occasion under circumstances connecting it with the
19 alleged speaker. Fed. R. Evid. 901(b)(5); Torres, 908 F.2d at
20 1425 (“Testimony of voice recognition constitutes sufficient
21 authentication.”); United States v. Bassey, 613 F.2d 198, 202 n.2
22 (9th Cir. 1979); United States v. Turner, 528 F.2d 143, 163 (9th
23 Cir. 1975). If the identifying witness is “‘minimally familiar’
24 with the voice he identifies, Rule 901(b) is satisfied.” United
25 States v. Plunk, 153 F.3d 1011, 1022-23 (9th Cir.), amended, 161
26 F.3d 1195 (9th Cir. 1998).
27
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1 The speaker’s identity also can be established by
2 circumstantial evidence. Fed. R. Evid. 901(b)(5), (6). Such
3 evidence may include: (1) defendant's identification of himself
4 during the conversation either by surname, first name or nickname
5 (United States v. Vento, 533 F.2d 838, 864 (3d Cir. 1976); United
6 States v. Turner, 528 F.2d 143, 163 (9th Cir. 1975); Palos v.
7 United States, 416 F.2d 438, 440 (5th Cir. 1969)); (2) listing of
8 the telephone in the defendant's name or the location of the
9 telephone at the defendant's residence (Federal Rule of Evidence
10 901(b)(6) (call placed to phone number assigned to defendant plus
11 self-identification of recipient of call is sufficient to identify
12 defendant as recipient)); (3) the speaker's revelation of
13 information particularly known to the person he purports to be
14 (United States v. Sawyer, 607 F.2d 1190, 1193 (7th Cir. 1977);
15 United States v. Ross, 321 F.2d 61, 69 (2d Cir. 1963)); (4) the
16 giving of directions which prove to be correct, or returning a
17 call and referring to what was said in a previous conversation
18 (Sawyer, 607 F.2d at 1193); or (5) visual surveillance of the
19 defendant after the conversation doing what he said he would do
20 (United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974);
21 United States v. Bonanno, 487 F.2d 654, 659 (2d Cir. 1973); see
22 also Van Ripper v. United States, 13 F.2d 961, 968 (2d Cir. 1926)
23 ("[T]he substance of the communication may itself be enough to
24 make prima facie proof [of identity]")).
25 Although the overwhelming majority of recordings to be
26 introduced are clear in sound quality, recorded conversations can
27
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1 serve as competent evidence even when they are partly inaudible
2 provided that the unintelligible portions are not so substantial
3 as to render the recording as a whole untrustworthy. United
4 States v. Rrapi, 175 F.3d 742 (9th Cir. 1999); United States v.
5 Carlson, 423 F.2d 431, 440 (9th Cir. 1970).
6 c. Handwriting
7 A lay witness may authenticate handwriting on a document by
8 stating how he or she became familiar with the handwriting in
9 question. Hall v. United Insurance Company of America, 367 F.3d
10 1255, 1260-61 (11th Cir. 2004). In laying the requisite
11 foundation, the witness should describe the instruments on which
12 the witness previously had observed the handwriting, and provide
13 information concerning the witness’ relationship with the
14 signatory. Id. at 1261. For example, co-workers possessing
15 sufficient familiarity with a defendant's handwriting have been
16 permitted to authenticate the defendant’s handwriting. See United
17 States v. Tipton, 964 F.2d 650, 654-55 (7th Cir. 1992); United
18 States v. Whittington, 783 F.2d 1210, 1214-15 (5th Cir. 1986);
19 United States v. Barker, 735 F.2d 1280, 1283 (11th Cir. 1984).
20 2. Items Found In A Defendant’s Possession
21 Documents or items found in a defendant's possession are
22 admissible, either as adopted admissions or to show the
23 circumstantial relationship of the defendant to the documents.
24 United States v. Ospina, 739 F.2d 448, 451 (9th Cir. 1984). For
25 instance, a calendar or ledger may be a party admission or co-
26 conspirator statement, depending upon the circumstances, if the
27
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1 identity of the author of the ledger is reasonably certain.
2 United States v. Smith, 893 F.2d 1573, 1576 (9th Cir. 1990).
3 3. Duplicates
4 A duplicate is admissible to the same extent as an
5 original unless (1) a genuine question is raised as to the
6 authenticity of the original, or (2) under the circumstances, it
7 would be unfair to admit the duplicate instead of the original.
8 Fed. R. Evid. 1003; United States v. Smith, 893 F.2d 1573, 1579
9 (9th Cir. 1990); United States v. Leal, 509 F.2d 122, 125-26 (9th
10 Cir. 1975); United States v. Pacheco-Lovio, 463 F.2d 232, 233-34
11 (9th Cir. 1972); see also United States v. Skillman, 922 F.2d
12 1370, 1375 (9th Cir. 1990) (photocopy bearing extraneous
13 handwriting not connected to the defendant is admissible).
