Barry Bonds Obstruction Case Splinters the Ninth Circuit

Baseball superstar Barry Bonds hit one final home run in the U.S. Court of Appeals for the Ninth Circuit last week. An eleven-judge panel threw out Bonds’ 2011 conviction on a single count of obstruction of justice. It was a 10-1 blowout, with only one judge believing that Bonds’ conviction should be upheld, but the case produced five different opinions totaling 75 pages. The amount of ink spilled was a bit remarkable, considering this should have been, as one of the judges put it, a “very simple case.”

In 2003 a grand jury in San Francisco was investigating whether Bonds’ trainer, Greg Anderson, and others had supplied illegal steroids to a number of professional athletes. Bonds was subpoenaed to testify in the grand jury and was granted immunity; prosecutors were not looking to charge him, they were interested in the information he had about Anderson. Ultimately, though, prosecutors concluded that Bonds lied in the grand jury and they indicted him on four counts of perjury and one count of obstruction of justice.

After years of pre-trial maneuvering the case went to trial in 2011. The government dismissed one of the perjury counts during the trial. The other three perjury counts resulted in a hung jury and were ultimately dismissed as well. The jury convicted Bonds only on the single obstruction of justice count.

The jury’s guilty verdict was based on what became known as the “celebrity child” response:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A:  I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q:  Right.

A:  That’s what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know — I don’t know — I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just — I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t — there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.

The jury convicted Bonds of obstruction of justice based solely on this exchange. The trial judge upheld the conviction, and so did the initial three-judge panel of the Court of Appeals. That prompted the Court to grant further review by the eleven-judge en banc panel.

scales and gavel

The Five Different Opinions

The statute Bonds was convicted of violating, 18 U.S.C. § 1503(a), punishes anyone who “corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The court’s task was to determine whether a reasonable jury could have found that the “celebrity child” response, standing alone, violated this provision. Most of the judges agreed that the conviction had to be reversed because Bonds’ evasive answer was not “material” to the grand jury’s investigation – but that was where the agreement ended.

1) Chief Judge Kozinski, joined by four other judges, wrote the first opinion. Much of it was devoted to what he claimed are the dangers posed by the “vast” coverage of § 1503. Lawyers, he argued, are at particular risk: “Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction.” Arguing motions, questioning witnesses, or filing pleadings, he said, all could be considered endeavors to influence the due administration of justice and might end up being prosecuted.

The critical limitation on the statute, he argued, comes from the requirement that the obstructive conduct be material – that it had the “natural tendency to influence, or was capable of influencing, the decision of the decision making body.” Although the language of § 1503 (unlike the perjury statute, for example) does not require materiality, Judge Kozinski said Ninth Circuit precedent made materiality an element of the offense. Bonds’ single evasive (but truthful) answer during the course of several hours of testimony could not be considered capable of influencing the decision of the grand jury, and therefore was not material.

2) Judge N.R. Smith wrote the next concurrence, joined by three other judges. Judge Smith argued that the proper standard for materiality was the “nexus” requirement for obstruction cases announced by the Supreme Court in United States v. Aguilar: the conduct must have the “natural and probable effect” of obstructing justice. The “celebrity child” answer failed this nexus requirement because the natural and probable effect of an evasive answer is simply to elicit follow-up questions and clarification, not to obstruct the proceeding.

Judge Smith concluded that evasive or misleading testimony can only amount to obstruction when it completely thwarts the investigation and amounts to a refusal to testify. A single truthful but evasive answer cannot meet this standard.

3) Judge Reinhardt, writing only for himself, added a third concurrence. He disagreed with the unwarranted breadth of Judge Kozinski’s opinion and all of its speculation about the dangers of the statute. On the other hand, he disagreed with Judge Smith that at some point a refusal to testify could amount to obstruction of justice. According to Judge Reinhardt, the proper remedy in such a case would be a prosecution for contempt, not obstruction, and testimony or a refusal to testify alone could not constitute obstruction of justice.

4) Judge Fletcher, also writing only for himself, took a completely different approach. Tracing the history of the statute back to 1831, he argued that the term “corruptly” refers only to obstructing justice through bribery. Because Bonds did not bribe anyone in connection with the grand jury proceeding, his conduct did not violate § 1503.

