## Facts

- Michael S. Carona, former Sheriff of Orange County, California, was federally indicted for alleged corruption-related offenses.
- A jury acquitted Carona on most charges but convicted him of one count of witness tampering under 18 U.S.C. § 1512(b)(2)(A).
- The conviction relied substantially on a secretly recorded conversation between Carona and Don Haidl, a former associate who became a cooperating witness.
- Prosecutors, knowing Carona was represented by counsel, directed Haidl to record Carona and provided Haidl with fabricated subpoena attachments to help elicit incriminating statements.
- In the recorded August 2007 meeting, after Haidl displayed the fictitious subpoenas, Carona urged Haidl to maintain a false account and avoid disclosing certain information to a grand jury; the conduct aimed at shaping testimony rather than preventing Haidl from appearing.
- The district court admitted the recording, found prosecutorial conduct violated California Rule of Professional Conduct 2-100, but declined to suppress evidence or disqualify the prosecutor.
- The district court denied Carona’s post-trial motions for judgment of acquittal, arrest of judgment, or a new trial on the § 1512(b)(2)(A) count.

## Issues

1. Whether prosecutors’ use of a cooperating witness and fabricated subpoena attachments to elicit statements from a represented defendant constituted an impermissible indirect communication under California Rule of Professional Conduct 2-100, requiring suppression, disqualification, or other relief.
2. Whether “withhold testimony” in 18 U.S.C. § 1512(b)(2)(A) is limited to efforts to prevent all testimony, or also reaches efforts to induce a witness to testify falsely or omit information; and whether the evidence and jury instructions supported the conviction under the proper interpretation.

## Decision

- The Ninth Circuit affirmed the conviction and the district court’s rulings.
- The court held that, on these facts, prosecutors did not violate California Rule of Professional Conduct 2-100; there were no direct communications with Carona, and the indirect contacts did not amount to an interrogation or make the informant the prosecutor’s “alter ego.”
- Because it found no Rule 2-100 violation, the court did not decide what remedies would be appropriate if a violation had occurred.
- The court held that § 1512(b)(2)(A) covers attempts to cause a witness to “withhold testimony” by giving false or incomplete testimony, not solely attempts to secure a total refusal to testify.
- The jury instructions permitting conviction based on inducing withholding “in whole or in part” were consistent with the statute as interpreted.
- The evidence was sufficient to show Carona corruptly persuaded Haidl with intent to withhold truthful information from an official proceeding.

## Legal Principles

- A prosecutor’s use of a cooperating witness to record a represented suspect does not, without more, violate a state no-contact rule when there is no direct communication and the circumstances do not effectively convert the informant into the prosecutor’s alter ego.
- “Withhold testimony” under 18 U.S.C. § 1512(b)(2)(A) includes efforts to induce a witness to omit or suppress truthful information by testifying falsely or incompletely, even if the witness is expected to appear and testify.
- For § 1512(b)(2)(A), it is sufficient that the defendant intends to cause the witness to withhold truthful information from an official proceeding; intent to prevent the witness from testifying at all is not required.
- Jury instructions and sufficiency review in witness-tampering cases turn on whether the instructions track the statute’s scope and whether the record supports an intent to corruptly persuade withholding of truthful testimony.

## Conclusion

The Ninth Circuit affirmed Carona’s witness-tampering conviction, holding that the prosecutors’ indirect use of a cooperating witness and deceptive subpoena props did not violate Rule 2-100 on the facts presented, and that § 1512(b)(2)(A) reaches efforts to induce false or incomplete testimony as withholding testimony from an official proceeding.


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