Friday, January 7, 2011
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Court Upholds Conviction of ‘America’s Sheriff’ Michael Carona
From Staff and Wire Service Reports
Former Orange County Sheriff Michael Carona may be headed to jail after the Ninth U.S. Circuit Court of Appeals yesterday upheld his conviction for witness tampering.
The highest-ranking law officer to be prosecuted in Orange County—he was once dubbed “America’s Sheriff” before his fall from grace—Carona was sentenced to 66 months in prison but remained out of custody while his appeal was pending.
Carona could have faced up to 85 years in prison if convicted of all of the corruption charges lodged against him in 2008, but only the allegation that he had attempted to persuade his then-assistant sheriff Donald Haidl to withhold testimony at a grand jury proceeding held traction with the jury.
Haidl, who was cooperating with the government’s corruption investigation, secretly recorded a conversation with Carona in August 2007 in which Carona made statements suggesting he had received cash and gifts from Haidl and that he wanted Haidl to lie to the grand jury about these transactions.
Carona was later charged with two counts of witness tampering, conspiracy to commit honest services mail fraud, and three counts of mail fraud depriving the public of the right of honest services of a public official.
Motion to Suppress
At trial, Carona moved to suppress this evidence, contending prosecutors had violated the California Rules of Professional Conduct by equipping Haidl for this meeting with documents indicating that records relating to the transactions were being subpoenaed by the government.
U.S. District Judge Andrew J. Guilford of the Central District of California found that prosecutors actions had violated Rule 2-100, which prohibits an attorney from “communicat[ing] directly or indirectly …with a party [the attorney] knows to be represented by another lawyer.”
Guilford, however, declined to suppress the evidence, and a jury subsequently found Carona guilty of violating 18 U.S.C. § 1512(b)(2)(A), which prohibits the use of intimidation, threats or corrupt persuasion to induce a witness to “withhold testimony” during an official proceeding.
No Misconduct
The appellate court, in a decision by Judge Richard R. Clifton, disagreed with Guilford’s determination that the prosecutors behaved unethically, concluding that the provision of fake court papers to an informant to use during a conversation with a represented party is not conduct that violates Rule 2-100.
He posited that the documents did not cause Haidl “to be any more an alter ego of the prosecutor than he already was by agreeing to work with the prosecutor,” characterizing the papers as mere “props…to bolster the ability of the cooperating witness to elicit incriminating statements from a suspect.”
In light of the courts’ longstanding acceptance of government deception during investigations, Clifton posited, it “would be antithetical to the administration of justice to allow a wrongdoer to immunize himself against such undercover operations simply by letting it be known that he has retained counsel.”
Even if the government had acted unethically, Clifton added, there is no statute or constitutional provision requiring that the evidence be excluded. Clifton said the district judge was well within his discretion in concluding that the possibility of State Bar discipline was an adequate deterrent to a prosecutorial violation of a State Bar ethics rule.
The jurist also concluded that Carona’s recorded statements violated Sec. 1512(b)(2)(A), noting the ex-lawman’s instruction to Haidel to “say this… you never gave me cash,” and claim the transactions “didn’t…happen.”
‘Withhold Testimony’
Clifton rejected Carona’s contention that the phrase “withhold testimony” in Sec. 1512(b)(2)(A) only encompasses an attempt to persuade a witness to completely withhold testimony, explaining that an attempt to have certain information withheld in addition to having false testimony offered fell within the auspices of the statute.
Senior Judge John T. Noonan and Judge Jay S. Bybee joined Clifton in his decision.
Assistant U.S. Attorney Brett Sagel remarked:
“Although sometimes justice isn’t as swift as everybody hopes, we are happy and confident with this result. Justice does prevail in the end.” He emphasized that the “government investigation and prosecution led to Mike Carona’s indictment, removal from office and conviction—and now he’ll be going to jail.”
Carona’s attorney, Brian Sun of Jones Day, did not immediately return a call or e-mail seeking comment. The former sheriff’s other attorney, Jeff Rawitz, died last year.
The case is United States v. Carona, 09-50235.
Copyright 2011, Metropolitan News Company