Full 9th Grills Gov’t|Over Barry Bonds Case

     SAN FRANCISCO (CN) – Former home run king Barry Bonds had another crack at arguing that his rambling about being a “celebrity child” during testimony about steroids in baseball did not obstruct justice.
     In 2003, Bonds testified before a grand jury following a raid of Bay Area Laboratory Cooperative (BALCO) that yielded evidence of doping in professional sports. Bonds – who had immunity – answered questions of his own steroid use with incoherent statements about his father and being a “celebrity child.”
     Prosecutors later indicted Bonds for perjury and obstruction for the screed. Jurors ultimately agreed that he had obstructed justice with the “celebrity child” answer, but deadlocked on the perjury charges.
     A three-judge panel of the 9th Circuit denied Bonds a reversal last year, leading him to petition for an en banc rehearing in November 2013. The court granted that request earlier this summer.
     Arguing the slugger’s case before the 11-judge en banc panel Thursday, attorney Dennis Riordan said the government was stretching perjury laws to cover obstruction.
     “This case has nothing to do with baseball, and nothing to do with Bonds,” Riordan said. “This is the first time that the United States government has asked for the power to convict a citizen for obstruction of justice based on a statement to a grand jury that was not responsive to the subject of the examiner’s questioning. That is conduct for which Bonds was never charged and does not constitute obstruction.”
     Riordan then summed up the government’s case – that testimonial “tangents of less than 20 seconds are obstruction.”
     Circuit Judge N. Randy Smith asked whether Riordan was arguing about the evidence or challenging Bonds’ obstruction indictment in the first place.
     “If you’re talking about sufficiency of the evidence then we have to give deference to what the jury had in front of them,” Smith cautioned.
     Judge Susan Graber weighed in: “You argue a truthful statement can never constitute obstruction. If someone in another case, with immunity, gives testimony all day by reading out of the phone book, isn’t that obstruction?”
     “It’s contempt,” Riordan answered. “Nonresponsive answers are contempt. The Supreme Court has said a jury should not be allowed to engage in conjecture as to whether a nonresponsive answer was intended to mislead. The questioner must remedy truthful but misleading statements with more questioning, not through an obstruction charge.”
     “Is it your argument that Bonds’ answers were nonresponsive, or literally true?” Judge Johnnie Rawlinson asked.
     “Both. Actually, there is no answer,” Riordan replied. “What occurred is that the government asked about self injection. Bonds gave a vague answer. The questioner said ‘Right.’ There was no question.”
     “There was a question,” Chief Judge Alex Kozinski countered. “The fact that the prosecutor said ‘right’ doesn’t erase the prior question. It was an encouragement to keep talking, which is what a prosecutor will do.”
     Kozinski added that he found Riordan’s reliance on a seminal perjury case – 1973’s Bronston v. United States – puzzling.
     “Bronston turns on a statute that requires falsehood. You don’t need falsehood for obstruction,” Kozinski said. “You can do it with misleading but literally true statements. You’re not making any points with this argument with me.”
     But Assistant U.S. Attorney Mary Jean Chan made even fewer points with the panel. From the get-go, Judge Jacqueline Nguyen demanded to know whether Chan believed that evasion can be cured by a prosecutor simply asking a question again.
     Chan answered by saing that the jury found Bonds intended to be evasive, particularly with questions about BALCO and personal trainer Greg Anderson.
     “I don’t see where the questions were re-asked immediately and evaded immediately and repeatedly,” Graber said.
     “Why wasn’t his evasion cured?” Nguyen asked again.
     “Bonds claimed he didn’t have any answers regarding BALCO, which was odd because he was in the middle of it all,” Chan answered. “Going to the gym every day, seeing Anderson every day.”
     Judge William Fletcher suggested Chan was construing the intent to mislead portion of the obstruction law too broadly.
     “That’s common behavior in civil litigation,” Fletcher said. “How many San Francisco lawyers do you intend to put in jail? You just criminalized half the Bar.”
     Both Kozinski and Judge Stephen Reinhardt raised the issue of whether the government ever even officially told Bonds they were charging him with obstruction. And Judge Consuelo Maria Callahan added that it didn’t appear that prosecutors had advised the former slugger to shape up during testimony as required.
     Judge Kim Wardlaw finished by asking Chan what ordinary citizens could take home from the Bonds-BALCO case.
     “Don’t evade, don’t mislead, don’t obstruct,” Chan answered. “Bonds is not an ordinary person. He was subpoenaed. He was immunized. He should have told the truth and answered the questions.”
     Riordan, Bonds’ lawyer, took the parting shot.
     “The government says it’s a course of conduct. If that’s the case the conduct was ‘Rambling, answer, answer, answer.’ That’s an acquittal. Save the government from itself,” Riordan said.
     

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