14 4. Business Records
15 Fed. R. Evid. 803(6) excepts from the hearsay rule “a
16 memorandum, report, record, or data compilation, in any form, of
17 acts, events, conditions, opinions, or diagnoses, made at or near
18 the time by, or from information transmitted by, a person with
19 knowledge, if kept in the course of a regularly conducted business
20 activity, and if it was the regular practice of that business
21 activity to make the memorandum, report, record, or data
22 compilation, all as shown by the testimony of the custodian or
23 other qualified witness, unless the source of information or the
24 method or circumstances of preparation indicate lack of
25 trustworthiness.” If evidence meets the requirements for
26 admission under Rule 803(6), no further showing is necessary for
27
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1 admission under the Confrontation Clause. See Ohio v. Roberts,
2 448 U.S. 56, 66 n.8 (1980); United States v. Ray, 930 F.2d 1368,
3 1370 (9th Cir. 1990).
4 A document is admissible under Rule 803(6) if two
5 foundational facts are established: (i) the document was made or
6 transmitted by a person with knowledge at or near the time of the
7 incident recorded, and (ii) the document was kept in the course of
8 a regularly conducted business activity. See Ray, 930 F.2d at
9 1370; Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 717 (9th
10 Cir. 1989), overruled on other grounds, Act Up!/Portland v.
11 Bagley, 988 F.2d 868 (9th Cir. 1993). These foundational facts
12 may be established either through a custodian of records or “other
13 qualified witness.” The phrase “other qualified witness” is
14 broadly interpreted to require only that the witness understand
15 the record keeping system. See Ray, 930 F.2d at 1370; United
16 States v. Franco, 874 F.2d 1136, 1139-1140 (7th Cir. 1989); United
17 States v. Hathaway, 798 F.2d 902, 906 (6th Cir. 1986). In
18 determining whether the foundational facts have been established,
19 the court may consider hearsay and other evidence not admissible
20 at trial. See Fed. R. Evid. 104(a), 1101(d)(1); Bourjaily, 483
21 U.S. at 178-79.
22 The government need not establish precisely when or by whom
23 the document was prepared; all the rule requires is that the
24 document be made "at or near the time" of the act or event it
25 purports to record. See United States v. Huber, 772 F.2d 585, 591
26 (9th Cir. 1985); United States v. Bassey, 613 F.2d 198, 201 n.1
27
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1 (9th Cir. 1979). Similarly, challenges to the accuracy or
2 completeness of the business records ordinarily go to the weight
3 of the evidence and not its admissibility. See, e.g., La Porta v.
4 United States, 300 F.2d 878, 880 (9th Cir. 1962).
5 5. Self-Authenticating Records
6 In order to accelerate the pace of this trial and to avoid
7 the need to call dozens of witnesses who would be called to
8 testify to matters that are beyond dispute, the government intends
9 to introduce a number of business records, including phone
10 records, and bank records, pursuant to Federal Rule of Evidence
11 902(11). The Federal Rules of Evidence provide that business
12 records may be admitted into evidence without a live witness if
13 they are accompanied by a written declaration from a custodian of
14 the records certifying that the records were made in accordance
15 with the requirements of Rule 803(6) of the Federal Rules of
16 Evidence. See Securities Exchange Commission v. Franklin, 348
17 F.Supp.2d 1159 (S.D. Cal. 2004); Rules 803(6) and 902(11), Federal
18 Rules of Evidence.
19 Specifically, Amended Rule 902 of the Federal Rules of
20 Evidence provides, in pertinent part:
21 902 Self Authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility 22 is not required with respect to the following: . . . 23 (11) The original or a duplicate of a domestic record of regularly conducted activity that would be 24 admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person . 25 . . certifying that the record–
26 (A) was made at or near the time of the occurrence of the matters set forth by, or from information 27
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1 transmitted by, a person with knowledge of those matters; 2 (B) was kept in the course of the regularly 3 conducted activity; and
4 (C) was made by the regularly conducted activity as a regular practice. 5 A party intending to offer a record into evidence under 6 this paragraph must provide written notice of that intention to all adverse parties, and must make the 7 record and declaration available for inspection sufficiently in advance of their offer into evidence to 8 provide an adverse party with a fair opportunity to challenge them. 9
10 Fed. R. Evid. 902(11) (emphasis added).
11 6. Charts and Summaries
12 In an effort to reduce the length of the trial, the
13 government intends to make use of summary witnesses and summary
14 charts to reduce otherwise voluminous records and testimony into a
15 format that is succinct and understandable. Federal Rule of
16 Evidence 1006 provides that:
17 The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court 18 may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made 19 available for examination or copying, or both, by the parties at a reasonable time and place. The court may order that 20 they be produced in court.
