Illegal Wiretaps, Wire Fraud, Computer Fraud, and Perjury—Hollywood

Sandra Carradine, the ex-wife of Keith Carradine, has pleaded guilty to perjury for lying to a federal grand jury in Hollywood.^[1] In addition, Craig Stevens, a 24-year veteran of the Beverly Hills Police Department, pleaded guilty to the federal crimes of wire fraud and computer fraud.^[2]

The pleas come in a case that centers on private investigator Anthony Pellicano and allegations that he illegally installed wiretaps on behalf of his clients.^[3] Mr. Pellicano himself is serving a 30-month federal prison sentence on somewhat unrelated charges of possessing illegal weapons (practice grenades which had been modified to function correctly as well as C-4 explosives)^[4] and it is believed that “prosecutors want to turn up the heat so [Mr.] Pellicano will implicate former clients who either knew of or directed the illegal wiretapping.”^[5] It also threatens to embroil “one of Los Angeles’ most prominent entertainment attorneys, Bert Fields.”^[6]

The case has been under investigation for 3 years, and Ms. Carradine was accused of—and ultimately pleaded guilty to—lying to a grand jury when she told them that she had nothing to do with Mr. Pellicano putting wiretaps on Mr. Carradine’s phone.^[7] However, she admitted that she was being untruthful with the grand jury, and the purpose was, according to her attorney, solely “to determine where to file a civil case” for child support.^[8]

The case against Mr. Stevens is potentially far more significant. He has pleaded guilty to accessing confidential law enforcement databases for Mr. Pellicano^[9] and funneling the information to Mr. Fields’ firm.^[10]

Ms. Carradine is facing a fine and up to 10 years in prison, while Mr. Stevens is facing a fine and up to 35 years in prison. Both, however, are believed to have cooperated which could reduce their sentence as we discussed a couple of weeks ago.

The quirky thing about this case is that the public discourse about it focuses on illegal wiretaps. These wiretaps are not conducted under the Foreign Intelligence Surveillance Act^[11], which has been in the news recently. Instead, the wiretaps in this case would be conducted under the Electronic Communications Privacy Act [hereinafter ECPA].^[12]

Under ECPA, it is a crime for a person to intentionally intercept, or procure any other person to intercept, any wire, oral, or electronic communication.^[13] It is also a crime for a person to intentionally use, or procure someone else to use, any electrical, mechanical, or other device to intercept any oral communication when that device is affixed to a wire or cable used in wire communication.^[14]

However, it is not a violation of ECPA if a person, not acting under color of law, intercepts a wire, oral, or electronic communication where that person is a party to the communication, or where one of the parties to the communication has given prior consent to the communication, unless the interception is done for the purpose of committing any criminal or tortious act.^[15]

Therefore, taking Ms. Carradine for example, if the wiretap was placed in her home and it recorded her conversations with Mr. Carradine, that would not be a violation of ECPA, unless the interception was done, as noted in the footnotes, to commit extortion or blackmail.^[16]

Where it could be a problem is if the wiretap recorded conversations to which Ms. Carradine was not a party, as hinted at by her attorney: “[S]oon it became clear that [Mr. Pellicano] did everything that Richard Nixon did – he taped everyone, including himself.”^[17] In that case, neither party would have consented to having their communications intercepted. Another potential issue is where the wiretap was placed. If it was not placed in Ms. Carradine’s house, but rather in Mr. Carradine’s house, that could be an issue for any communications not with Ms. Carradine.

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[1] Jesse Hiestand, Actress, Cop Plead Guilty in Pellicano Plot, Reuters, Jan. 11, 2006.
[2] Id.
[3] Id.
[4] Greg Kirkorian, Plot Thickens in the Case of the Tainted Detective, LA Times, Jan. 11, 2006.
[5] Hiestand, supra note 1.
[6] Kirkorian, supra note 4.
[7] Greg Risling, Two Plead Guilty in Wiretapping Probe Associated Press (via Houston Chronicle), Jan. 10, 2006.
[8] Kirkorian, supra note 4.
[9] Hiestand, supra note 1.
[10] Kirkorian, supra note 5.
[11] 50 U.S.C. § 1801 et seq.
[12] 18 U.S.C. § 2510 et seq.
[13] Id. § 2511(1)(a).
[14] Id. § 2511(1)(b)(i).
[15] Id. § 2511(2)(d). The “criminal acts” component tends to be interpreted as forbidding the interception of communications for the purposes of blackmail or blackmail. See generally, United States v. Zarnes, 33 F.3d 1454 (7th Cir. 1994); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993).
[16] See Clemons v. Waller, No. 02-5342 at *10 (6th Cir. 2003).
[17] Kirkorian, supra note 4.