The Weakness Of The Barry Bonds Obstruction Verdict

Yesterday the Barry Bonds trial ended with a single conviction for obstruction of justice and a mistrial declared due to a hung jury on the other three remaining counts. There were originally five counts in the indictment, but count four was dismissed prior to the case being given to the jury. The case was in front of Judge Susan Illston in the Northern District of California (NDCA) District Court.

Of the four counts given to the jury, the three mistried were for what is commonly referred to as perjury, but formally described as false declaration before a grand jury or court under 18 USC 1623(a). The jury votes on those three counts now dismissed via mistrial were 9-3 acquit (HGH use), 8-4 acquit (steroid use) and 11-1 convict (the injection count). As always, I strongly suggest that reading very much into such numbers on hung counts is foolish; the dynamics behind such numbers are never simple, and never what you think they are. Most media types covering the trial have, almost universally, stated they do not expect a retrial on the three hung counts. I think such a statement is premature, and somewhat ill advised, under the circumstances as the likelihood of a retrial will be dependent on what Judge Illston does with the coming motion to set aside the verdict and, assuming that is denied, the sentencing of Bonds.

The fascinating question right now, however, is exactly how firm is the obstruction conviction? The answer is maybe not so firm at all. When I first heard there was a partial verdict, I thought – as did several others around me – that it was likely a conviction and hung jury on the other counts. Well, that was exactly right, however I assumed the conviction would be on the injection count; never contemplated for a second that the jury would not convict on any of the substantive predicate counts but still convict on the catch-all obstruction count. So, let’s take a look at that count, and the conviction thereon, because there are some serious issues involved that tend to undermine its strength above and beyond the fact there were no convictions on the underlying counts.

The obstruction count is charged under 18 USC 1503, which reads:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

Now the astute reader will note there is no materiality requirement in the direct language of 18 USC 1503. However, a prior case in the 9th Circuit, US v. Thomas, has held that materiality of the obstructive conduct is indeed a necessary element for a conviction under 18 USC 1503.

In light of Ryan and Rasheed, we conclude that although not expressly included in the text of § 1503, materiality is a requisite element of a conviction under that statute. Our conclusion does not, however, mandate a reversal of Thomas’s obstruction conviction, because it is clear that the jury found the requisite element of materiality in convicting Thomas on count six. The jury unanimously returned a special verdict on Thomas’s § 1503(a) charge indicating that the false statements alleged in counts one and three of Thomas’s indictment obstructed justice, and the jury in turn had found Thomas guilty of making material false statements with respect to counts one and three. By convicting Thomas of perjury on counts one and three, the jury necessarily found the statements in those counts to be material. And by indicating in a special verdict form that these statements obstructed jus- tice, the jury necessarily found that Thomas’s obstruction conviction was based on two material statements.

Several things are interesting here. First off, the Thomas decision was authored by the infamous torture memo author Jay Bybee. More importantly, however, Thomas was yet another in the long line of BALCO persecutions propagated by the rabid IRS investigator Jeffrey Novitsky. Lastly, the judge in the Bonds case, Susan Illston, knows the Thomas case well; she was judge on that case also. Illston has a wealth of experience in the BALCO cases and, by my understanding, has no great love for the affair as a whole or the antics of lead investigator Novitsky.

Which brings us back to the Bonds obstruction conviction and materiality. In the aftermath of the verdict, I engaged in a Twitter discussion with Adam Bonin on the issue. My initial take was the conviction would hold up; but, after diving into this, and seeing the actual verdict form, I am far less convinced.

The jury instruction on the obstruction charge read as follows:


(18 U.S.C. § 1503)

The defendant is charged in Count Five with obstruction of justice in violation of 18 U.S.C. § 1503. In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:

1. The defendant corruptly, that is, for the purpose of obstructing justice,

2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,

3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.

