A federal appeals court on Thursday upheld the illegal weapons conviction of famed private investigator Anthony Pellicano, ruling that an FBI search of his Sunset Strip offices was conducted in good faith.
The 2-1 decision appeared to lift a legal cloud from a pending federal investigation into allegations that Pellicano also engaged in illegal wiretapping on behalf of his high-powered entertainment industry clients.
Donald Re, Pellicano’s defense attorney, said Thursday that all of the evidence against his client was derived from a search warrant “which cited conduct that wasn’t a crime” under federal law.
He said he would immediately seek a rehearing by an expanded panel of the U.S. 9th Circuit Court of Appeals.
Pellicano is serving a 30-month prison sentence for illegally possessing two hand grenades and a quantity of plastic explosives. He is scheduled to be released in February.
Assistant U.S. Atty. Daniel Saunders, who has been directing the Pellicano investigation, said he was pleased with Thursday’s ruling.
The broad-based Pellicano probe, which shook Los Angeles’ top legal and entertainment circles, is an outgrowth of a bizarre threat made against a former Los Angeles Times reporter, Anita Busch, in 2002. Busch was researching a story about actor Steven Seagal and a reputed New York mobster when one morning she walked out to her car and discovered a dead fish and a rose on the hood. The objects were accompanied by a sign that read: “Stop.”
An informant led investigators to an ex-convict named Alexander Proctor. During a secretly recorded conversation with the informant, Proctor allegedly admitted that Pellicano paid him to carry out the threat.
Proctor was charged with violating the federal Hobbs Act, the federal extortion statute. Citing the same law, the FBI obtained a warrant from a U.S. magistrate judge to search Pellicano’s offices, and seized both the weapons, in the office safe, and the detective’s computerized files.
For more than two years, FBI computer experts have been combing through those files, which the FBI estimated would produce 2 billion pages of double-spaced text if downloaded and printed, presumably looking for evidence to help build a wiretapping case. The alleged wiretapping may involve attorneys, rogue police officers and a corrupt telephone company employee. Saunders has declined to discuss the investigation.
Several weeks after the search, however, the U.S. Supreme Court issued a ruling that overruled the use of the Hobbs Act in cases like the Busch threat. As a result, the U.S. attorney’s office dropped the extortion case against Proctor, although he was convicted on unrelated narcotics charges.
No action was taken against Pellicano in connection with the threat against Busch. However, the famed private eye pleaded guilty to illegally possessing hand grenades and plastic explosives.
In upholding Pellicano’s conviction, the appeals court said Thursday that even if the search warrant was invalid, the search was legitimate because federal agents acted in good faith with the approval of a magistrate judge.
Re, however, contended that the 9th Circuit long before had restricted use of the Hobbs Act. Consequently, he said, the search warrant should not have been issued in the first place.
The majority opinion by judges Diarmuid F. O’Scannlain and Richard Clifton said that Re misinterpreted the earlier circuit court decision.
The appeals court also dismissed Re’s claim that the search warrant was overly broad because it allowed the FBI to confiscate all of Pellicano’s files. The judges said the warrant was sufficiently specific to pass muster.
Judge Stephen Reinhardt dissented from Thursday’s majority opinion, writing that it was inconceivable that high-level officials in the U.S. attorney’s office and the Justice Department were unaware of the potential problem with the Hobbs Act when they approved the FBI’s search warrant affidavit.
The FBI, he said, should have advised the magistrate judge of a problem. By failing to do so, he added, it did not act in good faith.
Reinhardt said all the evidence uncovered in the search of Pellicano’s offices should be suppressed and his conviction overturned.