FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-50500 Plaintiff-Appellee,

D.C. No.

v.  2:06-cr-00259-DSF

JOHN McTIERNAN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

July 13, 2012—Pasadena, California

Filed August 20, 2012

Before: Ronald Lee Gilman,* Richard C. Tallman, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Gilman

*The Honorable Ronald Lee Gilman, Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

9449
COUNSEL

Charles M. Sevilla (argued), Law Office of Charles Sevilla,

San Diego, California; S. Todd Neal, Procopio, Cory, Hargreaves & Savitch, LLP, San Diego, California, for the

defendant-appellant.

Jean-Claude André, Assistant U.S. Attorney, Los Angeles,

California, for the plaintiff-appellee.

OPINION

GILMAN, Circuit Judge:

John McTiernan, a famous Hollywood movie director,

hired former private investigator Anthony Pellicano in 2000

to illegally wiretap the telephone conversations of two individuals. Six years later, when the Federal Bureau of Investigation (FBI) questioned McTiernan about Pellicano’s activities,

McTiernan claimed that he knew nothing about any wiretapping. But the FBI had obtained a digital recording (the

Recording) that Pellicano had made—unbeknownst to

McTiernan—of a telephone conversation in which the two

men discussed an illegal wiretap. Caught red-handed, McTier9452 UNITED STATES v. McTIERNAN
nan pleaded guilty to one count of making a material false

statement to the FBI.

Shortly thereafter, McTiernan engaged new counsel who

convinced him to seek the withdrawal of his guilty plea,

which the district court eventually allowed. McTiernan was

indicted again, this time on two counts of making a material

false statement to the FBI and on one count of making a false

statement to the district court during his guilty-plea hearing.

His motions to suppress the Recording and to recuse United

States District Judge Dale S. Fischer were denied. McTiernan

then conditionally pleaded guilty to all three counts, reserving

his right to appeal the district court’s adverse rulings. He was

sentenced to 12 months’ imprisonment and ordered to pay a

$100,000 fine. For the reasons set forth below, we AFFIRM

the judgment of the district court.

I. BACKGROUND

This case returns to us for a second time. In the first decision, the undisputed facts were summarized as follows:

On February 13, 2006, McTiernan was interviewed by telephone by Special Agent Stanley

Ornellas of the Federal Bureau of Investigation

(“FBI”) in connection with an investigation into former private investigator Anthony Pellicano’s use of

illegal wiretapping. Ornellas asked whether McTiernan had knowledge of Pellicano’s wiretapping activities and [whether he] had previously discussed

wiretapping with Pellicano. In response, McTiernan

stated that he had never discussed wiretapping with

Pellicano, that Pellicano had never mentioned his

ability to wiretap telephone calls, and that he had

used Pellicano’s services only once, in connection

with his divorce.

The responses made to Special Agent Ornellas’

inquiries were false. McTiernan later admitted that

UNITED STATES v. McTIERNAN 9453
he had hired Pellicano in or around August 2000 and

paid him at least $50,000 to conduct an illegal wiretap of two individuals, one of whom was Charles

Roven, the producer of a movie that McTiernan was

then directing. Pellicano installed the wiretaps, listened to the subjects’ business and personal telephone calls, and reported their contents to

McTiernan.

Several weeks after Ornellas interviewed McTiernan, the government contacted McTiernan and suggested that he retain . . . an attorney. On March 4,

2006, McTiernan retained the services of John Carlton, Esq. On March 16, 2006, McTiernan met with

Carlton and the government regarding McTiernan’s

statements to Special Agent Ornellas. At that meeting, the government revealed its evidence of discussions between McTiernan and Pellicano regarding

the wiretapping. The evidence included a digital

recording that Pellicano had made of a telephone

conversation between himself and McTiernan (the

“Recording”). The Recording, which was made on

August 17, 2000, was recovered by the FBI from

Pellicano’s computer pursuant to a search warrant in

the related investigation and prosecution of Pellicano, who was charged with over one-hundred Racketeer Influenced and Corrupt Organizations (RICO)

Act violations, bribery of police officers, and

wiretapping. In the Recording, Pellicano informed

McTiernan, who at that time was directing a movie

in Canada, that he had intercepted “tons of stuff” and

that he could not “even listen to all of them.”

