USA v. Michael Carona

OPPOSITION to MOTION for Bond Pending Appeal 627

C.D. Cal.April 23, 2009

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THOMAS P. O’BRIEN United States Attorney ROBB C. ADKINS Assistant United States Attorney Chief, Southern Division KENNETH B. JULIAN (Cal. State Bar #149840) Deputy Chief, Assistant United States Attorney BRETT A. SAGEL (Cal. State Bar #243918) Assistant United States Attorney 411 W. Fourth Street, Suite 8000 Santa Ana, California 92701 Telephone: (714) 338-3537 Facsimile: (714) 338-3708 Email: kenneth.julian@usdoj.gov Attorneys for Plaintiff UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL S. CARONA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CR 06-224(D)-AG GOVERNMENT’S OPPOSITION TO DEFENDANT MICHAEL CARONA’S MOTION FOR BAIL PENDING APPEAL DATE: APRIL 27, 2009 TIME: 1:30 P.M. PLACE: COURTROOM 10D Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 1 of 10 Page ID #:6377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION AND ARGUMENT On April 15, 2009, the government filed a Bench Brief opposing Bail Pending Appeal (the “Bench Brief” or “BB”) in anticipation that defendant MICHAEL S. CARONA (“defendant”) would make such a request. On April 17, 2009, defendant filed a Motion for Release Pending Appeal (the “Motion” or “Mtn.”). In the Motion, defendant asserts that three legal questions exist for appeal, which defendant argues are fairly doubtful under the Ninth Circuit’s standard, and which are likely to result in a reversal of defendant’s conviction for witness tampering. Mtn. at 2-8. These questions involve: (1) This Court’s failure to suppress the August 13th Recording and related rulings; (2) The proper legal elements of witness tampering under 18 U.S.C. § 1512(b)(2)(A); and (3) This Court’s denial of defendant’s motion to dismiss for alleged grand jury errors. As set forth in the government’s Bench Brief, these legal questions are not fairly doubtful and will not likely result in reversal of defendant’s conviction. BB at 4-8; United States v. Montoya, 908 F.2d 450 (9th Cir. 1990). Without repeating the arguments in the Bench Brief, the government briefly responds to each of these contentions, as follows: Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 2 of 10 Page ID #:6378 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 A. Failure to Suppress the August 13th Recording In the Motion, defendant contends that he was entitled to a “remedy” for the Court’s finding that prosecutors stepped over the line drawn in Rule 2-100 of the California Rules of Professional Conduct (“Rule 2-100"). This is simply incorrect. Rule 2-100 is “a rule governing attorney conduct and the duties of attorneys, and does not create a right in a party not to be contacted by opposing counsel.” United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000) (emphasis added); United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993) (“rule against communicating with represented parties is fundamentally concerned with the duties of attorneys, not with the rights of parties.”) (emphasis added). Here, because defendant’s constitutional rights were not violated, and because defendant had no rights that could be violated under Rule 2-100, defendant was not personally entitled to any remedy for the violation of Rule 2-100. Talao, 222 F.3d at 1138. Thus, if the Court were to deem a remedy appropriate, it must be aimed at preserving respect for the Rules of Professional Conduct and to deter future violations, not personally rewarding defendant. Lopez, 4 F.3d at 1463. There is no doubt that this Court acted well within its discretion when it elected not to suppress the August 13th Recording. Id. As the Court noted, such a remedy was too extreme for this context. Moreover, no criminal case supports suppression for a Rule 2-100 violation without a corresponding violation of defendant’s Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 3 of 10 Page ID #:6379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is noteworthy that that cases defendant relies upon1 consist of a civil case, Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F. 3d 693 (8th Cir. 2003), and a case involving a Sixth Amendment violation, United States v. Bowman, 277 F. Supp. 2d 1239, 1243 (N.D. Ala. 2003). 