The 9th Circuit Court of Appeals has rejected an appeal by Die Hard director John McTiernan over a judge's decision not to supress a digital recording where he discusses with private investigator Anthony Pellicano an illegal wiretap.
McTiernan conditionally pleaded guilty to making false statements to the FBI about hiring Pellicano to wiretap The Dark Knight Rises producer Chuck Roven, with whom McTiernan worked on the film Rollerball.
On Monday, the 9th Circuit rejected an appeal in the case, meaning that McTiernan might soon serve 12 months in prison, pay a $100,000 fine, and then face three years of supervised release.
The case against McTiernan has bounced around in the five years since the famous director was first indicted.
At first, McTiernan said his involvement with Pellicano was very limited, but then, presented with an incriminating Pellicano tape that showed that he had hired the private eye to spy on two individuals, he pled guilty.
But then McTiernan hired new lawyers, who convinced him to withdraw his plea and file a motion for the supression of the evidence. When the case went before the 9th Circuit for the first time four years ago, the appellate court ruled the director may have gotten bad legal advice from his old lawyers and allowed him to withdraw the plea.
McTiernan was indicted again, and after failing on his motion to supress the evidence, he conditionally pled guilty as he pursued an appea. He arguedl that Judge Dale Fischer should have granted his motion and recused herself.
On appeal, McTiernan contended that the recording of his taped conversation with Pellicano should have been supressed because it represented a "to do" list for Pellicano, that it was “for the purpose of committing a criminal or tortious act” -- and to prove such an assertion, he relied upon the opening statement that Pellicano made in his own criminal trial.
In response, the government said that Pellicano's testimony was unreliable because he was a criminal and also that "shielding defendants from their own self-made evidence of their crimes is not what Congress intended in enacting" a law governing the use as evidence of intercepted wire communications.
The 9th Circuit has now agreed with the lower court and the government, finding that "recording a conversation for the purpose of creating a reminder list is not an integral part of the execution of an illegal wiretap and thus is not made 'for the purpose of committing any criminal or tortious act.'"
The appeals court also has rejected McTiernan's arguments that Judge Fischer should have recused herself after allegedly making a series of hostile comments towards him in court proceedings and repeatedly denying his motions to suppress those recordings. The 9th Circuit says that statements, including one where the judge said that McTiernan "is clearly willing to lie whenever it suits his purpose," don't demonstrate a "deep-seated animus" nor had any "negative effect on his ultimate sentence."
The lower court decision has now been affirmed.
Barring any further appeal to the U.S. Supreme Court, McTiernan, who has been free on bail, will begin to serve his sentence.
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
