Full opinion text
OPINION CLIFTON, Circuit Judge: Six defendants appeal their criminal convictions stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. At the center of this criminal enterprise was Pellicano Investigative Agency, known as PIA. Defendant Anthony Pellicano operated PIA, ostensibly as a legitimate private investigation agency. But many of PIA’s investigation methods were, in fact, illegal. Pellicano bribed Los Angeles area police officers, such as Defendant Mark Arneson, for access to confidential law enforcement databases. He orchestrated wiretaps on investigative targets so he could overhear their conversations with friends, family, medical professionals, and legal counsel. He paid a telephone company employee, Defendant Rayford Turner, for the confidential technical information he needed for the wiretaps, and hired a software developer, Defendant Kevin Ka-chikian, to create custom software to record the conversations Pellicano overheard. At the height of PIA’s success, scores' of people retained PIA for its often illegal services. Most pertinent to this case, Defendant Terry Christensen, an attorney, hired PIA to assist in litigation in which he represented his client, Kirk Kerkorian, against Lisa Bonder. Pellicano wiretapped Bonder’s telephone and frequently discussed with Christensen what he heard. Defendant Abner Nicherie also hired PIA to wiretap the husband of a woman whose business Nicherie hoped to take over. PIA’s criminal enterprise began to unravel in 2002, when the FBI investigated PIA’s attempt to intimidate a reporter, Anita Busch. This investigation led to a search, pursuant to a search warrant, of PIA’s offices. By 2003, the government was investigating the widespread scope of PIA’s illegal activities. A grand jury returned an indictment charging Pellicano, Arneson, and Turner with crimes under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., for their roles in operating PIA’s criminal enterprise. The indictment also variously charged Defendants with other crimes, including wiretapping,’ computer fraud, honest services fraud, identity theft, and conspiracy offenses. The case proceeded to two separate jury trials, which resulted in the convictions of all six Defendants on at least some counts. Defendants appeal their convictions. In this opinion, we vacate Turner’s conviction for aiding and abetting computer fraud, Arneson’s convictions for computer fraud and unauthorized computer' access, and Pellicano’s convictions for aiding and abetting both computer fraud and unauthorized computer access. We also vacate Nicherie’s conviction for aiding and abetting a wire interception. The rest of the convictions are affirmed, including the RICO convictions of Pellicano, Arneson, and Turner for operating PIA’s criminal enterprise, Christensen’s convictions based on hiring that enterprise to illegally wiretap Lisa Bonder, and Kachikian’s convictions for his role in PIA’s wiretapping. We vacate the sentences imposed on the defendants whose convictions were vacated in part — Pellicano, Arneson, and Turner — and remand for resentencing on their remaining, affirmed convictions. We remand for further proceedings on the vacated counts of conviction, including the possibility of retrial, as may be appropriate, on those charges. Defendants have raised a staggering number of issues on appeal. Their briefs — fourteen in all — totaled over 900 pages. Many of the issues raised on appeal do not warrant discussion in a prece-dential opinion. We thus address many issues in a concurrently filed memorandum disposition, in which we affirm on all the issues covered in the memorandum. In this opinion, we address those issues that merit an extended discussion. 1. Background These consolidated appeals arise out of the prosecution in two separate trials of private investigator Defendant Anthony Pellicano and several individuals associated with him. Pellicano owned and operated Pellicano Investigative Agency (“PIA”). He provided investigation services to clients in connection with litigation and personal matters. The factual core of this case is simple: PIA’s investigations were often illegal. Pellicano wiretapped investigative targets, for instance, and used proprietary software called “Telesleuth,” which Defendant Kevin Kachikian developed and updated over the course of several years, to record wiretapped phone conversations. Pellica-no related the content of those conversations (e.g., by playing recordings) to clients, who often used what they learned to gain an advantage in litigation. To get the technical information he needed to install the wiretaps, Pellicano paid Defendant Rayford Turner, a telephone company technician, to obtain cable-pairing data from the telephone company, SBC. Turner himself did not have access to SBC databases, but he paid other SBC employees, non-parties Teresa Wright and Michele Malkin, to access the databases and give Turner the information PIA wanted. Turner then gave the information to Pellicano and implemented wiretaps. Pellicano and PIA also paid an LAPD officer, Defendant Mark Arneson, to search confidential police databases for information about various investigative targets and provide that information to PIA. PIA’s activity on behalf of client Robert Pfeifer concisely illustrates how Pellicano, Arneson, and Turner operated the illegal investigations. Pfeifer, not named as a party in this case, retained PIA in July 2000 to influence his former girlfriend, Erin Finn, to recant deposition testimony about Pfeifer’s drug use. The evidence established that Pellicano paid Arneson $2,500, and that Arneson accessed law-enforcement databases to acquire criminal history and/or information from the Department of Motor Vehicles (DMV) on Pfeifer, Finn, and Finn’s friends and associates. Arneson then gave this information to Pellicano. Turner provided Pellica-no with confidential subscriber information from SBC, and a wiretap on Finn was initiated. The wiretap revealed extensive information about Finn’s business, which Pfeifer used to get her to recant her testimony. Based on Pfeifer’s case and many others, the grand jury returned an indictment charging Pellicano, Arneson, and Turner with RICO violations. The indictment alleged that they formed an enterprise for “the common purpose of earning income through the conduct of diverse criminal activities including, but not limited to, illegal wiretapping, unauthorized access of protected computers, wire fraud, bribery, identity theft, and obstruction of justice.” The predicate acts included bribery, honest services wire fraud, and identity theft. Kachikian, the Telesleuth developer, was not charged with RICO violations; he was charged with conspiracy to intercept, interception of communications, and possession of a wiretapping device. The government also prosecuted two of PIA’s clients: Defendants Abner Nicherie and Terry Christensen. Abner Nicherie hired Pellicano to wiretap Ami Shafrir, the husband of Sarit Shafrir, whose business Nicherie hoped to take over. Nicherie went to PIA many times to listen to and transcribe Ami Shafrir’s telephone conversations, which were in Hebrew. The intercepted