Racketeering—Anthony Pellicano

A few weeks ago, we mentioned that Sandra Carradine and Craig Stevens pleaded guilty to perjury, wire fraud, and computer fraud. At the time, it was expected that Anthony Pellicano would be indicted for his role in allegedly wiretapping people’s phones. That day has arrived.

“Jailed private investigator Anthony Pellicano, an ex-Los Angeles police officer and five others were charged in a federal indictment that outlines a pattern of conspiracy and racketeering to obtain confidential and embarrassing information about dozens of individuals.”^[1] In total, Mr. Pellicano is facing 105 counts of conspiracy, racketeering, computer fraud, interception of wire communications, and possession of a wiretapping device.^[2] According to the indictment, Mr. Pellicano “paid bribes to corrupt public officials.”^[3]

The interesting charge is the possession of a wiretapping device charge. Under 18 U.S.C. § 2512(1)(b), it is a crime for a person to possess any “electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications,” and knowing that the device has been sent through the mail or transported in interstate of foreign commerce. The punishment for a violation of this statute is a fine, imprisonment for not more than 5 years, or both.

The ban on such devices has been controversial because section 2511 allows interception of communications where one party to the conversation has consented. And it seems counterintuitive to ban a pen or a sham wall outlet that can hide a microphone but not a microphone attached to one end of a telephone, or hidden in a flower pot. However, constitutional challenges to the law have failed, mainly because “the ‘primary’ use of an item may be discernable in part from where it is sold and how it is marketed.”^[4] Thus, a listening device sold at the Spy Factory is seen as violating the law whereas a similar device sold at Radio Shack is not.^[5] According to a 1978 case, Congress intended to ban such devices as martini olive transmitters, spike mikes, and microphones disguised as wrist watches and fountain pens, without banning other, more legitimate devices, even if they are small or may be used for wiretapping.^[6]

Therefore, the government must, to secure a conviction for a violation of section 2512(1)(b), show

1. that the person possessed the device;
2. that the person knew or had reason to know that the device was primarily useful for the purpose of surreptitious interception of communications; and
3. that the person knew that the device was either sent through the mail, or was transported in interstate or foreign commerce.

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[1] Greg Krikorian, Pellicano Indicted on Racketeering Charges, LA Times, Feb. 6, 2006.
[2] Christina Almeida, Private Eye to the Stars Indicted, Associated Press (via The Guardian), Feb. 6, 2006.
[3] Id.
[4] See United States v. Spy Factory, 951 F. Supp. 450, 477 (S.D.N.Y. 1997).
[5] Id.
[6] Untied States v. Schweihs, 569 F.2d 965, 968 (5th Cir. 1978).