3 constitutional rights under the Sixth Amendment. Suppression1 Denial order (“SDO”) at 12. Suppression also was not justified because the Rule 2-100 violation in this case was neither deliberate nor flagrant. Lopez, 4 F.3d at 1463. As the Court recognized, the law in this area was murky and difficult to apply in these circumstances. SDO at 12-13. Moreover, it is undisputed that prosecutors here consulted in advance with and relied upon ethics advisors’ opinions and sought and obtained pre-approval from appropriate supervisors. Without a deliberate or flagrant violation, there can be no suppression of the August 13th Recording under the Court’s supervisory powers. Lopez, 4 F.3d at 1463. Hence, as the Court ruled, suppression was “particularly unwarranted” under the circumstances of this case. SDO at 12. Furthermore, the prospect of a bar state investigation, like the one that ensued against the prosecutors here, itself will deter other prosecutors from using the subpoena ruse. Lopez, 4 F.3d at 1463. This is true regardless of the outcome of that investigation. Moreover, this Court’s Suppression Denial Order serves to clarify the law in this context and will serve as a guide to prosecutors in the future. Nothing more was required to preserve respect for the Rules of Professional Conduct and to deter future violations. Id.; Talao, 222 F.3d at 1138. See also Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 4 of 10 Page ID #:6380 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 SDO at 13 (“The State Bar of California has a very effective system for disciplining and deterring attorney misconduct ....”). Additionally, the Court permitted defendant to offer his own statements from the tape, for himself, at trial--thereby allowing defendant to avoid testifying subject to cross-examination--under the residual hearsay exception of Rule 807 (“Rule 807") of the Federal Rules of Evidence. This ruling provided a substantial benefit to defendant for the Rule 2-100 violation. In making this ruling, the Court considered the Rule 2-100 violation in assessing whether the “interest of justice w[as] best ... served by admission of the statement[s] into evidence.” Fed. R. Evid. 807. Thus, even if defendant was entitled to a “remedy” for such the violation (which he is not), he did receive one. Finally, no fairly debatable question exists as to whether the Court properly denied defendant’s attempt to present evidence and argument to the jury with respect to the Rule 2-100 violation. It would have been plainly improper for this Court to admit evidence or argument that prosecutors violated Rule 2-100. See, e.g., Arizona v. Washington, 434 U.S. 497, 515-16 (1978) (defense attorney’s comments in opening statement that the prosecution improperly withheld evidence from the defendant was so manifestly prejudicial that it warranted a mistrial in favor of the government). Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 5 of 10 Page ID #:6381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 B. Composition of the Legal Elements of Witness Tampering In the Motion, defendant claims that a fairly doubtful question exists as to the meaning of “withhold” in connection with 18 U.S.C. § 1512(b)(2)(A). This claim lacks merit. As the Court already has ruled, there is nothing ambiguous about the term withhold, or its application to the facts of this case. See Order Denying Arrest of Judgement at 8 (defendant’s legal arguments are without merit because they too “finely pars[e] language” of Section 1512(b)(2)(a)). Additionally, because defendant did not object to the applicable jury instructions, defendant’s legal arguments on appeal about Section 1512(b)(2)(A) are likely foreclosed under Fed. R. Crim. P. 30 (“No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires”). Citing no cases to support it, defendant argues that when one criminal statute partially overlaps with another, such as Section 1512(b)(1) (influence testimony) and Section 1512(b)(2)(a) (withhold testimony), then it renders one of the provisions superfluous. Mtn at 7:13-15. This is clearly wrong. Compare, e.g., 18 U.S.C. § 1512(b)(2)(D) (corrupt persuasion to cause a person to “be absent from an official proceeding”) (emphasis added); 18 U.S.C. § 1512(b)(1) (corrupt persuasion to “prevent the testimony of any person”) (emphasis added); 18 U.S.C. § 1512(b)(2)(C) (corrupt persuasion to “evade legal process summoning that person to appear as a witness”) (emphasis added). Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 6 of 10 Page ID #:6382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 For example, a defendant who used corrupt persuasion to cause a witness to be out of town with intent to keep the witness from being served with a grand jury subpoena and ultimately to prevent the witness’s grand jury testimony could be charged with using corrupt persuasion: (1) to cause a witness to “be absent” in violation of 18 U.S.C. § 1512(b)(2)(D); (2) to prevent the testimony of a witness in violation of 18 U.S.C. § 1512(b)(1); and/or (3) to cause a witness to “evade process” in violation of 18 U.S.C. § 1512(b)(2)(C). In the context of the criminal laws, such overlap is commonplace and does not render a statute “superfluous.” Id. Defendant’s reliance upon United States v. Corley, -- S.Ct. --, 2009 WL 901513 (U.S.) (2009), is misplaced. In Corley, one reading of a federal statute was in total conflict with