United States v. Carona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50235
Plaintiff-Appellee,
v.  D.C. No.
8:06-cr-00224-AG-2
MICHAEL S. CARONA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Argued and Submitted
May 5, 2010—Pasadena, California

Filed January 6, 2011

Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton

415
 UNITED STATES v. CARONA 419

COUNSEL

Christina Coates, Courtney Chavez, John D. Cline (argued),
C. Kevin Marshall, and Brian A. Sun, Jones Day, San Fran-
cisco, California, for the appellant.

George S. Cardona, Christine C. Ewell, Brett A. Sagel
(argued), Santa Ana, California, for the appellee.

OPINION

CLIFTON, Circuit Judge:

Appellant Michael S. Carona, formerly the Sheriff of
Orange Country, California, was charged with several federal
crimes relating to alleged corruption. The jury acquitted him
on most counts but found him guilty on one count of witness
tampering in violation of 18 U.S.C. § 1512(b)(2)(A). He
appeals that conviction on two primary grounds.

The first concerns the admission into evidence of a
recorded conversation between Carona and a confederate who
was at the time of the conversation cooperating with federal
prosecutors. The district court held that the prosecutors vio-
lated Rule 2-100 of the California Rules of Professional Con-
duct (“Communication with a Represented Party”) by
communicating with Carona, known by them at the time to be
represented by counsel, through the cooperating witness, to
420 UNITED STATES v. CARONA
whom the prosecutors had given fake documents to use in
eliciting incriminating statements. The district court did not
suppress the evidence or impose sanctions on the government
for this violation, however, leaving any discipline for the vio-
lation to the state bar. Carona contends, among other things,
that the evidence should have been suppressed and that the
lead prosecutor should have been disqualified. We conclude,
however, that the actions of the prosecutors did not violate
Rule 2-100 and, further, that the district court properly denied
suppression of the evidence even if there had been a violation
of Rule 2-100.

Second, Carona moved for a judgment of acquittal, or in
the alternative for a new trial, on the one count of witness
tampering in violation of 18 U.S.C. § 1512(b)(2)(A) for which
he was convicted, arguing that the prohibition under that stat-
ute against “corruptly persuad[ing]” a witness to “withhold
testimony” from the grand jury properly applied only where
a defendant intended for a witness to withhold all testimony,
and not where, as in this case, the evidence indicated that the
defendant intended for a witness to omit information by testi-
fying falsely in the course of providing testimony. Carona
argued that his acts were covered only by a related but sepa-
rate subsection of the statute, 18 U.S.C. § 1512(b)(1). The
jury acquitted Carona of the count which alleged violation of
that subsection. The district court denied the motion. Carona
appeals that denial and the instructions given by the court to
the jury regarding that count. We are not persuaded by this
challenge, either, concluding that the identified statute, 18
U.S.C. § 1512(b)(2)(A), covers the misconduct for which the
jury found Carona guilty.

We affirm the judgment of the district court.

I. Background

Carona served as Sheriff of Orange County, an elected
position, from January 1999 until early 2008, when he
 UNITED STATES v. CARONA 421
resigned following his indictment. During his initial campaign
for sheriff in 1998, Carona received financial support from
Donald Haidl. Haidl testified at trial that Carona “offered
[him] the complete power of the sheriff’s department for rais-
ing money and supporting him.”

After Carona took office, Haidl testified that he continued
to make payments to Carona. He became concerned that Car-
ona was jeopardizing his position and Haidl’s arrangement by
accepting small amounts from other people. Haidl testified
that he offered Carona and Assistant Sheriff George Jamarillo
each a “bribe not to take bribes” in the amount of $1000 per
month, which they accepted. Haidl also testified that he gave
Carona a speedboat in 2001, which they concealed through a
sham transaction.

In 2004, the federal government began an investigation. In
early 2007, Haidl admitted his own criminal misconduct and
signed a cooperation plea agreement with the government.
Following this plea agreement, government attorneys
instructed Haidl to meet with Carona and to make surrepti-
tious recordings of their meetings. At this time, Carona was
represented by attorney Dean Stewart, who had notified the
government that he was representing Carona.