5) Finally, Judge Rawlinson wrote as the sole dissenter. She argued the jury could have properly found that Bonds intended to obstruct the grand jury’s investigation through his evasive testimony and that the court was improperly second-guessing the jury’s verdict.

Bonds 2

Breaking it Down – What’s the Right Approach?

It’s important to recall that the case before the Court of Appeals was not the case that the prosecutors brought. Much of the Court’s discussion makes it sound as though the prosecutors had indicted Bonds based only on this single evasive answer. In fact Bonds was charged with four counts of perjury and the obstruction of justice count was based on seven different exchanges in the grand jury. But the jury could not agree on the perjury counts and ultimately found that only the single “celebrity child” response constituted obstruction of justice.

To the extent the court’s opinions are seen as admonishing prosecutors for an unduly broad attempted application of § 1503, therefore, that criticism is misplaced. The prosecutors did charge a more substantial case, but were left to defend a verdict that relied only on the single, meandering, non-responsive answer. On appeal the government had to play the hand that the trial jury dealt for them – and it wasn’t a good one.

Judge Kozinski’s opinion, for example, contains a lot of sweeping rhetoric about the potential breadth and dangers of the statute that has nothing to do with the case – or with the real world. The idea that § 1503 makes “everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation” is simply overwrought hyperbole.

White collar crime statutes do tend to be written in broad strokes, because they have to cover a wide range of conduct that may fall within nebulous concepts such as “fraud” or “corruption.” One can always conjure up a parade of horribles that has little or nothing to do with the way the laws are actually enforced. The federal wire fraud statute, for example, would potentially apply to any employee who called in sick in order to go to the ballgame, and yet we don’t see such cases clogging the courts.

The obstruction of justice statute in its current form has been around for more than a hundred years and there has been no epidemic of courtroom advocates being prosecuted based on ordinary, even aggressive, advocacy. Yet Judge Kozinski felt obligated to argue that all lawyers are in danger because the statute potentially “gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass.” This has nothing to do with the facts of the Bonds case or with any existing problem with § 1503 – but it does dovetail nicely with the “bad prosecutor” meme that is so popular among many these days, including Judge Kozinski.

The second flaw in Judge Kozinski’s opinion is that the solution he offers to the statute’s breadth — the requirement of materiality — would do nothing to prevent the prosecutions he purports to fear.  Almost anything done by an advocate in the “ordinary tug and pull of litigation” would have the potential to influence the proceeding and would thus be material.  The reason such cases are not prosecuted is that routine advocacy is not “corrupt” behavior under the statute — and because prosecutors properly exercise their discretion not to bring them.  All of Judge Kozinski’s speculations about the dangers of the statute are therefore irrelevant not only to the case but also to the solution he proposes.

At the same time, Judge Kozinski offered a startling example of his own expansive view of § 1503. Suppose, he suggested, that in response to whether Greg ever gave him anything to inject himself with, Bonds had replied “I’m afraid of needles” rather than by giving his “celebrity child” response. Judge Kozinski suggested such an answer might constitute obstruction, because it implies a negative response.

The Supreme Court made it clear in the leading perjury case of Bronston v. United States that a merely evasive answer cannot be perjury. Perjury requires proof of actual falsity, and if a witness evades it is the duty of the questioner to detect it and pin the witness down. An answer may be non-responsive due to deliberate evasion, but it also may be due to nerves, miscommunication, or a misunderstanding of the question. Stringent proof requirements for perjury are therefore required so that witnesses are not chilled from testifying out of fear that an answer that is less than perfectly responsive might later be charged as perjury.

The Court in Bronston expressly rejected the idea of “perjury by negative implication” – perjury based on an answer that simply implied something that wasn’t true. Judge Kozinski, however, seemed to open the door to the idea of obstruction of justice by negative implication. As I’ve argued elsewhere, if that were the law then all of the safeguards that Bronston put in place to protect testifying witnesses would be out the window because prosecutors unable to prove perjury could simply charge obstruction of justice instead. It’s odd that Judge Kozinski expresses so much concern about the potential breadth of the statute but then offers his own hypothetical that truly would represent a sweeping expansion of the crime of obstruction of justice.

