on whether famed movie director John McTiernan can withdraw his guilty plea to an information charging him with making false statements to a federal agent. The court vacated McTiernan's conviction and four-month prison sentence, ruling that a reasonable person in McTiernan's position would not have pled guilty if he had been properly advised by counsel as to the possibility of suppressing the evidence incriminating him in the Anthony Pellicano wire-tapping scandal. McTiernan, 57, who directed such films as Predator, Die Hard, and The Hunt for Red October, falsely told agents from the Federal Bureau of Investigations that he had hired Pellicano as a private investigator one time in connection with his divorce, but had no knowledge of Pellicano's illicit wiretapping activities. He later admitted that 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 box-office flop Rollerball that McTiernan was directing at that time. Pellicano installed the wiretaps, listened to the subjects' business and personal telephone calls, and reported their contents to McTiernan. He also recorded his conversations with Mc Tiernan. FBI agents recovered a recording of a conversation between Pellicano and McTiernan pursuant to a search warrant in the investigation and prosecution of Pellicano. In the recording, Pellicano informed McTiernan that he had intercepted "tons of stuff" from the wiretapped subjects' phones. McTiernan instructed Pellicano to focus on instances where Roven 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." After the government informed McTiernan of the evidence against him, he entered into a written plea agreement, saying he would plead guilty to one count of lying to an FBI agent. The plea agreement set forth the elements of the offense, the statutory maximum sentence, the constitutional rights that McTiernan would be giving up, the stipulated Sentencing Guideline factors, and the factual basis for the plea. He signed the agreement and a declaration, attesting that his attorney, John Carlton, had advised him of possible defenses and that he was satisfied with Carlton's legal representation. He re-executed the agreement after the government filed the information against him. Following a plea colloquy, U.S. District Judge Dale S. Fischer accepted the plea and ordered that it be entered. McTiernan requested and obtained multiple continuances of his sentencing date until the government informed him that it would not agree to further continuances because it was dissatisfied with his failure to provide truthful cooperation in connection with his offense. Eleven days before McTiernan was scheduled to be sentenced, San Diego attorney S. Todd Neal advised the government that he would be substituted for Carlton as McTiernan's new counsel. When the government informed Neal that it would not move for a downward departure based on cooperation and would seek a custodial sentence for McTiernan, Neal informed the government that the defense was going to file a motion to withdraw McTiernan's guilty plea and suppress the recording. The motion alleged that McTiernan was entitled to withdraw his plea because his former counsel had failed to obtain any discovery materials from the government prior to the time McTiernan entered his pre-indictment plea and failed to advise him that he could have sought to suppress the recording on the ground that it 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. Fischer found that McTiernan's alleged reasons for seeking withdrawal lacked credibility. "[T]he most reasonable conclusion is that McTiernan seeks to withdraw his plea because the government has asked for a custodial sentence," Fischer wrote. "This is unquestionably not valid grounds to grant permission to withdraw a plea." She denied the motion and immediately proceeded to sentencing, imposing a term of four months imprisonment, followed by a two-year period of supervised release. Although McTiernan's desire to avoid a custodial sentence may have been his motivation for moving to withdraw his plea, Senior Circuit Judge Roger J. Miner of the Second Circuit U.S. Circuit Court of Appeals, sitting by designation, wrote for the appellate court that such motivation was not disqualifying if there was otherwise a "fair and just reason" to withdraw the plea. McTiernan was not required to produce evidence that his suppression motion would be successful on the merits, Miner explained, but only that proper advice about the possibility of suppression could plausibly have motivated a reasonable person in his position not to have pled guilty. Noting that Carlton's declaration in support of McTiernan's motion only stated that Carlson "did not see" any grounds "under the wiretap statute" for suppression, and Miner reasoned it did not establish that McTiernan was properly and adequately advised. "As long as a criminal or tortious purpose is a realistic possibility under the circumstances - which it assuredly is here - there is nothing inherently implausible about the proposition that a reasonable person would not have pled guilty and would instead have sought through discovery to establish an illicit motive for the taping," Miner concluded. The panel remanded for an evidentiary hearing to determine whether McTiernan could establish a fair and just reason to withdraw his plea.
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