Detective Seeks Nullification of His Conviction
For the last two years, FBI computer specialists have been combing through the equivalent of nearly 2 billion double-spaced pages of text, enough to fill 245 rooms measuring 10-by-12-by-10 feet.
Those computer files were seized during a raid on the Sunset Strip offices of famed private detective Anthony Pellicano. Also confiscated were two hand grenades and a quantity of C4 plastic explosives, resulting in a 30-month federal prison sentence for Pellicano.
Although the contents of the files have not been disclosed, they may be relevant to a pending federal wiretapping probe involving Pellicano, a number of rogue police officers and some big-name entertainment lawyers.
If so, that investigation could be significantly affected when a three-judge panel of the U.S. 9th Circuit Court of Appeals decides on a request by Pellicano’s lawyers to declare the search illegal, suppress the seized evidence and overturn his conviction.
A hearing is set for Thursday in Pasadena, but any ruling could be months away.
In legal briefs filed with the court, defense attorney Donald Re charged that the warrant authorizing the search and seizure was unconstitutionally overbroad, requiring FBI agents to examine every file, regardless of relevance.
“Effectively, there was no limitation on what was seized, reviewed, read and maintained by the government,” Re said. “Every business file, personal file, irrelevant musing on the computers was taken and reviewed in detail. This warrant gave the government carte blanche to seize and examine everything, and that is precisely what they did.”
The crime that brought the FBI to Pellicano’s doorstep was a threat made against a former Times reporter, Anita Busch, in the summer of 2002 while she was researching a story about actor Steven Seagal and a reputed New York mobster.
One morning, Busch found a dead fish and a rose planted on the hood of her car, along with a sign reading “Stop.” An informant subsequently led authorities to Alexander Proctor, an ex-convict. During a secretly recorded conversation with the informant, Proctor allegedly admitted that Pellicano had paid him to carry out the threat.
Proctor was charged with violating the Hobbs Act, the federal extortion statute, but prosecutors were forced to drop that case after concluding that the incident did not add up to a crime under the law. The matter was referred to the district attorney’s office, where it remains.
Pellicano was never charged in that episode. However, he was indicted and ultimately pleaded guilty to illegally possessing two military-style hand grenades and some plastic explosives that were discovered in a safe during the FBI search of his office.
In his court papers, defense lawyer Re said U.S. District Judge Dickran Tevrizian, who presided over the weapons case, should have suppressed the evidence used to convict Pellicano because the search was illegal.
FBI Agent Stanley Ornellas, who oversaw the court-authorized seizure, said at the time, “This represents the most data the Computer Analysis Response Team has ever seen in a single case since its formation in 1994.”
Assistant U.S. attorneys Daniel Saunders and Kevin Lally, who are heading the Pellicano investigation, contended in their legal briefs that the search was proper.
Although the FBI agents were authorized to seize all computers and data-storage devices in Pellicano’s office, the search warrant specifically directed them to look for documents that might link Pellicano to Proctor, Seagal, Busch or Ned Zeman, a Vanity Fair writer who also claimed to have been threatened, the prosecutors wrote.
What counts, they argued, is not the volume of material seized but whether search targets were spelled out in sufficient detail.
Even if, for argument’s sake, the warrant was flawed, it still was valid, according to the prosecutors, because the FBI agents relied in good faith on the decision of an independent judge who approved the search.
Re countered, however, that the good-faith rule didn’t apply in this case because the violation was so egregious.
The search warrant’s scope is not the only issue that will come before the appeals court.
Pellicano’s defense team also contends that the prosecution acted in bad faith when it obtained the search warrant on grounds of a possible Hobbs Act violation.
Re cited an earlier ruling by the 9th Circuit Court of Appeals that the Hobbs Act applied only when property was taken from an extortion victim. And that was not the case in the threat against Busch, he argued.
“Higher-ups in the Department of Justice presumably knew the law and decided to ignore it,” the defense lawyer wrote.
He said the federal prosecutors belatedly acknowledged that was the law after the U.S. Supreme Court issued a similar ruling several months after Proctor was indicted.
Defending the indictment, the prosecutors said Proctor was charged with extortion on the theory that he had attempted to “obtain” the right to decide what news stories The Times would publish.
Only after securing approval from supervisors in the U.S. attorney’s office and the Justice Department’s Organized Crime and Racketeering Section in Washington was the Proctor indictment presented to the grand jury, they said.
Saunders and Lally also contended that the 9th Circuit ruling on the federal extortion statute was ambiguous and open to varying interpretations, a claim disputed by Re.
A third issue before the appeals court revolves around whether Congress used its authority to tax or regulate interstate commerce when it made it a crime for individuals to possess unregistered explosive devices.
The defense contends that Congress has no jurisdiction over homemade explosive devices not intended for sale, such as the modified military practice grenades that Pellicano kept in his office safe.
The grenades had been turned into potentially lethal weapons by packing glue-like plugs into vent holes and filling the insides with explosive powder.
Prosecutors argue that Congress was using its taxing power and that the law was enacted as an amendment to the Internal Revenue Code.
Also, they say, Pellicano gave up his right to contest the issue when he pleaded guilty during his trial in 2003.
Pellicano, who is serving his sentence at a federal correctional facility in Tracy, Calif., is scheduled to be released in February 2006, barring a victory in his appeal.