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9th Circuit Zeroes In on Barry Bonds Conviction

     SAN FRANCISCO (CN) – Barry Bonds did not obstruct justice by talking about his childhood in a 2003 grand jury hearing, lawyers for the former San Francisco Giant told the 9th Circuit on Wednesday.
     Though a federal jury found in April 2011 that Bonds’ digression represented his attempt to undermine a grand jury investigation, his appeal hinges on whether prosecutors specified those remarks in their indictment.
     “That is the dagger in the heart of this conviction,” defense attorney Dennis Riordan said. “You can only be convicted of a crime of which the grand jury has given you notice and found probable cause to find a crime has been committed.”
     Bonds had been convicted of only the one obstruction charge, with jurors deadlocked on four other counts alleging that he had lied to the grand jury in 2003 about his alleged steroid use. Those charges were eventually dropped.
     The grand jury had been investigating Bonds’ former trainer, Greg Anderson, and the Bay Area Laboratory Co-operative (BALCO) in 2003 when when Assistant U.S. Attorney Matthew Parrella asked Bonds whether he had been given anything to self-inject. Bonds answered with a rambling statement about his family and private life and how his status as a “celebrity child” precluded him from asking Anderson what substances he was giving him.
     At a hearing before the federal appeals court on Wednesday, Riordan insisted that Bonds was not being evasive because he made this statement after having already answered truthfully .
     “He answered that question three times,” Riordan said. “How can that be obstruction of justice? How can that be evasive?”
     Riordan said that government was inventing a new legal theory in maintaining that his entire testimony was at play, not just the statements named in the indictment.
     The indictment was “not enough to cover anything other than the four statements,” he said, adding that the government was grasping for any way to convict Bonds.
     “You can’t change your strategy as circumstances of the case change,” he said.
     He added: “The District Court bought a myth that the government has perpetrated that Count 5 says Mr. Bonds has obstructed in his entire testimony. To use a baseball analogy, what it says you are charged with four obstructive statements, and then it says not limited to those. Not limited does not mean all. To use a baseball analogy, if you’re trying to unload season tickets, and I say I want the Dodgers series but not limited to those, you can’t go back and say I’d buy all of the series.”
     Chief Judge Mary Murguia said, “It appears in theory that the government did change from the beginning and after the trial – that initially the government was pursing a theory of perhaps, as a whole, Mr. bonds misrepresented or evaded in his responses.”
     But Assistant U.S. Attorney Merry Chan said the government did not change its theory and that the celebrity childhood answer to Parrella’s self-injection question was false.
     “It was a false denial of knowledge,” Chan said.
     If Parella thought Bonds was being misleading, why did he not force Bonds to go before a judge who would make him answer the question, Judge Michael Daly Hawkins asked.
     Chan replied that “the whole point was they didn’t know if he was telling the truth or not.”
     On rebuttal, Riordan elicited laughter from the packed courtroom by opening with a wry comment on Chan’s argument.
     “Opposing counsel’s answers are false, evasive and misleading,” Riordan said.

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