A federal appeals court has refused to grant Die Hard director John McTiernan’s motion to suppress an audio recording of a conversation he had with celebrity sleuth Anthony Pellicano and recuse U.S. District Judge Dale Fischer, who had denied his request to withdraw an earlier plea deal, from his criminal case.
McTiernan had argued for reversal on both grounds after being sentenced in October 2010 to 12 months in federal prison. His case was linked to the expansive investigation against Pellicano, who was convicted in 2008 on 78 counts including illegal wiretapping, wire fraud, identity theft and bribery. Pellicano is serving a sentence of 15 years in prison. On August 13, Fischer denied his bid to be released from prison while he pursues his appeals.
Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, declined to comment about the ruling, issued on August 20 by the U.S. Court of Appeals for the Ninth Circuit, beyond saying that federal prosecutors were “pleased with the decision.” McTiernan’s attorney, Charles Sevilla of the Law Office of Charles Sevilla in San Diego, did not return a call for comment.
McTiernan, whose credits also include Rollerball and Predator, hired Pellicano in 2000 to illegally wiretap two individuals, according to the Ninth Circuit’s opinion. McTiernan at first denied that he was aware of Pellicano’s wiretapping during his divorce, but pleaded guilty in 2006 to one count of making a false statement to the FBI after investigators obtained a recording of a telephone conversation in which he discussed wiretapping with Pellicano. He admitted that he had paid Pellicano $50,000 to illegally wiretap two individuals, including producer Charles Roven.
McTiernan, who had been represented by John Carlton of Medrano & Carlton in Los Angeles, then changed attorneys. His new attorney, S. Todd Neal, a partner at San Diego’s Procopio, Cory, Hargreaves & Savitch, moved to withdraw McTiernan’s guilty plea before sentencing, citing ineffectiveness by Carlton in failing to obtain discovery before he entered the deal or to advise him that he could have sought to suppress the recording. Fischer denied that request and sentenced McTiernan to four months in prison and a $100,000 fine.
In 2008, the Ninth Circuit reversed, concluding that Fischer should have held an evidentiary hearing on McTiernan’s reasons for withdrawing his plea deal.
On remand, McTiernan moved to recuse Fischer. She denied the suppression motion and U.S. District Judge Terry Hatter, to whom the matter was referred, denied the recusal request.
Meanwhile, federal prosecutors, who dropped their opposition to McTiernan’s withdrawal request, prompting the plea deal to be withdrawn, indicted the director on two counts of making false statements to the FBI and one count of making a false statement to the court during his plea hearing — specifically, that his previous attorney had not advised him about what to say. McTiernan moved to suppress the recording again and recuse Fischer, both of which were denied.
In 2010, McTiernan agreed to plead guilty to all three counts as long as he could appeal both rulings. He was sentenced to a year in prison plus three years of supervised release and ordered to pay a $100,000 fine.
In its recent order, the Ninth Circuit rejected McTiernan’s suppression motion. The panel concluded that he had not proven that Pellicano made the recording, which served as a to-do list for him, “for the purpose of committing any criminal or tortious act” as required under federal wiretapping laws. The panel said that “a reminder list is not an integral part of the execution of an illegal wiretap.”
“The Ninth Circuit has not previously ruled on a defendant’s evidentiary burden under these circumstances, but every other circuit to consider the issue has reached the same conclusion as the Seventh Circuit,” wrote Sixth Circuit Judge Ronald Lee Gilman, sitting by designation. “We see no reason why the Ninth Circuit should deviate from this consensus, and thus hold that the burden was on McTiernan to prove by a preponderance of the evidence that the Recording at issue was made for a criminal or tortious purpose.”
The panel also denied McTiernan’s request for an evidentiary hearing on the suppression motion and his appeal of the two denials to recuse Fischer. McTiernan had argued that Fischer directed several hostile remarks at him during court proceedings. In particular, before denying McTiernan’s motion to withdraw his guilty plea in 2007, Fischer said McTiernan is “clearly willing to lie whenever it suits his purpose, whether or not he has been advised of the ramifications of doing so.…[A]nd he is either lying to this Court now or he lied when signing the plea agreement and entering his plea in open court,” according to the opinion.
“These statements, however, do not demonstrate that Judge Fischer had a deep seated animus toward McTiernan, but only that she acquired ‘an attitude of disapproval’ toward him because of his known conduct — specifically, his lies to federal officers. He did, after all, later plead guilty to two charges of lying to the FBI and to one charge of lying to the court,” Gilman wrote.
Contact Amanda Bronstad at firstname.lastname@example.org.