Haidl met with Carona on July 7, 2007, and July 15, 2007,
but these meetings did not provide enough evidence to satisfy
the prosecutors. In preparation for a subsequent meeting, the
government equipped Haidl with two fake “subpoena attach-
ments” that identified certain records that Haidl was to tell
Carona he had been subpoenaed to produce. These documents
referred to cash payments Haidl provided to Carona and to the
sham transaction they used to conceal the gift of the speed-
boat. Haidl and Carona met again on August 13, 2007, and in
their conversation, Carona made statements that suggested
both that he had received payments and gifts from Haidl and
that he wanted Haidl to lie to the grand jury about these trans-
actions.
422 UNITED STATES v. CARONA
Carona was subsequently charged with tampering with a
grand jury witness in two separate counts of the indictment,
one count alleging a violation of 18 U.S.C. § 1512(b)(1), and
the other a violation of § 1512(b)(2)(A). These statutes will be
discussed in more detail below. Carona was also charged with
conspiracy to commit honest services mail fraud in violation
of 18 U.S.C. § 371, and with three counts of mail fraud
depriving the public of the right of honest services of a public
official in violation of 18 U.S.C. §§ 1341 and 1346.

Carona moved before trial to suppress his statements to
Haidl because they allegedly were obtained in violation of
Rule 2-100 of the California Rules of Professional Conduct.
Rule 2-100 prohibits an attorney from “communicat[ing]
directly or indirectly . . . with a party [the attorney] knows to
be represented by another lawyer.” Cal. R. Prof. Conduct 2-
100(A). The state rules apply to federal prosecutors under 28
U.S.C. § 530B.1

The district court held that the prosecutors had violated
Rule 2-100, but the court declined to suppress the evidence,
concluding that “there are less extreme remedies than sup-
pression” and “[t]he State Bar for California has a very effec-
tive system for disciplining and deterring attorney
misconduct.” Carona then moved for a jury instruction per-
mitting the jury to accord less weight to his recorded state-
ments because they were obtained in violation of an ethical
rule. The court denied this request. The court also denied Car-
ona’s requests to disqualify the lead prosecutor and to intro-
duce evidence of the lead prosecutor’s ethical violation.
1
That statute, sometimes referred to as the McDade Amendment, pro-
vides that “[a]n attorney for the Government shall be subject to State laws
and rules, and local Federal court rules, governing attorneys in each State
where such attorney engages in that attorney’s duties, to the same extent
and in the same manner as other attorneys in that State.” 28 U.S.C.
§ 530B(a); see also United States v. Talao, 222 F.3d 1133, 1139-40 (9th
Cir. 2000) (providing historical background on ethical rules for govern-
ment attorneys).
 UNITED STATES v. CARONA 423
The jury acquitted Carona on the four counts of conspiracy
and honest services mail fraud and on one count of witness
tampering. The jury found Carona guilty, however, on the
count which alleged witness tampering in violation of 18
U.S.C. § 1512(b)(2)(A), which covers “whoever knowingly
uses intimidation, threatens, or corruptly persuades” a witness
to “withhold testimony” during an official proceeding. Carona
moved for an arrest of judgment and a judgment of acquittal,
arguing that his conduct did not violate the cited code section
because § 1512(b)(2)(A) applied to a defendant who intended
a witness to withhold all testimony and did not cover a defen-
dant who intended a witness to give false testimony. The dis-
trict court denied the motion.

Carona appealed.

II. Discussion

We review de novo a district court’s conclusion that an
attorney’s conduct violated court rules. United States v.
Lopez, 4 F.3d 1455, 1458 (9th Cir. 1993). A district court’s
exercise of its supervisory powers is reviewed under the
abuse-of-discretion standard. Id. at 1463.

“We review challenges to the sufficiency of the evidence
by determining whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Reyes-Bosque,
596 F.3d 1017, 1035 (9th Cir. 2010) (emphasis in original)
(internal quotation marks omitted). Jury instructions to which
the defendant did not object are reviewed for plain error.
United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th
Cir. 2008).

A. Rule 2-100

Relying on United States v. Talao, 222 F.3d 1133 (9th Cir.
2000), and United States v. Hammad, 858 F.2d 834 (2d Cir.
424 UNITED STATES v. CARONA
1988), the district court held that the prosecutors violated the
“no-contact rule” set forth in Rule 2-100 of the California
Rules of Professional Conduct. Carona sought four remedies
for this alleged violation, all of which were rejected by the
district court: (1) suppression of the tapes of the August 13
meeting between Carona and Haidl, (2) instruction to the jury
that it may give less weight to the evidence, (3) introduction
of evidence of the lead prosecutor’s ethical misconduct, or (4)
disqualification of the lead prosecutor.