A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify:

1. The Statement Contained in Count One

2. The Statement Contained in Count Two

3. The Statement Contained in Count Three

4. Statement A:

Q: Let me move on to a different topic. And I think you’ve testified to this. But I want to make

sure it’s crystal clear. Every time you got the flax seed oil and the cream, did you get it in person

from Greg?

A: Yes.

Q: Is that fair?

A: Yes.

Q: And where would you typically get it? Where would you guys be when he would hand it to you generally?

A In front of my locker, sitting in my chair.

Q: Did he ever come to your home and give it to you?

A: Oh, no, no, no. It was always at the ballpark.

5. Statement B:

Q: …Do you remember how often he recommended to you about, approximately, that you take this cream, this lotion?

A: I can’t recall. I don’t – I wish I could. I just can’t . . . I just know it wasn’t often. I just think it was more when I was exhausted or tired than like a regular regimen. You know, it was like if I was really sore or something, really tired…that’s – that’s — that’s all I can remember about that.

Q: … would you say it was more or less often or about the same as the amount of times you took the liquid, the flax seed oil, the thing you understood to be flax seed oil?

A: I don’t know. I never kept track of that stuff. I’m sorry. I didn’t sit there and monitor that stuff.

6. Statement C:

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…

7. Statement D:

Q: Did Greg ever give you testosterone in injectable form for you to take?

A: No.

Q: Would you have taken it if he gave it to you?

A: He wouldn’t jeopardize our friendship that way.

Q: And why would that – you’re very clear that that would jeopardize your friendship. Why would that jeopardize your friendship?

A: Greg is a good guy. You know, this kid is a great kid. He has a child.

Q: Mm-hmm.

A: Greg is – Greg has nothing, man. You know what I mean? Guy lives in his car half the time, he lives with his girlfriend, rents a room so he can be with his kid, you know? His ex takes his kid away from him every single five minutes. He’s not that type of person. This is the same guy that goes over to our friend’s mom’s house and massages her leg because she has cancer and she swells up every night for months. Spends time next to my dad rubbing his feet every night. Our friendship is a little bit different.

Out of all those bases for determining that Bonds obstructed justice, the jury picked one single base. They did NOT find any of the substantive bases applicable from any of the the substantive perjury counts in items 1-3. They did NOT find any of the more damning statements in Statements A, B or D applicable. No, the jury, as their sole basis for conviction of Bonds for obstruction, premised their finding on the weakest and lamest possible choice, in isolation, Statement C. Here is the official verdict form from the court evidencing just this fact, signed sealed and dated by the jury foreman.

It is really hard to see, in isolation, how this meandering statement by Bonds is materially obstructive. First, the question at the GJ was whether Bonds’ trainer, friend since childhood Greg Anderson, had given Bonds “anything that required a syringe to inject yourself with”. Bonds gave a semi-responsive answer that the only person that ever touched him (presumably referring to injection) was his doctor, and then meandered off that such was not the nature of his friendship with Anderson. Was it mostly unresponsive rambling at that point? Sure. But calling that – isolated from any of the substantive perjury/false statement allegations, not to mention more germane statements – materially obstructive, in and of itself, of the whole steroid investigation seems weak. At best.

The statement is not particularly material to the investigation; it does not directly mislead, it simply meanders a little. There is no indication the questioning prosecutor attending to the grand jury particularly even cared enough to say the answer was unresponsive or follow up with a another and/or more specific question. There is not evidence it had any significant impact whatsoever.

Now, the fact is, Bonds’ defense team moved for a directed verdict of acquittal based on insufficiency of the evidence at the close of the prosecution case, as is standard practice in the criminal defense community. As is standard in the court community, that motion was denied and the case allowed to go to the jury.

So, these exact arguments will now be made by Bonds’ defense team, and indeed that indication has already been preliminarily given and such motion will be considered at a court date already set by Judge Illston for this and other issues on May 20th. The specific motion is a motion for directed verdict of acquittal despite the jury’s finding, and is controlled by Rule 29(c) of the Federal Rules of Criminal Procedure (FRCrP). These motions are a staple of a good criminal defense lawyer, but they are very rarely successful. As in almost never.