conversations included Ami Shaf-rir’s confidential communications with his attorneys. Terry Christensen hired Pellicano to wiretap Lisa Bonder. Bonder was engaged in a child support dispute with Christensen’s client, Kirk Kerkorian. A central part of Christensen’s strategy was proving that the child involved in the dispute was not his client’s biological child. A DNA test eventually proved that another man was the father. While the litigation was ongoing, Pellicano intercepted many of Bonder’s conversations, including conversations with her attorneys, family, and friends about the child support litigation. The main evidence against Christensen consisted of recordings of more than 30 phone conversations in which he discussed with Pellicano the wiretap on Bon-der. These recordings, which Pellicano recorded secretly, were seized from PIA’s offices. The government’s investigation into PIA began when it investigated threats against reporter Anita Busch. On the morning of June 20, 2002, Busch went to her car on the street outside her home and found that her car had been vandalized. The windshield had been punctured, a handwritten sign reading “STOP” had been placed on the car, and a dead fish and a rose had been left on the windshield. An informant recorded his conversations with Alex Proctor, who stated that Pellicano had hired him to vandalize Busch’s car. Based in large part on the informant’s recordings, in November 2002, the government obtained warrants to search PIA for evidence that Pellicano was involved in the vandalism. The government seized computers and data storage devices pursuant to the warrant. After obtaining more evidence of the widespread extent of PIA’s illegal investigations, the government obtained more warrants in July 2003 and seized additional records from the data storage devices previously taken from PIA, including the Pellicano-Christensen recordings. A grand jury returned an indictment, and the Defendants were prosecuted in two trials. The first trial included (1) RICO and related charges against Pellica-no, Arneson, and Turner and (2) wiretapping and related charges against Pellicano, Kachikian, and Nicherie. The second trial, in which only Pellicano and Christensen were defendants, focused on the Lisa Bon-der wiretap. The Defendants in the first trial (Pellica-no, Arneson, Turner, Kachikian, and Nich-erie) were convicted on the following charges: Pellicano: RICO (18 U.S.C. § 1962(c)); RICO conspiracy (18 U.S.C. § 1962(d)); Honest-services wire fraud (18 U.S.C. §§ 1343,1346); Unauthorized computer access of United States agency information (18 U.S.C. §§ 1030(a)(2)(B), (c)(2)(B)(i)); Identity theft (18 U.S.C. § 1028(a)(7)); Computer fraud (18 U.S.C. § 1030(a)(4)); Conspiracy to intercept and use wire communications (18 U.S.C. § 371); Interception of wire communications (18 U.S.C. § 2611(l)(a), (d)); and Possession of a wiretapping device (18 U.S.C. § 2512(l)(b)). Arneson: RICO (18 U.S.C. § 1962(c)); RICO conspiracy (18 U.S.C. § 1962(d)); Honest services wire fraud (18 U.S.C. §§ 1343,1346); Unauthorized computer access of United States agency information (18 U.S.C. § § 1030(a)(2)(B), (c)(2)(B)©); Identity theft (18 U.S.C. § 1028(a)(7)); Computer fraud (18 U.S.C. § 1030(a)(4)). Turner: RICO (18 U.S.C. § 1962(c)); RICO conspiracy (18 U.S.C. § 1962(d)); Identity theft (18 U.S.C. § 1028(a)(7)); Computer fraud (18 U.S.C. § 1030(a)(4)); Conspiracy to intercept and use wire communications (18 U.S.C. § 371); Interception of wire communications (18 U.S.C. § 2511(l)(a), (d)); and . False statements (18 U.S.C. § 1001(a)(2)). Kachikian: Conspiracy to intercept and use wire communications .(18 U.S.C. § 371); Possession of a wiretapping device (18 U.S.C. § 2512(l)(b)). Nicherie: Aiding and abetting interception of wire communications (18 U.S.C. § 2511(a), (d)). The jury acquitted Pellicano of one count of unauthorized computer access, Turner of four counts of intercepting wire communications, and Kachikian on all counts of intercepting wire communications. In the second trial, Pellicano and Christensen were each convicted of one count of conspiracy to intercept and use wire communications, 18 U.S.C. § 371, and one count of interception of wire communications, 18 U.S.C. §§ 2511(l)(a), (d). Pellicano was sentenced to 180 months of imprisonment, Arneson to 121 months, Turner to 121 months, Kachikian to 27 months, Nicherie to 21 months, and Christensen to 36 months. Pellicano, Arneson, and Turner were also ordered to' forfeit $2,008,250, jointly and severally. II. Standards of Review We address the standard of review for most issues as we discuss the relevant arguments below. Because they apply to multiple issues in the case, we address the standards for plain error and clear error review here at the outset. When a defendant raises an argument for the first time on appeal, the plain error standard of review applies. See Fed.R.Crim.P. 52(b); United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir.2011). Plain error requires that (1) there was error; (2) it was plain; and (3) the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When confronted with plain error, an appeals court shall exercise its discretion and reverse only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted) (alteration in original). Plain error review applies on direct appeal even where an intervening change in the law is the source of the error. Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Pelisamen, 641 F.3d at 404. We review for clear error a district court’s findings of fact. A finding of fact is clearly erroneous only where it is “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir.2012) (citation and internal quotation marks omitted). Clear error review is deferential, and “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” United States v. Working, 224 F.3d 1093, 1102 (9th Cir.2000) (en banc) (quotation omitted). III. Discussion A. Sufficiency of RICO Enterprise Pellicano, Arneson, and Turner were all convicted of racketeering under the RICO statute, 18 U.S.C. § 1962(c), and also of RICO conspiracy, 18 U.S.C. § 1962(d). They argue that the evidence was insufficient to prove a single RICO enterprise among Pellicano, PIA, Arneson, and Turner because there was no evidence that. Arneson and Turner knew about each other’s roles in the enterprise. We are not persuaded by this argument. The government presented sufficient evidence from which the jury could conclude that Arne-son and Turner knew about the essential nature of their illegal enterprise with Pelli-cano. Defendants challenged the sufficiency of the evidence supporting the RICO enterprise in a Rule 29 motion, which the district court denied. The denial of a Rule 29 motion for judgment of acquittal is reviewed de novo. United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir.2008). The court “view[s] the evidence in the light most favorable to the government and determined whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted); see United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010) (en banc). The RICO provision at issue here, 18 U.S.C. § 1962(c), “makes it unlawful for any person employed by or associated with any enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Boyle v. United States, 556 U.S. 938, 943-44, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) (emphasis and internal quotation marks omitted). A RICO offense is established by “proof of (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” United States v. Fernandez, 388 F.3d 1199, 1221 (9th Cir.2004) (citation and internal quotation marks omitted). RICO defines the term “enterprise” as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). This expansive definition is “not very demanding.” Odom v. Microsoft Corp., 486 F.3d 541, 548 (9th Cir.2007) (en banc). An associated-in-fact enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct.” Id. at 552 (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246.