We disagree with the conclusion that the prosecutors vio-
lated Rule 2-100. Additionally we hold that even if there had
been a violation, the district court did not abuse its discretion
in rejecting these remedies and instead deferring to the state
bar to address any ethical violation.

[1] To determine whether “pre-indictment, non-custodial
communications by federal prosecutors and investigators with
represented parties” violated Rule 2-100, we have adopted a
“case-by-case adjudication” approach rather than a bright line
rule. Talao, 222 F.3d at 1138-39. We have recognized the
possibility that such conversations could violate the rule and
“declined to announce a categorical rule excusing all such
communications from ethical inquiry.” Id. Nonetheless, our
cases have more often than not held that specific instances of
contact between undercover agents or cooperating witnesses
and represented suspects did not violate Rule 2-100. See, e.g.,
United States v. Powe, 9 F.3d 68, 69 (9th Cir. 1993) (per
curiam) (finding no violation of Rule 2-100 where a codefen-
dant “agreed to become a cooperating witness for the prosecu-
tion,” “met with [the represented defendant] before [he] was
charged or arrested,” and “secretly recorded that conversa-
tion”); United States v. Kenny, 645 F.2d 1323, 1337-38 (9th
Cir. 1981) (holding there was no ethical violation where a
codefendant “agreed to cooperate with the Government” and
“recorded a telephone conversation with [the represented
defendant]”).
 UNITED STATES v. CARONA 425
The only relevant factual difference between Kenny and
Powe and the current case is that here the prosecutors pro-
vided the informant with fake subpoena attachments to use in
getting Carona to incriminate himself. In Hammad, the Sec-
ond Circuit held that issuing a false subpoena to an informant
to “create a pretense that might help the informant elicit
admissions . . . . contributed to the informant’s becoming that
alter ego of the prosecutor.” 858 F.2d at 840. Relying on
Hammad, the district court held that the use of the fake sub-
poena attachments made Haidl the alter ego of the prosecutor,
causing Haidl’s communication with Carona to violate Rule
2-100.

[2] While in Talao we held Hammad’s “case-by-case”
approach to be the proper one, 222 F.3d at 1139, Talao did
not involve the use of a fake subpoena or any other falsified
documents, and we did not adopt Hammad’s holding on that
subject. Rather, Talao dealt with communications between a
prosecutor and an employee who claimed that his employer’s
attorney, who purported to represent the employee as well,
was trying to intimidate him into giving false testimony. We
held that the prosecutor did not violate Rule 2-100 by speak-
ing with the employee, because “[i]t would be an anomaly to
allow the subornation of perjury to be cloaked by an ethical
rule, particularly one manifestly concerned with the adminis-
tration of justice.” Id. at 1140.

We have not previously needed to consider the question of
whether providing fake court papers to an informant to use
during a conversation with a represented party is conduct that
violates Rule 2-100. Under the facts presented here, we con-
clude that it does not.

[3] The use of a false subpoena attachment did not cause
the cooperating witness, Haidl, to be any more an alter ego of
the prosecutor than he already was by agreeing to work with
the prosecutor. Haidl was acting at the direction of the prose-
cutor in his interactions with Carona, yet no precedent from
426 UNITED STATES v. CARONA
our court or from any other circuit, with the exception of
Hammad, has held such indirect contacts to violate Rule 2-
100 or similar rules. See Powe, 9 F.3d at 69; Kenny, 645 F.2d
at 1339; United States v. Ryans, 903 F.2d 731, 739 (10th Cir.
1990) (disagreeing with Hammad and “agree[ing] with the
majority of courts which have considered the question that
[the no-contact rule] was not intended to preclude undercover
investigations of unindicted suspects merely because they
have retained counsel”) (collecting cases).