Does such a motion, which is made in the trial court before sentencing and any appeal therefrom, stand any chance in the case of Barry Lamar Bonds? Maybe. As stated previously, Judge Illston is not crazy about the prosecution and investigation antics in the BALCO cases in general, and for very good reason. And, remember, Illston has the experience directly on point with the Thomas case and 9th Circuit decision thereon. While Bybee and the 9th upheld the analogous Thomas verdict on obstruction, keep in mind that it specifically relied on the fact Thomas was also found guilty on the substantive perjury counts in her indictment. Barry Bonds was not, there is nothing substantive behind the so-called obstruction in Bonds.

So, we shall see on May 20th if the conviction of Barry Bonds actually holds up or not. My guess is there will be written briefing fleshing all this out between now and then. But, suffice it to say, this is a LOT closer call than the claimed “experts” on teevee are blathering about. Yes, Lester Munson of ESPN, I am talking about you; just shut up. In fairness to ESPN, their other legal analyst, Roger Cossack, I almost always find to be informed and sober in his assessments, and I do with his comments on the Bonds verdict as well.

Oh, and one last parting shot. Can someone, anyone, explain to me just how the hell Barry Bonds is prosecuted for false statements, but Lloyd Blankfein is not? Seriously, what kind of two faced double standard is going on over at the Department of Justice? Not to mention that Blankfein may be one of the few humans in the world that makes Barry Bonds look likable in comparison. Come on DOJ, honor your oath and prosecute the real criminals.

  1. emptywheel says:

    So they want to send Bonds to the pokey because a prosecutor couldn’t get him to answer a direct question?

    American justice at its finest!

    • bmaz says:

      It is just pretty weak without any substantive overt conduct being found behind it. It is damn near impossible to get a DV after a jury has convicted, but it is really possible here. Not willing to say that will occur, I know better than that, trust me, but it is a real possibility. That is saying something.

    • matthewj says:

      So they want to send Bonds to the pokey because a prosecutor couldn’t get him to answer a direct question?

      How is this even possible? Don’t we have a right against self-incrimination that allows us to remain silent? I don’t understand how this could be grounds for anything.

      Or is this just more banana republic style justice where they just make up the rules as they go?

        • matthewj says:

          Bonds had presumptive immunity – he had to talk.

          What is presumptive immunity? Does that mean if he talks what he says can’t be used against him? If so why would he have not given the answer? If not, how is that constitutional?

          Thanks for helping explain the legal fine points.

        • matthewj says:

          Not before the grand jury, you don’t.

          How is that constitutional? Sorry if this is a very naive legal question.

          It just doesn’t seem fair to compel someone to potentially incriminate themselves. Am I way off base here in terms of basic fairness and justice (regardless of what the law says)?

    • scribe says:

      See mine at 10 immediately above. They want to send Bonds to the pokey because the prosecutor couldn’t formulate a pointed direct question.

  2. Peterr says:

    The big question mark in my mind, when I think about the possibility of a retrial on the hung jury counts, is Greg Anderson, Bonds’ trainer who refused to testify and has been in and out of jail for contempt as a result.

    If the prosecution thinks that Anderson might be willing to testify in a future re-trial rather than spend yet more time in jail while that new trial proceeds, that would change the situation in a big way.

    I don’t think that’s likely, but if you’re talking about possibilities for the future of this case, it ought to be mentioned.

  3. PhilPerspective says:

    I see the link to this post over the Twitter machine. Just given the title, I had an idea of what to expect. And your last sentence on the second to last paragraph cracked me up. I was wondering if you were going to address Munson’s celebration, and you sure did. ;-)

  4. jdmckay0 says:

    This one was near & dear to my heart for reasons other then the legal side shows, the SF Chron reporters (Jenkins/Lance Williams) who went after him, and a bunch of other things.