McTiernan instructed Pellicano to focus on instances

where the producer was “saying one thing to the studio and saying something else to others,” and said

that catching the producer “bad mouthing” the “studio guys” would “really be useful.”

9454 UNITED STATES v. McTIERNAN
On March 24, 2006, McTiernan entered into a

written plea and cooperation agreement with the

government, in which he agreed to plead guilty to a

forthcoming information charging him with making

a false statement [to an FBI agent] in violation of 18

U.S.C. § 1001(a)(2). . . .

. . . .

On April 17, 2006, . . . . the district court conducted McTiernan’s Rule 11 [of the Federal Rules of

Criminal Procedure plea] hearing. . . .

The court [ ] questioned McTiernan about his

attorney’s representation and read aloud the stipulated factual basis from McTiernan’s plea agreement. McTiernan confirmed that he and his attorney

had discussed his case candidly and that his attorney

had considered and advised McTiernan as to the

existence of any possible defenses. McTiernan also

confirmed that he understood the consequences of

his plea and that he was competent to make the plea.

He then allocated [sic] to the facts, admitting that he

knowingly made false statements to the FBI agent.

United States v. McTiernan, 546 F.3d 1160, 1163-64 (9th Cir.

2008). 

The district court also asked McTiernan whether Carlton,

his attorney, had advised him on how he should answer any

of the court’s questions during the plea hearing. McTiernan

told the court: “No, he did not, ma’am.” Satisfied with

McTiernan’s answers during the plea hearing, the court

accepted his guilty plea. 

Two months later, and “eleven days before McTiernan was

scheduled to be sentenced, S. Todd Neal, Esq. [ ], advised the

government that he would be substituted for Carlton as

UNITED STATES v. McTIERNAN 9455
McTiernan’s new counsel.” Id. at 1164. McTiernan’s sentencing was continued so that Neal could properly prepare for the

hearing. Two months later, McTiernan filed a motion to withdraw his guilty plea, indicating that he would seek to suppress

the Recording if given the opportunity. As detailed by this

court’s decision on his previous appeal,

McTiernan claimed that he was entitled to withdraw

his plea because his former counsel had provided

ineffective assistance. Specifically, McTiernan

claimed that his former counsel (1) failed to obtain

any discovery materials from the government prior

to the time McTiernan entered his pre-indictment

plea; and (2) failed to advise him that he could have

sought to suppress the Recording on the ground that

the Recording was made by Pellicano without

McTiernan’s knowledge and consent and for an

allegedly “criminal or tortious purpose,” in violation

of Title III and 18 U.S.C. § 2515. . . .

On September 24, 2007, the district court held a

hearing on McTiernan’s motion to withdraw his

guilty plea. The court denied the motion, immediately proceeded to sentencing, and sentenced

McTiernan to a term of imprisonment of four

months, to be followed by a two-year period of

supervised release. The district court further ordered

that McTiernan pay a $100,000 fine and a $100 special assessment.

Id. at 1165.

McTiernan appealed, claiming that he should have been

allowed to withdraw his guilty plea because his attorney at the

time of his plea never informed him of the potential basis to

suppress the Recording, the key evidence against him. Id. at

1167. This court determined that the district court had erred

by not holding an evidentiary hearing to determine if McTier9456 UNITED STATES v. McTIERNAN
nan could establish a fair and just reason to withdraw his plea.

Id. at 1167-69. Accordingly, the district court’s judgment was

vacated and the case remanded for a full evidentiary hearing

on this issue. Id. at 1169.

Upon remand, McTiernan filed a motion requesting that

Judge Fischer recuse herself from the remaining case proceedings. The motion was referred by random assignment to

United States District Court Judge Terry Hatter, who denied

the motion. At this point the government dropped its opposition to McTiernan’s motion to withdraw his guilty plea, and

the district court ordered the plea withdrawn.

No longer bound by a plea agreement, the government

reindicted McTiernan on two counts of making a false statement to the FBI (one count for claiming that he had hired Pellicano only in connection with his divorce proceedings and

the other for denying that he had ever discussed wiretapping

with Pellicano), both in violation of 18 U.S.C. § 1001(a)(2),

and on one count of making a false statement to the district

court during his guilty-plea hearing, in violation of 18 U.S.C.

