Houman Fakhimi

Former O.C. Sheriff Seeks Reprieve on Witness Tampering Charge

You may recall a handful of years ago that Orange County Sheriff Michal S. Carona was convicted in federal court on charges of witness tampering amid a grand jury investigation into law enforcement misdeeds.

Orange County Criminal Defense Lawyer Houman Fakhimi understands that the former lawman is now seeking to have his 5.5-year sentence reduced on the basis of recent changes in the law, per a recent U.S. Supreme Court decision.

Witness tampering is a crime both at the state and federal level, though a conviction at the federal level tends to be more severe. The one with which you are charged is going to depend on the court that is hearing the case involving that particular witness.

At the federal level, the law governing tampering with a witness, victim or informant is spelled out in 18 U.S.C. 1512(a)(2). It holds that anyone who uses physical force or threatens to use physical force or attempts to do so with the intent of influencing, delaying or preventing the testimony of anyone in an official proceeding can be sentenced to up to 20 years in prison if convicted.

In California, the law is addressed in Penal Code 136.1, which is the statute governing dissuading a witness or victim. This statute makes it illegal to prevent or try to prevent any witness or victim of a crime from reporting that crime or testifying about it.

In many cases, the individual who was arrested for the original crime isn't the one charged with tampering. It's usually a family member, close friend, paramour, co-worker - someone connected to the defendant, but not believed to be directly involved with the actual crime.

At the state level, this can be charged as either a felony or misdemeanor, at the discretion of prosecutors. It will be an automatic felony if the alleged action was part of a conspiracy, involved force, or if you've previously been convicted of this same crime.

It's important to understand that an attempt to tamper will be considered just as serious as if you had succeeded.

So for example: If Sherry tells Amanda that she will kill Kim for testifying against her in court, but Amanda never relays that message to Kim and it never has any effect on Kim's testimony, Sherry could still be convicted of witness tampering because it was an attempt. Of course, that assumes prosecutors are able to prove that you were serious about the threat, that you made it maliciously and with the specific goal of dissuading the person from talking to authorities or providing testimony.

If you don't know the person is a witness or victim or aren't attempting to interfere with any maliciousness, then you aren't guilty.

Our defense lawyers have pressed to have these cases dropped for lack of evidence. Save for threats that are made via text message or e-mail or over a voice recording, these cases so often turn into he-said-she-said scenarios, and they are tough for prosecutors to prove.

In the former sheriff's case, it was a secretly-recorded conversation, in which he asked an assistant sheriff to lie to a grand jury, that ultimately resulted in a conviction. However, he was acquitted on a number of other charges.

His request for a sentence reduction follows the Supreme Court's ruling that charges upon which a person is acquitted can't be cross-referenced during sentencing. Carona says that's what happened in his case. A judge is set to issue a ruling on the matter in the next few weeks.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are arrested in Orange County.