Orange County's former sheriff planned to ask a judge Monday to toss the witness tampering count for which he was convicted by a jury that acquitted him of five other charges.
Defense attorney Jeffrey Rawitz argued in court documents that Mike Carona's actions fell short of violating the statute for which he was convicted.
Carona, his wife Deborah, and one-time mistress and attorney Debra Hoffman were accused of joining in a conspiracy to confer the power and perks of the sheriff's office on millionaire Don Haidl by appointing him to the post of assistant sheriff in exchange for hundreds of thousands of dollars in cash and gifts. Haidl had no prior law enforcement experience.
Carona was convicted on Jan. 16 of witness tampering but acquitted of conspiracy, mail fraud by depriving the public of the right to honest services and obstruction of justice/witness tampering.
After Carona was acquitted of the five counts, prosecutors moved to dismiss the case against the women and Guilford granted the request on Jan. 29. Carona's sentencing is scheduled for April 27. Federal probation officers have recommended that he serve 6 1/2 years.
The single conviction stemmed from a secretly recorded conversation on Aug. 13, 2007, between the former sheriff and Haidl. According to testimony at trial, Haidl set up the meeting with Carona by making believe that he had been subpoenaed by the grand jury looking into corruption.
Defense attorneys argued at trial that Carona stoutly denied corrupt activity on the tape. Prosecutors argued that Carona's denials were actually veiled signals for the two to get their stories straight so that their testimony would match if called to the grand jury.
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Unknown to Carona, Haidl had pleaded guilty to a tax count and was cooperating with authorities.
In seeking to toss the count, Rawitz argued that Carona never expressly asked Haidl to lie to the grand jury or anyone else and that the statute only applies when a defendant intends to persuade a witness not to testify at all.
"Persuading a witness to give false testimony is not the same thing as persuading a witness to withhold testimony," Rawitz wrote.
But Assistant U.S. Attorney Ken Julian countered that the statute is violated regardless of whether Carona intended for Haidl to carry out his crime through silence, calculated lies, misleading statements or a combination of them.
In addition to the argument that Carona's conduct falls outside the statute, Rawitz argued that U.S. District Judge Andrew Guilford should set aside Carona's conviction and issue a judgment of acquittal.
He said no rational juror could find beyond a reasonable doubt that Carona acted "corruptly" on Aug. 13, 2007, by attempting to persuade Haidl to withhold testimony from the grand jury.
The defense papers also argue that, among other things, the government used unethical means to get Carona to "open up and talk" at the August meeting, and that Haidl lacks credibility as a witness because he was only trying to reduce his own sentence on a tax charge to which he pleaded guilty.
If Guilford denies the motions to throw out the verdict or for judgment of acquittal, he should grant Carona a new trial, Rawitz said.
Carona is free on a $20,000 appearance bond.
If Guilford does not toss the witness tampering count, defense attorneys plan to ask that Carona be placed on probation.