§ 1623(a) and (c). The latter charge was based on the fact that,

during McTiernan’s guilty-plea hearing, he told the district

court that his attorney had not advised him what to say at the

hearing, but he later signed a declaration in connection with

his plea withdrawal stating that his attorney had coached him

and gave him specific wording to use to avoid admitting certain facts.

Following his reindictment, McTiernan moved to suppress

the Recording under 18 U.S.C. §§ 2511(2)(d) and 2515 and

requested that the district court hold an evidentiary hearing on

the motion. Both his motion and his request for a hearing

were denied. He then once more moved for Judge Fischer’s

recusal, a request again denied by Judge Hatter.

After his motions were denied, McTiernan and the government reached a second plea agreement. The government

UNITED STATES v. McTIERNAN 9457
promised to seek a sentence of no more than 12 months’

imprisonment in exchange for McTiernan entering a conditional guilty plea that reserved his right under Rule

11(a)(1)(2) of the Federal Rules of Criminal Procedure to

appeal the adverse rulings of the district court. This second

plea agreement was accepted by the district court, after which

McTiernan was sentenced to a below-the-Guidelines term of

12 months in prison, a total fine of $100,000, and 3 years of

supervised release. This timely appeal followed.

II. ANALYSIS

A. Suppression of the recorded telephone conversation

McTiernan’s primary argument is that the district court

erred in denying his motion to suppress the Recording. When

a district court denies a motion to suppress, we review de

novo its conclusions as to questions of law and mixed questions of law and fact. United States v. Caseres, 533 F.3d 1064,

1067 (9th Cir. 2008). Any factual findings made by the district court in ruling on the motion are reviewed under the

clear-error standard. Id.

[1] Under 18 U.S.C. § 2515, “[w]henever any wire or oral

communication has been intercepted, no part of the contents

of such communication and no evidence derived therefrom

may be received in evidence in any trial . . . if the disclosure

of that information would be in violation of” 18 U.S.C.

§§ 2510 through 2522. McTiernan contends that the Recording should have been suppressed pursuant to § 2515 because

Pellicano made the Recording in violation 18 U.S.C.

§ 2511(2)(d), which prohibits anyone from intercepting an

oral communication “for the purpose of committing any criminal or tortious act.” Unlike the Fourth Amendment, § 2515

excludes “evidence obtained by entirely private misconduct.

The limitation on use turns on improper interception . . .

regardless of whether the interception was governmental or

9458 UNITED STATES v. McTIERNAN
private.” Chandler v. U.S. Army, 125 F.3d 1296, 1298 (9th

Cir. 1997) (citation omitted).

[2] To merit suppression under §§ 2511(2)(d) and 2515, a

defendant must prove by a preponderance of the evidence that

the recording at issue was made for an unlawful purpose.

United States v. Zarnes, 33 F.3d 1454, 1469 (7th Cir. 1994).

The Ninth Circuit has not previously ruled on a defendant’s

evidentiary burden under these circumstances, but every other

circuit to consider the issue has reached the same conclusion

as the Seventh Circuit. See United States v. Cassiere, 4 F.3d

1006, 1021 (1st Cir. 1993) (holding that the burden was on

the defendant to prove by a preponderance of the evidence

that the recording at issue was made for criminal or tortious

purposes); United States v. Dale, 991 F.2d 819, 841 (D.C. Cir.

1993) (per curiam) (same); Traficant v. Comm’r of IRS, 884

F.2d 258, 266 (6th Cir. 1989) (same); United States v.

Truglio, 731 F.2d 1123, 1131 (4th Cir. 1984) (same), overruled on other grounds by United States v. Burgos, 94 F.3d

849 (4th Cir. 1996) (en banc); United States v. Ruppel, 666

F.2d 261, 271 (5th Cir. Unit A 1982) (same); United States v.

Phillips, 540 F.2d 319, 327 (8th Cir. 1976) (same). We see no

reason why the Ninth Circuit should deviate from this consensus, and thus hold that the burden was on McTiernan to prove

by a preponderance of the evidence that the Recording at

issue was made for a criminal or tortious purpose.

