Case: /29/2009 Page: 1 of 23 DktEntry: IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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1 Case: /29/2009 Page: 1 of 23 DktEntry: IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ) MICHAEL S. CARONA, ) ) Defendant-Appellant. ) ) ) C.A. No D. Ct. No. SA CR (D)-AG (Cent. Dist. California.) GOVERNMENT S OPPOSITION TO DEFENDANT S MOTION FOR BAIL PENDING APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRETT A. SAGEL; EXHIBITS Plaintiff-Appellee United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, hereby files its opposition to Defendant- Appellant Michael S. Carona s motion for bail pending appeal. This opposition is based upon the attached memorandum of points and authorities, the declaration of Brett A. Sagel, the attached exhibits, the records and files in this case, and on such

2 Case: /29/2009 Page: 2 of 23 DktEntry: further evidence and argument as the Court, in its discretion, may permit. DATED: June 29, 2009 Respectfully submitted, THOMAS P. O BRIEN United States Attorney ROBB C. ADKINS Assistant United States Attorney Chief, Santa Ana Branch Office /s/ BRETT A. SAGEL Assistant United States Attorney Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA 2

3 Case: /29/2009 Page: 3 of 23 DktEntry: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A jury convicted Defendant-Appellant Michael S. Carona of witness tampering, in violation of 18 U.S.C. 1512(b)(2). (CR 583). 1 The district court sentenced defendant to 66 months imprisonment and ordered him to self-surrender on or before July 24, (CR 667). The district court denied defendant s motion for bail pending appeal, finding that defendant did not present a substantial question likely to result in reversal or a new trial. (Def. Mtn. Exhibit A). In the present motion defendant identifies two issues -- both of which will be reviewed deferentially -- that allegedly present a substantial question: (1) whether the district court abused its discretion in its choice of remedies after finding that the government violated California Rule of Professional Conduct ( Rule 2-100" or the no-contact rule ); and (2) whether there was sufficient evidence that defendant attempted to persuade a witness to withhold testimony in violation of 18 U.S.C. 1512(b)(2)(A), where defendant urged the witness to tell the grand jury that certain transactions didn t happen. (Def. Mtn. at 3). Neither presents a fairly debatable question. II. FACTS In 2004, the government began investigating possible 1 CR refers to the Clerk s Record, and is followed by the applicable document control number. EX refers to a Trial Exhibit.

4 Case: /29/2009 Page: 4 of 23 DktEntry: corruption involving individuals within and connected to the Orange County Sheriff s Department ( OCSD ), including defendant, then-sheriff of Orange County, California. (See Declaration of Brett A. Sagel 3) ( Sagel Dec. ). The investigation included allegations that Don Haidl, a wealthy businessman, had illegally financed defendant s initial campaign for Sheriff and had given cash bribes and gifts to defendant and George Jaramillo, defendant s Assistant Sheriff and Chief-of-Staff, in return for defendant making Haidl an Assistant Sheriff and providing Haidl access to the OCSD resources. In approximately late 2005, Dean Steward informed government counsel that he represented defendant in the government s criminal investigation. Haidl signed a cooperation plea agreement with the government and entered his guilty plea, under seal, on March 5, (Id. 3-4). As part of his cooperation, and under supervision of federal law enforcement agents, Haidl made three surreptitious recordings of defendant on July 7, July 15, and August 13, At the end of the July 7 meeting, which took place at a ceremony with at least twenty other people present, defendant, who had not seen or spoken to Haidl for approximately a year, told Haidl that anytime Haidl wanted to meet with defendant and speak about the ongoing corruption case, Haidl needed only to tell [defendant] where [Haidl] want[s] [defendant] to be... just give [him] driving time. (Id. 5). 2

5 Case: /29/2009 Page: 5 of 23 DktEntry: Prior to the third meeting on August 13, 2007, the government provided Haidl with two bogus Subpoena Attachments as a ruse. The government never issued an actual grand jury subpoena nor did the government intend for these Subpoena Attachments to invoke the authority of the Court or the Grand Jury; the attachments did not have a court seal or clerk signature. As defendant did not talk to Haidl on the phone for fear of federal wiretaps, Haidl s sister contacted defendant s wife to set up this meeting and set in motion the ruse involving the bogus grand jury subpoena. Defendant rushed to a restaurant to meet Haidl. Defendant spent the next approximately three hours discussing the federal investigation with Haidl, analyzing whether the government could prove the illegal acts in which they engaged, and crafting a plan for them to lie and withhold evidence from the federal grand jury. In general, where defendant was confident that the government had no evidence, other than possibly Jaramillo, 2 defendant s plan was for defendant and Haidl to claim the events and transactions never happened. Where defendant believed there was some evidence of their actions, such as other witnesses or a paper trail, defendant provided Haidl with the false cover story they would 2 Defendant fired Jaramillo in March Although defendant was aware that Jaramillo was cooperating with the government, defendant maintained that Jaramillo lacked credibility and that nobody would believe Jaramillo s word over defendant s word. (Sagel Dec. 8). 3

