Wednesday, December 4, 2013
Ninth Circuit Rejects Ex-Sheriff Carona’s Bid to Cut Sentence
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld a district judge’s denial of former Orange County Sheriff Michael Carona’s bid for a reduction of his 66-month-prison sentence on corruption charges.
In a two-paragraph unpublished memorandum, the panel—Judge Richard Clifton, Senior Judge Raymond Fisher, and visiting Senior Judge James K. Singleton of the District of Alaska—rejected the ex-lawman’s claim that a U.S. Supreme Court ruling requires reconsideration of the sentence.
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—who died last year—to withhold testimony at a grand jury proceeding.
Secret Recorded Conversation
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.
State Bar Rule
U.S. District Judge Andrew J. Guilford of the Central District of California found that prosecutors’ actions had violated a State Bar rule, but that this did not amount to a constitutional infringement that would require suppression of evidence. Jurors 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 a 2011 opinion by Clifton, disagreed with Guilford’s determination that the prosecutors behaved unethically, saying they merely used deception as an investigative technique, as is the prerogative of law enforcement. The judge said 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.”
Clifton agreed with Guilford that even if there was a violation of professional conduct rules, the evidence was still admissible.
After the U.S. Supreme Court declined to review the ruling, Carona filed his resentencing motion, citing Skilling v. United States (2010) 130 S.Ct. 2896, a case arising out of the Enron scandal.
Skilling rejected the Justice Department’s broad interpretation of the federal law making “honest services” fraud a crime, limiting the reach of the law to bribery and kickback schemes. But Guilford denied Carona’s motion, explaining that that court “specifically made a factual finding in 2009 and today again makes such a finding that defendant’s crime involved instances of honest services fraud of the type that survived the Supreme Court’s limitation in Skilling.”
That finding was not clearly erroneous, the panel said, because bribery was one of the crimes being investigated by the grand jury whose probe Carona sought to impede. The judges also rejected Carona’s claim that Guilford erroneously calculated the Sentencing Guidelines range for the crime.
The case is United States v. Carona, 09-50235.
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