United States v. Carona - 660 F.3d 360 (9th Cir. 2011)

Rule:

Cal. R. Prof. Conduct 2-100 prohibits an attorney from communicating directly or indirectly with a party the attorney knows to be represented by another lawyer. Cal. R. Prof. Conduct 2-100(A). The state rules apply to federal prosecutors under 28 U.S.C.S. § 530B. 

Facts:

Appellant Michael S. Carona, formerly the Sheriff of Orange Country, California, was charged with several federal crimes relating to alleged corruption. The jury acquitted him on most counts but found him guilty on one count of witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A). He appeales that conviction on two primary grounds. The first concerns the admission into evidence of a recorded conversation between Carona and a confederate who was at the time of the conversation cooperating with federal prosecutors. The district court held that the prosecutors violated Rule 2-100 of the California Rules of Professional Conduct ("Communication with a Represented Party") by communicating with Carona, known by them at the time to be represented by counsel, through the cooperating witness, to whom the prosecutors had given fake documents to use in eliciting incriminating statements. The district court did not suppress the evidence or impose sanctions on the government for this violation, however, leaving any discipline for the violation to the state bar. Carona contends, among other things, that the evidence should have been suppressed and that the lead prosecutor should have been disqualified. Second, Carona moved for a judgment of acquittal, or in the alternative for a new trial, on the one count of witness tampering in violation of 18 U.S.C. § 1512(b)(2)(A) for which he was convicted, arguing that the prohibition under that statute against "corruptly persuad[ing]" a witness to "withhold testimony" from the grand jury properly applied only where a defendant intended for a witness to withhold all testimony, and not where, as in this case, the evidence indicated that the defendant intended for a witness to omit information by testifying falsely in the course of providing testimony. Carona argued that his acts were covered only by a related but separate subsection of the statute, 18 U.S.C. § 1512(b)(1). The jury acquitted Carona of the count which alleged violation of that subsection. The district court denied the motion. Carona appeals that denial and the instructions given by the court to the jury regarding that count.

Issue:

Did the actions of the prosecutors violate Rule 2-100?

Answer:

No

Conclusion:

The court disagreed with Carona’s conclusion that the prosecutors violated Cal. R. Prof. Conduct 2-100. There were no direct communications between the prosecutors and Carona. The indirect communications did not resemble an interrogation. Nor did the prosecutors' use of fake subpoena attachments make their informant the alter ego of the prosecutor. The court affirmed the district court's decision not to suppress evidence obtained through the use of the fake subpoena attachments. The court noted that Carona’s state of mind appeared to have involved both the intent to "influence" a witness's testimony and the intent for the witness to "withhold" testimony, based on the dictionary definitions of these words. Carona intended to "modify" or "affect" the testimony by encouraging the witness to testify that no bribes occurred, as well as to "omit" testimony regarding the bribes. Accordingly, the court agreed with the district court's conclusion that Carona violated 18 U.S.C.S. § 1512(b)(2)(A) by attempting to persuade the witness to withhold testimony about particular topics in the course of giving false testimony.