Career home run leader king Barry Bonds gives a thumbs up while standing behind the hitting cage and watching the Houston Astros take batting practice before the start of their baseball game against the Oakland Athletics Saturday, Sept. 6, 2014, in Oakland, Calif. (AP Photo/Eric Risberg)
Career home run leader Barry Bonds, center, talks with Houston Astros special assignment coach Dan Radison, right, while watching the Astros take batting practice before the start of their baseball game against the Oakland Athletics Saturday, Sept. 6, 2014, in Oakland, Calif. (AP Photo/Eric Risberg)
SAN FRANCISCO — The 11-judge panel that will hear Barry Bonds' latest appeal of his obstruction of justice conviction includes five judges who ruled the federal government's seizure of baseball drug-testing samples and records a decade ago was illegal.
The 9th U.S. Circuit Court of Appeals said Monday the limited en banc panel that will hear oral arguments on Sept. 18 includes Chief Judge Alex Kozinski along with Circuit Judges Consuelo M. Callahan, William A. Fletcher, Michelle T. Friedland, Susan P. Graber, Jacqueline H. Nguyen, Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, Stephen Reinhardt. N. Randy Smith and Kim McLane Wardlaw.
Kozinski wrote the opinion for the majority in 9-2 decisions in 2009 and 2010 that the seizure of the 2003 samples from Quest Diagnostics and records from Comprehensive Drug Testing was illegal. Fletcher, Graber and Wardlaw concurred, and Callahan concurred in part and dissented in part.
That decision overturned O'Scannlain's opinions for a three-judge panel that voted 2-1 in 2006 and 2008 to largely uphold the seizures.
Bonds, baseball's career home run leader, was convicted in 2011 of one count of obstruction of justice for his 2003 testimony to a grand jury investigating the illegal distribution of performance-enhancing drugs by the Bay Area Laboratory Co-Operative. The jury failed to reach verdicts on three counts charging Bonds with making false statements, and the government later dismissed those charges.
Bonds was convicted for his response when asked whether Greg Anderson, his personal trainer and a longtime friend, ever gave him "anything that required a syringe to inject yourself with?"
"That's what keeps our friendship," Bonds said during a meandering reply. "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."
The conviction was upheld last September in a unanimous decision by Circuit Judges Mary M. Schroeder, Michael Daly Hawkins and Mary H. Murguia.
"The statement served to divert the grand jury's attention away from the relevant inquiry of the investigation, which was Anderson and BALCO's distribution of steroids and PEDs," Schroeder wrote. "The statement was therefore evasive."
The three-judge panel's opinion was set aside in July after a majority of the 9th Circuit's active judges voted for the limited en banc rehearing.
Bonds' lawyers argue the answer that led to the conviction was truthful. They are basing part of their appeal on a 1973 U.S. Supreme Court case, Bronston v. U.S., that declared in a perjury case "a jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert."
Bonds was sentenced to two years of probation, 250 hours of community service, a $4,000 fine and 30 days of home confinement.