21 The Advisory Committee Notes to Rule 1006 add that: “[t]he
22 admission of summaries of voluminous books, records, or documents
23 offers the only practicable means of making their contents
24 available to judge and jury. The rule recognized this practice,
25 with appropriate safeguards.”
26
27
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1 A chart or summary may be admitted as evidence where the
2 proponent establishes that the underlying documents are
3 voluminous, admissible and available for inspection. See United
4 States v. Myers, 847 F.2d 1408, 1411-1412 (9th Cir. 1988); United
5 States v. Johnson, 594 F.2d 1253, 255-1257 (9th cir. 1979). While
6 the underlying documents must be “admissible,” they need not be
7 admitted.” See Meyers, 847 F2d at 1412; Johnson, 594 F.2d 233,
8 239 (7th Dir. 1983); Barsky v. United States, 339 F.2d 180 (9th
9 Cir. 1964).
10 Summary charts may be used by the government in opening
11 statement. Indeed, “such charts are often employed in complex
12 conspiracy cases to provide the jury with an outline of what the
13 government will attempt to prove.” United States v. De Peri, 778
14 F.2d 963, 979 (3rd Cir. 1985) (approving government’s use of
15 chart); United States v. Rubino, 431 F.2d 284, 290 (6th Cir.
16 1970)(same).
17 Summary charts need not contain the defendant's version of
18 the evidence and may be given to the jury while a government
19 witness testifies concerning them. See United States v. Radseck,
20 718 F.2d 233, 239 (7th Cir. 1983); Barsky, 339 F.2d at 181. In
21 addition, summary charts are admissible under Federal Rule of
22 Evidence 611(a), which permits a court to “exercise reasonable
23 control over the mode and order of interrogating witnesses and
24 presenting evidence so as to (1) make the interrogation and
25 presentation effective for ascertainment of the truth, (2) avoid
26 needless consumption of time, and (3) protect witnesses from
27
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1 harassment or undue embarrassment.” United States v. Poschatta,
2 829 F.2d 1477, 1481 (9th Cir. 1987); United States v. Gardner, 611
3 F.2d 770, 776 (9th Cir. 1980).
4 Typically, charts used under Rule 611(a) for "pedagogical
5 purposes," or as "testimonial aids," should "not be admitted into
6 evidence or otherwise be used by the jury during deliberations."
7 United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991) ("We
8 have long held that such pedagogical devices should be used only
9 as a testimonial aid, and should not be admitted into evidence or
10 otherwise be used by the jury during deliberations."); see also
11 United States v. Abbas, 504 F.2d 123 (9th Cir. 1974) (better
12 practice is that charts used as testimonial aids not be submitted
13 to jury). However, charts may be used under Rule 611(a) and then
14 subsequently admitted into evidence in those instances in which
15 the defense has had opportunity to challenge the information
16 contained in the chart. For example, in Gardner, the district
17 court admitted, over defense objection, a chart used by a
18 government witness as a testimonial aid that summarized facts and
19 calculations already in evidence. Gardner, 611 F.2d at 776. The
20 Ninth Circuit held that the use of this chart as a testimonial aid
21 was appropriate under Rule 611(a), and that the chart was properly
22 admitted into evidence under Rule 1006: "Having thus utilized the
23 chart without objection with a full opportunity for the defendant
24 to challenge the facts, figures, calculations and underlying
25 documents upon which the chart was based, it was not reversible
26 error to admit the chart in evidence." Id. at 776; see also
27
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1 United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995); United
2 States v. Baker, 10 F.3d 1374 (9th Cir. 1993) (charts admitted
3 after court examined them outside presence of jury, defendants had
4 opportunity to review charts and cross-examine witness, and court
5 gave limiting instruction that charts were not themselves
6 substantive evidence).
7 Summary charts of information contained in ledgers and other
8 documents are admissible where the ledgers are available to
9 defendant for inspection. United States v. Catabran, 836 F.2d 453
10 (9th Cir. 1982). Similarly, a chart summarizing unavailable
11 documents is admissible under Fed. R. Evid. 1004 if the underlying
12 materials are “lost or destroyed” or “not obtainable.” Fed. R.
13 Evid. 1004(1) and 1004(2).
14 A summary witness may properly testify about, and use a chart
15 to summarize, evidence that has already been admitted. As the
16 Ninth Circuit has recognized, the court and jury are entitled to
17 have a witness “organize and evaluate evidence which is factually
18 complex and fragmentally revealed.” United States v. Shirley, 884
19 F.2d 1130, 1133-34 (9th Cir. 1989)(agent’s testimony regarding her
20 review of various telephone records, rental receipts, and other
21 previously offered testimony held to be proper summary evidence,
22 as it helped jury organize and evaluate evidence; summary charts
23 properly admitted); United States v. Lemire, 720 F.2d 1327,
24 1348(D.C. Cir. 1983). A summary witness also may rely on the
25 analysis of others as the use of others in the preparation of
26 summary evidence goes to the weight and not the admissibility of
27
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1 the evidence. United States v. Soulard, 730 F.2d 1292, 1299 (9th
2 Cir. 1984); see Diamond Shamrock Corp. v. Lumbermens Mutual
3 Casualty Co., 466 F.2d 722, 727 (7th Cir. 1972) (“It is not
4 necessary . . . that every person who assisted in the preparation
5 of the original records or the summaries be brought to the witness
6 stand.”).