    I lived across the bay during his best record breaking years, had season tickets for the Giants… they had some very good teams. I also trained hard then (tennis), and know what it takes to get really, really fit (something a lot of baseball players don’t do).

    The media talked about Barry “getting big”, that “he must” be doing ‘roids. What they didn’t talk about was his fitness regimen… it was far beyond what anyone else did. Even w/his huge contract and super star treatment, Bonds took 2 weeks off after the season, then went to work in the gym, running hills, w/full time dietician. 5 hrs p/day, 6 days p/week, while everyone else was resting up.

    His discipline set standards for fitness. Gold’s Gym is full of clean guys bigger then Bonds, doing far less.

    Bonds was also media shy, but for good reason: his divorce, from a hot looking blond gold digger, was front page in Bay Area for a couple years… his personal life dragged front and center in tabloid fashion. Through that episode, he was dignified in court, and never lost focus on the field.

    But what I remember most… through those years on the field, he was among the most rarified of any athlete I ever saw, in his accomplishments. With all the other distractions, his focus at the plate was lazer beam, always. He was getting walked intentionally… with the bases loaded. Yet, he never showed frustration.

    His slugging percentage was off the charts… nobody in the history of the game knocked in more runs w/guys on base. And his home runs were coming in such huge frequency… mind boggling.

    Steroids do nothing to improve batting skills he demonstrated… nothing.

    I still feel privileged having seen him play often through those years, and feel for the guy that what he did has been largely obscured by this crap. Michael Jordan, Muhammad Ali, maybe Michael Johnson (there’s others), in my mind Bonds is in that category.

    He wasn’t Ghandi, he was never an ambassador for anything, AFAIC just an otherwise average guy who excelled at one thing: baseball.

    I had email conversations w/the Chronicle writers I mentioned during that time, pointing out his training regimen and asking why they never wrote about that (his training was legendary all over bay area amongst serious athletes). The responses were all the same: ignore what he did in training, while extrapolating their belief that other Bay Area legends… Jerry Rice, Dennis Eckersly (and few others) also “must have done steroids” because “nobody” can achieve physically what they did w/out them.

  5. BayStateLibrul says:

    It was weak but

    Bonds and Clemens are both lying sacks of shit.

    One guilty verdict, the other counts were 11-1 and 8-4 against Bonds.

    A TKO.

  6. scribe says:

    You note:

    The statement is not particularly material to the investigation; it does not directly mislead, it simply meanders a little. There is no indication the questioning prosecutor attending to the grand jury particularly even cared enough to say the answer was unresponsive or follow up with a another and/or more specific question. There is not evidence it had any significant impact whatsoever.

    Not to mention, the prosecutor’s next question is “Right.” after which Bonds’ ramble continues.

    Having interrogated any number of witnesses under oath (probably in the hundreds – I never kept count) in depositions and at trial in 20 years of practicing and having been a grand juror myself, I can say definitively that when the interrogating attorney gets a rambling non-specific, sorta responsive paragraph out of a witness and then says “right” or “uh-huh” or something that’s both similarly vague and definitely not a pointed, lawyerly question, the interrogating attorney is encouraging the witness to keep on rambling. Usually the interrogating attorney who does this is either (a) trying to let the witness ramble into something incriminating or against the witness’ interest, (b) bored to tears, or (c) has decided that the witness has to tell their story first before the serious, pointed questioning can begin.

    In alternative (a), usually it’s a case where the interrogating attorney has the witness by the balls – usually through other discovery – and the witness is trying to give an answer that won’t make it worse. The attorney knows that by being confrontational, the witness is likely to give hypertechnical hyperprecise answers to whatever questions the interrogating attorney might ask and, because the witness is likely to know far better what happened than the attorney ever has hopes of knowing, the attorney knows he cannot outsmart or outfence the witness. So, to avoid fencing with the witness, the attorney is compelled to give vague questions and keep the witness talking in the hopes of getting something incriminating.

