A federal appeals panel has upheld the conviction of former Orange County, Calif., Sheriff Mike Carona, after finding that federal prosecutors did not commit misconduct by having an informant wear a wire to obtain incriminating audiotapes as evidence.
A panel of the 9th U.S. Circuit Court of Appeals unanimously found that prosecutors had not violated California Rule of Professional Conduct 2-100 when they used a cooperating witness to contact Carona while he was being represented by an attorney, according to the Jan. 6 ruling.
Under the rule, a member of the bar “shall not communicate directly or indirectly about the subject of the representations with a party the member knows to be represented by another lawyer in the matter unless the member has the consent of the other lawyer.”
U.S. District Judge Andrew Guilford in Santa Ana, Calif., had found that the government violated Rule 2-100 but refused to suppress the audiotapes, saying that no constitutional rights were compromised. Guilford also denied several of Carona’s requests — to suppress the evidence, instruct the jury about the ethics violation or disqualify the prosecutors — finding that the State Bar of California’s disciplinary procedures were more appropriate remedies.
“We disagree with the conclusion that the prosecutors violated Rule 2-100,” the 9th Circuit said. “Additionally we hold that even if there had been a violation, the district court did not abuse its discretion in rejecting these remedies and instead deferring to the state bar to address any ethical violation.”
Carona’s lawyer, Brian Sun, a partner in the Los Angeles office of Jones Day, declined to comment.
“The government is pleased with the decision of the 9th Circuit specifically affirming what the government has been saying all along — that the government acted appropriately at all times,” said Assistant U.S. Attorney Brett Sagel, one of the lead prosecutors in the case.
A source familiar with the case said Carona’s lawyers intend to petition the 9th Circuit for a rehearing, possible en banc.
Carona was convicted in 2009 on one count of witness tampering but acquitted on five other counts, including conspiracy to commit honest services fraud. Prosecutors had alleged that he used his office to enrich himself, his friends and his family. He was sentenced to 5 ½ years in prison and ordered to pay a $125,000 fine.
The lone conviction was based on allegations that Carona influenced the grand jury testimony of a local businessman, Don Haidl, who served as assistant sheriff. During a meeting in August 2007, Haidl, who had pleaded guilty to one count of filing a false tax return, arrived as a government witness wearing a wire and holding fake subpoena attachments that were designed to make Carona believe he had been asked to testify before a grand jury.
Carona’s lawyers argued that their client was being represented at the time by Dean Steward, a criminal defense attorney and solo practitioner in San Clemente, Calif.
The 9th Circuit found that the use of fake subpoena attachments did not mean that Haidl became an “alter ego of the prosecutor.” The panel noted that “it has long been established that the government may use deception in its investigations in order to induce suspects into making incriminating statements. The use of fake documents here was just such a stratagem.”
Even if prosecutors had violated the ethics rule, Guilford correctly denied Carona’s moves to suppress the evidence, the 9th Circuit concluded.
Following Guilford’s rulings, Carona’s lawyers referred the prosecutors, Sagel and Kenneth Julian, now a partner in the Costa Mesa, Calif., office of Los Angeles-based Manatt Phelps & Phillips, to the state bar, but it took no disciplinary action.
The appellate panel acknowledged the outcome of the state bar investigations but defended its conclusion: “It may, to the contrary, suggest support for our conclusion that there was not an ethical violation to begin with.”
Julian praised the ruling. “The fact that a defendant has retained counsel — that fact alone — could not possibly bar these kinds of covert contacts,” he said. “Otherwise, all criminals would get lawyers right away. All you’d have to do is say, ‘Hey, I’m a criminal, and I have a lawyer, therefore you can’t tape me.’ So that’s not good public policy. The 9th Circuit got it right.”
The 9th Circuit also denied Carona’s move for acquittal or a new trial based on an argument that the statute on which he was convicted was not the correct one.
Following the 9th Circuit’s decision, Guilford scheduled a Jan. 25 hearing to determine when Carona should surrender to federal authorities.
Amanda Bronstad is a reporter for The National Law Journal , a Legal affiliate based in New York. •