7 B. ADMISSIBILITY OF WITNESS TESTIMONY
8 1. Direct And Adopted Admissions By Party Opponent
9 A statement is not hearsay, but rather constitutes an
10 admission by a party opponent, if the statement is offered against
11 a party and is the party’s own statement in either an individual
12 or representative capacity. Fed. R. Evid. 801(d)(2)(A); Burreson,
13 643 F.2d at 1349. Similarly, a statement made by a party-opponent
14 and offered against that party is not hearsay if it is a
15 “statement of which the party has manifested an adoption or belief
16 in its truth.” Fed. R. Evid. 801(d)(2)(A). With respect to
17 adoptive admissions, the Court must find sufficient foundational
18 facts that a jury could reasonably conclude that the defendant
19 actually heard; understood and acceded to the statement(s).
20 Ospina, 739 F.2d at 451 (writings in residence of defendant and
21 acted upon by defendant are adoptive admissions and therefore non-
22 hearsay); United States v. Valles-Vallencia, 811 F. 2d 1232, 1237
23 (9th Cir. 1987) (handwriting on ledgers are adoptive admissions).
24 When the government admits a portion of a defendant's prior
25 statement under Rule 801(d)(2)(A), the defendant may not put in
26 additional out-of-court statements by him because such statements
27
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1 are hearsay when offered by the defendant. Fed. R. Evid.
2 801(d)(2); United States v. Nakai, 413 F.3d 1019, 1022 (9th Cir.
3 2005) (recognizing that exculpatory out-of-court statements that a
4 defendant makes to a witness constitute inadmissible hearsay)
5 (citing Williamson v. United States, 512 U.S. 594, 598-601
6 (1994)); United States v. Ortega, 203 F.3d 675, 681-82 (9th Cir.
7 2000) (defendant prohibited from eliciting his own exculpatory
8 statements during cross examination of government agent because to
9 permit otherwise would be to put such statements “before the jury
10 without subjecting [defendant] to cross-examination, precisely
11 what the hearsay rule forbids.”); United States v. Fernandez, 839
12 F.2d at 639, 640 (9th Cir. 1988)(same).
13 The only potential limitation of this principle is the “rule
14 of completeness” set forth in Federal Rule of Evidence 106, which
15 has been applied by some courts to require that all of a
16 defendant’s prior statements be admitted where it is necessary to
17 place an admitted statement in context or to avoid misleading the
18 trier of fact. It is entirely proper, however, to admit segments
19 of a statement without including everything, and adverse parties
20 are not entitled to offer additional statements just because they
21 are there and the proponent has not offered them. United States
22 v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v.
23 Marin, 669 F.2d 73, 84 (2d Cir. 1982). Furthermore, Rule 106 does
24 not render admissible evidence which is otherwise inadmissible
25 under the hearsay rules. See Collicott, 92 F.3d at 983 (hearsay
26 not admitted regardless of Rule 106).
27
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1 2. Confession of a Co-Defendant/Bruton Considerations
2 While a defendant’s own admissions may be offered against him
3 under Rule 801(d)(2)(A), a defendant is deprived of his Sixth
4 Amendment right to confrontation when a non-testifying co-
5 defendant's confession that implicates the defendant is introduced
6 in a joint trial, even if the jury is instructed to consider that
7 confession only against the co-defendant. Bruton v. United
8 States, 391 U.S. 123, 135-36 (1968). However, a mutually
9 inculpatory confession by a non-testifying defendant can be
10 introduced in a joint trial provided that a proper limiting
11 instruction is given and “the confession is redacted to eliminate
12 not only the defendant's name, but any reference to his or her
13 existence." Richardson v. Marsh, 481 U.S. 200, 211 (1987). In
14 addition, a confession by a non-testifying co-defendant may
15 properly be considered by the trier of fact if it does not
16 expressly implicate another defendant but rather becomes
17 incriminating only after it is linked with other evidence
18 introduced at trial. Id. at 208-09.
19 3. Expert Testimony.
