The government may have struck out with the majority of an 11-judge panel of the 9th U.S. Circuit Court of Appeals Thursday in former Giants slugger Barry Bonds’ challenge to his obstruction of justice conviction in an investigation of steroids use.
“I find your reading of the statute absolutely alarming,” Judge William Fletcher to the government’s lawyer Mary Jean Chan. And it got worse from there.
A three judge panel of the appeals court upheld Bonds conviction for obstruction of justice in September 2013 for his evasive testimony to a grand jury investigating illegal distribution of steroids by the Bay Area Laboratory Cooperative (BALCO.)
The three-judge appeals panel held that his answers were “evasive, misleading and capable of influencing the grand jury to minimize” the role of Bonds’ trainer, Greg Anderson, suspected of distributing performance enhancing drugs.
Bonds’ attorney Dennis Riordan opened by saying any decision will garner public attention because of Bonds’ celebrity and controversial status. But that’s not what’s important, what is important, he said, “This is the first time the government has asked to convict a defendant for comments to a grand jury that were non-responsive, to convict for obstruction of justice because he wandered off topic.”
While Riordan faced tough questioning, most of the fire was reserved for the government.
Fletcher asked what happens in civil litigation if lawyers respond to interrogatories and they give truthful but evasive answers. “Are they guilty of a crime?” he asked.
“Yes,” responded Chan.
“Well that is a common practice in civil litigation and you may have criminalized half the bar. “Half the bar may be in serious trouble,” he said.
Chief Judge Alex Kozinski accused the government of engaging in some evasive conduct in the superseding indictment by not making clear the Bonds statements that were allegedly evasive.
Bonds’ rambling answers to the grand jury about being a “celebrity child” in response to a question whether he received any steroids from Anderson could be the basis of a conviction, the panel held. The panel found that even truthful answers could be the basis of conviction if they were so evasive.
Bonds was sentenced in 2011 to spend 30 days in his Beverly Hills mansion and perform 250 hours of community service for his conviction to use of dodgy answers to federal questions. Jurors could not agree on a perjury charge against Bonds.
Judge Susan Graber said, “Speaking for myself, I don’t see how there is sufficient evidence [of obstruction] when the question was asked and answered repeatedly.”
Kozinski asked, “Can you cure a misleading answer?”
“Not if the intent was to mislead at the time,” Chan said.
“But wasn’t it cured in this case?” asked JudgeJacqueline Nguyen?.
Bonds hit 762 home runs during his career, topping the record of 755 by Hank Aaron but remains to be seen whether American sports writers will put Bonds in the Hall of Fame with a conviction hanging over him.
Bonds became ensnared in a broad grand jury probe of illegal steroid distribution and money laundering by BALCO in Burlingame.
The 11-judge panel incuded Kozinski, Graber, Fletcher, Nguyen and Judges Stephen Reinhardt, Diarmuid O’Scannlain, Kim Wardlaw, Johnnie Rawlinson, Connie Callahan, N. Randy Smith and Michelle Friedland.
Case: U.S. v. Bonds, No. 11-10669