(1981)). Such an enterprise has three elements: (1) a common purpose, (2) an ongoing organization, and (3) a continuing unit. Id. “[I]t is sufficient that the defendant know the general nature of the enterprise and know that the enterprise extends beyond his individual role.” United States v. Eufrasio, 935 F.2d 553, 577 n. 29 (3d Cir.1991) (citation and internal quotation marks omitted). Likewise, a RICO conspiracy under § 1962(d) requires only that the defendant was “aware of the essential nature and scope of the enterprise and intended to participate in it.” Fernandez, 388 F.3d at 1230 (citation and internal quotation marks omitted). “[T]he point of making the government show that the defendants ha[d] some knowledge of the nature of the enterprise[] is to avoid an unjust association of the defendant with the crimes of others.” United States v. Brandao, 539 F.3d 44, 52 (1st Cir.2008). Nonetheless, the definition of a RICO enterprise has “wide reach” and is to be “liberally construed to effectuate its remedial purposes.” Boyle, 556 U.S. at 944-45, 129 S.Ct. 2237 (internal quotation marks omitted) (holding that a RICO enterprise does not need to have a formal, businesslike structure or hierarchy). As the First Circuit has explained, “[t]he RICO net is woven tightly to trap even the smallest fish, those peripherally involved with the enterprise.” United States v. Marino, 277 F.3d 11, 33 (1st Cir.2002) (citation and internal quotation marks omitted). For instance, this court affirmed a RICO conspiracy conviction of the wife of a Mexican Mafia member where the evidence showed that she “collected protection money for the [enterprise] on behalf of her husband,” “passed messages” among enterprise members, “smuggled drugs into prison[,] and accepted payment for drugs sold on the street.” Fernandez, 388 F.3d at 1230. Defendants primarily argue that the evidence was insufficient to prove that Arneson and Turner associated themselves with the common purpose of the same alleged enterprise because they did not know about each other’s roles in it. We disagree. The common purpose alleged in the indictment was “earning income through the conduct of diverse criminal activities including, but not limited to, illegal wiretapping, unauthorized access of protected computers, wire fraud, bribery, identity theft, and obstruction of justice.” The government presented ample evidence from which a reasonable jury could find, at a minimum, that Arneson and Turner were each aware of the “essential nature and scope” of that enterprise and intended to participate in it. Arneson’s role included illegally accessing law enforcement databases and passing the information to Pellicano. Turner’s role included illegally obtaining information from SBC to facilitate Pellicano’s wiretaps. The jury heard evidence that Pellicano paid Arneson and Turner for their roles in the enterprise. Witnesses testified that both Arneson and Turner visited PIA, sometimes at the same time, and even hid from a client together in PIA’s kitchen. Although it was not required that either be aware of the specific identity or activity of the other, in this instance the evidence would have permitted a reasonable jury to infer that they were. Arneson also testified that Pellicano told him about phone company sources and explained the Telesleuth wiretapping software to him. Arneson testified that he thought Pellicano was going to patent Tel-esleuth and sell it to law enforcement, but a reasonable jury would not be required to credit this testimony. The jury also heard evidence that Pellicano openly told his clients about his illegal wiretapping and access to law enforcement reports. A reasonable jury could have inferred that Pelli-cano was equally open with Arneson and Turner. In sum, a reasonable jury could easily infer that Arneson and Turner knew about each other and knew about the essential nature of the enterprise in which they were both participating with Pellica-no. Moreover, the jury heard evidence about specific instances in which Arneson and Turner coordinated their activities with Pellicano. Boyle, 556 U.S. at 945-46, 129 S.Ct. 2237 (explaining that an associated-in-fact enterprise may be proven “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit” (internal quotation marks omitted)). We return to the example of Robert Pfeifer. As recounted in the background section, above at 982, Pfeifer retained PIA in July 2000 to make his former girlfriend, Erin Finn, retract damaging deposition testimony about his drug use. The evidence established that on July 20, 2000, Pellicano paid Arneson $2,500, and that on August 2, 2000, Arneson accessed law-enforcement databases to acquire criminal-history and DMV information on Pfeifer, Finn, and her friends and associates, which Arneson then provided to Pellicano. That same day, Turner provided Pellicano with confidential subscriber information from SBC, and a wiretap on Finn was initiated. The government also introduced evidence of other clients for whom Pellicano coordinated the activities of Arneson and Turner. Accordingly, this is not a case where Arneson and Turner were unjustly associated with Pellicano and PIA or each other. The evidence was sufficient to conclude that each worked together with Pellicano and others to earn money from criminal activities, including illegally accessing confidential databases, bribery, and wiretapping. A reasonable jury could find that Arneson and Turner each knew about the essential nature of this enterprise. The district court did not err in denying Defendants’ Rule 29 motion on this issue. B. California Bribery Predicate Acts Pellicano and Arneson also appeal their RICO convictions by challenging the predicate acts upon which those convictions rest. To be liable under RICO, defendants “must be guilty of a ‘pattern of racketeering activity,’ which requires at least two separate racketeering acts (often called ‘predicate acts’).” United States v. Walgren, 885 F.2d 1417, 1424 (9th Cir.1989) (citations omitted). Offenses that qualify as “predicate acts” are listed in 18 U.S.C. § 1961(1), including “any act ... involving ... bribery ... which is chargeable under State law and punishable by imprisonment for more than one year.” If convictions for the underlying predicate acts are vacated, then the RICO conviction must also be vacated. Walgren, 885 F.2d at 1424. Here, the jury found