Barry Bonds Conviction Likely To Be Reversed
More than a decade after Barry Bonds testified in front of a grand jury, more than three years after he was convicted of obstruction of justice for that testimony, and more than ten months after a three-judge panel affirmed that conviction was on appeal, the all-time home run king has been granted extra innings in his battle to have his conviction reversed. Last week, the twenty-nine judges of the Ninth Circuit Court of Appeals took the rare step of granting Bonds' petition for rehearing en banc. Under today's order, the three-judge opinion denying Bonds' appeal has been withdrawn and Bonds will have a new appeal, in front of 11 judges, heard in September 2014. It is overwhelmingly likely that the new decision will overturn Bonds' conviction. Follow below the fold for an explanation of Bonds indictment, conviction and the meaning of today's order sending the Bonds' prosecution into extra innings.
Bonds Testified In Front Of The Grand Jury In December 2003
In December 2003, federal prosecutors were investigating the distribution of steroids, human growth hormone and other performance enhancing drugs (PEDs) by a laboratory known as BALCO to Olympic and professional athletes. Barry Bonds was subpoenaed to testify before the grand jury about his involvement with BALCO through his personal trainer, Greg Anderson. When Bonds invoked his Fifth Amendment right against self-incrimination to avoid testifying, the US Attorney's Office moved to compel him to testify by obtaining an order of immunity. Under that immunity order, Bonds' testimony could not be used in any criminal prosecution with one important exception. If Bonds committed any crimes during the course of his grand jury testimony, he could be prosecuted for those offenses. During his testimony, Bonds denied any knowing use of PEDs. He testified that the only substances provided by Greg Anderson that he used were the "clear" and the "cream". Anderson and BALCO employees would later testify that these substances were actually sophisticated PEDs designed by BALCO. But Bonds testified that Anderson had told him that the "cream" and the "clear" were legal nutritional supplements, not illegal steroids. Bonds unambiguously testified that:
He never knowingly took any steroids provided by Anderson;
Anderson never injected him with anything;
Anderson never gave him human growth hormone; and
Before the 2003 baseball season, Anderson never provided him with anything other than vitamins.
Bonds also provided the following rambling testimony:
Q. Did Greg [Anderson] 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.
This passage became known as the "celebrity child" testimony. Within five minutes of giving the "celebrity child" testimony, Bonds denied that Greg Anderson had ever given him anything to be taken by injection.
Bonds Was Indicted On Four Counts Of Perjury & One Count Of Obstruction Of Justice
Bonds was indicted on five counts. He faced four counts of perjury for allegedly lying in making the four numbered statements recounted above. He also faced one count of obstruction of justice for "knowingly giving material Grand Jury testimony that was intentionally evasive, false and misleading". The obstruction count did not specify what testimony was "intentionally evasive, false and misleading", only that it was provided during the course of his grand jury testimony. Before trial, the US Attorney indicated that the obstruction of justice charge was based upon the "celebrity child" testimony.
Bonds Was Convicted Of Obstruction of Justice, But Not Perjury
Bonds' trial took place from March - April 2011. The government dismissed one of the four perjury counts after presenting its case-in-chief, but pressed ahead on three counts of perjury and the obstruction of justice count. With regard to the obstruction of justice count, the prosecution argued that Bonds' rambling "celebrity child" testimony was obstruction of justice because it was purposefully designed to evade the question of whether Greg Anderson ever gave him any substance that required a syringe for injection. After deliberation, the jury convicted Bonds of obstruction of justice, but could not reach a verdict on any of the three remaining counts of perjury. Bonds was sentenced to 30 days of home confinement, which he has already served. Although the United States could have pursued a second trial on the three perjury counts, it voluntarily dismissed them. The only question to be resolved on appeal was whether Bonds was properly convicted of obstruction of justice.
Bonds Conviction Was Affirmed On Appeal
Bonds appealed his conviction to the Ninth Circuit Court of Appeals. On September 13, 2013, The three judge panel considered and rejected Bond's argument that his "celebrity child" testimony could not be obstruction of justice because it was literally true. "The language of the statute does not differentiate between obstructive statements that are false, and obstructive statements that are not false. It requires only that the defendant make his statement with the intent to obstruct justice." The Ninth Circuit also rejected Bonds' argument that Section 1503 simply does not apply to statements made before a grand jury.
The Full Ninth Circuit Voted To Rehear The Case En Banc
Immediately after the Ninth Circuit affirmed, Bonds filed a petition to the full 29 judges of the Ninth Circuit asking that his appeal be reheard en band. The odds were against Bonds. Under Federal Rule of Appellate Procedure 35, the only grounds for requesting en banc treatment are (1) that the decision conflicts with controlling Supreme Court or 9th Circuit precedent or (2) that the decision is of "exceptional importance" because it conflicts with decisions from other Circuit Court of Appeals.
The default rule is that the United States does not even have to respond to the petition for rehearing en banc unless the Court of Appeals specifically requests. It is extremely rare for the Ninth Circuit to make such a request. But three days after Bonds filed his petition, the Ninth Circuit ordered the United States to respond. The United States response was filed on January 8, 2014.
On July 1, the Ninth Circuit granted Bonds' petition for rehearing en banc. This means that at least 15 of the 29 judges voted to rehear the case. The September 13, 2013 opinion affirming Bonds' conviction has been withdrawn. Oral argument will be held on September 15, 2014.
In most other circuits, rehearing en banc would mean that all active judges would sit on the panel deciding the case. Because the Ninth Circuit has so many judges, it has a special rule that provides for a more limited group of judges to decide. Eleven judges will hear the renewed appeal - Chief Judge Kozinski and ten additional randomly selected Ninth Circuit judges. It is possible that the new panel will have a disproportionate number of judges who voted against rehearing. But the overwhelming likelihood is that the new panel will vote to overturn Bonds' conviction. Expect a decision to be announced in late 2014 or early 2105.