United States v. McTiernan

To merit suppression of a recording under 18 U.S.C. §§ 2511(2)(d) and 2515, a defendant must prove by a preponderance of the evidence that a recording was made for criminal or tortious purposes, and not merely for recordkeeping or other non-criminal reasons.

John McTiernan hired Anthony Pellicano to wiretap illegally two telephones. McTiernan told the FBI that he had no knowledge of the recordings, but amended his story when the FBI produced Pellicano’s recording of their discussion of the wiretapping. McTiernan entered a plea agreement charging him with making a false statement to the FBI. Shortly before his sentencing hearing, McTiernan hired a new attorney and moved to withdraw his guilty plea and suppress the recording. The district court denied the motion and sentenced McTiernan. He appealed, claiming his first attorney did not inform him of a potential basis to suppress the recording. The Court vacated the judgment and the district court held a full evidentiary hearing to determine if a fair and just reason existed for McTiernan to withdraw his plea. Subsequently, the district court ordered the guilty plea withdrawn. McTiernan was reindicted on three counts of false statements to the FBI and the district court. He moved to suppress evidence, to request an evidentiary hearing, and to recuse the district court judge. The district court denied all three motions. A second guilty plea agreement was reached, and McTiernan appealed that conviction. On the second appeal, McTiernan argued that the recording should have been suppressed because it was obtained for the purpose of committing a “criminal or tortious act.” The Court disagreed, concluding that McTiernan failed to prove by a preponderance of the evidence that the recording was made for an illegal purpose. The Court also determined that it was unnecessary to hold an evidentiary hearing, because McTiernan proved that Pellicano made the recording for recordkeeping purposes. In addition, a high level of bias and animus is required to recuse a judge, and that level was not met. AFFIRMED.