that Arneson and Pellicano each committed ten predicate acts of bribery under California law. The predicate acts against Arneson were based on California Penal Code § 68, which makes it a felony for either an executive or ministerial officer to “receive[ ], or agree[ ] to receive, any bribe, upon any agreement or understanding that his or her vote, opinion, or action upon any matter then pending, or that may be brought before him or her in his or her official capacity, shall be influenced thereby.” Cal.Penal Code § 68(a). The predicate acts of bribery against Pellicano were based on California Penal Code § 67, a parallel prohibition: § 67 prohibits giving bribes and § 68 prohibits receiving them. See People v. Hallner, 43 Cal.2d 715, 717, 718, 277 P.2d 393 (1954) (explaining that Penal Code § 67 and § 68 are “complementary statutes”). Arneson argues that the evidence against him failed to establish that his access of government databases could have constituted “action upon any matter then pending, or that may [have] be[en] brought before him ... in his ... official capacity.” CaLPenal Code § 68(a). The district court rejected similar arguments in denying Arneson’s motion to strike the state law bribery predicate acts against him. We agree with the district court. California law governs the state law predicate acts of bribery charged in the indictment. United States v. Frega, 179 F.3d 793, 806 (9th Cir.1999). We “review de novo a district court’s determination of state law.” Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The jury heard evidence that Arneson accessed state and federal law enforcement databases to investigate PIA’s targets in exchange for payments from Pellicano. Arneson’s database access occurred “in his official capacity.” To meet this element, Arneson did not need to have “actual authority” to access the databases to relay information to Pellicano, so long as accessing the databases “[fell] within the general scope of his duties and he [purported] to act in his official capacity.” People v. Longo, 119 Cal.App.2d 416, 420, 259 P.2d 53 (Ct.App.1953); see also People v. Lips, 59 Cal.App. 381, 389, 211 P. 22 (Ct.App.1922) (explaining that an officer acts in his official capacity by “doing of such acts as properly belong to the office and are intended by the officer to be official”). The evidence, such as testimony about the LAPD manual’s standards for using the databases, established that accessing police databases was within the general scope of Arneson’s duties. Just as improper action by an officer to free a suspect in custody in exchange for money constituted action in the officer’s' “official capacity,” so did Arneson’s use of his position to access the databases. Lips, 59 Cal.App. at 384, 390, 211 P. 22 (affirming bribery conviction where officer apprehended suspect but then agreed to release him in exchange for money); see also People v. Markham, 64 Cal. 157, 159, 30 P. 620 (Cal.1883) (explaining that because it is a duty of an officer to arrest, an officer who is paid not to arrest someone is “bribed with respect to a matter which might be a subject of his official action”). Ample evidence at trial established that Arneson used his official position as an LAPD officer to access the databases. Access to the databases was restricted by statute, regulation, and LAPD policy, and Arneson could access them only because of his position as an officer. See CaLPenal Code § 11105(b) (providing that “[t]he Attorney General shall furnish state summary criminal history information to [certain persons, including peace officers], if needed in the course of their duties”); 11 Cal.Code Reg. § 703(b) (providing that criminal records may be released “on a need-to-know basis, only to persons or agencies authorized by [law] to receive criminal offender record information”); 28 U.S.C. § 534(a)(4) (limiting access to federal government database to certain statutorily enumerated parties, such as “the States ... and penal and other institutions”). Moreover, when he accessed the databases, he used LAPD computer terminals and LAPD-issued passwords. Every time he accessed the databases, Arneson thus purported to act in his official capacity. See Longo, 119 Cal.App.2d at 420, 259 P.2d 53. Arneson’s database inquiries also involved “matter[s] then pending, or that may [have been] brought before him....” CaLPenal Code § 68. California law “does not require any specific action to be pending on the date the bribe is received.” People v. Gaio, 81 Cal.App.4th 919, 929, 97 Cal.Rptr.2d 392 (Ct.App.2000) (citation and internal quotation marks omitted). As this court has explained, “[t]he use of the word ‘may’ ” in § 68 indicates that “payments designed to alter the outcome of any matter that could conceivably come before the official are within the prohibition of the statute.” Frega, 179 F.3d at 805 (citation and internal quotation marks omitted) (concluding that “a bribe- ... intended to influence, generally, a judge’s future actions with respect to matters that may come before him, falls within the statute’s prohibitions”). Hence, the matter of whether to “enforce the law against social vices is always before” a police officer like Arneson. Gaio, 81 Cal.App.4th at 930, 97 Cal.Rptr.2d 392. So too is the matter of whether to use his position as an LAPD officer-to investigate someone in the Los Angeles area. Cf. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (describing law enforcement as the “competitive enterprise of ferreting out crime”). Arneson’s use of his office to investigate someone, via confidential databases or otherwise, necessarily involved a classic type of police “matter”— investigation. See Gaio, 81 Cal.App.4th at 931, 97 Cal.Rptr.2d 392 (holding that evidence was sufficient to support bribery conviction's because evidence established that payment was given to influence “any one or more instances, types, or courses of official action”). Arneson’s theory that an act brought before an officer must be discretionary finds no support in the cases he cites, which state no such requirement. See, e.g., Hallner, 43 Cal.2d at 717, 721, 277 P.2d 393 (reversing judgment that “executive officers of the City of Los Angeles are not executive officers of this state as defined in section 67 of the Penal Code”); see also People v. Jackson, 42 Cal.2d 540, 268 P.2d 6 (1954). Section 68’s language also forecloses this argument. Section 68 prohibits “ministerial officers” from receiving a bribe. Cal.Penal Code § 68. Ministerial acts under California law “leave nothing to the exercise of discretion or judgment.” People v. Strohl, 57 Cal.App.3d 347, 361, 129 Cal.Rptr. 224 (Ct.App.1976). An officer thus need not be paid for a discretionary act to meet the elements of § 68. In any case, even if discretion were required, Arneson had discretion over what type of investigation to conduct, including what databases to use and what persons to look up. Similarly, we reject Pellicano’s comparable arguments that Arneson’s database searches were not “official” and not sufficiently connected to a government proceeding. The evidence was sufficient to find that Pellicano paid Arneson bribes “with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer.” CahPenal Code § 67. The database searches were the “acts” that Pellicano influenced, and, as discussed, Arneson was acting in his official capacity under § 68 when he accessed the databases. Likewise, he was acting “as such officer” under § 67. Pellicano also argues that he could not have bribed Arneson because Arneson was only misusing the resources of his office, not the legal authority of that office. This distinction finds no support in California case law. Moreover, even if this were the right distinction, accessing the databases was a misuse of Arneson’s legal authority. As discussed above, he had the authority to access the databases only because he was an officer. The district court did not err in denying the motion to strike the predicate acts of bribery. C. Honest Services Fraud Racketeering Acts and Skilling Pellicano also challenges the predicate acts of honest services fraud. The jury found that Pellicano committed 46 such predicate acts and that Arneson committed 44 such acts. Honest services fraud entails a scheme or artifice to “deprive another,” by mail or wire, “of the intangible right of honest services.” 18 U.S.C. § 1346; see also 18 U.S.C. §§ 1341, 1343. Here, the government’s theory of honest services fraud was that Pellicano’s payments to Arneson for access to police databases defrauded the public of its right to Arneson’s honest services as an officer. After Pellicano and Arneson were convicted and sentenced, and while their cases were on appeal, the Supreme Court narrowed the scope of the honest services fraud statute. See Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Now, only “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived” constitute honest services fraud. Id. at 404, 130 S.Ct. 2896 (emphasis added). Previously it had been held, in this circuit and others, that failing to disclose a conflict of interest could be a basis for' honest services fraud, but that is no longer the case. Id. at 411, 130 S.Ct. 2896. Pellicano argues that the predicate acts of honest services fraud must be vacated because the jury instructions did not reflect Skilling’s narrowing of the crime. We disagree. The jury found that both Pellicano and Arneson committed bribery predicate acts under California law. Under Skilling, bribery remains a basis for honest services fraud. It is apparent from the jury’s findings regarding bribery that the Defendants would have been convicted on the bribery theory of honest services fraud by itself. The references to the invalidated conflict of interest theory in the jury instructions and the government’s argument at trial therefore did not prejudice Defendants. United States v. Wilkes, 662 F.3d 524, 544 (9th Cir.2011) (holding that “the jury’s guilty verdict on the separate substantive count of bribery [under federal law] confirms beyond any reasonable doubt that the jury would have convicted [the defendant] of honest services fraud if the court’s definition had been limited to the bribery basis that Skilling expressly approved”); see also United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (explaining that prejudice requires a “reasonable probability” that the error in the instructions “affected the outcome of the trial”). Arneson also argues that under Skilling, only a bribe or kickback as defined under federal law, as distinguished from state law, may establish honest services fraud. The Fifth Circuit has persuasively rejected a similar argument: A fair reading of Skilling ... reveals that the Court was establishing a uniform national standard by construing § 1346 to clearly exclude conduct outside of bribery and kickbacks, such as conflict-of-interest schemes, not to establish federal law as the uniform national standard for the elements of bribery and kickbacks in § 1346 prosecutions. Moreover, the Skilling Court further asserted that “[o]verlap with other federal statutes does not render § 1346 superfluous. The principal federal bribery statute, [18 U.S.C.] § 201, for example, generally applies only to federal public officials, so § 1346’s application to state and local corruption and to private sector fraud reaches misconduct that might otherwise go unpunished.” Accordingly, we read Skilling as recognizing that § 1346 prosecutions may involve misconduct that is also a violation of state law. United States v. Teel, 691 F.3d 578, 583-84 (5th Cir.2012) (citations and footnote omitted) (emphasis in original). We agree with the Fifth Circuit. The district court did not err on this issue. We affirm. D. Jury Instruction Challenges Whether jury instructions omit or misstate elements of a statutory crime or adequately cover a defendant’s proffered defense are questions of law reviewed de novo. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir.2010). We review a district court’s formulation of jury instructions for abuse of discretion. Id. “The trial court has substantial latitude so long as its instructions fairly and adequately cover the issues presented.” United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.2000). Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing that they prejudiced the defendant. United States v. de Cruz, 82 F.3d 856, 864-65 (9th Cir.1996). 1. Computer Fraud and Unauthorized Computer Access Claims Both computer fraud and unauthorized computer access are crimes under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. Turner was convicted of aiding and abetting computer fraud by paying telephone company employees, including Teresa Wright, to obtain cable pairing information from the company’s computer system. This information was then used to facilitate PIA’s wiretapping activities. Arneson was convicted of unauthorized computer access of United States agency information for accessing confidential police databases to obtain information about various PIA investigative targets. Pellieano was convicted of aiding and abetting both computer fraud and unauthorized computer access for his involvement with Arneson’s and Turner’s activities. Following the convictions, this court decided United States v. Nosal, 676 F.3d 854 (9th Cir.2012) (en banc). Nosal held the term “exceeds authorized access,” an element of both offenses under the CFAA, to be “limited to violations of restrictions on access to information, and not restrictions on its use.” Id. at 864. Based on Nosal, we vacate the convictions under the CFAA. Nosal was a former employee of the Korn/Ferry executive search firm. He intended to start a competing enterprise and asked several of his former colleagues to provide him with confidential and proprietary information from the firm’s computers. The Korn/Ferry employees were authorized to access the information for purposes of doing their job, but the use to which they put the information was unauthorized. Nosal was charged with aiding and abetting computer fraud. The district court dismissed the charges against Nosal for failure to state an offense, and we affirmed, noting that a broader definition of the term “access” would allow criminal liability to “turn on the vagaries of private policies.” Id. at 860. The district court here instructed