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, 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?
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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