6 Case: /29/2009 Page: 6 of 23 DktEntry: both tell. (Id. 6-7). During the meeting, defendant attempted to convince Haidl that the government would not be able to charge or convict either of them if neither cooperated. For example, defendant told Haidl, the other thing that is unique about this relationship is they can t get one without the other. (EX 376). Haidl testified that the one and other referred to defendant and Haidl, and that he understood defendant to be telling him that neither of them could get caught if neither of them cracked and gave information to the government. (Sagel Dec. 9). At the beginning of the August 13 meeting, after reviewing the bogus subpoena attachments, defendant and Haidl discussed the fact that Haidl had given defendant a boat as a gift and that they had engaged in a sham transaction to conceal defendant s receipt of the gift -- defendant had written Haidl a check and Haidl had given defendant back the amount in cash. When Haidl told defendant that defendant s false cover story may not work because Jaramillo witnessed the transactions, defendant stated: I mean the hard part on this one is it s, it is not what [Jaramillo] says, it is where you are on this deal. (EX 348). Haidl testified that he understood that defendant was attempting to confirm that Haidl would lie to the grand jury and withhold information about the sham transaction. (Sagel Dec. 10). 4

7 Case: /29/2009 Page: 7 of 23 DktEntry: Haidl and defendant also discussed the monthly cash bribes Haidl gave defendant from approximately September 1998 to July Defendant assured Haidl they had no exposure on these payments, because the cash on [defendant s] end of it, [was] completely untraceable, completely untraceable. (EX 374). Defendant instructed Haidl to maintain: The answer is -- flatass didn t fucking happen. It didn t happen... Well, here s the beauty on this one Don, they re not going to get to play both sides against the middle on this. (Id.; Sagel Dec. 11). 3 Throughout the meeting, defendant continued to provide Haidl with cover stories and to urge Haidl to lie and withhold testimony regarding the cash and the boat, among other topics. For example, defendant initially suggested to Haidl they falsely deny there was any cash behind the sham boat transaction: You did give me a boat man... I know what took place, but... you ever never ever gave me money. It just didn t come that direction at all. (Ex 376). Later, after defendant realized a flat denial would not succeed because of the paper trail, defendant suggested to Haidl that they admit that Haidl provided cash but falsely characterize it as money for boat repairs and slip fees. (See Ex 390 (defendant: I didn t realize there was checks behind it, but that makes it even better... that you 3 Later in the evening, defendant stated: so unless there is a pinhole in your ceiling that evening, it never fucking happened because it never fucking happened. (EX 376). 5

8 Case: /29/2009 Page: 8 of 23 DktEntry: paid for some of the repairs to the boat and that... you helped me with the... rent slip, for you know, a couple of months because you felt bad that I was getting stuck with that, cause we had to come out of your slip to go into another one, and... you didn t want to make this a burden on me. ); Sagel Dec ). Defendant even described how he and Haidl could lie to and withhold evidence from the grand jury: [H]ere s the beauty of the federal system, different than the state system, it is illegal for them to tell a witness, after they ve been before a grand jury, that they can t share their information.... My sense is you re going to be the first on the stand, cause I don t think you re the target at all, I think I m the target. So bottom line is, you know, first person in there is what you say becomes the truth. It s -- it -- it becomes the truth. (Ex 378, 380; Sagel Dec. 15). III. ARGUMENT The government does not contend that defendant is a flight risk or a danger to the community, or that the appeal is for the purpose of delay. Accordingly, the only issue this Court need determine is whether defendant s appeal raises a substantial question likely to result in reversal or an order for a new trial. 18 U.S.C. 3143(b)(1)(B). A substantial question is one that is fairly debatable or fairly doubtful, thereby raising an issue of more substance than would be necessary to a finding that it was not frivolous. United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). In raising two issues that will 6