the jurors to return a guilty verdict if they found that Turner “knowingly and intentionally aided, counseled, commanded, induced, or procured [a person] to commit the crime of computer fraud,” defined in relevant part as “knowingly accessing] without authorization or exceeding] authorized access of a computer ... with the intent to defraud.” The court instructed further: [A] defendant exceeds authorized access ... when the defendant accesses a computer with authorization but uses such access to obtain information in the computer that the defendant is not entitled to obtain. A defendant obtains information merely by observing it on the computer and need not remove the information from the computer to have violated this section. No defendant objected to these instructions at trial, and thus our review is for plain error. Although it was not obvious to the district court at the time, this definition of exceeding authorized access was flawed in that it allowed the jury to convict for unauthorized use of information rather than only for unauthorized access. Such an instruction is contrary to Nosal, and therefore the instruction constituted plain error. The error was also prejudicial. Not anticipating Nosal, the government made no attempt to prove that Wright accessed any databases that she was not authorized to access in the course of doing her job. Although the government now contends that Wright’s use of the code “ERR” upon logging out in an attempt to cover her tracks constituted evidence of unauthorized access, we are not persuaded. “ERR” was a code that phone company employees were instructed to use if they accessed an account by accident. The use of that code did not necessarily prove that the employee was not authorized to access the database. Wright might have used the “ERR” code simply to divert suspicion as to what she was doing. That use of the “ERR” code may have violated company policy, but Wright may nonetheless have been authorized to access the database. Under Nosal, unauthorized use was not enough to support the convictions of Turner and Pellicano for aiding and abetting computer fraud by Wright. We reach a similar conclusion on the convictions associated with Arneson’s misuse of information from the LAPD database. The government contends that Nosal does not preclude criminal liability under the CFAA for violations of state or federal law that restrict access to certain types of information. See, e.g., 28 C.F.R. § 20.33(d) (restricting the dissemination of certain criminal history information). This argument lacks merit. Those laws arguably prohibited Arneson’s conduct based on the way the information was used, as distinguished from the way it was accessed, but that does not expand the reach of the CFAA. Congress has created other statutes under which a government employee who abuses his database access privileges may be punished, but it did not intend to expand the scope of the federal anti-hacking statute. See Nosal, 676 F.3d at 857 & n. 3 (refusing to “transform' the CFAA from an anti-hacking statute into an expansive misappropriation statute,” and citing another statute restricting the use of information under which a defendant might properly be charged). The jury instructions defining both computer fraud and unauthorized computer access of United States agency information were plainly erroneous under Nosal. The error was prejudicial. We therefore vacate Turner’s conviction for aiding and abetting computer fraud, Arneson’s convictions for computer fraud and unauthorized computer access, and Pellicano’s convictions for aiding and abetting both computer fraud and unauthorized computer access. We remand for further proceedings as may be appropriate. If the government so decides, it may seek to retry the defendants on these charges. 2. Identity Theft Claims Turner, Arneson, and Pellicano contend that their convictions for certain other offenses cannot stand once the CFAA computer fraud and unauthorized computer access convictions have been set aside. The convictions at issue are for identity theft under 18 U.S.C.' § 1028 and racketeering (both the conspiracy and the substantive offense) under 18 U.S.C. § 1962(c)-(d). Identity theft is defined as the knowing possession, use, or transfer of a means of identification with the intent to commit another crime under either federal or state law. 18 U.S.C. § 1028. Similarly, a racketeering conviction requires the jury to find certain other criminal violations. Here, to support a conviction for identity theft, the government alleged criminal intent in the form of either computer fraud under CFAA or unauthorized computer access under the California Penal Code. Identity theft was then identified as an underlying predicate act for the RICO conviction. Defendants argue that the need to vacate their CFAA convictions requires that the identity theft and RICO convictions also be set aside. Defendants’ arguments fail. The alleged errors are subject to plain error review because timely objections were not made at trial. Defendants cannot establish that the CFAA error prejudiced them or affected their substantial rights in connection with the identity theft and racketeering convictions. To return a guilty verdict for identity theft, the jurors were instructed that they had to find criminal intent under either the CFAA, 18 U.S.C § 1030(a)(4), or under California Penal Code § 502(c)(2). While the jury instructions relating to the CFAA were plainly erroneous, the instructions relating to the California statute were not. Although a verdict that may be based on a legally invalid ground must ordinarily be set aside, see Griffin v. United States, 502 U.S. 46, 58, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), reversal is not required “if it was not open to reasonable doubt that a reasonable jury would have convicted” the defendant on the valid ground. Pelisamen, 641 F.3d at 406 (quoting United States v. Black, 625 F.3d 386, 388 (7th Cir.2010)) (internal quotation marks omitted); see also Johnson, 520 U.S. at 470, 117 S.Ct. 1544 (declining to exercise discretion to correct plain error where evidence in support of guilt was “ ‘overwhelming’ ”). We do not doubt that the jury would have convicted Turner, Arneson, and Pelli-cano for identity theft on the valid ground of underlying intent to violate the California Penal Code. The statute provides: (c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense ... (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting'documentation, whether existing or residing internal or external to a computer, computer system, or computer network. CahPenal Code § 502. “Access” is defined as “to gain entry to, instruct, ... or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.” CaLPenal Code § 502(b)(1). Defendants argue that we should interpret the state statute consistent with the federal statute as interpreted by Nosal, but we disagree. The statutes are different. In contrast to the CFAA, the California statute does not require unauthorized access. It merely requires knowing access. Compare 18 U.S.C. § 1030(a)(2) with Cal.Penal Code § 502(c)(2). What makes that access unlawful is that the person “without permission takes, copies, or makes use of’ data on the computer. Cal.Penal Code § 502(c)(2). A plain reading of the statute demonstrates that its focus is on unauthorized taking or use of information. In contrast, the CFAA criminalizes unauthorized access, not subsequent unauthorized use. Nosal, 676 F.3d at 864. Defendants argue that the state statute’s definition of “access” does not cover mere use of the' computer. They cite Chrisman, 155 Cal.App.4th at 34-35, 65 Cal.Rptr.3d 701, in which the California Court of Appeal held that a police officer who logged in to a police database to satisfy personal curiosity did not violate the statute because § 502 “defines ‘access’ in terms redolent of ‘hacking,’ ” and “[o]ne cannot reasonably describe [Chrisman’s] improper computer inquiries about celebrities, friends, and others as hacking.” Other California Court of Appeal decisions point to a different conclusion, however. For example, in Gilbert v. City of Sunnyvale, 130 Cal.App.4th 1264, 1281, 31 Cal.Rptr.3d 297 (2005), the court cited § 502(c)(2) in upholding a police officer’s termination after he accessed a police database and revealed to a third party the results of the searches he ran. In another case, the court never doubted that the defendant “accessed” information when he made a copy of his employer’s proprietary source code and used it to found a competing business. People v. Hawkins, 98 Cal.App.4th 1428, 121 Cal.Rptr.2d 627 (2002). We conclude that the term “access” as defined in the California statute includes logging into a database with a valid password and subsequently taking, copying, or using the information in the database improperly. We base that conclusion primarily on the plain language of the statute. Otherwise, the words “without permission” would be redundant, since by definition hackers lack permission to access a database. The exception carved out in subdivision (h) provides further support for our position. If access were by definition unauthorized, there would be no need to exempt employees acting within the scope of their lawful employment. Accordingly, we find no error in the jury instructions regarding unauthorized computer access under California law. Moreover, any error that might have infected the jury instructions was not plain. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (citation omitted). A “court of appeals cannot correct an error [under plain error review] unless the error is clear under current law.” Id. State case law is yet undeveloped on this issue: the California Supreme Court has never ruled on the definition of access in § 502(c)(2), and thus the asserted error was, and is, not clear. See Hagan v. Caspari, 50 F.3d 542, 547 (8th Cir.1995) (“[W]e are strongly inclined to agree ... that until the state’s highest court has spoken on a particular point of state law, the law of the state necessarily must be regarded as unsettled.”). It is apparent from the jury verdict that the jury found facts that supported a finding of criminal intent under the California statute, so permitting the jury to rely on criminal intent under the CFAA was harmless. The jury returned guilty verdicts for the substantive offenses of computer fraud and unauthorized computer access under the CFAA. Even though those convictions must be set aside, the facts that the jury necessarily found in returning those guilty verdicts clearly evince intent under § 502. Specifically, the jury must have found that Turner induced Wright to provide him with confidential cable pairing information from ihe phone company database and that Arneson provided Pellicano with confidential criminal history information from the LAPD database. The jury instructions defined unauthorized access under § 502 as “the knowing access and taking, copying, or making use of data or supporting documentation from a computer, computer system, or computer network without permission to do so.” Given the evidence presented and the verdict rendered, the jury would necessarily have found criminal intent to violate § 502. Defendants have failed to show prejudice from the erroneous instruction regarding felonious intent under the CFAA as a predicate to identity theft. We affirm both the identity theft and RICO convictions against this challenge. 8. Kachikian’s Wiretapping Claims Kachikian presents a number of challenges to the jury instructions and argues that they require reversal of his convictions for conspiracy to intercept wire communications in violation of 18 U.S.C. § 2511(l)(a), and manufacturing and/or possessing a wiretapping device in violation of 18 U.S.C. § 2512(l)(b). . We are not persuaded by his arguments. a. Intent under section 2511 ' The main theory of Kachikian’s defense was that Kachikian lacked the required criminal intent because he believed Pellica-no was using his Telesleuth software for lawful purposes. The court instructed the jury that the government had to prove that “the 'defendant acted intentionally, that is, purposefully and deliberately and not as a result of accident or mistake.” This instruction was both accurate and adequate. Kachikian argues that the court abused its discretion in failing to instruct the jury that, in order to find him guilty, it must find he intended to break the law. Kachi-kian never proposed such an instruction, and thus our review is for plain error. Kachikian contends that the word “intentionally” in the two statutes must be read to require a defendant to know that his conduct is unlawful. He bases his argument on the history of the wiretapping statutes. As originally enacted, the statutes applied to any person who “willfully” intercepted a wire communication or who “willfully” manufactured or possessed a wiretapping device. In 1986, as part of ■ the Electronic Communications Privacy Act, Congress substituted the word “intentionally” for the word “willfully” in §§ 2511 and 2512. Kachikian argues that this substitution was not intended to reduce the statute’s mental state requirement, but rather to increase it. See Bartnicki v. Vopper, 532 U.S. 514, 547 n. 4, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (Rehnquist, C.J., dissenting) (arguing that by changing the language in the statute from “willful” to “intentional,” Congress intended to increase the scienter requirement). Assuming that is correct (and we reach no conclusion on whether it is), the statute would require the intentional violation of a known legal duty. Kachikian’s challenge fails regardless because he has not established that he was prejudiced or that his substantial rights were otherwise affected. Kachikian was acquitted of the crime of intercepting wire communications in violation of § 2511. He was convicted only of conspiring to intercept wire communications. In instructing the jury, the district court defined the crime of conspiracy as “the agreement to do something unlawful.” The jury was told: “One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy.... On the other hand, one who has no knowledge of a conspiracy but happens to act in a way that furthers some object or purpose of the conspiracy does not thereby become a conspirator.” A rational juror would have