Court Grants Barry Bonds En Banc Rehearing
WASHINGTON (CN) - Barry Bonds persuaded the full 9th Circuit on Tuesday to consider whether he obstructed justice by rambling about being a "celebrity child" when testifying about steroid use in baseball.
The former home run king had made the remarks when testifying before a grand jury in 2003. After its raid of the Bay Area Laboratory Co-operative (BALCO) in the San Francisco Bay Area suggested that professional trainer Greg Anderson provided steroids to Bonds and other professional athletes, the government gave Bonds immunity in exchange for his testimony about Anderson and BALCO.
On the stand, Bonds flatly denied that he ever knowingly used steroids or any other performance-enhancing drugs provided by BALCO or Anderson. When pushed about whether Anderson gave him anything to self-inject, he gave a rambling statement about his father and being "a celebrity child."
Prosecutors then indicted Bonds for perjury, saying the former San Francisco Giant lied because he was hiding a "powerful secret" that would have tainted his athletic accomplishments. During the Bonds trial in 2011, Anderson spent the three weeks sitting in jail for his refusal to testify.
Jurors ultimately found that the "celebrity child" answer obstructed the grand jury's investigation, but they were deadlocked on the perjury charges.
A three-judge panel of the 9th Circuit denied Bonds a reversal in September, leading him to petition for an en banc rehearing in November 2013.
Bonds' attorney Dennis Riordan called the obstruction charge a way for the government "to salvage some victory from this long and expensive prosecution."
He further emphasized that the government had even "conceded at trial that the statement [about Bonds' celebrity childhood] was literally true."
"The law of this circuit is divided on whether the obstruction statute covers perjury," the petition continued.
Claiming that cases adopting the "perjury-as-obstruction" did little harm, Riordan said "their main effect was to allow prosecutors to double-charge witness lies as both perjury and obstruction."
Prosecutors did just that in pursuing Bonds, the attorney added, claiming that they double-charged the slugger's "allegedly false statements as both perjury under 18 U.S.C. § 1623 and obstruction under 18 U.S.C. § 1503."
"But while it is one thing to say that perjury constitutes obstruction, it is quite another to say that non-perjury under oath constitutes obstruction," Riordan wrote.
"The panel in this case became the first federal court to hold that non-perjury under oath constitutes obstruction," he added. "The panel's holding means that witnesses now have an affirmative duty to turn over all relevant information in their possession."
Any trial or grand jury witness could now be subjected "to criminal prosecution if she is insufficiently cooperative, even for a moment," according to the petition.
Judge Alex Kozinski, the chief of the 9th Circuit, revealed Tuesday that a majority of nonrecused active judges had decided to vacate the court's 2013 opinion and rehear the case en banc.
Judge Michelle Friedland did not participate in the deliberations or vote in this case, according to the order.
The en banc court will hear the case in mid-September in San Francisco, according to a scheduling order.