9 Case: /29/2009 Page: 9 of 23 DktEntry: be reviewed deferentially, defendant has not carried his burden of demonstrating a substantial question. United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990) (defendant carries burden of raising fairly debatable issue). A. The District Court s Discretionary Refusal To Provide The Remedies Sought By Defendant For The Government s Ethical Violation Does Not Raise A Substantial Question The no-contact rule, set forth in Rule 2-100(A) of the California Rules of Professional Conduct, states: [w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. Cal. R. Prof. Cond (A). The Rule, however, does not prohibit Communications otherwise authorized by law. Cal. R. Prof. Cond (C)(3) (emphasis added). 4 The district court ruled that the government violated Rule Although recognizing that pre-indictment, non-custodial covert contacts generally fall within the authorized by law exception, the district court concluded that Haidl s August 13 contact with defendant was not authorized by law because by utilizing the fake subpoena attachment, the prosecutors became too involved in manufacturing the contact between Haidl and 4 Rule applies to the prosecutors in this case pursuant to 28 U.S.C. 530B(a), known as the McDade Amendment. 7

10 Case: /29/2009 Page: 10 of 23 DktEntry: Defendant, and Haidl improperly became the alter ego of the prosecutors. (Def. Mtn. Exhibit C at 9). In so doing, the district court relied on United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), the only circuit case ever to find a violation of a no-contact rule in the pre-indictment covert context. The district court, however, declined to suppress the tapes of the August 13 meeting, concluding that exclusion of this probative evidence was not warranted because there was no constitutional violation or deliberate violation of the no-contact rule, the application of Rule to investigatory contacts was unclear, and less extreme remedies such as holding the prosecutors in contempt or referral to the state bar for disciplinary proceedings were available. (Def. Mtn. Exhibit C at 12-13). After the court denied defendant s suppression motion, defendant moved for an order instructing the jury that the prosecutors violated their ethical duties. (CR 264). The district court denied defendant s request to provide such a serious sanction -- a jury instruction by the Court allowing the jury to give less weight to the admitted statements because they were obtained in violation of an ethical rule. (CR 348 at 1). The district court noted [r]emedies are available to defendant[; he has] already notified the State Bar of the government s ethical violation, and the State Bar may act as it chooses concerning its ethical rules. (Id. at 2). Defendant then 8

11 Case: /29/2009 Page: 11 of 23 DktEntry: sought to introduce evidence of the government s ethical violation, which the district court denied as well. (CR 477). The district court excluded any evidence of the ethical breach and the government attorneys involvement in the ruse, because even if relevant, the evidence would risk confusion, delay, and unfair prejudice, among other reasons. (Id. at 5). The district court s choice of remedy does not present a substantial question. Although district courts have supervisory power to police ethical misconduct by prosecutors, United States v. Powe, 9 F.3d 68, 69 n.3 (9th Cir. 1993), this Court reviews the district court s exercise of its supervisory powers for abuse of discretion. United States v. Lopez, 4 F.3d 1455, 1463 (9th Cir. 1993). Under the abuse of discretion standard, this Court cannot reverse absent a firm conviction that the district court committed a clear error of judgment. United States v. Sherburne, 249 F.3d 1121, 1125 (9th Cir. 2001). The district court abuses its discretion if it makes an error of law, rests its determination on a clearly erroneous factual finding, or rules in an irrational manner. Id. at Here, defendant does not contend that the district court made an error of law or a clearly erroneous factual finding; at best, he argues that the district court had discretion to grant one of the remedies he sought. This, however, is insufficient to establish an abuse of discretion. The court also had discretion to leave 9

12 Case: /29/2009 Page: 12 of 23 DktEntry: the matter to the state bar disciplinary authorities as an adequate remedy, rather than one that would affect the evidence in the case. The district court s denials of the remedies sought were carefully reasoned, supported by law, and rational. Accordingly, defendant has not raised a substantial question. That is -- even assuming the district court s finding of a violation of Rule was correct -- there is no fairly debatable issue as to whether the district court abused its discretion in its choice of remedies. First, the professional conduct rules are directed at regulating the conduct of attorneys through discipline, not creating rights in parties in litigation. United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000) ( [Rule 2-100] is a rule governing attorney conduct and the duties of attorneys, and does not create a right in a party not to be contacted by opposing counsel. ); Lopez, 4 F.3d at 1462 (no-contact rule is fundamentally concerned with the duties of attorneys, not with the rights of parties ); see also Cal. R. Prof. Cond (A) ( Nothing in these rules shall be deemed to create, augment, diminish or eliminate any substantive legal duty of lawyers or the non-disciplinary consequences of violating such a duty. ); 28 C.F.R (regulations promulgated pursuant to 28 U.S.C. 530B, the McDade Amendment, do not... create a right or benefit... enforceable at lay by a party to litigation with the United States, including criminal defendants 10