McTiernan asserts that he proved by a preponderance of the

evidence that the Recording was made “for the purpose of

committing a[ ] criminal or tortious act” because he presented

evidence that Pellicano made the Recording as part of a

recordkeeping process in support of Pellicano’s “far-reaching

criminal enterprise.” As his principal evidence of Pellicano’s

purpose, McTiernan cited the opening statement that Pellicano made (in the third person) while representing himself at

his own trial:

Mr. Pellicano, during the course of his endeavors

and work, would have a minimum of 50 phone calls

UNITED STATES v. McTIERNAN 9459
a day. And during that—during those phone calls

there would be calls from people that he was investigating, from clients and other individuals that he

needed to keep constant contact with. 

Now, he decided to record those conversations for

—you know, for his inventory; for safekeeping; for,

in effect, to remind himself of what he needed to do

and what a client professed a need to have, and

thought, well, the best way to do that is . . . to record

those conversations in an encrypted fashion so that

no one else but Mr. Pellicano could listen to those

recordings ever.

Pellicano was subsequently convicted on 78 separate counts

relating to his widespread illegal wiretapping activities. The

specific charges involved identity theft, wire fraud, bribery,

and unauthorized access of protected computer databases. 

McTiernan argues that the Recording was “for the purpose

of committing a[ ] criminal or tortious act” because it served

as a reminder of the illegal acts that Pellicano intended to

commit. The government responds by contending that Pellicano’s opening statement is not credible evidence and is

therefore insufficient to prove Pellicano’s purpose in making

the Recording. Although the district court acknowledged the

“questionable” evidentiary value of the opening statement, it

assumed for the purposes of its ruling that McTiernan had

demonstrated that the Recording was made as a part of Pellicano’s effort to create a digital “to do” list of criminal tasks.

The court nonetheless determined that such a purpose was not

criminal or tortious, explaining:

There is some evidence that Pellicano kept the phone

recordings of his conversations to remind himself of

“things he needed to do.” However, even assuming

that the “things he needed to do” were criminal or

tortious in some way, the Court rejects the proposi9460 UNITED STATES v. McTIERNAN
tion that this alone demonstrates that the recordings

were made for the purpose of committing a criminal

act. [McTiernan’s] definition of “for the purpose of

committing a criminal or tortious act” would include

virtually any recording related to a criminal act made

by one of the criminal participants because such a

recording could always be construed as “recordkeeping” under [McTiernan’s] excessively broad definition. There is no evidence that the Recording was to

be used for a criminal or tortious act independent of

the very criminal acts described in the Recording

itself. Shielding defendants from their own selfmade evidence of their crimes cannot be what Congress intended in enacting § 2515.

(Citation and footnotes omitted.)

We find the district court’s analysis persuasive. Like the

district court, we need not determine whether the opening

statement is sufficient evidence of Pellicano’s purpose in

recording his conversation with McTiernan because even if

the Recording was a “to do” list of criminal activities as

McTiernan asserts, it was not made “for the purpose of committing any criminal or tortious act.”

[3] The Ninth Circuit has never previously addressed this

specific issue, but we have held that “the focus [of the

inquiry] is not upon whether the interception itself violated

another law; it is upon whether the purpose for the

interception—its intended use—was criminal or tortious.”

Sussman v. Am. Broad. Cos., 186 F.3d 1200, 1202 (9th Cir.

1999) (internal quotation marks omitted) (emphasis in original). For § 2511(2)(d) to apply, the recording must have been

“done for the purpose of facilitating some further impropriety,

such as blackmail.” Id.

[4] In a civil action involving a claim of invasion of privacy under § 2511, we have also held that, in enacting § 2511,

UNITED STATES v. McTIERNAN 9461
“Congress . . . intended to permit one party to record [a] conversation with another when the recorder is acting ‘out of a

legitimate desire to protect himself.’ ” Moore v. Telfon

Commc’ns Corp., 589 F.2d 959, 966 (9th Cir. 1978) (quoting

114 Cong. Rec. 14694 (May 23, 1968)). Many other circuits

have echoed the reasoning set out in Moore. See United States

v. Cassiere, 4 F.3d 1006, 1021 (1st Cir. 1993) (holding that

the recording of a telephone conversation between coconspirators in which they discussed details of their wire-fraud

scheme was not made for a criminal or tortious purpose when

it was made to prevent future misrepresentations of the conversation); United States v. Dale, 991 F.2d 819, 840-42 (D.C.

