United States v. Carona
660 F.3d 360
9th Cir.2011Background
- Carona, former Sheriff of Orange County, was charged with multiple federal crimes related to corruption; he was acquitted on several counts but convicted on one count of witness tampering under 18 U.S.C. § 1512(b)(2)(A).
- Prosecutors used a cooperating witness (Haidl) who was provided fake subpoena attachments to induce Carona to incriminate himself in recorded conversations.
- Carona argued Rule 2-100 of the California Rules of Professional Conduct barred communications with a represented party; the district court found a violation but declined suppression, leaving disciplinary options to the state bar.
- The conviction under § 1512(b)(2)(A) concerned August 13, 2007, when Carona allegedly tried to persuade Haidl to withhold testimony by causing false or misleading statements.
- The district court denied Carona’s motions for acquittal/arrest of judgment, and the jury instruction on the § 1512(b)(2)(A) count was challenged on appeal.
- The Ninth Circuit upheld the district court’s rulings, affirming the conviction and rejecting Carona’s challenges to Rule 2-100 and the statutory interpretation of § 1512(b)(2)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 2-100 violation occurred | Carona | Carona | No Rule 2-100 violation; no abuse in non-suppressive remedies |
| Whether the district court properly declined suppression | Carona | Carona | Remedies other than suppression appropriate; no abuse of discretion |
| Whether § 1512(b)(2)(A) covers partially withheld testimony | Carona | Carona | § 1512(b)(2)(A) covers withholding on specific topics during false testimony |
| Whether lenity requires a narrower reading of § 1512(b)(2)(A) | Carona | Carona | Lenity not applicable; statute not ambiguous |
Key Cases Cited
- United States v. Talao, 222 F.3d 1133 (9th Cir. 2000) (case-by-case standard for Rule 2-100; not a bright-line rule)
- United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (fake subpoenas and informant as alter ego; ethical implications)
- United States v. Powe, 9 F.3d 68 (9th Cir. 1993) (no Rule 2-100 violation where cooperating witness engaged with represented defendant)
- United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981) (no ethical violation where codefendant cooperates with government)
- United States v. Ryans, 903 F.2d 731 (10th Cir. 1990) (no no-contact rule for undercover investigations of unindicted suspects)
- Sorrells v. United States, 287 U.S. 435 (1932) (artifice permissible to catch criminals)
- United States v. Martino, 825 F.2d 754 (3d Cir. 1987) (fake subpoena as permissible investigative tactic)
- United States v. Banks, 556 F.3d 967 (9th Cir. 2009) (dictionary approach to statutory interpretation without lenity)