20 If specialized knowledge will assist the trier of fact in
21 understanding the evidence or determining a fact in issue, a
22 qualified expert witness may provide opinion testimony on the
23 issue in question. Fed. R. Evid. 702. An expert may provide
24 opinion testimony even if it embraces an ultimate issue to be
25 decided by the trier of fact. Fed. R. Evid 704; Fleishman, 684
26 F.2d at 1335.
27
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1 4. Opinion Testimony of Non-Experts
2 Fed. R. Evid. 701 allows lay witnesses to provide opinion
3 testimony as follows:
4 If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to 5 those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear 6 understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, 7 technical or other specialized knowledge within the scope of Rule 702. 8 To that end, an experienced government agent may provide 9 opinion testimony even if that opinion is based in part on 10 information from other agents familiar with the issue. United 11 States v. Andressan, 813 F.2d 1450, 1458 (9th Cir. 1987); United 12 States v. Golden, 532 F.2d 1244, 1248 (9th Cir. 1976). An 13 experienced government agent also may testify as to his opinions 14 and impressions of what he observed. As the court stated in 15 United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982), 16 “opinions of non-experts may be admitted where the facts could not 17 otherwise be adequately presented or described to the jury in such 18 a way as to enable the jury to form an opinion or reach an 19 intelligent conclusion.” 20 5. Hearsay 21 a. Definition 22 Federal Rule of Evidence 801(c) defines “hearsay” as “a 23 statement, other than one made by the declarant while testifying 24 at the trial or hearing, offered in evidence to prove the truth of 25 the matter asserted.” Fed. R. Evid. 801(c). 26
27
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1 b. Statements Not Introduced for the Truth of the Matter Asserted (e.g., Effect on Hearer) 2 Statements offered for the effect they have on the hearer 3 (e.g., to show a party’s knowledge) are not hearsay. United 4 States v. Castro, 887 F.2d 998, 1000 (9th Cir. 1987); Orsini v. 5 O/S Seabrooke O.N., 247 F.3d 953, 960 n.4 (9th Cir. 2001). A 6 witness also may testify to what he or she understood a declarant 7 to mean with respect to a statement made by the declarant to the 8 witness. United States v. Brooks, 473 F.2d 817, 818 (9th Cir. 9 1973) (per curiam). 10 c. State of Mind Exception 11 Federal Rule of Evidence 803(3) provides that the hearsay 12 rule does not exclude a "statement of the declarant's then 13 existing state of mind." Fed. R. Evid. 803(3). The three factors 14 bearing on the foundational inquiry on admissibility under Federal 15 Rule of Evidence 803(3) are contemporaneousness, chance for 16 reflection, and relevance. United States v. Miller, 874 F.2d 17 1255, 1264 (9th Cir. 1989) (upholding exclusion of defendant's 18 statement about his state of mind two hours prior to the statement 19 because of chance for reflection and opportunity to fabricate). 20 d. Prior Inconsistent Statements 21 Prior inconsistent statements of a non-defendant witness are 22 admissible for impeachment purposes under Federal Rule of Evidence 23 613. See Fed. R. Evid. 613(a), (b). In addition, such statements 24 are admissible as substantive evidence offered for the truth of 25 the matter asserted provided that the foundational requirements 26 set forth in Federal Rule of Evidence 801(d)(1) are satisfied. 27
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1 United States v. Armijo, 5 F.3d 1229, 1232 (9th Cir. 1993). Under
2 Rule 801(d)(1), a statement is not hearsay if “[t]he declarant
3 testifies at the trial or hearing and is subject to cross-
4 examination concerning the statement, and the statement is
5 inconsistent with the declarant’s testimony, and was given under
6 oath subject to the penalty of perjury at a trial, hearing, or
7 other proceeding, or in a deposition.” Fed. R. Evid. 801(d)(1).
8 e. Prior Consistent Statements
9 Under Federal Rule of Evidence 801(d)(1)(B), an out-of-court
10 statement is not hearsay if the declarant testifies at the trial
11 and is subject to cross-examination concerning the statement, and
12 the statement is "consistent with the declarant's testimony and is
13 offered to rebut an express or implied charge against the
14 declarant of recent fabrication or improper influence or motive."
15 Rule 801(d)(1)(B); see United States v. Bao, 189 F.3d 860, 864
16 (9th Cir. 1999); United States v. Frederick, 78 F.3d 1370, 1377
17 (9th Cir. 1996); United States v. Stuart, 718 F.2d 931, 934 (9th
18 Cir. 1983). However, "[p]rior consistent statements may not be
19 admitted to counter all forms of impeachment or to bolster the
20 witness merely because [the witness] has been discredited . . . .
21 The Rule speaks of a party rebutting an alleged motive, not
22 bolstering the veracity of the story told." Tome v. United
23 States, 513 U.S. 150, 157-58 (1995). For example, in Tome, the
24 Supreme Court held "that prior consistent statements made after
25 the date of the alleged motivation to lie are inadmissible."