Of the two main opinions, Judge Smith’s has the better analysis. First, I think he’s correct that the proper standard for materiality is the Aguilar “natural and probable effect” test, not Judge Kozinski’s materiality test. Although some have argued, like Judge Kozinski, that there should be a separate materiality requirement for obstruction of justice, it’s not necessary. The “natural and probable effect” nexus requirement subsumes materiality within it, because it’s impossible for conduct to meet the nexus requirement and not be material. Adding a separate requirement of materiality is simply redundant. In fact, the nexus requirement provides greater protection for defendants than materiality: although any conduct that satisfies the nexus requirement will always be material, it’s easy to envision conduct that would be material to an investigation but that is so removed or remote from the investigation that it fails the nexus requirement.

I think Judge Smith is also correct that the “natural and probable effect” of a single, truthful but evasive answer can probably never be to obstruct justice, given the nature of the adversary system. As he argued, the natural and probable effect of such an answer is to inspire more probing and follow-up questions, as indeed happened during Bonds’ grand jury appearance. There’s almost no way that a single evasive answer would thwart the grand jury’s work.

At the same time, I believe Judge Smith is also correct that in certain cases evasion can constitute obstruction of justice. If a witness continually refuses to be pinned down and to answer questions directly they are not merely being evasive, they are essentially refusing to testify. At some point such conduct crosses the line into corrupt behavior that thwarts the investigation and may amount to obstruction.

Because I agree with Judge Smith that sometimes extreme evasion can rise to the level of obstruction, I disagree with Judge Reinhardt’s concurrence.  And Judge Fletcher’s historical analysis was very interesting, but if he’s correct that “corruptly” requires bribery then obstruction of justice would not even apply to classic obstructive behavior such as shredding documents that have been subpoenaed by a grand jury.  I think that ship has sailed.

*  *  *

Whether one focuses on the “natural and probable effect” test or on the requirement of “corrupt” behavior, the outcome is the same: one truthful, meandering, non-response by Bonds could not have had any real impact on the grand jury’s investigation. Once the jury convicted based only on that single exchange, the verdict was doomed.

This case doesn’t have sweeping implications for the law of obstruction of justice or for the adversary system. It didn’t call for a judicial rebuke of the prosecutors or yet another cautionary tale about a criminal justice system run amok. In the end, it’s all about the facts of one case and the basis of the jury’s verdict. And as a factual matter, there’s simply no way that Bonds’ single, truthful answer could have obstructed that grand jury proceeding.

It really should have been a simple case. There’s no reason that Judge Smith’s concise, eight page analysis could not have been the opinion for the entire court. It’s surprising the Ninth Circuit saw the need to take it into extra innings.

Update: on July 21, federal prosecutors announced they would not seek to appeal the Ninth Circuit’s decision to the U.S. Supreme Court, thus bringing the Barry Bonds obstruction of justice case to a close.

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Barry Bonds and Obstruction of Justice: Swinging for the Fences in the 9th Circuit

Update 4/22/15: as predicted below, the 9th Circuit today reversed Bonds’ conviction for obstruction of justice, holding that his evasive, non-responsive testimony could not have been material to the grand jury’s investigation.  The judges wrote several different opinions, some of which discuss Bronston and the concerns analyzed below about allowing evasive answers to constitute obstruction of justice.  Judge Rawlinson wrote in dissent that the majority and concurring opinions had “struck out.”  You can read the opinion here.  You can read my analysis of the opinion here.

With the San Francisco Giants once again in the World Series, it’s a good time to check in on Barry Bonds, whose decade-long battle with the justice system gives new meaning to Yogi Berra’s immortal phrase, “It ain’t over till it’s over.”  Recent developments in the U.S. Court of Appeals for the Ninth Circuit give Bonds reason to hope that, when it finally IS over, he will have come out on top.

Bonds 2

Bonds, of course, is the superstar left fielder who played for the Giants for much of his career before retiring in 2007. He currently holds the record for the most home runs in a career (762) and the most home runs in a single season, set in 2001 (73).  Bonds’ achievements have been tarnished, however, by his association with baseball’s steroids scandal.