another section of that same statute and Rule 5(a) of the Federal Rules of Criminal Procedure (“Rule 5(a)”). Id. In Corley, the United States Supreme Court simply ruled that the federal statute must be read so as to give effect to all of its provision and Rule 5(a). The situation in this case is completely different. Section 1512(b)(1) (influence testimony) and Section 1512(b)(2)(a) (withhold testimony) are not in conflict at all. Rather, these sections merely overlap, in part, such as where, as in the present case, a defendant corruptly persuades a witness with intent to cause the witness to lie to and withhold testimony from a grand jury. Nothing about these statutes renders the other “inoperative or superfluous, void or insignificant” as discussed in Corley. Corley, 2009 WL 901513 at 8. Nor does the Supreme Court’s decision in Corley bar Congress from enacting Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 7 of 10 Page ID #:6383 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 criminal statutes with potentially overlapping and similar applications, but with separate elements. Id.; compare also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1347 (healthcare fraud), and 1348 (securities fraud). C. Motion to Dismiss for Grand Jury Errors. Defendant argues that a fairly debatable question exists as to whether this Court should have dismissed the indictment for alleged grand jury errors. Mtn. at 8. As discussed in the government’s Bench Brief, defendant did not come close to meeting his pre-trial burden in this regard. See BB at 7-8. More importantly, however, the Motion completely ignores the fact that defendant’s burden, after conviction, is almost insurmountable. Stated another way, post-conviction complaints about alleged errors in the grand jury are not likely to lead to a reversal of a conviction. See, e.g., Williams v. Stewart, 441 F.3d 1030, 1041-42 (9th Cir.) (observing that any constitutional error from prosecutor's alleged misconduct during grand jury proceeding harmless because defendant was ultimately convicted on charged offenses). Even where an error “had the theoretical potential to affect the grand jury's determination whether to indict ... defendants for the offenses with which they were charged,” the defendant’s later conviction by a petit jury renders the error harmless, as a matter of law. United States v. Mechanik, 475 U.S. 66, 70 (1986). Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 8 of 10 Page ID #:6384 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 This is because “the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings.” Id. In this regard, the Mechanik Court stated: These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial. Id. (emphasis added). In United States v. Atwood, 489 F.Supp.2d 982 (D. Ariz. 2007), after conviction at trial, a defendant claimed “that during grand jury proceedings the prosecutor failed to present exculpatory evidence and also presented false testimony.” Id. at 1034. Like defendant here, the defendant in Atwood claimed that “grand jurors were not told of inaccuracies in witnesses' statements, [and] discrepancies” among witness statements. Id. Applying Mechanik, the district court rejected these claims: “[b]ecause the jury ultimately convicted [defendant] of both charged offenses, ‘any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.’" Id. quoting Mechanik, 475 U.S. at 70. In this case, none of the claimed grand jury errors had any “effect on the outcome of the trial,” at which defendant was convicted. Mechanik, 475 U.S. at 70. On appeal, any claimed grand jury errors therefore will be deemed harmless. Williams, 441 F.3d at 1041-42. Hence, as to alleged grand jury errors, defendant cannot show a fairly doubtful question for appeal that Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 9 of 10 Page ID #:6385 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 is likely to result in reversal of defendant’s conviction. Id.; Atwood, 489 F. Supp. 2d at 1034. II. CONCLUSION The arguments presented are insufficient to warrant defendant’s release pending appeal. As such, this Court should deny defendant’s Motion for bail pending appeal. 18 U.S.C. § 3143(b); United States v. Reynolds, 956 F.2d 192, 193 (9th Cir. 1992) (district court properly denied bail pending appeal after sentencing defendant convicted of witness tampering under Section 1512(b) to 14 years imprisonment because defendant failed to raise a substantial question for appeal). DATED: April 23, 2009 Respectfully submitted, THOMAS P. O’BRIEN United States Attorney ROBB C. ADKINS Assistant United States Attorney Chief, Southern Division Kenneth B. Julian KENNETH B. JULIAN BRETT A. SAGEL Assistant United States Attorney Attorneys for Plaintiff UNITED STATES OF AMERICA Case 8:06-cr-00224-AG Document 639 Filed 04/23/09 Page 10 of 10 Page ID #:6386