    Alternative (b) needs no further explanation.

    In alternative (c), the witness is likely to be someone who has a level of personal investment in the case and their story, be it a witness who was really upset by what they saw or a party who is trying to feel out the interrogating attorney’s bullshit detector – to see what kind of lie they can roll out, spin and get away with. Or, the witness could just be a dolt and they have a prepared line of testimony in their head.

    But, I can’t see how Bonds’ gabbling about the quality of his friendship was intentionally misleading on a material level. Rather, he was rejecting the speculative premise of the line of questioning – that Greg would have worked as a professional and given him an injection – by noting that he tries to keep his work and personal lives separate and closes out people who cross that line.

    So, in this instance, the vague, rambling nature of the answer was the prosecutor’s creation and fault. He could have cleaned that up with some sharp questions. If he couldn’t formulate questions capable of cleaning that up, he should turn in his ticket.

  7. rosalind says:

    thx, bmaz. knew when i woke up this a.m. there’d be a great barry post to explain what all the other “experts” yesterday weren’t. and:

    Dodger Divorce Update: In December the Judge threw out the Marital Property Agreement, sending the case back to the McCourts for resolution through mediation, or further litigation. Court watchers wondered if Frank McCourt would sue his law firm, Bingham McCutchen, who drafted the faulty MPA, but Bingham McCutchen has struck first. From the Dodger Divorce blog:

    Anticipating a possible lawsuit against it for its role in the creation and modification of the Marital Property Agreement at issue in the McCourt divorce, the law firm Bingham McCutchen filed its own lawsuit Monday in Massachusetts. The action, which seeks a court declaration that Bingham McCutchen did not cause Frank’s December loss in Los Angeles County Superior Court, signals the possible breakdown of communication between the firm and its former client. The contention at the core of the lawsuit reads:

    “Despite Mr. McCourt’s repeated, public assertions of damage due to Bingham’s purported conduct, any injury, loss, or expense he has sustained or will sustain were caused not by Bingham’s conduct, but by his own widely-publicized financial problems, huge withdrawals of cash from the Dodgers, and strained relations with Major League Baseball. None of this is attributable to Bingham’s work. . . . The inexorable conclusion . . . is that is that Bingham’s MPA-related actions caused Mr. McCourt no loss with respect to his ownership of the Dodgers.”

    Bingham’s Complaint also notes that Frank has refused to pay the full amounts due Bingham in a form of protest of Bingham’s allegedly-insufficient service.

    for bmaz or da other lawyers, wondering if you have an opinion on a comment left at the Dodger Divorce blog:

    “For the non-lawyers, Bingham has a duty of loyalty to its client (i.e., even if they no longer represent Frank, they’re not supposed to issue statements that trash the position of their former client). Also, out of court statements trashing a former client could be a basis for liability (e.g., libel, defamation, breach of fiduciary duty, etc.), but statements made in Bingham’s complaint are broadly protected by “privilege” (i.e., if you make the statement in furtherance of your legal position, it’s generally protected).

    Bingham clearly understands that Frank has taken some big hits over the last few weeks including the deterioration of attendance (and revenue), the rejection of the Fox bailout deal by Selig, and Frank’s cratering support in the community culminating with the Giant fan beating. Like jackals, Bingham understands the concept of throwing an anchor to a sinking man. The sheer audacity of their approach is awesome.”

  8. marcusreno says:

    Prosecutors call the type of Bonds prosecution ‘starfucking’-that is, the major reason the case was filed is due to the ‘star’ and there is no substantive felony violation. In short, without the ‘star’ noone in their right mind would file a charge (let me assure you thousands of persons lie before the grand jury every year) The one thing the prosecutors all have in common is a prosecutor who is trying to do his best impression of Thomas Dewey-the most dangerous type of prosecutor is one who seeks power- Usually, as y’all know, this type of conduct is utilized to prove criminal intent on the substantive count and the only reason it would be charged is a fear that a particular judge would not let it into eveidence without the charges. Star fucking usually blows up in the face in the face of the prosecutor ala John DeLoran.