13 Case: /29/2009 Page: 13 of 23 DktEntry: and shall not be a basis for... excluding relevant evidence in any judicial... proceeding ). Accordingly, this Court has indicated that violations of professional conduct rules should be remedied through the attorney disciplinary process or other sanctions directed at counsel, rather than resulting in litigation consequences. See Lopez, 4 F.3d at 1464 (district court abused its discretion in dismissing indictment as sanction for violation of Rule because lesser sanctions such as holding the prosecutor in contempt or referral to the state bar for disciplinary proceedings were adequate). In light of these authorities, defendant s contention that the district court was required to impose some remedy in the litigation (Def. Mtn. at 13) is contrary to law and does not raise a substantial question. Nor has defendant raised a substantial question that the district court abused its discretion in rejecting the three specific remedies defendant sought. With respect to suppression, as the district court noted (Def. Mtn. Exhibit C at 12), no court has ever suppressed evidence in a criminal case based on a violation of a no-contact ethical rule absent a coexisting Sixth Amendment violation (and there was no Sixth Amendment violation here). 5 Indeed, in Hammad, the case upon which the district 5 The two cases defendant cites that suppressed statements involved a case with a Sixth Amendment violation and a civil case. United States v. Bowman 277 F. Supp. 2d 1239, vacated on other grounds, 2003 WL (N.D. Ala. 2003) (suppressing a communication that violated both ethical rule and Sixth 11

14 Case: /29/2009 Page: 14 of 23 DktEntry: court and defendant rely in finding a violation of Rule 2-100, the Second Circuit held that the district court abused its discretion in suppressing evidence as a sanction for the ethical violation. 858 F.2d at 842 ( Here, the government should not have its case prejudiced by suppression of its evidence when the law was previously unsettled in this area. Therefore, in light of the prior uncertainty regarding the reach of [the no-contact disciplinary rule], an exclusionary remedy is inappropriate in this case. ). The district court relied on the same reasoning in declining to order suppression in this case. (Def. Mtn. Exhibit C at (suppression unwarranted because the application of Rule to investigatory contacts is unclear )). The district court s additional reasons for denying suppression -- that less extreme remedies, such as holding the prosecutor in contempt or referral to the state bar for disciplinary proceedings were available (citing Lopez, 4 F.3d at 1464), and that the government did not deliberately violate the ethical precept (Def. Mtn. Exhibit C at 11) -- also were supported by case law and were not an abuse of discretion. See Lopez, 4 F.3d at 1464 (sanction for ethical misconduct only appropriate where government acts in flagrant disregard of rules). Accordingly, there is no substantial question as to whether the district court abused its Amendment); Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, (8th Cir. 2003) (civil case). 12

15 Case: /29/2009 Page: 15 of 23 DktEntry: discretion in rejecting the extreme remedy of suppression. See Herring v. United States, 129 S. Ct. 695, (2009) (suppression of evidence is last resort as remedy for misconduct, due to its substantial cost to truth-seeking). The district court s refusal to provide a jury instruction or to permit evidence of the court s legal finding regarding the Rule violation was within its discretion and presents no fairly debatable issue. Whether the evidence was obtained in violation of a disciplinary rule was a question of law for the court to determine and had no bearing upon the jury s determination of guilt or innocence. See Amsler v. United States, 381 F.2d 37, 53 (9th Cir. 1967) (court properly refused to give jury instruction as to whether defendant s confession was obtained in violation of McNabb-Mallory rule, as this was question of law for court). Defendant argues that the district court erred in refusing to permit the jury to consider the quality of the government s investigation, relying on United States v. Sager, 227 F.3d 1138 (9th Cir. 2000). But Sager is inapposite. In Sager, the defendant sought to impeach the credibility of the investigating agent by inquiring on cross-examination whether he had looked into the defendant s explanation for why he frequented the area from which the credit cards had been stolen and what investigation he had conducted at various stores where the stolen 13