26 Frederick, 78 F.3d at 1377; see Tome, 513 U.S. at 167.
27
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1 To establish the admissibility of a prior consistent
2 statement under Rule 801(d)(1)(B), the following foundational
3 factors must be satisfied: “(1) the declarant must testify at
4 trial and be subject to cross-examination; (2) there must be an
5 express or implied charge of recent fabrication or improper
6 influence or motive of the declarant's testimony; (3) the
7 proponent must offer a prior consistent statement that is
8 consistent with the declarant's challenged in-court testimony;
9 and, (4) the prior consistent statement must be made prior to the
10 time that the supposed motive to falsify arose." Collicott, 92
11 F.3d at 979.
12 6. Hostile Witnesses
13 The government may seek permission to use leading questions
14 in addressing certain witnesses who have close ties to, or who
15 otherwise are aligned with, certain defendants. Under Federal
16 Rule of Evidence 611(c), "when a party calls a hostile witness, an
17 adverse party, or a witness identified with an adverse party,
18 interrogation may be by leading questions." Although prior to
19 Rule 611(c)'s adoption, a party wishing to ask leading questions
20 on direct examination had to show "actual hostility" by the
21 witness or that the witness was an adverse party, Rule 611(c)
22 "significantly enlarged the class of witnesses presumed hostile,
23 and therefore subject to interrogation by leading questions
24 without further showing of actual hostility." Haney v. Mizell
25 Memorial Hosp., 744 F.2d 1467, 1477-78 (11th Cir. 1984) (internal
26 quotation marks omitted). A trial court has broad discretion in
27
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1 determining whether a particular witness should be deemed a
2 hostile witness for purposes of this rule. See United States v.
3 Goode, 814 F.2d 1353, 1355 (9th Cir. 1987).
4 7. Witness Invocation Of The Fifth Amendment Right Against Self Incrimination 5 The Fifth Amendment provides that “[n]o person . . . shall be 6 compelled in any criminal case to be a witness against himself.” 7 U.S. CONST. Amend. V. The Fifth Amendment protects a defendant 8 from making statements that are: (1) compelled; (2) testimonial; 9 and (3) self-incriminating. The Supreme Court has held that 10 compelled testimony, such as sworn trial testimony, is self- 11 incriminating if reasonable cause exists to believe that the 12 testimony either would support a conviction or would provide a 13 link in the chain of evidence leading to a conviction. United 14 States v. Hoffman, 341 U.S. 479, 486 (1951). If, however, the 15 threat of future prosecution is “remote, unlikely or speculative, 16 the privilege does not apply.” United States v. Antelope, 395 17 F.3d 1128, 1134 (9th Cir. 2005) (citing Brown v. Walker, 161 U.S. 18 591, 596-97 (1896) for proposition that Fifth Amendment protection 19 does not properly extend to offenses for which the statute of 20 limitations has run); see also United States v. Vavages, 151 F.3d 21 1185, 1192 (1998) (noting that “fear of perjury can typically form 22 a valid basis for invoking the Fifth Amendment only where the risk 23 of prosecution is for perjury of the witness’ past testimony” and 24 finding “a witness may not claim the privilege of the Fifth 25 Amendment out of fear that he will be prosecuted for perjury for 26 what he is about to say. The shield against self-incrimination in 27 -94- 28 Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 122 of 129
1 such a situation is to testify truthfully, not to refuse to
2 testify on the basis that the witness may be prosecuted for a lie
3 not yet told.”).
4 Non-defendant witnesses cannot avoid testifying at trial
5 through a blanket invocation of the Fifth Amendment privilege
6 against self-incrimination. Antelope, 395 F.3d at 1134. Instead,
7 in instances in which the witness has provided the government with
8 advance notice of the intent to invoke the Fifth Amendment
9 privilege against self-incrimination, the witness should be
10 questioned on the stand, but outside the presence of the jury, to
11 determine whether the invocation is appropriate. Vavages, 151
12 F.3d at 1192. Moreover, in the event that a non-defendant witness
13 properly invokes the Fifth Amendment, the government can compel
14 the witness to testify through the issuance of use immunity to
15 that witness. U.S. v. Doe, 125 F.3d 1249, 1252, 1254 (9th Cir.
16 1997).
17 8. Privilege Waiver Issues
18 It is well established that the attorney-client privilege can
19 be waived when a party places privileged matters in controversy.
