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Lie Hard: Court Affirms Director's False Statement Conviction

By Robyn Hagan Cain | Last updated on

The Ninth Circuit Court of Appeals doesn't care if you directed Die Hard and The Hunt for Red October.

You have to be able to support a burden of proof, not a blockbuster cast to win a criminal appeal in this circuit.

Die Hard director John McTiernan hired former private investigator Anthony Pellicano in 2000 to illegally wiretap the telephone conversations of two individuals. When the Federal Bureau of Investigation (FBI) questioned McTiernan about Pellicano's activities, McTiernan claimed that he knew nothing about any wiretapping.

But the FBI had obtained a digital recording that Pellicano had made -- unbeknownst to McTiernan -- of a telephone conversation in which the two men discussed an illegal wiretap. (The wiretap-requester got wiretapped. Karma, people.)

Busted, McTiernan pleaded guilty to one count of making a material false statement to the FBI.

Before he was sentenced, McTiernan hired a new attorney who convinced him to seek the withdrawal of his guilty plea, which the district court eventually allowed. McTiernan was indicted again, this time on two counts of making a material false statement to the FBI and one count of making a false statement to the district court during his guilty-plea hearing.

(The latter charge was based on the fact that, during McTiernan's guilty-plea hearing, he told the district court that his attorney had not advised him what to say at the hearing, but he later signed a declaration in connection with his plea withdrawal stating that his attorney had coached him and gave him specific wording to use to avoid admitting certain facts.)

This time, McTiernan moved to suppress the recording. When the court denied his motion, McTiernan conditionally pleaded guilty to all three counts, reserving his right to appeal the district court's adverse rulings. He was sentenced to 12 months' imprisonment and ordered to pay a $100,000 fine. Monday, the Ninth Circuit Court of Appeals affirmed his conviction.

McTiernan's primary argument on appeal was that the district court erred in denying his motion to suppress the recording because Pellicano made the Recording in violation 18 U.S.C. § 2511(2)(d), which prohibits anyone from intercepting an oral communication "for the purpose of committing any criminal or tortious act." Unlike the Fourth Amendment, federal wiretapping laws exclude "evidence obtained by entirely private misconduct. The limitation on use turns on improper interception ... regardless of whether the interception was governmental or private."

But who has the burden of proving that the recording was made for a criminal or tortious act? This week, the Ninth Circuit joined the six appellate circuits that have previously ruled on the issue, and held that the burden lies with the defendant.

The Ninth Circuit agreed with the district court's reasoning that, "There is no evidence that the recording was to be used for a criminal or tortious act independent of the very criminal acts described in the recording itself. Shielding defendants from their own self-made evidence of their crimes cannot be what Congress intended."

Yippee-ki-yay, John McTiernan.


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