16 Case: /29/2009 Page: 16 of 23 DktEntry: credit card had been used. Id. at This Court found that the district court plainly erred in instructing the jury not to grade the investigation because the [d]etails of the investigatory process potentially affected [the agent s] credibility and, perhaps more importantly, the weight to be given to evidence produced by his investigation. Id. at Here, the district court permitted defendant to exhaustively question both Haidl and an investigating agent about the bogus subpoena attachments, the information included (and not included) on them, and the events surrounding their use. (Sagel Dec. 18). The evidence that the district court precluded -- advising the jury of the court s legal finding that the prosecutors violated an ethical rule -- had no bearing upon the credibility of any witness at trial. Moreover, the fact of the ethical violation found by the court (separate from the investigatory process involving the subpoena attachments, which was before the jury) had at most a marginal effect upon the weight to be given to the evidence produced during the August 13 meeting, and the district court therefore did not abuse its discretion in concluding that whatever value that fact had was outweighed by the risk of confusion, delay, and unfair prejudice. (CR 477 at 5; Sagel Dec. 17); Fed. R. Evid The court s reasoned, discretionary choice of remedy for the no-contact violation sufficiently demonstrates that the violation 14

17 Case: /29/2009 Page: 17 of 23 DktEntry: does not raise a substantial issue on appeal. Nevertheless, the government also respectfully maintains that no remedy was warranted because, contrary to the district court s conclusion, the government did not violate Rule at all. Rule does not prohibit communications otherwise authorized by law, and the commentary to Rule states that the applicable law includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law. Cal. Rules Prof. Cond Discussion. It is well established in this circuit that preindictment, non-custodial, covert contacts in criminal investigations, including undercover operations and meetings, even if directed at individuals known to be represented by an attorney in connection with the subject matter under investigation, are generally permissible. 6 See Powe, 9 F.3d at ( we have held the duty to avoid ex parte contacts does not apply to preindictment noncustodial conversations with a suspect ); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir. 6 Limited exceptions to the general rule exist. If a prosecutor provides assurances to counsel that the government will not engage in covert contacts with a client, the government must honor that promise. See Powe, 9 F.3d at (declining to reach issue because government did not agree to limit undercover contacts). Also, absent extenuating circumstances, a prosecutor may not direct an undercover agent or cooperating witness to attend or participate in lawful attorney-client meetings or communications. See 28 C.F.R. 77.9(b) (1998) (repealed upon enactment of McDade Amendment). 15

18 Case: /29/2009 Page: 18 of 23 DktEntry: ) (holding a pre-indictment, non-custodial, surreptitious recording by a cooperating witness of a target represented by counsel does not implicate the ethical problems of the no-contact rule); see also Talao, 222 F.3d at 1135, & n.18 (9th Cir. 2000) (recognizing continued validity of Powe and Kenny). The district court s reliance on the Second Circuit s decision in Hammad to find a violation of Rule here was misplaced. Talao endorsed Hammad s rejection of the government s argument that a no-contact rule was co-extensive with the Sixth Amendment, and therefore could not apply prior to indictment. 222 F.3d at Talao further noted that this Court has declined to announce a categorical rule excluding preindictment, non-custodial communications with represented persons from the reach of Rule Id. at But Talao was a case involving overt contact between a prosecutor and a witness. Nothing in Talao overruled this Court s prior caselaw holding that covert pre-indictment, non-custodial investigative contacts between a cooperating witness and a represented party are permissible under Rule (absent the exceptional circumstances described in note 6, supra). Relying on Hammad, the district court erred in concluding that the prosecutor s use of the bogus subpoena attachments removed this case from the general rule permitting pre-indictment surreptitious recordings. It is well established that 16

19 Case: /29/2009 Page: 19 of 23 DktEntry: [a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises. Sorrells v. United States, 287 U.S. 435, 441 (1932). Recognizing that the use of deceptive techniques may be necessary to ferret out crime, courts have approved the government s use of fabricated documents to investigate sophisticated targets. See United States v. Martino, 825 F.2d 754, 762 (3d Cir. 1987) (issuance and use of a sham grand jury subpoena was not prosecutorial misconduct and was innocuous by comparison to types of subterfuge approved in other cases by Supreme Court and other courts); United States v. Murphy, 768 F.2d 1518, (7th Cir. 1985) (approving use of fabricated cases, court documents, and testimony as part of a wide-ranging covert investigation of bribery and corruption among judges, lawyers, and police officers). Furthermore, in this case, the bogus subpoena attachments did not represent an abuse of court process, as occurred in Hammad, because they contained no clerk signature and no court stamp or seal. Considering defendant s sophistication -- over thirty years of law enforcement experience, a degree in criminal justice and advanced degrees in management/public administration -- the government s use of the fake subpoena attachments was appropriate. B. Defendant s Claim That There was Insufficient Evidence He Attempted to Persuade A Witness to Withhold Testimony Does Not Raise A Substantial Question Count six charged defendant with violating 18 U.S.C. 17