  9. marcusreno says:

    Oh, by the way, if I would have brought this charge based upon the transcript which I read of Bond’s grand jury testimony, most judges who I tried cases in front of would have handed me the transcript back and suggested that I brush up on my cross-examination skills.

    • bmaz says:

      Yeah, no kidding. Agree completely. Like I said though, I understand Illston is not exactly crazy about how the BALCO investigation has been conducted, from prosecutors to investigators. She may yet have the last say so here; we shall see. Not that I would ever bet on a post verdict DV, but there is a shot.

  10. Jer1957 says:

    This one falls under the heading of “selective and vindictive prosecution.”

    Funny that the Bush & Obama DOJs ‘selected’ the boorish athlete–not the investment banker whose manipulations did real damage to millions of humans.

    The author is absolutely right in pointing out the irony–that apparent liar Bonds was hounded for 7 years at tax payer expense–while apparent liar Blankfein and his Goldman Sachs were not prosecuted–but were rewarded with at least $20 Billion in direct taxpayer bailouts, and up towards $ 1 trillion in FDIC loan guarantees and 0% interest loans from the Federal Reserve.

    FEC records suggest Goldman Sachs bet heavily on Obama in 2008–but the burning question is did they also bet on baseball?

  11. marcusreno says:

    Immunity consists of two types: transactional and use. Transactional immunity is a formal agareement given by a prosecutor that a person will not be prosecuted for a specific crime based upon a set of facts. Transactional immunity is rare and can only be approved by the DAG. Use immunity is of two types: judicial and pocket. Judicial immunity is given by a court based upon the application of a prosecutor (and only a prosecutor) who promises that anything which the person says will not be used against him or any evidence derived directly or indirectly from their statement will not be used in any further criminal proceeding except a proscution for perjury or otherwise making a false statement. Pocket immunity is a signed letter from the proseuctor saying the same thing and is usually given to ‘friendly’ witnesses.

  12. Dwainwr says:

    Bonds’ conviction needs to be overturned. There is a lot wrong with Count 5. To begin with, I’m not even sure that obstruction of justice, as defined above by 18 USC 1503, covers lying under oath. A basic reading of the statute indicates that it prohibits the use of corruption, force, or threats to influence a judge or jury. While this is not the first case where obstruction and perjury are tied together, it’s really not clear to me that Congress intended obstruction of justice to be a second perjury statute. Normally, ‘corruptly’ would mean bribery, not lying.

    While Barry Bonds is said to have been rambling on the witness stand, the reality is that Count 5 is rambling. Unlike the other counts which each have the jury evaluate a single falsehood, Count 5 is a laundry list of 7 potential lies and evasive statements. Bonds’ attorneys are correct that Count 5 is unfair, since it doesn’t allow individual evaluation of each accusation, and 4 of the 7 statements in Count 5 (Statements A-D) weren’t part of the perjury prosecution. Based on a long-standing Supreme Court decision (Bronston rule — see link below), truthful but evasive answers are not perjury. It seems that the prosecution used an obstruction of justice charge to try to negate the Bronston rule.

    Besides all the legalities, it’s absurd that we are discussing imprisoning a man because he added maybe a minutes’ worth of truthful but irrelevant testimony about his father and Greg Anderson. The judge should vacate the conviction, since after spending millions of dollars, the government couldn’t prove that Bonds lied under oath

  13. marcusreno says:

    Count 5 was the shit on the wall count. A prosecutor takes everything he has and gooballs into one unmanageable, unfathomable count and hope he strikes a nerve with a juror who wants to convict the defendant of something-It’s kind of a RICO count on perjury. At the time of my retirement, most courts considered perjury to fit Section 1503.