Cir. 1993) (affirming the district court’s denial of a motion to

suppress under § 2515 where one coconspirator recorded a

conversation with his coconspirators to prevent later accusations that he had a leadership role in the conspiracy); United

States v. Underhill, 813 F.2d 105, 110 (6th Cir. 1987)

(“Generally, when the purpose of an interception is to make

or preserve an accurate record of a conversation in order to

prevent future distortions by a participant, the interception is

legal.”); By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956,

959-60 (7th Cir. 1982) (concluding that there was no violation

of § 2511(2)(d) when the recording was intended to be used

as evidence of an illegal conspiracy); United States v. Ruppel,

666 F.2d 261, 271 (5th Cir. Unit A 1982) (affirming the district court’s denial of a motion to suppress under § 2515

where the participant recorded the conversation to enhance his

plea-bargaining position); United States v. Phillips, 564 F.2d

32, 34 (8th Cir. 1977) (same as Cassiere).

[5] Unlike the recordings in Moore and the related cases

cited above, Pellicano’s Recording was not made to protect

himself. But Pellicano’s purpose of having a “to do” list was

perhaps even more innocuous. The fact that Pellicano was

recording a conversation in which an illegal enterprise was

discussed is not determinative under § 2511(2)(d) because

Sussman requires that we look to the purpose and not to the

subject matter of the recording. See 186 F.3d at 1202. In other

9462 UNITED STATES v. McTIERNAN
words, the purpose of recording a conversation to create a

reminder list (even a list of illegal acts that are agreed to be

done) is not a criminal or tortious purpose. Such a recording

is not essential to the actual execution of an illegal wiretap,

unlike a recording of a conversation made for the purpose of

blackmailing another person, which directly facilitates the

criminal conduct of blackmail. In sum, recording a conversation for the purpose of creating a reminder list is not an integral part of the execution of an illegal wiretap and thus is not

made “for the purpose of committing any criminal or tortious

act.”

McTiernan, however, cites two district court cases, United

States v. Lam, 271 F. Supp. 2d 1182 (N.D. Cal. 2003), and

United States v. Vest, 639 F. Supp. 899 (D. Mass. 1986),

aff’d, 813 F.2d 477 (1st Cir. 1987), to support the opposite

conclusion—that Pellicano’s recording was done for the purpose of committing criminal or tortious acts. But both cases

are distinguishable.

The recordings in Lam were made by an illegal gambling

operation to serve as proof of telephone bets that the defendant had placed. Although the district court in Lam suppressed the recordings under §§ 2511(2)(d) and 2515, the

question of whether the recordings at issue were made for the

purpose of committing criminal or tortious acts never arose

because the government conceded their illegal purpose. 271 F.

Supp. 2d at 1184. And the district court did not explain the

basis for this concession. We therefore find Lam unpersuasive

on the point at issue.

Vest is also distinguishable from the present case. Defendant George Vest, a police officer, was the middleman in a

bribery conspiracy involving Jesse James Waters and police

officer Frank Tarantino. Waters had shot Tarantino and was

consequently indicted for assault with the intent to commit

murder, among other charges. Not wanting to go to prison,

Waters promised to make a series of cash payments totaling

UNITED STATES v. McTIERNAN 9463
$300,000 to Tarantino in exchange for Tarantino “fixing”

Waters’s trial so that Waters would not be sentenced to a term

of imprisonment. Vest agreed to physically transfer the payments from Waters to Tarantino. But Vest lied when called

before a grand jury, denying that he knew anything about the

bribery scheme.

Unbeknownst to Vest, Waters had tape recorded their conversation when he brought Vest the first payment because “he

wanted to have . . . proof [of the exchange], in case Tarantino

denied receiving the money.” Vest, 639 F. Supp. at 906. After

Waters received a prison sentence despite Tarantino’s promises, Waters had several acquaintances tell Vest that “the tape

would be turned over to the federal authorities if the agreement with Tarantino was not carried out.” Id.

Vest moved to suppress the tape at his subsequent perjury

trial on the ground that Waters made the recording “for the

purpose of a[ ] criminal or tortious act” under § 2511(2)(d).