20 Case: /29/2009 Page: 20 of 23 DktEntry: (b)(2)(A), which prohibits corruptly persuading another person with intent to cause or induce a person to withhold testimony... from an official proceeding. In his post-trial motion for acquittal or for arrest of judgment, defendant argued that section 1512(b)(2)(A) addresses only efforts to persuade a witness not to testify at all, and that his conduct should have been charged under section 1512(b)(1), which addresses acts committed with intent to influence, dely, or prevent the testimony of any person in an official proceeding. In denying defendant s motion, the district court noted that at trial defendant did not object to the jury instruction on count six, which included language defining an intent to conceal or withhold material facts in connection with testimony in an official proceeding as to act for the purpose of getting a person to withhold truthful information, or to omit information from statements thereby causing a portion of such statements to be misleading. (Def. Mtn. Exhibit D at 7.) The district court observed, the jury instructions accepted by [defendant]... may indicate that his present interpretation of the statutory language varies from the interpretation most obvious even to [defendant]. (Id.) The district court disagreed with defendant s contention that withholding testimony is limited to attempting to persuade a witness not to testify at all, and found ample evidence to support the jury s verdict. (Id. at 6-8.) 18

21 Case: /29/2009 Page: 21 of 23 DktEntry: Defendant fails to present a fairly debatable question as to whether his conduct fell within the scope of section 1512(b)(2). Although defendant cites several cases involving prosecutions under both subsections (b)(1) and (b)(2)(a), none of those cases hold that the latter subsection requires an intent to cause a person to withhold testimony entirely; indeed, none of the cases defendant cites directly addresses the issue defendant raises. Furthermore, defendant s narrow interpretation of subsection (b)(2)(a) as applying only when the defendant intends to cause the witness to refrain from testifying entirely is inconsistent with the statutory scheme as a whole, because it would render redundant subsection (b)(1), which prohibits acts with the intent to prevent testimony. Defendant s actions here are encompassed by the plain language of Section 1512(b)(2)(A). 7 Based on defendant s many statements during the August 13 recording devising and rehearsing with Haidl false denials and cover stories relating to the cash bribes and sham boat transaction, among others -- including repeated statements that the cash bribes didn t happen and that Haidl should deny that he ever gave defendant money in connection with the boat transaction or should characterize the money as payment for boat repairs and slip fees -- ample evidence showed 7 Because the statutory language is clear, defendant s rule of lenity argument fails. Boyle v. United States, 129 S. Ct (2009). 19

22 Case: /29/2009 Page: 22 of 23 DktEntry: that defendant attempted to corruptly persuade Haidl to withhold testimony from the grand jury concerning these events. Similar evidence has been found sufficient to support a conviction under Section 1512(b)(2). See United States v. Freeman, 208 F.3d 332, (1st Cir. 2000) (defendant s statements to witness to keep the lip zipped and not to say anything about the Golden Banana, a nightclub at which defendant engaged in unlawful activities, sufficient to establish that the defendant acted with intent to cause witness to withhold testimony and to support defendant s conviction under Section 1512(b)(2)(A)); see also United States v. Vampire Nation, 451 F.3d 189, 194, 204 (3d Cir. 2006) (violation of section 1512(b)(2)(A) where, after witness informed defendant that he had been subpoenaed and told the FBI the truth, defendant sent urging witness not to give information and suggesting false explanation for transaction); United States v. Johnson, 968 F.2d 208, (2d Cir. 1992) (upholding Section 1512(b)(2)(A) conviction for telling witness to go to the postal inspector and change his story and tell them that he didn t know what he was talking about ). Defendant s claim is simply a challenge to the sufficiency of the evidence, and presents no fairly debatable issue. IV. CONCLUSION For the foregoing reasons, defendant s motion for bail pending appeal should be denied. 20

23 Case: /29/2009 Page: 23 of 23 DktEntry: CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that on (date) June 29, 2009, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature Brett A. Sagel /s/ *********************************************************************** CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that on (date), I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participants: Signature