United States v. Carona
630 F.3d 917
9th Cir.2011Background
- Carona, Orange County Sheriff, was indicted on multiple federal charges alleging corruption; he was acquitted on several counts but convicted on one count of witness tampering under 18 U.S.C. § 1512(b)(2)(A).
- The government used a cooperating witness (Haidl) whom prosecutors aided with fake documents to elicit incriminating statements from Carona.
- Carona’s trial included suppression motions alleging a Rule 2-100 violation of the California Rules of Professional Conduct; the district court found a violation but did not suppress the evidence.
- Haidl recorded meetings with Carona after being equipped with fake subpoena attachments, allegedly to create a pretext for eliciting admissions.
- Carona challenged the § 1512(b)(2)(A) conviction, arguing the conduct fell under § 1512(b)(1) and that the phrase ‘withhold testimony’ should be narrowly construed; the district court and now the Ninth Circuit addressed these issues.
- The court ultimately affirmed the conviction and held no Rule 2-100 violation warranted suppression or other remedies, and that § 1512(b)(2)(A) adequately covered Carona’s conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutors violated Rule 2-100 by using a cooperating witness with fake documents | Carona argues the conduct violated Rule 2-100 and tainted the trial | Prosecutors contended no Rule 2-100 violation occurred | No violation found; remedies not abused |
| Scope of § 1512(b)(2)(A): withholding testimony partial vs. complete | Carona argues § 1512(b)(2)(A) requires withholding all testimony | Government contends it covers partial withholding and false testimony | § 1512(b)(2)(A) covers withholding information during false testimony; conviction sustained |
| Lenity and overlap with § 1512(b)(1) | Carona invokes rule of lenity for narrow construction | No grievous ambiguity; statutes coexist | Lenity not applicable; statutes harmonized; no error |
Key Cases Cited
- United States v. Talao, 222 F.3d 1133 (9th Cir. 2000) (case-by-case approach to Rule 2-100; no categorical rule; facts here do not violate rule)
- United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (false subpoena as altered ego of prosecutor under Rule 2-100)
- United States v. Powe, 9 F.3d 68 (9th Cir. 1993) (no Rule 2-100 violation where cooperating witness engaged with suspect before indictment)
- United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981) (no ethical violation where cooperating codefendant recorded conversation)
- United States v. Martino, 825 F.2d 754 (3d Cir.1987) (recognizes permissible government deception in investigations)
- United States v. Freeman, 208 F.3d 332 (1st Cir. 2000) (context of § 1512(b)(2)(A) applying to partial withholding)
- United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006) (covers false testimony in course of withholding information)
- United States v. Johnson, 968 F.2d 208 (2d Cir. 1992) (case on witness testimony and deceptive testimony)
- TRW Inc. v. Andrews, 534 U.S. 19 (S. Ct. 2001) (lenity considerations and statutory interpretation guidance)
- United States v. Nader, 542 F.3d 713 (9th Cir. 2008) (rule of lenity applicable only for grievous ambiguity)