SAN FRANCISCO — Skeptical members of the 9th U.S. Circuit Court of Appeals questioned the soundness of Barry Bonds' obstruction of justice conviction for a rambling response to a grand jury in 2003 and left open the possibility they may throw out the verdict.
During oral arguments that lasted just over an hour Thursday, judges asked a federal government lawyer how an evasive answer could be obstructive given that the U.S. Supreme Court has ruled it is a prosecutor's duty to pin down a witness who gives an evasive answer.
"I don't see how there is sufficient evidence where the question was re-asked immediately and answered repeatedly," Circuit Judge Susan P. Graber said. "So it's as if someone says, 'Well I can't remember what time it was. Oh, yeah, it was 7 o'clock.' It just doesn't make sense to me that a jury could find the elements as instructed given the specifics of this case."
Bonds was given immunity to testify before a grand jury investigating the illegal distribution of performance-enhancing drugs. Prosecutors asked Bonds whether Greg Anderson, his personal trainer, ever gave him "anything that required a syringe to inject yourself with?"
Baseball's career home runs leader referred to his father, former major leaguer Bobby Bonds, when he responded: "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."
Barry Bonds answered "no" to similar questions later in his grand jury appearance. His lawyer, Dennis Riordan, argued that was sufficient to override any non-responsive answers.
"Can a non-responsive, misleading answer be cured?" Circuit Judge Jacqueline H. Nguyen asked Assistant U.S. Attorney Merry Jean Chan.
"Cure is a different word than I would use," Chan said.
"Nevertheless, that's the question you are being asked, and I would like to know an answer to Judge Nguyen's question, not a different question," Chief Judge Alex Kozinski said.
Many in the court room laughed when Circuit Judge N. Randy Smith interjected: "Did you just give an evasive answer?"
"At least I don't think I had the intent to. There was no corrupt intent, your honor," Chan responded.
Kozinski then chimed in: "That might be a jury issue. And remember that the U.S. Attorney is watching."
The jury at Bonds' trial in 2011 failed to reach a verdict on three counts charging him with making false statements when he denied receiving steroids and human growth hormone from Anderson and denied receiving injections from Anderson or his associates. Prosecutors later dismissed those three charges.
The guilty verdict was upheld last year in a unanimous vote by a three-judge panel of the 9th Circuit, but a majority of the court's 28 participating judges voted to set aside that decision and have the larger group rehear the appeal. A decision by the 11-judge panel is not expected until next year.
Bonds has served his sentence of 30 days of home confinement and paid a $4,000 fine. He also was placed on two years of probation and ordered to perform 250 hours of community service in youth-related activities.
Kozinski and Circuit Judge Stephen Reinhardt expressed concern that Bonds' third superseding indictment charged him with obstruction specifically for the answers cited in the false statement charges but not in the answer that led to his conviction.
Chan said that element was covered by language in the obstruction charge saying it was "not limited to" the specific answers cited in the indictment and that Bonds' lawyers had sufficient notice because the "celebrity child" answer was included in proposed jury instructions given to Bonds' side about one month before the trial.
Chan called it "simple narrowing."
"I think that's misleading, you know, (an) attempt to sort of mislead the proceeding," Kozinksi said. "If that's what you're going after, doesn't the government have an obligation to list it and say look, this is what we're going after you (for), this is what you need to defend?"
Chan argued that Bonds had a "corrupt intent" in attempting to obstruct the grand jury with the rambling answer. Kozinski questioned Riordan's assertion that a true statement cannot constitute obstruction.
"One can mislead with the truth," he said. "One can certainly mislead with irrelevant statements by leading a questioner into blind alleys, and isn't that why we have a jury? A jury was instructed. It heard arguments, and it concluded there was in fact a corrupt obstruction of justice here. Why don't we defer to the jury?"
Circuit Judge William A. Fletcher compared the prosecution's definition of obstruction with lawyers who evaded questions in civil litigation with the intent to mislead. When he asked Chan whether that would be criminal behavior, Chan said she believed it would be.
"So how many San Francisco lawyers do you intend to put in jail?" Fletcher said. "That is common behavior in civil litigation. Have you just criminalized half the bar here? ... I find your reading of the statute absolutely alarming, and half the bar, maybe three-quarters, maybe all of the bar is in big trouble."