In a crafty defense of his sexual conduct with White House intern Monica Lewinsky, President Bill Clinton uttered this line during the grand-jury proceeding about his infidelity: “It depends upon what the meaning of the word ‘is,’ is.”
Which brings us to another infamous philanderer. Ex-Sheriff Mike Carona traveled to Pasadena on Cinco de Mayo in hopes of convincing a federal appeals court panel that his 2009 witness-tampering conviction and 66-month prison sentence should be overturned. No, not because he’s innocent, but because of two alleged technical blunders: one involving a disputed definition of the word “withhold”; the other the use of a hidden microphone to record a now-infamous conversation.
By Aug. 13, 2007, then-Sheriff Carona had spent more than three years scrambling to avoid FBI and IRS arrests for his suspected criminal activities; that night, he met businessman Don Haidl, a trusted co-conspirator, for dinner at the Bayside Restaurant in Newport Beach. Believing that only Haidl could hear his words, the sheriff spoke freely about his efforts to sabotage a federal grand jury investigating corruption at the Orange County Sheriff’s Department. The self-styled Christian-conservative lawman wanted to know if Haidl had photocopied the serial numbers on the $100 bills he’d stuffed in envelopes and handed over as secret, illegal monthly gifts. Carona bragged that Debra Hoffman, his top mistress and the woman the sheriff got Haidl to pay $65,000 to keep happy, “isn’t going to say shit” to the grand jury. Indeed, none of his friends would admit anything incriminating to investigators, he asserted. The sheriff even talked to Haidl about “both [being] on the same page” if called to testify about the gifts.
“On my end of it, completely untraceable, completely untraceable,” Carona said as he enjoyed dinner; occasionally flirted with a waitress; and chatted with the wealthy used-car-auction businessman who’d given him free private jet rides, tailor-made suits, Las Vegas casino gambling chips and more than $100,000 in illegal campaign contributions in exchange for the unearned rank of assistant sheriff, full police powers (though he had no police training), a badge, an office and a patrol car.
A portion of Haidl’s payments to Carona went to pay for hotel rooms the sheriff used to rendezvous with mistresses. “I just want to make goddamn sure there’s no cameras at a hotel—any place where I’m on the fucking witness stand saying I did not give him that fucking money, and they fucking produce a fucking film,” Haidl said to Carona. “Then we’re fucked.”
The sheriff didn’t say, “Don, what are you talking about?”
He said, “Got it” and later noted, “I know you have been a standup motherfucker, and you have taken care of me, and you’ve taken care of my family. . . . No trail anywhere. Period. Period. Period. In fact, not even close to being a trail.”
We know these were Carona’s exact words because Haidl surreptitiously wore a microphone for federal law-enforcement agents that night. Two months after the recording, the sheriff was arrested for denying the citizens of Orange County honest services. Last year, a jury convicted the unapologetic Carona; a not-amused U.S. District Judge Andrew J. Guilford sentenced him to a 5.5-year stint in a federal prison.
Now the disgraced ex-sheriff, who remains free pending his appeal, is arguing he didn’t try to tamper with potential grand jury witness Haidl by asking him to “withhold” testimony if summoned to testify. But isn’t it withholding if, say, you reveal only two parts of a three-part transaction? For example, Carona pressured Haidl to tell the grand jury that a boat had been given as a gift, but that he (many months later) gave Haidl a check for the full value. What he wanted Haidl to withhold from jurors was the fact that Haidl had immediately given the sheriff cash back for more than the amount of the check, a move that rendered the transaction a sham.
“My sense is you’re going to be the first on the stand ’cause I don’t think you’re the target at all,” Carona told Haidl at the restaurant. “I think I’m the target. So bottom line is, you know, first person in there—what you say becomes the truth. It’s . . . it . . . it becomes the truth.”
Yet during oral arguments at the Ninth Circuit, Carona defense attorney John D. Cline said, “At no point is [Carona] trying to get [Haidl] to withhold evidence.” In Cline’s view, Carona could only be found guilty on the withholding charge if he had tried to prevent Haidl from physically taking the witness stand and withholding all testimony.
“[At the Aug. 13 meeting], Haidl and Carona discussed whether to tell false stories and make false denials, not whether to omit entire subjects from their testimony,” argued Cline.
Indeed, according to the San Francisco-based defense lawyer, Carona’s statements during the dinner prove he “was urging Haidl to tell the truth.”
You’ll want to save some of your laughter for the second prong of the defense’s strategy. According to Carona, the real villain in his case isn’t him, but rather Assistant United States Attorney Brett A. Sagel, whose actions, he maintains, were unethical. The ex-sheriff says Sagel should have given him advance warning about his intended use of a recording device so that he could decide if “he should speak carefully, if at all,” with Haidl. Instead, Carona says the federal prosecutor tricked him to “loosen [my] tongue.”
Cline told the Ninth Circuit panel that a California State Bar rule blocked Sagel from having any contact with Carona once the sheriff hired a defense lawyer in 2005. By getting Haidl to wear a wire and show Carona a fake subpoena attachment, the prosecutor had “deliberately circumvented” the attorney-client relationship. Cline reasoned that if Sagel used tainted methods to obtain the tape, then that evidence should have been suppressed, a move Guilford decided at trial would thwart justice. Sagel says he did nothing wrong.
“It is well-established in this circuit that pre-indictment, non-custodial, covert contacts in criminal investigations, including undercover operations and meetings, are generally permissible, even if directed at individuals known to be represented by an attorney,” Sagel told the appellate judges. His ruse, he said, “merely offered the defendant the opportunity to misuse the powers of his office and engage in criminal activity, an opportunity which, as the recordings confirm, defendant readily embraced.”
Here’s the irony: Carona—once the leader of California’s second-largest police agency and a man I photographically proved partied in a Newport Beach bar with a powerful organized-crime figure—is employing a defense common to the underworld. For decades, mafia bosses have hired lawyers to trigger the “no-contact rule” as a way to cleverly kill covert federal investigations.
Still, though it could be months before the Ninth Circuit rules, Carona—once a potential Republican candidate for U.S. Senate—left the hearing with a cocky smile. Richard R. Clifton, one of the judges on the all-Republican panel, may have provided the inspiration. Clifton, who was appointed to the bench by George W. Bush—the same man who appointed Carona to a national security committee—announced that he hasn’t yet “figured out the meaning” of the word “withhold.”
This column appeared in print as “Is This Thing On? Ex-Sheriff Mike Carona says he should have been warned that his buddy was wearing an FBI wire.”
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.