[4] The false documents were props used by government
to bolster the ability of the cooperating witness to elicit
incriminating statements from a suspect. The district court
appears to have been concerned that by allowing such conduct
a suspect could be “ ‘tricked’ into giving his case away by
opposing counsel’s artful questions,” but it has long been
established that the government may use deception in its
investigations in order to induce suspects into making incrimi-
nating statements. See, e.g., Sorrells v. United States, 287
U.S. 435, 441 (1932) (“Artifice and stratagem may be
employed to catch those engaged in criminal enterprises.”).
The use of fake documents here was just such a stratagem.
The reasoning of the Third Circuit in United States v. Mar-
tino, 825 F.2d 754 (3d Cir. 1987), rejecting a claim of a pro-
secutorial ethical violation based on a fake subpoena, seems
to us particularly persuasive:

If government officials may pose as non-existent
sheiks in an elaborately concocted scheme, supply a
necessary ingredient for a drug operation, and utilize
landing strips, docking facilities, and other accouter-
ments of an organized smuggling operation, all in
order to catch criminals, then their use of a subpoena
in the name of an undercover agent to enable him to
retain his credibility with suspected criminals seems
innocuous by comparison.

Id. at 760 (internal citations omitted).
 UNITED STATES v. CARONA 427
Additionally, the concern that a suspect might be tricked by
counsel’s artful examination is inapplicable here, since Car-
ona was not subject to any interrogation, let alone one by the
prosecutor. Rather he was engaging in a conversation with an
individual he believed to be his ally against the prosecution.
See Kenny, 645 F.2d at 1339 (indirect communication with
represented suspect “does not implicate the sorts of ethical
problems addressed by the Code”).

[5] It would be antithetical to the administration of justice
to allow a wrongdoer to immunize himself against such
undercover operations simply by letting it be known that he
has retained counsel. Particularly here, where the undercover
investigation revealed Carona encouraging Haidl to lie, to
hold otherwise would be contrary to our observation in Talao
that “it would be a perversion of the rule against ex parte con-
tacts to extend it to protect [individuals] who would suborn
perjury by [others].” Talao, 222 F.3d at 1140.

[6] There were no direct communications here between the
prosecutors and Carona. The indirect communications did not
resemble an interrogation. Nor did the use of fake subpoena
attachments make the informant the alter ego of the prosecu-
tor. On the facts presented in this case, we conclude that there
was no violation of Rule 2-100.

[7] Even if the prosecutor’s conduct had constituted an eth-
ical violation, we conclude that the district court did not abuse
its discretion in declining to suppress the tapes of the August
13 meeting. The district court’s authority to exclude evidence
obtained through a violation of Rule 2-100 is based on its
supervisory powers. Powe, 9 F.3d at 69. “There are three
legitimate grounds for a court’s exercise of supervisory
power: to implement a remedy for the violation of a recog-
nized statutory or constitutional right; to preserve judicial
integrity by ensuring that a conviction rests on appropriate
considerations validly before a jury; and to deter future illegal
428 UNITED STATES v. CARONA
conduct.” Lopez, 4 F.3d at 1463 (internal quotation marks
omitted). None support suppression of the evidence here.

The first ground does not apply here because Rule 2-100
does not create a “recognized statutory or constitutional
right.” See Talao, 222 F.3d at 1138 (providing that 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 con-
tacted by opposing counsel”); see also 28 C.F.R. § 77.5
(instructing that the procedures adopted to implement the
McDade Amendment “do not . . . create a right or benefit,
substantive or procedural”).

In considering the second ground, “to preserve judicial
integrity,” the court must also consider the “considerable
harm that would flow from indiscriminate application of an
exclusionary rule.” United States v. Paynor, 447 U.S. 727,
734 (1980). Courts have limited the exclusionary rule to
“areas where its remedial objectives are thought most effica-
ciously served.” United States v. Calandra, 414 U.S. 338, 348
(1974). As the district court noted, no court has ever sup-
pressed evidence in a criminal case based on a violation of
Rule 2-100 or a similar rule by a government attorney unless
there was also a violation of the Sixth Amendment. No such
violation was alleged here.

[8] Finally, the district court’s conclusion that state bar dis-
cipline could adequately deter future violations is supported
by our case law. See Lopez, 4 F.3d at 1464 (declining to dis-
miss an indictment where less extreme remedies were avail-
able, “such as holding the prosecutor in contempt or referral
to the state bar for disciplinary proceedings”); see generally
Talao, 222 F.3d at 1138 (a court’s finding that an attorney
violated an ethical rule may “stigmatize” an attorney and
“could have a serious detrimental effect on her career”). The
fact that the state bar did not thereafter take action against the
prosecutor here does not prove the inadequacy of the remedy.
It may, to the contrary, suggest support for our conclusion that
 UNITED STATES v. CARONA 429
there was no ethical violation to begin with. The district court
did not abuse its discretion in declining to suppress the tapes
of the August 13 conversation.