understood those instructions to mean that in order to find Kachikian guilty, the jury had to find that he agreed to do something unlawful and, in addition, that he acted with the intent to further the unlawful agreement. If, on the other hand, the jury found that Kachikian acted without knowing that Pel-licano’s intent was unlawful, then it would not have found Kachikian guilty of conspiracy. “[T]he relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation.” United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir.2003) (internal quotation marks omitted). We think the instructions were adequate to guide deliberation. The jurors were well aware of Kachikian’s defense that he did not know of Pellicano’s unlawful intentions. The fact that the jury convicted Kachikian of conspiracy meant that the jury did not believe Kachikian’s version of the story. b. Intent under section 2512 Kachikian also argues that the court erred in instructing the jury on the necessary criminal intent for the crime of manufacturing a wiretapping device under § 2512. The instructions required the government to prove that “the defendant knew or had reason to know that the design of [the mechanical or other] device rendered it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.” Kachikian contends that the instruction should have required proof that the defendant knew the device would be used illegally. Kachikian misunderstands the statute. Section 2512 makes it a crime to “intentionally ... manufacture[ ], assemble!], possess!], or sell!] 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.” 18 U.S.C. § 2512(l)(b). “Intentionally,” as written in the statute, modifies “manufactures, assembles, possesses, or sells.” It does not modify “useful” or “use.” The crime lies in intentionally manufacturing the device, knowing that it could be primarily used for wiretapping. The statute does not require intent or knowledge that the device would actually be used unlawfully. Kachikian argues to the contrary based on the statute’s use of the word “surreptitious.” Specifically, he points out that § 2512 covers devices “primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.” Id. (emphasis added). He proposed to the district court that the jury be instructed that “surreptitious” interception meant “unauthorized, in other words unlawful” interception. Under this theory, lawful intercepts by law enforcement would not qualify as surreptitious. Kachi-kian’s defense was that if he manufactured the wiretapping devices believing that they would be used primarily for law enforcement-authorized purposes, he would not be breaking the law because he could not have “[had] reason to know that the design of such device renders it primarily useful for ... surreptitious interception” of wire communications. Id. The term “surreptitious” as used in the statute was aimed at the secret nature of the interception, not the illegality of it. That is the common understanding of the word. See United States v. Lande, 968 F.2d 907, 910 (9th Cir.1992) (holding that equipment manufactured to intercept and descramble satellite television programming met the “surreptitious” element because the producers of satellite programming were unable to detect the interception equipment); United States v. Bast, 495 F.2d 138, 143 (D.C.Cir.1974) (“The words ‘surreptitious interception’ connote! ], in plain and ordinary usage, ‘secret listening.’ ” (footnote omitted)). The relevant perspective is that of the persons whose communications are intercepted. In this context, “surreptitious interception” means an interception of which the targets are unaware. Even were we to accept Kachikian’s definition of surreptitious, i.e., “secret and unauthorized; clandestine; action by stealth or secretly,” United States v. Biro, 143 F.3d 1421, 1428 (11th Cir.1998), that does not require us to accept that “surreptitious interception” excludes wiretaps by law enforcement. What matters is that the interception was not authorized by the persons involved in the communication. Accordingly, the court properly rejected Kachikian’s instruction as to the meaning of the word “surreptitious.” Moreover, Kachikian’s interpretation does not make sense in light of the rest of the statute. Congress carved out an exception in § 2512(2)(b) for private citizens who manufacture wiretapping devices under government contract. That exception provides: “It shall not be unlawful under this section for ... an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, [to manufacture or possess a wiretapping device].” 18 U.S.C. § 2512(2)(b). Kachikian does not fit within that exception, and he does not contend otherwise. That exception would be unnecessary if lawful government wiretaps were, by definition, not covered by the statute because they are not surreptitious. Were that the case, the manufacture of wiretapping devices under government contract would already be exempt from criminal liability under § 2512(1). Kachikian also tries to support his argument by contending that the phrase “electronic, mechanical, or other device,” as found in § 2512, is a term of art that excludes devices destined for use by law enforcement. He bases this on the definition found in the statute: “ ‘electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than ... [a device] being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.” 18 U.S.C. § 2510(5)(a). Though he did not propose such an instruction, Kachikian claims that the court should have instructed the jury that, in order to prove that Kachikian was guilty of the crime, the government would have to prove he did not intend for law enforcement to possess the device. Once again, Kachikian misunderstands the language of the statute. The verb “to use” is in the present, - not the future, tense. The exception applies to devices being used, not to be used. A device that “can be used” to intercept wire communications is not removed from the reach of the criminal statute until it is actually “being used” by law enforcement. It is irrelevant, therefore, whether or not Kachikian may have intended Telesleuth to be used by law enforcement. At the time Kachiki-an acted, he knew that his creation was not in fact being used by law enforcement, so there can be no prejudice from a lack of instruction on wiretapping devices for use by law enforcement. Furthermore, an instruction that defines “electric, mechanical, or other device” as a device not for use by ■law enforcement would have improperly shifted the burden of proof to the government to show that the type of device Pelli-cano used was never meant for use by law enforcement. It was not plain error for the court not to have issued such an instruction. A mistaken belief that Kachikian was manufacturing the device for law enforcement was no defense under § 2512. Ka-chikian argued that he manufactured the device for another purpose, without knowing that it could potentially be used as a wiretapping device, but the instruction as given contemplated that defense, and the jury was not persuaded by it. Theoretically, he might have had a valid defense if either (1) he did not intentionally manufacture the device (e.g., he manu