20 See, e.g., United States v. Amlani, 169 F.3d 1189, 1194-95 (9th
21 Cir. 1999) (finding that defendant waived privilege by
22 affirmatively raising issue in attorney-disparagement claim and as
23 enforcement of the privilege would deny the opposing party access
24 to information vital to the defense of the claim). In an effort
25 to challenge the government’s evidence on count one-hundred-eight,
26 which charges Arneson with having made a false statement, it is
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1 the government’s understanding that defendant may attempt to
2 introduce testimony from the three attorneys who represented
3 Arneson at his failed proffer: Jeffrey Eglash, Thomas Holliday,
4 and Stephen Miller. Depending of the subject matter of their
5 testimony, it is possible that such testimony will constitute a
6 waiver of the attorney-client privilege as to Arneson’s
7 discussions with counsel on, at a minimum, issues such as: (1)
8 whether he conducted law enforcement database inquires on
9 Pellicano’s behalf; (2) the number of such database inquiries that
10 Arneson performed on Pellicano’s behalf; (3) Arneson’s reason for
11 conducting such inquiries; (4) whether Arneson understood that he
12 was not permitted to provide Pellicano with such information; and
13 (5) whether Arneson received payment, in whole or in part, for
14 providing Pellicano with such information.
15 9. Cross-Examination of Defendant
16 A defendant who testifies at trial waives his right against
17 self-incrimination and subjects himself to cross-examination
18 concerning all matters reasonably related to the subject matter of
19 his testimony. The scope of a defendant's waiver is co-extensive
20 with the scope of relevant cross-examination. United States v.
21 Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992); United States v. Black,
22 767 F.2d 1334, 1341 (9th Cir. 1985) ("What the defendant actually
23 discusses on direct does not determine the extent of permissible
24 cross-examination or his waiver. Rather, the inquiry is whether
25 'the government's questions are reasonably related' to the
26 subjects covered by the defendant's testimony").
27 -96- 28 Case 2:05-cr-01046-DSF Document 1215 Filed 02/28/2008 Page 124 of 129
1 While Federal Rule of Evidence 404(b) "restricts the use of
2 evidence solely for purposes of demonstrating a criminal
3 proclivity, [i]t does not proscribe the use of other act evidence
4 as an impeachment tool during cross-examination." United States
5 v. Gay, 967 F.2d 322, 328 (9th Cir. 1992). Furthermore, Federal
6 Rule of Evidence 609(a) permits the credibility of a defendant to
7 be impeached by evidence of felony convictions of the defendant or
8 any crimes involving dishonesty or false statements, provided that
9 the conviction was sustained or the defendant was released from
10 prison on the conviction within the past ten years.
11 10. Cross Examination - General Witnesses
12 Under Federal Rule of Evidence 608, the credibility of a
13 witness may be supported or attacked by evidence in the form of:
14 (1) prior fraud convictions; (2) prior felony convictions
15 sustained within the past ten years; and (3) opinion or reputation
16 testimony provided that the testimony refers only to the witness’
17 character for truthfulness or untruthfulness. Fed. R. Evid. 608.
18 Moreover, reputation or opinion evidence relating to truthfulness
19 may only be admitted if the witness’ character for truthfulness
20 has been attacked. Fed. R. Evid. 608(a). Similarly, specific
21 instances of conduct of a witness may, in the court's discretion,
22 be inquired into on cross-examination of the witness only if the
23 conduct concerns his character for truthfulness or untruthfulness.
24 Such conduct, however, may not be proved by extrinsic evidence.
25 Fed. R. Evid. 608(b).
26
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1 11. Defendant's Character Witnesses
2 The Supreme Court has recognized that character evidence --
3 particularly cumulative character evidence -- has weak
4 probative value and great potential to result in confusion of the
5 issues and prejudice the jury. Michelson v. United States, 335
6 U.S. 469, 480, 486 (1948). The Court has thus given trial courts
7 wide discretion to limit the presentation of character evidence.
8 Id. at 486.
9 Rule 404(a) of the Federal Rules of Evidence governs the
10 admissibility of character evidence. Rule 404(a) permits a
11 defendant to introduce evidence of a "pertinent" trait of
12 character. For example, evidence of defendant's family or
13 employment status is irrelevant to whether defendant is believable
14 and law-abiding, and is thus inadmissible. See United States v.
15 Santana-Camacho, 931 F.2d 966, 967-68 (1st Cir. 1991) (testimony
16 of defendant's daughter purportedly showing that defendant was a
17 good family man was inadmissible character evidence inasmuch as
18 such character traits were not pertinent to charged crime of
19 illegally bringing aliens into the United States).
20 Moreover, the form of the proffered character evidence must
21 be proper. Federal Rule of Evidence 405(a) sets forth the sole
22 methods by which character evidence may be introduced. It
23 specifically states that where evidence of a character trait is
24 admissible, proof may be made in two ways: (1) by testimony as to
25 reputation; and (2) by testimony as to opinion. Thus, defendant
26 may not introduce specific instances of his good conduct through
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1 the testimony of others. Michelson, 335 U.S. at 477 ("The witness
2 may not testify about defendant's specific acts or courses of
3 conduct or his possession of a particular disposition or of benign
4 mental and moral traits.").
5 On cross-examination of a defendant’s character witness,
6 however, the government may inquire into specific instances of a
7 defendant’s past conduct relevant to the character trait at issue.