[9] Carona also contends that the district court erred in
denying his request for an instruction informing the jury that
it could consider the prosecutors’ misconduct in assessing the
weight given to Carona’s taped statements. Carona was per-
mitted to introduce evidence regarding the methods that were
used to obtain these statements, however, and the jury could
evaluate how these methods affected the reliability of the
statements. That appears sufficient to us. Indeed, except inso-
far as the reliability of the statements was called into question,
it was not the jury’s role to judge the conduct of the prosecu-
tor. Suggesting that the jury should do so could confuse and
distract the jury from its assigned responsibility to determine
whether Carona violated the law.

Carona argues that the district court opinion in United
States v. Talao, No. CR-97-0217-VRW, 1999 WL 33599863
(N.D. Cal. June 17, 1999), supports his request to instruct the
jury to consider the prosecutors’ misconduct. That court’s
determination that there had been an ethical violation in Talao
was overturned on appeal to this court, however, and conse-
quently we had no occasion to review the district court’s
instruction. Talao, 222 F.3d at 1135. The decision of the dis-
trict court in this case that such an instruction was unneces-
sary and that other remedies were sufficient was not an abuse
of discretion.

[10] Similarly, the district court did not abuse its discretion
by instructing the jury that the government “is not precluded
from engaging in stealth and deception, such as the use of
informants, in order to apprehend persons who have engaged
in criminal activities.” This instruction is an accurate descrip-
tion of the law, see, e.g., 9th Cir. Crim. Jury Instr. 4.13
(2003), and it did not mislead the jury, see, e.g., United States
v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000).
430 UNITED STATES v. CARONA
Carona also contends that the district court should have
permitted him to introduce evidence of the lead prosecutor’s
alleged misconduct for the jury to consider. The district court
precluded this evidence pursuant to Rule 403 of the Federal
Rules of Evidence, finding that the danger of unfair prejudice
and confusion outweighed its probative value. Carona cites to
United States v. Sager, 227 F.3d 1138 (9th Cir. 2000), but that
case was different. The defendant in Sager sought to intro-
duce details of an investigation in order to impeach the credi-
bility of the investigating officer on cross-examination. Id. at
1143. We held that the jury should have been allowed to
“grade” the investigation because the “[d]etails of the investi-
gatory process potentially affected [the inspecting officer’s]
credibility, and perhaps more importantly, the weight to be
given to evidence produced by his investigation.” Id. at 1145.

[11] In contrast, the court’s legal finding in this case that
the prosecutors violated Rule 2-100 did not have any bearing
on the credibility of any witness at trial. Carona was allowed
to introduce evidence and examine witnesses regarding the
manner in which his recorded statements were obtained by the
government, as well as to the content of the subpoena attach-
ments. Precluding evidence of the prosecutor’s involvement
in the subpoena scheme did not prevent the jury from assess-
ing the quality of the government’s investigation. Based on
the potential for unfair prejudice, the district court did not
abuse its discretion precluding this evidence. See Fed. R.
Evid. 403.2

B. 18 U.S.C. § 1512(b)(2)(A)

Carona was charged with witness tampering in two separate
2
Carona also contends that the district court should have disqualified the
lead prosecutor, but he does not provide any legal justification for this
argument. The district court properly held that disqualification was not
necessary under the advocate-witness rule, the unsworn-witness rule, or
for reasons of protecting the integrity of the judicial process.
 UNITED STATES v. CARONA 431
counts. One count cited an alleged course of conduct by Car-
ona over a period of more than three years, from March 2004
until August 2007, as being in violation of 18 U.S.C.
§ 1512(b)(1). Section 1512(b)(1) proscribes “corruptly per-
suad[ing]” another person with intent to “influence, delay, or
prevent the testimony of any person in an official proceed-
ing.” Carona was acquitted by the jury on that count.

