United States v. Carona
660 F.3d 360 (2011) 630 F.3d 917 (2011) (2011)
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Rule of Law:
A prosecutor does not violate the professional conduct rule against communicating with a represented party by directing an informant to use deceptive documents to elicit incriminating statements from the party pre-indictment. Furthermore, the witness tampering statute prohibiting one from persuading a witness to "withhold testimony" applies to persuading a witness to provide false testimony about specific facts, not just to persuading a witness to withhold all testimony.
Facts:
- Michael S. Carona, the Sheriff of Orange County, California, received financial support from Donald Haidl during his campaign.
- After Carona took office, Haidl continued to make payments to Carona, including a monthly "bribe not to take bribes" and a speedboat concealed through a sham transaction.
- In 2004, the federal government began investigating Carona for corruption.
- In 2007, Haidl agreed to cooperate with the government and began to surreptitiously record his meetings with Carona.
- At this time, prosecutors were aware that Carona was represented by legal counsel.
- For an August 13, 2007 meeting, prosecutors equipped Haidl with fake "subpoena attachments" listing cash payments and the speedboat transaction.
- During the recorded meeting, Haidl used these fake documents to elicit statements from Carona, in which Carona encouraged Haidl to lie to the grand jury about these transactions.
Procedural Posture:
- Michael Carona was indicted in federal district court on several charges, including witness tampering under 18 U.S.C. § 1512(b)(1) and § 1512(b)(2)(A).
- Before trial, Carona moved to suppress his recorded statements to Haidl, arguing they were obtained in violation of California Rule of Professional Conduct 2-100.
- The district court (the court of first instance) found that the prosecutors had violated Rule 2-100 but declined to suppress the evidence or impose other sanctions.
- A jury acquitted Carona on all counts except for one count of witness tampering under § 1512(b)(2)(A).
- Carona filed post-trial motions for an arrest of judgment and a judgment of acquittal, which the district court denied.
- Carona (appellant) appealed his conviction to the United States Court of Appeals for the Ninth Circuit, challenging both the admission of the evidence and the interpretation of the witness tampering statute.
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Issue:
Does a prosecutor violate California Rule of Professional Conduct 2-100, which prohibits communication with a represented party, by directing a cooperating witness to use fake subpoena attachments to elicit incriminating statements from that party before an indictment?
Opinions:
Majority - Clifton, Circuit Judge
No. A prosecutor does not violate California's 'no-contact' rule under these circumstances. The court reasons that the government may use 'artifice and stratagem' in its investigations, and the use of fake documents was a permissible deception. The fake subpoena attachments did not transform the cooperating witness, Haidl, into the 'alter ego' of the prosecutor. Furthermore, the encounter was a conversation with a supposed ally, not a formal interrogation where a suspect might be tricked by 'artful questions' from opposing counsel. To hold otherwise would allow a wrongdoer to immunize himself from legitimate undercover operations simply by retaining counsel, which would be 'antithetical to the administration of justice.' Since there was no ethical violation, there was no basis to suppress the evidence.
Analysis:
This decision solidifies the Ninth Circuit's case-by-case approach to prosecutorial contact with represented parties, providing significant latitude for law enforcement to use deception in pre-indictment investigations. By distinguishing the Second Circuit's holding in United States v. Hammad, the court signals that even the use of fabricated court documents does not automatically cross the ethical line into making an informant a prosecutor's 'alter ego.' The ruling affirms the government's ability to conduct aggressive undercover operations against suspects who have retained counsel, potentially limiting the practical scope of the no-contact rule in the pre-indictment phase of a criminal investigation.
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