A major player in that scandal was a San Francisco company called Bay Area Laboratory Co-Operative (BALCO). BALCO personnel were suspected of supplying steroids and other illegal substances to a number of professional athletes. One BALCO employee, Greg Anderson, was Bonds’ personal trainer for several years. This gave rise to widespread suspicions that the remarkable changes in Bonds’ physique were due to something more than simply eating his Wheaties.™

A criminal investigation into BALCO ultimately resulted in guilty pleas from Anderson and several others to charges including distribution of illegal substances and money laundering.  As part of that investigation, federal prosecutors subpoenaed Bonds to testify before a grand jury in 2003. The prosecutors granted Bonds immunity for his testimony; they weren’t looking to charge him, they were seeking evidence against Anderson and other BALCO figures.

A grant of immunity, however, does not protect you if you perjure yourself or obstruct justice.  In 2007, two years after the guilty pleas in the BALCO case, the government indicted Bonds on four counts of perjury and one count of obstruction of justice, charging that he lied to the grand jury in order to conceal the details about his own steroid use.

The perjury counts listed four specific questions and answers about Greg Anderson and substances he allegedly gave to Bonds, where the government alleged that Bonds had lied to the grand jury. The obstruction of justice count charged that through those four lies in particular, as well as Bonds’ overall grand jury testimony in general, Bonds had endeavored to impair, obstruct or impede the due administration of justice in the grand jury proceeding.

After years of pre-trial maneuvering the case finally went to trial in 2011. The government dismissed one of the perjury counts during the trial. The jury hung on the other three perjury counts, and those were ultimately dismissed as well. The jury convicted Bonds on the single obstruction of justice count.

During the trial the government specified particular statements by Bonds in the grand jury that it alleged had amounted to obstruction of justice. The jury’s verdict was ultimately based on a single exchange:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A:  I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q:  Right.

A:  That’s what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know — I don’t know — I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just — I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t — there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.

This meandering, non-responsive statement became known in the case as the “celebrity child” response. The government argued the answer was obstruction of justice because it was an attempt not only to evade the question, but also to mislead the grand jury by suggesting that Bonds would have no way of knowing whether Anderson was involved in illegal steroids because Bonds did not get involved in other people’s business. The jury apparently convicted Bonds on this basis, and the trial judge upheld the conviction.

Perjury vs. Obstruction of Justice

Bonds’ conviction raises some interesting questions about the relationship between perjury and obstruction of justice – two white-collar offenses that fall into the category of “cover-up crimes.” Perjury is a knowing and specific lie about a material matter while under oath. Obstruction of justice may include perjury, but applies to a much wider range of corrupt conduct intended to “influence, obstruct or impede the due administration of justice.” 18 U.S.C. 1503.

The landmark Supreme Court case on perjury is Bronston v. United States (1973). Mr. Bronston was convicted of perjury for giving evasive testimony in a bankruptcy hearing about whether he or his company had any Swiss bank accounts. The government charged that his answers, although literally true, were misleading and left a false impression and therefore constituted perjury by “negative implication.”

The Supreme Court rejected this theory and held that perjury requires testimony that is actually false, not simply misleading or evasive.   This is true, the Court held, even if the witness’s answers were “shrewdly calculated to evade” — in other words, even if the witness was being deliberately non-responsive.

To hold otherwise, the Court said, might cause even honest witnesses to be deterred from testifying. Testifying is stressful and unfamiliar territory for most witnesses. Questions may be misunderstood or misinterpreted. Witnesses should not have to fear being charged with perjury for an answer deemed unresponsive that may have resulted simply from confusion, stress, or misunderstanding.

Even if a witness is being deliberately evasive, the Court noted, that is to be expected in an adversary proceeding. Hostile witnesses with something to hide often are reluctant to reveal the details that counsel is probing to find. Witnesses may also evade questions out of embarrassment or a desire to keep certain information private.

The adversary system has built-in safeguards to protect against such evasion. The remedy lies not in a subsequent perjury prosecution but in an alert questioner who detects the evasion and persists with follow-up questions.

The burden is on the questioner, the Bronston court noted, to pin the witness down. “If the witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.”  Perjury will not be charged “simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth.”

