United States v. Carona

660 F.3d 360 (2011)

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael S. CARONA, Defendant-Appellant.

No. 09-50235.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2010. Filed January 6, 2011. Amended October 25, 2011.

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

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

Before: JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges.

ORDER

The opinion filed on January 6, 2011 [630 F.3d 917], is amended as follows:

1. On page 420 of the slip opinion (630 F.3d 917 at 918), replace the last sentence of the paragraph at the top of the page:

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.

with the following:

We conclude, however, that the actions of the prosecutors did not violate Rule 2-100 and, therefore, there was no reason for the district court to suppress the evidence or impose sanctions on the government.

2. On page 424 of the slip opinion (630 F.3d at 921), replace the paragraph:

We disagree with the conclusion that the prosecutors violated Rule 2-100. Additionally we hold that the 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.

with the following sentence and eliminate the paragraph break that comes after the new sentence:

We disagree with the conclusion that the prosecutors violated Rule 2-100.

3. On pages 427-30 of the slip opinion (630 F.3d at 922-24), replace the ten paragraphs that begin with "There were no direct communications here between the prosecutors and Carona" and end prior to the heading "B. 18 U.S.C. § 1512(b)(2)(A)" (including footnote 2) with:

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 prosecutor. On the facts presented in this case, we conclude that there was no violation of Rule 2-100. For this reason, we affirm the district court's decision not to suppress evidence obtained through the use of the fake subpoena attachments.

Since there was no violation of Rule 2-100, we do not need to reach the question of whether the district court abused its discretion by not excluding evidence it had found was obtained in violation of that rule, not giving a jury instruction concerning the conduct, nor imposing other sanctions on the government.

Subsequent footnotes are renumbered to reflect the deletion of footnote 2.

4. On pages 437-38 of the slip opinion (630 F.3d at 928), replace the paragraph after the heading "III. Conclusion" with the following paragraph:

It does not appear to us that there was a violation of Rule 2-100 by the prosecutors in this case. Carona's conduct violated 18 U.S.C. § 1512(b)(2)(A), and consequently the district court properly denied Carona's motions to arrest judgment and for a judgment of acquittal.

With the opinion as amended, the panel has voted to deny the petition for rehearing. Judge Clifton and Judge Bybee voted to deny the petition for rehearing en banc and Judge Noonan has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc is DENIED. No further petition for rehearing and/or petition for rehearing en banc may be filed.

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 violated Rule 2-100 of the California Rules of Professional Conduct ("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 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 violation 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, therefore, there was no reason for the district court to suppress the evidence or impose sanctions on the government.

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 statute 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 testifying falsely in the course of providing testimony. Carona argued that his acts were covered only by a related but separate 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 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 raising money and supporting him."

After Carona took office, Haidl testified that he continued to make payments to Carona. He became concerned that Carona 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 surreptitious 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 attachments" 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 speedboat. 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 transactions.

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 suppression" and "[t]he State Bar for California has a very effective system for disciplining and deterring attorney misconduct." Carona then moved for a jury instruction permitting the jury to accord less weight to his recorded statements because they were obtained in violation of an ethical rule. The court denied this request. The court also denied Carona's requests to disqualify the lead prosecutor and to introduce evidence of the lead prosecutor's ethical violation.

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 defendant who intended a witness to give false testimony. The district 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. 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 violated Rule 2-100. 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 codefendant "agreed to become a cooperating witness for the prosecution," "met with [the represented defendant] before [he] was charged or arrested," and "secretly recorded that conversation"); 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]").

The only relevant factual difference between Kenny and Powe and the current case is that here the prosecutors provided the informant with fake subpoena attachments to use in getting Carona to incriminate himself. In Hammad, the Second 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 subpoena attachments made Haidl the alter ego of the prosecutor, causing Haidl's communication with Carona to violate Rule 2-100.

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 speaking 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 administration 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 conclude that it does not.

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 prosecutor in his interactions with Carona, yet no precedent from 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).

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 incriminating statements. See, e.g., Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 77 L.Ed. 413 (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. Martino, 825 F.2d 754 (3d Cir.1987), rejecting a claim of a prosecutorial 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 accouterments 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).

Additionally, the concern that a suspect might be tricked by counsel's artful examination is inapplicable here, since Carona 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").

