Meanwhile, after the 9th Circuit Court of Appeals denied McTiernan’s appeal of his conviction for perjury last month, his attorney Henry Hockeimer is seeking an en banc hearing, claiming that “prosecutorial contortions and judicially created procedural walls have been employed and erected throughout these proceedings to block out a simple fact: an innocent man sits in federal prison.”
The director had hired Pellicano to investigate Charles Roven, once a business colleague. As the FBI was probing Pellicano’s cache of recordings in 2006, special agent Stanley Ornellas phoned McTiernan and asked whether he had ever discussed wiretapping with Pellicano. McTiernan denied it, but investigators already had retrieved recordings of a 2000 conversation between Pellicano and McTiernan in which they discussed wiretapped conversations of Roven.
McTiernan entered a conditional guilty plea in October 2010 to two counts of making a false statement to an FBI agent and one count of perjury. In addition to the prison term, his sentence also called for three years of supervised probation and a $100,000 fine.
Hockeimer argued that two inconsistent statements had to have been made “under oath” for a conviction to stand, but that McTiernan made one of his “purportedly inconsistent statements” in a declaration, a key difference supported by legal precedent. He wrote that district court lacked jurisdiction to accept McTiernan’s guilty pleas.
A three-judge panel of the 9th Circuit last month rejected McTiernan’s appeal, arguing that he had waived “any right to bring a post-conviction collateral attack on the convictions or sentence.” They also rejected his claim that he had ineffective assistance from counsel, under a previous lawyer.
Hockeimer argued that the panel denied McTiernan’s appeal “without addressing the substantive merits of his claim.”
According to the Free John McTiernan Facebook page, the director is returning to the family ranch in Wyoming to join his wife, Gail. he had served his sentence at Yankton Federal Prison Camp in South Dakota.