These stringent requirements for perjury, by the way, are one reason that successful perjury prosecutions are relatively rare. In the heat of battle, it’s not as easy as it sounds to listen carefully to the witness, detect evasion, and compose probing follow-up questions to pin the witness down. The ability to do that well is what makes a great cross-examiner – and there are relatively few great cross-examiners out there.

 Can Truthful Testimony Constitute Obstruction of Justice?

So back to Barry Bonds. Had Bonds been found guilty of perjury, his conviction for obstruction of justice would have been unremarkable. A witness who lies to the grand jury can rarely be heard to complain that he was not endeavoring to obstruct the proceeding.

But there’s no question that the “celebrity child” response could not be perjury under Bronston, and it was not charged as such. Bonds’ statement was evasive and non-responsive, but was not false.  He didn’t really answer the question at all, much less lie.

That means Bonds was convicted of obstruction of justice, based only on sworn testimony that was not perjury. That makes his case pretty unusual.

It’s true that perjury and obstruction of justice are different crimes, and obstruction does not necessarily require lying. But Bonds has a compelling argument that if truthful but evasive testimony, standing alone, can be obstruction of justice, then Bronston — and indeed the perjury statute itself — will be completely gutted.

When obstruction of justice is based solely on sworn testimony that does not constitute perjury, all of the concerns articulated in Bronston apply with equal force. Witnesses who are stressed or confused and who testify truthfully but unresponsively may fear that a prosecutor, looking at a cold transcript months or years down the road, will conclude they obstructed justice. This may discourage witnesses from testifying at all.

It’s also true that the unresponsive testimony by Bonds easily could have been remedied. An alert questioner could have cut off the rambling, refocused the question, and continued to press until Bonds was forced to answer directly.   In fact, as Bonds’ lawyers have pointed out, at other points during his testimony Bonds did answer more directly similar questions about whether Anderson had given him any illegal substances.

Was Bonds being evasive and trying to avoid answering the embarrassing questions that could sink his career? Well, yes – that’s what hostile witnesses do. As the Supreme Court noted in Bronston, it’s exactly what a questioner should expect.

Obstruction of justice requires that the defendant act with corrupt intent. It’s difficult to argue that a witness acts “corruptly” within the meaning of the statute when he behaves exactly how the Supreme Court says a hostile witness should be expected to behave.  What’s more, unlike many types of obstruction — shredding documents, or threatening witnesses, for example — the evasive testimony occurs openly, for all to see, and is easily remedied on the spot by the questioner. Unless and until he actually lies, the witness may be trying to avoid the questions but it’s hard to say he is corruptly obstructing the proceeding.

Under the government’s theory of obstruction in the Bonds case, a frustrated prosecutor unable to pin down a “wily witness” who was truthful but evasive in the grand jury could later charge that the witness obstructed justice. If this is a viable theory of obstruction, then all of the safeguards and policy rationales articulated by the Bronston Court are pretty much out the window.

In fact, under this theory the perjury statute itself becomes largely unnecessary. Prosecutors could simply charge obstruction in every case and avoid the more stringent requirements of the perjury statute. No need to prove that the witness actually lied; just prove that they didn’t give you everything that you wanted — even if the reason may be that you just didn’t ask the questions very well.

This becomes even more troubling when you consider that obstruction does not require that a witness be under oath. A witness who was merely being interviewed by the FBI could later be charged with obstruction based solely on that interview if the agents and prosecutors later decide that she was being unresponsive, albeit truthful, in her answers. This would be a pretty dramatic expansion of criminal liability.

The Status of Bonds’ Case 

A three-judge panel of the 9th Circuit upheld Bonds’ conviction in September of 2013. However, the entire 9th Circuit later voted to rehear the case en banc, with a larger, eleven-judge panel – a relatively rare occurrence indicating that a number of judges have some concerns about whether the original three-judge panel got it right.

Although Bonds has already served his sentence of home detention followed by probation, getting his conviction reversed would have obvious benefits to him – not the least of which would be the possible impact on whether he is ever voted into baseball’s hall of fame.

At the oral argument on September 18, 2014, the en banc panel seemed quite skeptical of the government’s expansive theory of obstruction of justice. The Court’s decision is pending, but it appears that, more than a decade after he testified in the grand jury, Bonds may finally be about to get some good news from the justice system. Stay tuned.

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