The district court granted Vest’s motion, finding that Waters’s

intent in making the tape was “to force Tarantino to fulfill his

end of the bargain,” thereby advancing their criminal conspiracy. Id. at 907.

[6] This finding of intent is the key distinction between

Vest and the present case. Waters made his tape recording so

that he could later extort Tarantino, whereas Pellicano made

the Recording simply to remind himself of what he had

agreed to do. Unlike recordkeeping, blackmail in and of itself

is a criminal act, which explains why the court in Vest suppressed the recording. Because there is no assertion that Pellicano had any similar criminal intent in making the Recording

here, we conclude that the district court did not err in denying

McTiernan’s motion to suppress. 

B. Evidentiary hearing

McTiernan alternatively argues that even if we do not

reverse the district court’s denial of his motion to suppress,

9464 UNITED STATES v. McTIERNAN
we should remand for an evidentiary hearing on the issue. A

district court’s decision not to conduct an evidentiary hearing

on a motion to suppress is reviewed under the abuse-ofdiscretion standard. United States v. Quoc Viet Hoang, 486

F.3d 1156, 1163 (9th Cir. 2007).

[7] “An evidentiary hearing on a motion to suppress need

be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial

court to conclude that contested issues of fact exist.” Id.

(internal quotation marks omitted). If an evidentiary hearing

were held in this case, McTiernan asserts that he would call

witnesses to demonstrate that Pellicano made the Recording

for the purpose of having something to remind himself of the

criminal acts he intended to commit. The district court, however, assumed for the purposes of its ruling that McTiernan

had proven that recordkeeping was indeed Pellicano’s purpose in making the Recording, and we do the same. An evidentiary hearing on this point is thus unnecessary. The district

court therefore did not abuse its discretion in declining to hold

an evidentiary hearing.

C. Recusal of Judge Fischer

The final issue that McTiernan raises on appeal is whether

Judge Hatter erred in denying McTiernan’s two motions for

Judge Fischer’s recusal under 28 U.S.C. § 144 and § 455(a).

McTiernan argues that recusal was warranted because Judge

Fischer (1) made a series of hostile comments about him during court proceedings, and (2) repeatedly denied motions to

suppress Pellicano’s recordings under 18 U.S.C.

§§ 2511(2)(d) and 2515 that were brought by McTiernan in

his own proceeding and by another defendant in a related

action before her. Rulings on motions for recusal are reviewed

under the abuse-of-discretion standard. United States v.

Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

[8] “The substantive standard for recusal under 28 U.S.C.

§ 144 and 28 U.S.C. § 455 is the same: Whether a reasonable

UNITED STATES v. McTIERNAN 9465
person with knowledge of all the facts would conclude that

the judge’s impartiality might reasonably be questioned.”

United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.

1997) (per curiam) (brackets and internal quotation marks

omitted). Importantly, “[p]arties cannot attack a judge’s

impartiality on the basis of information and beliefs acquired

while acting in his or her judicial capacity.” United States v.

Frias-Ramirez, 670 F.2d 849, 853 n.6 (9th Cir. 1982). As the

Supreme Court has explained, 

opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion

unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a

trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge.

Liteky v. United States, 510 U.S. 540, 555 (1994); accord

Wilkerson, 208 F.3d at 799 (“To disqualify a judge, the

alleged bias must constitute animus more active and deeprooted than an attitude of disapproval toward certain persons

because of their known conduct.” (internal quotation marks

omitted)). 

McTiernan first argues that Judge Fischer should have been

disqualified from his case because of “hostile” comments that

she made about him in various proceedings and orders. He

points to the following comments made by Judge Fischer in

her September 25, 2007 order that denied McTiernan’s

motion to withdraw his guilty plea:

McTiernan is clearly willing to lie whenever it suits

his purpose, whether or not he has been advised of

the ramifications of doing so. . . . [A]nd he is either

9466 UNITED STATES v. McTIERNAN
lying to this Court now or he lied when signing the

plea agreement and entering his plea in open court.

. . . These statements are patently absurd on several

levels. . . . Bluntly stated, the Court finds McTiernan’s allegations to be false. . . . McTiernan’s

alleged . . . reasons for seeking withdrawal lack credibility.

