What could be worse than a lying, corrupt County Sheriff who suborns perjury and (allegedly) accepts years of cash bribes? Maybe a federal prosecutor who fakes subpoenas so a lying, corrupt co-defendant can use them as a snitch when speaking to the represented Sheriff?
The Ninth, unfortunately, misses the irony of law enforcement using blatant deception to further the investigation of a deceiving law enforcement officer. United States v. Carona, 2011 WL 32581 (9th Cir. Jan. 6, 2011), decision available here.
Players: Decision by Judge Clifton, joined by Judges Noonan and Bybee.
Facts: Michael S. Carona (above right) was the Orange County Sheriff, and was suspected of accepting bribes. Id. at *1.The feds flipped the briber, who met with Carona and discussed coordinating their testimony on a wire. Id. at *2. The feds knew at the time that Carona was represented by defense counsel. Id.
To bolster his credibility, the feds gave the snitch fake “subpoena attachments” that sought information on cash payments that the snitch had given Carona. Id. The snitch and Carona talked on the wire, Carona was indicted, and was later convicted after trial of witness tampering. Id. at *3.
Before trial Carona’s counsel moved to suppress Carona’s statements to the snitch, on the grounds that they were obtained through a violation of California Rule of Professional Conduct 2-100(A) (prohibiting an attorney from communicating directly or indirectly with a represented adverse party). Id. at *2. The district court agreed that there was a Rule 2-100(A) violation, but rejected all remedies – including a jury instruction about the violation. Id.
Issue(s): “We have not previously needed to consider the question of whether providing fake court papers to an informant to use during a conversation with a represented party is conduct that violates Rule 2-100.” Id. at *4.
Held: “Under facts presented here, we conclude that it does not.” Id. (emphasis added).“The false documents were props used by government [sic] to bolder the ability of the cooperating witness to elicit incriminating statements from a suspect. The district court appears to have been concerned that by allowing such conduct a suspect could be ‘tricked into giving his case away by opposing counsel’s artful questions,’ but it has long been established that the government may use deception in its investigations to induce suspects into making incriminating statements.” Id. at *4. “There were no direct communications here between the prosecutors and Carona. The indirect communications did not resemble an interrogation. Nor did the use of the fake subpoena attachments make the informant the alter ego of the prosecutor. On the facts presented in this case, we conclude that there was no violation of Rule 2-100.” Id. at *5.
Of Note: As grim as the Carona decision is, at least Judge Clifton concedes that this issue – a prosecutor’s contact with represented parties – triggers no bright line rules and must be decided on a case-by-case basis. Id. at *3. “We have recognized the possibility that such conversations could violate the rule and declined to announce a categorical rule excusing all such communications from ethical inquiry.” Id. (internal quotations omitted). So the case is bad precedent, but not a blank check, for the type of deceptive investigation used by the CD Cal USAO.
How to Use: Because this issue requires a case-by-case analysis, if confronted with prosecutorial contact of a represented witness emphasize the unique aspects of Carona to limit its reach. First, as noted in the “Held” section above, in Carona the prosecutors themselves didn’t contact the defendant – it was just the snitch. Id. at *5. Moreover, this wasn’t anything close to an interrogation – Carona thought he was speaking with a defense ally. Id. Finally, Carona was trying to suborn perjury – and the Court isn’t keen on “immunizing” defendants who try to shape testimony simply because they have counsel. Id.
For Further Reading: Sauce for the goose, sauce for the gander? Can you whip up some fake subpoenas for your investigator to facilitate interviews of government witnesses? Makes intuitive sense, but be warned that the government usually enjoys an ethical monopoly on lying, cheating, and deception to build its case. For an interesting article on the ethical limits on defense deception to investigate a case, see Gerald B. Lefcourt, Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys: The Ethical and Legal Considerations for Attorneys Conducting Investigations, available here. This (unfair) asymmetry in prosecutor/defense deception in investigation is a hot topic: for discussions by the ABA on the issue see Roundtable on the ABA Defense and Prosecution Function Standards, available here.
Image of (former) Orange County Sheriff Michael S. Carona from http://www.newsoxy.com/world/disgraced-sheriff-pension-13760.html
Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org