Wednesday, October 26, 2011
Ninth Circuit Denies Rehearing to Former Sheriff Carona
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday denied former Orange County Sheriff Michael Carona’s petition for rehearing yesterday.
The three-judge panel that upheld the ex-sheriff’s conviction for witness tampering in January issued a brief order modifying some of the language in its prior opinion, but denying any other relief. The court also said that none of its active judges asked for a vote on the defense request for rehearing en banc, and that no further rehearing petitions would be entertained.
Carona now has 90 days to petition the U.S. Supreme Court to hear the case. The 56-year-old Carona is currently serving his 66- month term at a federal prison in Colorado and is scheduled for release in 2015, according to the Bureau of Prisons.
Carona was once dubbed “America’s Sheriff” by the media and was talked about as a potential statewide candidate before he was charged with multiple counts of corruption in 2008. He was acquitted of most of the charges, but found guilty of attempting to persuade then-Assistant Sheriff Donald Haidl to withhold testimony at a grand jury proceeding.
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.
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.
The appellate court, in an opinion 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 Haidl to “say this… you never gave me cash,” and claim the transactions “didn’t…happen.”
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’s opinion.
The case is United States v. Carona, 09-50235.
Copyright 2011, Metropolitan News Company