Then, in an order issued on October 2, 2007, Judge Fischer

reiterated that “Mr. McTiernan [had] lied in his declaration”

supporting the motion for withdrawal of his guilty plea and

had “breached his promise to be truthful with the Court.”

[9] These statements, however, do not demonstrate that

Judge Fischer had a deep-seated animus toward McTiernan,

but only that she acquired “an attitude of disapproval” toward

him because of his known conduct—specifically, his lies to

federal officers. He did, after all, later plead guilty to two

charges of lying to the FBI and to one charge of lying to the

court.

“[E]xpressions of impatience, dissatisfaction, annoyance,

and even anger, that are within the bounds of what imperfect

men and women, even after having been confirmed as federal

judges, sometimes display,” do not establish bias or partiality.

Liteky, 510 U.S. at 555-56. The judge who has become “exceedingly ill disposed towards the defendant . . . . is not

thereby recusable for bias or prejudice, since [her] knowledge

and the opinion it produced were properly and necessarily

acquired in the course of the proceedings.” Id. at 550-51.

[10] Furthermore, Judge Fischer’s comments about

McTiernan at his sentencing hearings had absolutely no negative effect on his ultimate sentence. He was given a term of

12 months’ imprisonment, a below-the-Guidelines sentence

that was exactly what he expected under the terms of his second plea agreement, even though Judge Fischer had the discretion to give him more time. Judge Fischer also exercised

UNITED STATES v. McTIERNAN 9467
her discretion to allow McTiernan to remain free on bail

pending appeal, which again negates his claim that she harbored a deep-seated animus toward him. Moreover, “the

judge’s conduct during the proceedings should not, except in

the ‘rarest of circumstances’ form the sole basis for recusal

under § 455(a).” United States v. Holland, 519 F.3d 909, 914

(9th Cir. 2008) (footnote omitted) (quoting Liteky, 510 U.S.

at 555). Judge Fischer’s statements in her orders or at the sentencing hearings, therefore, do not warrant her recusal.

McTiernan alternatively argues that Judge Fischer’s “prejudgment” of the suppression issue required her recusal. In

support of this claim, he highlights her previous rulings in the

related criminal action against Terry Christensen. Christensen,

who had been tried as Pellicano’s coconspirator, had moved

to suppress recordings that Pellicano had made of their telephone conversations, but Judge Fischer had denied Christensen’s motion to suppress. 

[11] The problem with McTiernan’s argument is that a

“judge’s prior adverse ruling is not sufficient cause for recusal.” Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th

Cir. 1993) (per curiam) (internal quotation marks omitted); cf.

United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988)

(“[K]nowledge obtained from judicial proceedings involving

a codefendant does not require recusal.”). Judge Fischer’s

prior decision in Christensen’s case is therefore not evidence

of any unwarranted bias or prejudice. 

McTiernan nevertheless contends that Judge Fischer’s

remark in her September 25, 2007 order denying his motion

to withdraw his guilty plea—that McTiernan’s and Christensen’s purported basis for suppressing Pellicano’s recordings

“doesn’t even come close” to warranting an evidentiary hearing for a motion to suppress—demonstrates that she had prejudged the issue. This court subsequently vacated that order

in United States v. McTiernan, 546 F.3d 1160 (9th Cir. 2008),

and directed Judge Fischer to hold an evidentiary hearing on

9468 UNITED STATES v. McTIERNAN
whether McTiernan had a fair and just reason to justify the

withdrawal of his guilty plea. 

[12] Although this court concluded that Judge Fischer

erred in her September 25, 2007 decision, her doesn’t-evencome-close comment was not so egregious as to require her

removal from the case. This is especially true because, for the

reasons previously stated, we fully agree that an evidentiary

hearing on the suppression issue was unnecessary. We further

note that “[i]t has long been regarded as normal and proper

for a judge to sit in the same case upon its remand.” Liteky,

510 U.S. at 551.

[13] In sum, McTiernan has shown no ground to warrant

Judge Fischer’s disqualification from his case. The district

court accordingly did not abuse its discretion in denying

McTiernan’s two motions for Judge Fischer’s recusal.

III. CONCLUSION

For all the reasons set forth above, the district court’s judgment is AFFIRMED.

UNITED STATES v. McTIERNAN 9469