The other count charged Carona with violating 18 U.S.C.
§ 1512(b)(2)(A) by his actions on August 13, 2007, the day
of the taped conversation between Carona and Haidl dis-
cussed at length above. Section 1512(b)(2)(A) proscribes
“corruptly persuad[ing]” another person with the intent to
“withhold testimony . . . from an official proceeding.” The
jury found Carona guilty on this count charging a violation of
§ 1512(b)(2)(A).3

[12] Carona argues that the district court erred in denying
his motions for acquittal and arrest of judgment following his
conviction because his conduct could not have violated
§ 1512(b)(2)(A). The count on which he was convicted
alleged that Carona attempted “to corruptly persuade Haidl to
withhold testimony through, among other ways, the use of
false and misleading statements, with intent to cause and
induce Haidl to withhold testimony in an official proceeding,
before members of a Federal Grand Jury.” Carona contends
that this conduct fell exclusively under § 1512(b)(1), the sec-
tion of the statute under which he was acquitted, because a
rational juror could only find that he intended to “influence”
a witness as proscribed in § 1512(b)(1). He argues that the
phrase “withhold testimony” in § 1512(b)(2)(A) covers only
3
Carona’s acquittal on the charge under § 1512(b)(1) has no bearing on
our review of his conviction under § 1512(b)(2)(A), even if there is over-
lap between the two statutes. “Consistency in the verdict is not necessary.
Each count in an indictment is regarded as if it was a separate indictment.”
Dunn v. United States, 284 U.S. 390, 393 (1932); see also United States
v. Hart, 963 F.2d 1278, 1281 (9th Cir. 1992).
432 UNITED STATES v. CARONA
an attempt to persuade a witness to withhold all testimony,
and not an attempt to withhold certain information while giv-
ing false testimony.

“[I]n the absence of a statutory definition, a term should be
accorded its ordinary meaning.” United States v. Banks, 556
F.3d 967, 978 (9th Cir. 2009) (alteration in original) (internal
quotation marks omitted). A term’s “ordinary meaning” may
be determined with reference to its dictionary definition at the
time the statute was enacted. Id. The definition of “withhold”
includes “[t]o omit to disclose upon request; as, to withhold
information.” Black’s Law Dictionary 1437 (5th ed. 1979)
(most recent edition when statute was enacted in 1982). The
term “influence” means “[t]o affect, modify or act upon by
physical, mental or moral power, especially in some gentle,
subtle, and gradual way.” Id. at 700.

[13] In the tapes from the August 13 meeting, Carona was
recorded trying to persuade Haidl to testify before the grand
jury that he did not give Carona any bribes. He encouraged
Haidl to “say this to you, you know . . . you never gave me
cash,” and stated that “the answer is flat-ass didn’t [expletive
deleted] happen.” After discussing a payment from Haidl to
Carona, he also stated, “unless there was a pinhole in your
ceiling that evening, it never [expletive deleted] happened.”
Carona and Haidl strategized about who would be “the first
on the stand” and how to “get [their] stories straight,” and,
after persuasion from Carona, Haidl said that he was willing
to “l[ie] my ass off and . . . . raise my [expletive deleted]
hand, [and] I’ll say it never happened.”

[14] Carona’s state of mind appeared to have involved
both the intent to “influence” Haidl’s testimony and the intent
for Haidl to “withhold” testimony, based on the dictionary
definitions of these words. Carona intended to “modify” or
“affect” Haidl’s testimony by encouraging Haidl to testify that
no bribes occurred, as well as to “omit” testimony regarding
the bribes. Accordingly, we agree with the district court’s
 UNITED STATES v. CARONA 433
conclusion that Carona violated § 1512(b)(2)(A) by attempt-
ing to persuade Haidl to withhold testimony about particular
topics in the course of giving false testimony.

Carona argues that the phrase “withhold testimony” in
§ 1512(b)(2)(A) should be given a narrower interpretation. He
contends that “withhold testimony” may only mean to leave
the jurisdiction, go into contempt, assert the Fifth Amend-
ment, or otherwise refuse to testify. He cites several cases
that, he argues, are consistent with this interpretation of
§ 1512(b)(2)(A). These cases involved prosecutions under this
section where the evidence showed that the defendants
wanted to completely forestall the testimony of a witness.4
These cases do not interpret the phrase “withhold testimony,”
however, nor do they address whether § 1512(b)(2)(A) refers
exclusively to withholding all testimony or whether
§ 1512(b)(2)(A) covers a broader range of withholding
including withholding on certain subjects while giving testi-
mony.