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 contacts to extend it to protect [individuals] who would suborn perjury by [others]." Talao, 222 F.3d at 1140.

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 prosecutor. On the facts presented in this case, we conclude that there was no violation of Rule 2-100. For this reason, we affirm the district court's decision not to suppress evidence obtained through the use of the fake subpoena attachments.

Since there was no violation of Rule 2-100, we do not need to reach the question of whether the district court abused its discretion by not excluding evidence it had found was obtained in violation of that rule, not giving a jury instruction concerning the conduct, nor imposing other sanctions on the government.

B. 18 U.S.C. § 1512(b)(2)(A)

Carona was charged with witness tampering in two separate counts. One count cited an alleged course of conduct by Carona 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 persuad[ing]" another person with intent to "influence, delay, or prevent the testimony of any person in an official proceeding." 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 discussed 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).^[2]

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 section 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 an attempt to persuade a witness to withhold all testimony, and not an attempt to withhold certain information while giving 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.

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."

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 conclusion that Carona violated § 1512(b)(2)(A) by attempting 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 Amendment, 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.^[3] 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 testimony.

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.2000) (during the grand jury investigation defendant told witnesses "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 witness to give a false explanation for a transaction); United States v. Johnson, 968 F.2d 208, 209 (2d Cir.1992) (defendant 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 withholding truthful testimony under the district court's interpretation of § 1512(b)(2)(A) covering partially withheld testimony.

Carona cites the "cardinal principle of statutory construction 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, 122 S.Ct. 441, 151 L.Ed.2d 339 (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., 17 Cal.4th 985, 73 Cal.Rptr.2d 682, 953 P.2d 858, 861 (1998) ("[E]ven were we to agree some redundancy exists between two statutes, such redundancy would be insufficient" to void the statutes.).

It should not be surprising that statutes are not necessarily written so that one and only one statute can apply at a time. To the contrary, statutes often contain overlapping provisions. 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 inadequacy of either to hold up the pants, but only the cautious nature of the person wearing the pants." Ortega-Gamboa v. Holder, 388 Fed.Appx. 580, 582 (9th Cir. 2010) (unpublished). 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.

Sections 1512(b)(1) and 1512(b)(2)(A)^[4] do not completely overlap, in any event, so neither one is superfluous, even if both might apply to Carona's conduct. There are situations 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 fabricated 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 testimony." Conversely, a defendant who persuades someone else to conceal and fail to produce a document that had been subpoenaed would appear to violate § 1512(b)(2)(A), which explicitly covers withholding a document, but not § 1512(b)(1), which appears to cover only prevention of the testimony of a person.^[5] 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 lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.") (internal quotation marks omitted). The rule of lenity only applies, however, where "there is a grievous ambiguity or uncertainty in the language 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 alteration in original) (internal quotation marks omitted). The phrase "withhold testimony" in § 1512(b)(2)(A) does not contain a "grievous ambiguity or uncertainty" that would make it unreasonable to apply it to a defendant who intends for a witness to partially omit testimony. Nader, 542 F.3d at 721 (the rule of lenity requires that "no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited"). 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 F.2d 697, 699 (9th Cir.1991) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)). There is no serious contention 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 district court erred in denying his motion to arrest judgment pursuant to Rule 34(a)(1) of the Federal Rules of Criminal Procedure, which instructs that the court "must arrest judgment if ... the indictment ... does not charge an offense." Because we hold that § 1512(b)(2)(A) covers withholding testimony 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 interpretation of § 1512(b)(2)(A), and we have rejected that interpretation.

III. Conclusion

It does not appear to us that there was a violation of Rule 2-100 by the prosecutors in this case. Carona's conduct violated 18 U.S.C. § 1512(b)(2)(A), and consequently the district court properly denied Carona's motions to arrest judgment and for a judgment of acquittal.

AFFIRMED.

NOTES

[1] That statute, sometimes referred to as the McDade Amendment, provides 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 government attorneys).

[2] 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 overlap 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, 52 S.Ct. 189, 76 L.Ed. 356 (1932); see also United States v. Hart, 963 F.2d 1278, 1281 (9th Cir.1992).

[3] 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").

[4] 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 misleading 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;

[5] 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 violation of § 1512(b)(2)(A), focused on his activity on a single day.