A federal court judge today rejected former Orange County Sheriff Mike Carona's bid to remain free pending the appeal of his conviction for witness tampering.
Carona was previously ordered to surrender on July 24 to begin serving a 5 1/2-year prison term, but his attorney argued that he should be allowed to remain out of prison while his case was appealed. U.S. District Judge Andrew Guilford rejected the request.
In a four-page ruling, Guilford wrote that none of the arguments presented by Carona's attorney meet the legal standards for allowing a convicted defendant to remain out of custody pending appeal, noting that a legal "presumption exists against release pending appeal."
Carona attorney John Cline said during a court hearing earlier today that he believed an appeals court would overturn the decision, because prosecutors had former Assistant Sheriff Don Haidl wear a recording device while trying to get the sheriff to incriminate himself during the government's corruption probe.
State Bar rules prohibit attorneys from direct contact with a party in a case if that person has an attorney. Carona was represented by attorney H. Dean Steward at the time.
Cline said he would argue the appropriate remedy for the misconduct is suppression of the taped statements, which would result in Carona's conviction being overturned.
"This rule is designed to prevent exactly the kind of harm that occurred here," Cline argued. "The only conviction that was obtained was by a direct violation. It produced a conviction that would otherwise not be obtained."
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"The whole purpose of those sanctions is to deter future conduct," he added.
Cline said Carona should remain free during the appeal process because he has no criminal background and the appeal is not frivolous.
Prosecutors maintained that Carona accepted more than $350,000 in cash and gifts from Haidl, and in return, made the wealthy businessman an assistant sheriff even though he had no law enforcement background.
Carona was acquitted of five other corruption-related charges, with the witness-tampering charge -- centering on the secretly recorded conversation between Carona and Haidl on Aug. 13, 2007, the only one he was convicted of.
Jurors said they could not find the sheriff guilty of other crimes because the statute of limitations had expired.
Cline said he will argue on appeal that prosecutors knew they were in violation, but were "gaming the system" by "carefully tailoring their conduct" in an attempt to skirt the rule.
Prosecutors cooked up a ruse with Haidl, sending him in with a fake Internal Revenue Service subpoena attachment that Haidl used to convince Carona they needed to meet and talk.
Earlier case precedent discouraged prosecutors from using law enforcement subpoenas as part of their ruse, so prosecutors in Carona's case used an IRS administrative document, thinking they could "can get away with it," Cline said.
Questioned by Guilford, Cline conceded that cynicism on the part of the public grows when people who are deemed guilty go free, but he said they view bending the rules as worse.
"That's offensive," Cline said. "Talk about breeding cynicism. When people hear that government can do that kind of thing ... people don't think that's fair."
"It's not a technicality," Cline said. "It's fundamental. People view it that it can't form the basis of a prosecution."
Guilford pointed to an absence of criminal cases where evidence gathered in a similar manner has been tossed out, but Cline said there was a civil case that led to suppression.
Assistant U.S. Attorney Ken Julian said that for evidence to be tossed, "there has to be some showing of deliberate or flagrant misconduct."
He said Guilford, in allowing the evidence at trial, made an earlier finding that "there was no deliberate violation of the law."
He said Guilford determined that prosecutors had tried to adhere to the rules while aggressively pursuing their case.
Julian said prosecutors checked with their superiors before taking the steps they did.
A second argument on appeal, Cline said, is that the charge that Carona was convicted of does not apply to his actions.
Haidl testified that he and Carona discussed what they would say to a grand jury if they were called, and that Carona said that as long as they both got their stories in sync they would be OK.
But the charge that Carona was convicted of refers to a defendant counseling a witness to withhold evidence, he said.
But Julian argued, "this activity is the same, withholding or altering."
The statute does address "changing testimony in any way," Julian said. "These statutes are intended for overlap."
The appeals process could be lengthy. Final briefs are due at the 9th U.S. District Circuit Court of Appeal on Oct. 19. Arguments before the appellate judges will be heard sometime after that.
Carona, 53, was acquitted Jan. 16 of five other corruption counts, including conspiracy and withholding honest services from the residents of Orange County. He served as sheriff from January 1999 through January 2008, when he stepped down to concentrate on his legal defense.