Indeed, some of these cases indicate that § 1512(b)(2)(A)
may cover withholding testimony on a particular topic. See,
e.g., United States v. Freeman, 208 F.3d 332, 335 (1st Cir.
4
See United States v. Salazar, 542 F.3d 139, 143-44 (5th Cir. 2008)
(defendant threatened to rape and murder the witness’s wife, causing the
witness to “consider[ ] not testifying against [defendant]”); United States
v. Freeman, 208 F.3d 332, 335 (1st Cir. 2000) (defendant told one witness
to “keep his ‘mouth shut’ ” and told another to “keep the lip zipped”);
United States v. Canan, 48 F.3d 954, 957 (6th Cir. 1995) (defendant
“threatened to kill” a witness “after learning that he intended to cooperate
with authorities”); United States v. Elwell, 984 F.2d 1289, 1294 (1st Cir.
1993) (defendant made threatening phone calls, asserting that “nobody’s
going to no Grand Jury”); United States v. Johnson, 968 F.2d 208, 210 (2d
Cir. 1992) (defendant threatened a witness by stating that “[if] I get
indicted and you testify, I’m going to take care of you, I’m going to get
you . . . . [b]ut if you don’t, everything will be fine, everything will be
okay”) (first alteration in original); United States v. Fagan, 821 F.2d 1002,
1014 (5th Cir. 1987) (defendant “had made known . . . his willingness to
pay $20,000 to anyone who would cause [the witness] not to testify”).
434 UNITED STATES v. CARONA
2000) (during the grand jury investigation defendant told wit-
nesses “not to say anything about [a nightclub where there
was illegal activity]”); United States v. Boyd, 309 F. Supp. 2d
908, 916 (S.D. Tex. 2004) (defendant instructed the witness
to “remain quiet concerning the activities of the [union under
investigation]”). Other cases indicate that § 1512(b)(2)(A)
also covers the intent to persuade a witness to testify with
false information in the course of withholding information
about a particular topic. See United States v. Vampire Nation,
451 F.3d 189, 194 (3d Cir. 2006) (defendant encouraged wit-
ness to give a false explanation for a transaction); United
States v. Johnson, 968 F.2d 208, 209 (2d Cir. 1992) (defen-
dant urged witness to “change his story and tell them that he
didn’t know what he was talking about”) (alterations omitted).

Carona also argues that to “withhold testimony” under
§ 1512(b)(2)(A) must mean to omit all testimony in order to
avoid rendering superfluous the “influence” prong of
§ 1512(b)(1). Carona contends that persuading a witness to
falsely testify, conduct considered “influenc[ing]” testimony
under § 1512(b)(1), will always involve some aspect of with-
holding truthful testimony under the district court’s interpreta-
tion of § 1512(b)(2)(A) covering partially withheld testimony.

Carona cites the “cardinal principle of statutory construc-
tion that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.” TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001) (internal quotation marks omitted).
This principle does not prevent more than one provision of a
statute from applying in a particular instance, however.
“When [two laws] only partially overlap, we must construe
them in harmony.” In re Moses, 167 F.3d 470, 476 (9th Cir.
1999); see also Murillo v. Fleetwood Enters., Inc., 953 P.2d
858, 861 (Cal. 1998) (“[E]ven were we to agree some redun-
dancy exists between two statutes, such redundancy would be
insufficient” to void the statutes.).
 UNITED STATES v. CARONA 435
[15] It should not be surprising that statutes are not neces-
sarily written so that one and only one statute can apply at a
time. To the contrary, statutes often contain overlapping pro-
visions. The term “belt and suspenders” is sometimes used to
describe the common tendency of lawyers to use redundant
terms to make sure that every possibility is covered. “That
some wear a belt and suspenders does not prove the inade-
quacy of either to hold up the pants, but only the cautious
nature of the person wearing the pants.” Ortega-Gamboa v.
Holder, 2010 WL 2812758 at *1 (9th Cir. 2010) (unpub-
lished). Congress may have acted similarly in drafting these
statutes out of an understandable desire to make sure that no
form of witness tampering be left out.