8 See Fed. R. Evid. 405(a). In particular, a defendant’s character
9 witnesses may be cross-examined about their knowledge of the
10 defendant’s past crimes, wrongful acts, and arrests. See
11 Michelson, 335 U.S. at 481. The only prerequisite is that there
12 must be a good-faith basis that the incidents inquired about are
13 relevant to the character trait at issue. See United States v.
14 McCollom, 664 F.2d 56, 58 (5th Cir. 1981).
15 12. Defendant’s Testimony Regarding Character/Impeachment By Contradiction 16 Unlike character witnesses, who must restrict their testimony 17 to opinion or appraisal of a defendant's reputation, a 18 defendant-witness may cite specific instances of conduct as proof 19 that he possessed a relevant character trait. United States v. 20 Giese, 597 F.2d 1170, 1190 (9th Cir. 1979). However, "[o]nce a 21 witness (especially a defendant-witness) testifies as to any 22 specific fact on direct testimony, the trial judge has broad 23 discretion to admit extrinsic evidence tending to contradict the 24 specific statement, even if such statement concerns a collateral 25 matter in the case." Id. at 1190 (citation omitted). Thus, if 26 defendant testifies to specific instances of conduct supportive of 27
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1 good character, he opens the door to rebuttal evidence on all
2 reasonably related matters, be they "collateral" or not.27 Giese,
3 597 F.2d at 1190.
4 C. MISCELLANEOUS
5 1. Judicial Notice
6 Federal Rule of Evidence 201 provides that, if requested by a
7 party and supplied with the necessary information, a court must
8 take judicial notice of facts that are not subject to reasonable
9 dispute in that they are either (1) generally known within the
10 territorial jurisdiction of the trial court or (2) capable of
11 accurate and ready determination by resort to sources whose
12 accuracy cannot reasonably be questioned. Judicial notice may be
13 taken at any stage of the proceedings. For example, the Ninth
14 Circuit has ruled that materials from proceedings in another
15 tribunal are appropriate for judicial notice under Federal Rule of
16 Evidence 201. Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir.
17 2003) (The court shall instruct the jury that it may, but is not
18 required to, accept as conclusive any fact judicially noticed).
19 Fed. R. Evid. 201).
20
21
27 22 The distinction between the proper use of extrinsic evidence to impeach by contradiction under Rule 607 and the 23 impermissible use of extrinsic evidence under Rule 608 was explained by the Ninth Circuit in United States v. Castillo, 181 24 F.3d 1129 (9th Cir. 1999). As the Castillo Court noted, Rule 608(b) prohibits the use of extrinsic evidence of conduct to 25 impeach a witness’ credibility in terms of his general veracity. In contrast, the concept of impeachment by contradiction permits 26 courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence. 27
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1 2. Reciprocal Discovery
2 The government has requested reciprocal discovery and the
3 Court has ordered all parties to produce all Rule 16 materials in
4 their possession. Virtually no reciprocal discovery has been
5 provided. To the extent that there exists reciprocal discovery to
6 which the government is entitled under Rules 16(b) and 26.2 of the
7 Federal Rules of Criminal Procedure and which the defense has not
8 produced prior to trial, the government reserves the right to seek
9 to have such documents precluded should a defendant attempt to
10 introduce or use them at trial. See United States v. Young, 248
11 F.3d 260, 269-70 (4th Cir. 2001) (upholding exclusion under Rule
12 16 of audiotape evidence defendant did not produce in pretrial
13 discovery where defendant sought to introduce audiotape on cross-
14 examination of government witness not for impeachment purposes,
15 but as substantive "evidence in chief" that someone else committed
16 the crime).
17 3. Waiver of Rule 12(b) Motions
18 Federal Rule of Criminal Procedure 12(b)(3) requires that
19 defenses and objections based on defects in the institution of the
20 prosecution, defenses and objections based on defects in the
21 indictment or information, motions to suppress evidence, and
22 requests for discovery under Rule 16 be raised prior to trial. A
23 defendant’s failure to raise any such motions prior to trial
24 constitutes waiver, and the Court should not allow any such
25 motions to be brought after jeopardy has attached. Fed. R. Crim.
26 Pro. 12(e); United States v. Quintero-Barraza, 78 F.3d 1344, 1348
27
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1 (9th Cir. 1996); United States v. Miller, 984 F.2d 1028 (9th Cir.
2 1993).
3 DATED: February 28, 2008
4 Respectfully submitted,
5 THOMAS P. O’BRIEN United States Attorney 6 CHRISTINE C. EWELL 7 Assistant United States Attorney Chief, Criminal Division 8
9 /s/ DANIEL A. SAUNDERS 10 KEVIN M. LALLY Assistant United States Attorneys 11 Violent & Organized Crime Section
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