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Ninth Circuit Justices Grill Lawyers in USA v Mike Carona

Recall that in his crafty defense of his sexual conduct with White House intern Monica Lewinsky, President Bill Clinton famously uttered this line during a grand jury proceeding about his marital infidelity: “It depends on what the meaning of the word 'is' is.”

And so we go from one philander to the next, ex-Sheriff Michael S. Carona, who is arguing that his federal corruption conviction should be overturned based, in part, on the definition of the word “withhold.”

In January 2009, a jury convicted Carona of attempting to sabotage a federal grand jury probing corruption at the top of the Orange County Sheriff's Department. The key evidence in the count was a secret recording made of Carona by one of his partners in crime, onetime Assistant Sheriff Don Haidl. The sheriff assumed that Haidl would be summoned to the grand jury and, without knowing he was being recorded, attempted to get him to offer false testimony about illegal gifts.

For example, in one situation, Haidl gave Carona a boat and, later–afraid of appearances–accepted a check for the value. The sheriff wanted Haidl to relay those details but omit a crucial fact to the grand jury: Haidl handed Carona cash back to cover the check. To mask the deal, Carona's wife made several cash deposits during consecutive days, according to testimony.

So here's a point Carona thinks should free him from his pending 66-month prison sentence: Federal prosecutors convicted him of trying to get a potential witness to “withhold” facts from the grand jury when his conduct actually should have fallen under federal statutes regarding illegally attempting to “influence” a witness.

Much of the 59-minute Pasadena hearing before a three-judge panel of the Ninth Circuit and a packed courtroom focused on what definitions the opposing lawyers–Assistant United States Attorney¬†Brett Sagel and Carona defense attorney John Cline–had for “withhold” and “influence.”

Sagel said that Carona wanted Haidl to withhold from the grand jury that he'd been secretly reimbursed for his boat check.

“Look at the plain language of the word 'withhold,'” Sagel told the judges. “This is exactly what the defendant wanted to do in this case. He wanted Don Haidl to go to the grand jury to make partially true statements. He wanted to conceal criminal acts.”

Cline disagreed.

“At no point is [Carona] trying to get [Haidl] to withhold evidence,” he said.

According to Cline, Carona's conviction is improper because to violate the statute he would have had to have tried to “influence” or deter Haidl from even going to testify.

(The grand jury didn't call Carona or Haidl before issuing their October 2007 indictments that rocked California's law enforcement community. Carona had been a rising star in Republican politics and created a now absurdly funny public image as an ethics-governed Christian conservative.)

Carona, who was present in the room along with his wife, may have taken comfort in the mind-numbing debate over legal definitions. Near the end of the hearing, Judge Richard R. Clifton announced, “Right now, I haven't figured out the meaning of those words.”

The other key defense point was that federal prosecutors had violated Carona's rights by enticing him to talk freely with Haidl when they convinced Haidl to show the sheriff what was a fake subpoena for records. The sheriff believes that the U.S. Attorney's office violated judicial ethics by making contact with him without first requesting permission of his defense lawyer. He's called the law enforcement tactic “desperate” and wants the tape recordings declared illegal, a move that would destroy the IRS/FBI case.

Based on a question he asked, Judge Jay S. Bybee seemed to call Carona's complaint about the fake subpoena “a red herring.”

Bybee also suggested that Carona may have thought he'd “insulated himself from further investigation” by hiring a defense lawyer–a tactic an organized crime boss would appreciate.

Sagel argued that “pre-indictment covert acts are generally permissible.”

The Ninth Circuit will announce its decision in coming months. Meanwhile, Carona remains free from incarceration.

–R. Scott Moxley / OC Weekly