United States v. Carona

630 F.3d 917, 2011 U.S. App. LEXIS 319, 2011 WL 32581
Court of Appeals for the Ninth Circuit·Decided January 6, 2011·No. No. 09-50235·Published·Cited by 6 cases

Opinion

OPINION

CLIFTON, Circuit Judge:

Appellant Michael S. Carona, formerly the Sheriff of Orange Country, California, was charged with several federal crimes relating to alleged corruption. The jury acquitted him on most counts but found him guilty on one count of witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A). He appeals that conviction on two primary grounds.

The first concerns the admission into evidence of a recorded conversation between Carona and a confederate who was at the time of the conversation cooperating with federal prosecutors. The district court held that the prosecutors violated Rule 2-100 of the California Rules of Professional Conduct (“Communication with a Represented Party”) by communicating with Carona, known by them at the time to be represented by counsel, through the cooperating witness, to whom the prosecutors had given fake documents to use in eliciting incriminating statements. The district court did not suppress the evidence or impose sanctions on the government for this violation, however, leaving any discipline for the violation to the state bar. Carona contends, among other things, that the evidence should have been suppressed and that the lead prosecutor should have been disqualified. We conclude, however, that the actions of the prosecutors did not violate Rule 2-100 and, further, that the district court properly denied suppression of the evidence even if there had been a violation of Rule 2-100.

Second, Carona moved for a judgment of acquittal, or in the alternative for a new trial, on the one count of witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) for which he was convicted, arguing that the prohibition under that statute against “corruptly persuading]” a witness to “withhold testimony” from the grand jury properly applied only where a defendant intended for a witness to withhold all testimony, and not where, as in this case, the evidence indicated that the defendant intended for a witness to omit [919]*919information by testifying falsely in the course of providing testimony. Carona argued that his acts were covered only by a related but separate subsection of the statute, 18 U.S.C. § 1512(b)(1). The jury acquitted Carona of the count which alleged violation of that subsection. The district court denied the motion. Carona appeals that denial and the instructions given by the court to the jury regarding that count. We are not persuaded by this challenge, either, concluding that the identified statute, 18 U.S.C. § 1512(b)(2)(A), covers the misconduct for which the jury found Carona guilty.

We affirm the judgment of the district court.

I. Background

Carona served as Sheriff of Orange County, an elected position, from January 1999 until early 2008, when he resigned following his indictment. During his initial campaign for sheriff in 1998, Carona received financial support from Donald Haidl. Haidl testified at trial that Carona “offered [him] the complete power of the sheriffs department for raising money and supporting him.”

After Carona took office, Haidl testified that he continued to make payments to Carona. He became concerned that Carona was jeopardizing his position and Haidl’s arrangement by accepting small amounts from other people. Haidl testified that he offered Carona and Assistant Sheriff George Jamarillo each a “bribe not to take bribes” in the amount of $1000 per month, which they accepted. Haidl also testified that he gave Carona a speedboat in 2001, which they concealed through a sham transaction.

In 2004, the federal government began an investigation. In early 2007, Haidl admitted his own criminal misconduct and signed a cooperation plea agreement with the government. Following this plea agreement, government attorneys instructed Haidl to meet with Carona and to make surreptitious recordings of their meetings. At this time, Carona was represented by attorney Dean Stewart, who had notified the government that he was representing Carona.

Haidl met with Carona on July 7, 2007, and July 15, 2007, but these meetings did not provide enough evidence to satisfy the prosecutors. In preparation for a subsequent meeting, the government equipped Haidl with two fake “subpoena attachments” that identified certain records that Haidl was to tell Carona he had been subpoenaed to produce. These documents referred to cash payments Haidl provided to Carona and to the sham transaction they used to conceal the gift of the speedboat. Haidl and Carona met again on August 13, 2007, and in their conversation, Carona made statements that suggested both that he had received payments and gifts from Haidl and that he wanted Haidl to lie to the grand jury about these transactions.

Carona was subsequently charged with tampering with a grand jury witness in two separate counts of the indictment, one count alleging a violation of 18 U.S.C. § 1512(b)(1), and the other a violation of § 1512(b)(2)(A). These statutes will be discussed in more detail below. Carona was also charged with conspiracy to commit honest services mail fraud in violation of 18 U.S.C. § 371, and with three counts of mail fraud depriving the public of the right of honest services of a public official in violation of 18 U.S.C. §§ 1341 and 1346.

Carona moved before trial to suppress his statements to Haidl because they allegedly were obtained in violation of Rule 2-100 of the California Rules of Professional Conduct. Rule 2-100 prohibits an attor[920]*920ney from “communicat[ing] directly or indirectly ... with a party [the attorney] knows to be represented by another lawyer.” Cal. R. Prof. Conduct 2-100(A). The state rules apply to federal prosecutors under 28 U.S.C. § 530B.1

The district court held that the prosecutors had violated Rule 2-100, but the court declined to suppress the evidence, concluding that “there are less extreme remedies than suppression” and “[t]he State Bar for California has a very effective system for disciplining and deterring attorney misconduct.” Carona then moved for a jury instruction permitting the jury to accord less weight to his recorded statements because they were obtained in violation of an ethical rule. The court denied this request. The court also denied Carona’s requests to disqualify the lead prosecutor and to introduce evidence of the lead prosecutor’s ethical violation.

The jury acquitted Carona on the four counts of conspiracy and honest services mail fraud and on one count of witness tampering. The jury found Carona guilty, however, on the count which alleged witness tampering in violation of 18 U.S.C. § 1512

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United States v. Carona, 630 F.3d 917, 2011 U.S. App. LEXIS 319, 2011 WL 32581 (9th Cir. 2011).

630 F.3d 917 (United States v. Carona) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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