[16] Sections 1512(b)(1) and 1512(b)(2)(A)5 do not com-
pletely overlap, in any event, so neither one is superfluous,
even if both might apply to Carona’s conduct. There are situa-
tions under which a defendant will violate one but not the
other. For example, a defendant who intends for a person with
no relevant information to provide a grand jury with a fabri-
cated alibi supporting the defendant would transgress
§ 1512(b)(1) by corruptly influencing that person’s testimony,
but would not appear to violate § 1512(b)(2)(A) because the
defendant did not intend for that witness to “withhold testimo-
ny.” Conversely, a defendant who persuades someone else to
conceal and fail to produce a document that had been subpoe-
naed would appear to violate § 1512(b)(2)(A), which explic-
5
18 U.S.C. § 1512(b)(1) & (b)(2)(A) provide:
(b) Whoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in mis-
leading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person
in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document,
or other object, from an official proceeding;
436 UNITED STATES v. CARONA
itly covers withholding a document, but not § 1512(b)(1),
which appears to cover only prevention of the testimony of a
person.6 Because neither of the statutes, as interpreted and
applied by the government and the district court, is entirely
subsumed within the other, the two statutes so interpreted
coexist in harmony. Defendant’s attempt to exclude from
§ 1512(b)(2)(A) activity that might also be covered by
§ 1512(b)(1) is unavailing.

Carona also contends that the rule of lenity requires that
§ 1512(b)(2)(A) be interpreted in his favor. See United States
v. Nader, 542 F.3d 713, 721 (9th Cir. 2008) (“The rule of len-
ity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them.”) (internal quota-
tion marks omitted). The rule of lenity only applies, however,
where “there is a grievous ambiguity or uncertainty in the lan-
guage and structure of the [statute], such that even after a
court has seize[d] every thing from which aid can be derived,
it is still left with an ambiguous statute.” United States v.
Devorkin, 159 F.3d 465, 469 (9th Cir. 1998) (second alter-
ation in original) (internal quotation marks omitted). The
phrase “withhold testimony” in § 1512(b)(2)(A) does not con-
tain a “grievous ambiguity or uncertainty” that would make it
unreasonable to apply it to a defendant who intends for a wit-
ness to partially omit testimony. Nader, 542 F.3d at 721 (the
rule of lenity requires that “no individual be forced to specu-
late, at peril of indictment, whether his conduct is prohibit-
ed”). Indeed, we have stated that “[b]ecause the meaning of
language is inherently contextual, we have declined to deem
a statute ambiguous for purposes of lenity merely because it
was possible to articulate a construction more narrow than
that urged by the government.” United States v. Alfeche, 942
6
As noted above, the two counts of the indictment charging violations
of these statutes also covered different time periods. The count alleging
violation of § 1512(b)(1) covered Carona’s conduct over a three-year
period, while the count on which Carona was convicted, charging a viola-
tion of § 1512(b)(2)(A), focused on his activity on a single day.
 UNITED STATES v. CARONA 437
F.2d 697, 699 (9th Cir. 1991) (quoting Moskal v. United
States, 498 U.S. 103, 108 (1990)). There is no serious conten-
tion that Carona did not understand that his conduct on
August 13, 2007, was unlawful.

Based on his interpretation of “withhold[ing] testimony”
under § 1512(b)(2)(A), Carona similarly contends that the
count of the indictment under which he was convicted failed
to charge conduct that actually violated § 1512(b)(2)(A). That
count charged Carona with attempting to persuade Haidl “to
withhold testimony through, among other ways, the use of
false and misleading statements.” Carona argues that the dis-
trict court erred in denying his motion to arrest judgment pur-
suant to Rule 34(a)(1) of the Federal Rules of Criminal
Procedure, which instructs that the court “must arrest judg-
ment if . . . the indictment . . . does not charge an offense.”
Because we hold that § 1512(b)(2)(A) covers withholding tes-
timony on certain subjects during the course of giving false
testimony, this argument fails.

Carona additionally argues that the jury instruction for the
count of conviction misstated the elements of
§ 1512(b)(2)(A). He did not challenge this instruction before
the district court and consequently our review is for plain
error. See Miranda-Lopez, 532 F.3d at 1040. There was no
error of any kind in the instruction, however, so there was no
plain error. This argument rests on Carona’s narrow interpre-
tation of § 1512(b)(2)(A), and we have rejected that interpre-
tation.

III. Conclusion

It does not appear to us that there was a violation of Rule
2-100 by the prosecutors in this case, but even if there had
been, the district court’s decision to deny Carona’s motion to
suppress and other requested relief was not an abuse of discre-
tion. Carona’s conduct violated 18 U.S.C. § 1512(b)(2)(A),
438 UNITED STATES v. CARONA
and consequently the district court properly denied Carona’s
motions to arrest judgment and for a judgment of acquittal.

AFFIRMED.