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U.S. v. Carona, No. 09-50235 (1-6-11) (Clifton with Noonan and Bybee). The defendant in this case was the elected sheriff of Orange County, California, until he resigned in 2008 after being indicted on federal charges that included bribery and witness tampering. He was acquitted of the bribery and convicted of the witness tampering. The prosecutor used a confidential informant to record statements from the defendant even though the defendant was represented by counsel. The prosecutor even supplied fake subpoenas to the CI to add to the deception. The district court had found the actions to be an ethical violation of 2-100 of the California Rules of Professional Conduct, but had not suppressed. On appeal, the 9th affirmed, and held that the prosecutor's actions neither violated California ethics rules nor required suppression of the statements. The 9th reasoned that the actions did not appear unethical because of the specific circumstances, and the need to ferret out wrongdoing without allowing a defendant to subordinate perjury protected by having counsel. The 9th also shrugged about the fake subpoenas, referring to the documents as a prop to bolster the ability of the CI to elicit information. This is not a case of the fake subpoenas turning the CI into the mouthpiece of the prosecutor. Even if there was an ethical violation, the court did not abuse its discretion in failing to suppress. The exclusionary rule would not serve its remedial purpose and the costs would be too high. Any remedies can be had through the state bar. The 9th also found that the jury instructions were not erroneous.

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