United States v. Bonds

• Decision Date: 13 September 2013
• Docket Number: No. 11–10669.,11–10669.
• Citation: 730 F.3d 890
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Barry Lamar BONDS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

730 F.3d 890

UNITED STATES of America, Plaintiff–Appellee,
v.
Barry Lamar BONDS, Defendant–Appellant.

No. 11–10669.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 13, 2013.
Filed Sept. 13, 2013.

[730 F.3d 892]

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Horgan, San Francisco, CA; Ted Sampsell Jones, William Mitchell College of Law, St. Paul, MN, for Defendant–Appellant.

Melinda Haag, United States Attorney, Barbara J. Valliere, Assistant United States Attorney, Merry Jean Chan (argued), Assistant United States Attorney, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:07–cr–00732–SI–1.
Before: MARY M. SCHROEDER, MICHAEL DALY HAWKINS, and MARY H. MURGUIA, Circuit Judges.

OPINION
SCHROEDER, Circuit Judge:

Barry Bonds was a celebrity child who grew up in baseball locker rooms as he watched his father Bobby Bonds and his godfather, the legendary Willie Mays, compete in the Major Leagues. Barry Bonds was a phenomenal baseball player in his own right. Early in his career he won MVP awards and played in multiple All–Star games. Toward the end of his career, playing for the San Francisco Giants, his appearance showed strong indications of the use of steroids, some of which could have been administered by his trainer, Greg Anderson. Bonds's weight and hat size increased, along with the batting power that transformed him into one of the most feared hitters ever to play the game. From the late1990s through the early–2000s, steroid use in baseball fueled an unprecedented explosion in offense, leading some commentators to refer to the period as the “Steroid Era.” ¹ In 2002, the federal government, through the Criminal

[730 F.3d 893]

Investigation Division of the Internal Revenue Service, began investigating the distribution of steroids and other performance enhancing drugs (“PEDs”). The government's purported objective was to investigate whether the distributors of PEDs laundered the proceeds gained by selling those drugs.

The government's investigation focused on the distribution of steroids by the Bay Area Laboratory Co-operative (“BALCO”), which was located in the San Francisco Bay Area. The government raided BALCO and obtained evidence suggesting that Anderson distributed BALCO manufactured steroids to Bonds and other professional athletes. The government convened a grand jury in the fall of 2003 to further investigate the sale of these drugs in order to determine whether the proceeds of the sales were being laundered. Bonds and other professional athletes were called to testify. Bonds testified under a grant of immunity and denied knowingly using steroids or any other PEDs provided by BALCO or Anderson. The government later charged Bonds with obstructing the grand jury's investigation. After a jury trial, Bonds was convicted of one count of obstruction of justice in violation of 18 U.S.C. § 1503. He now appeals. We affirm the conviction.

BACKGROUND

Our earlier opinion provides the background of the government's investigation into BALCO and Bonds. See United States v. Bonds, 608 F.3d 495, 498–99 (9th Cir.2010). Because Bonds's grand jury testimony is central to this appeal and was not at issue in the earlier opinion, we below briefly describe his grand jury testimony and the resulting criminal trial.

On December 4, 2003, Bonds testified before the grand jury under a grant of immunity pursuant to 18 U.S.C. § 6002. The immunity order stated that “the testimony and other information compelled from BARRY BONDS pursuant to this order ... may not be used against him in any criminal case, except a case for perjury, false declaration, or otherwise failing to comply with this order.” Before Bonds testified, the government informed him that the purpose of the grand jury was to investigate any illegal activities, including the distribution of illegal substances, that Anderson and Victor Conte (the founder of BALCO) engaged in. The government also explained the scope of the immunity grant under which Bonds would testify.

Bonds testified before the grand jury that Anderson never offered him, supplied him with, or administered to him any human growth hormone, steroids, or any substance that required injection. A portion of Bonds's testimony, referred to as “Statement C,” formed the basis for the later criminal charge of obstruction of justice. It is the underlined portion of the following grand jury excerpt:

Question: Did Greg ever give you anything that required a syringe to inject yourself with?

Answer: 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?

Question: Right.

Answer: 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

[730 F.3d 894]

a famous father. I just don't get into other people's business because of my father's situation, you see.

Shortly after that exchange, the government returned to the subject of drugs and asked whether Anderson provided Bonds any drugs that required self-injection. Bonds answered with a somewhat indirect denial:

Question: And, again, I guess we've covered this, but—did [Anderson] ever give you anything that he told you had to be taken with a needle or syringe?

Answer: Greg wouldn't do that. He knows I'm against that stuff. So, he would never come up to me—he would never jeopardize our friendship like that.

Question: Okay. So, just so I'm clear, the answer is no to that, he never gave you anything like that?

Answer: Right.

Bonds was later indicted on the basis of his grand jury testimony. The third superseding indictment charged him with four counts of making false statements before a grand jury in violation of 18 U.S.C. § 1623(a), and one count of obstruction of justice in violation of 18 U.S.C. § 1503. With respect to the obstruction of justice charge, the indictment read as follows:

On or about December 4, 2003, in the Northern District of California, the defendant, Barry Lamar Bonds, did corruptly influence, obstruct, and impede, and endeavor to corruptly influence, obstruct and impede, the due administration of justice, by knowingly giving material Grand Jury testimony that was intentionally evasive, false, and misleading, including but not limited to the false statements made by the defendant as charged in Counts One through Four of this Indictment. All in violation of Title 18, United States Code, Section 1503.

Bonds's criminal trial began on March 22, 2011, but was interrupted when the government appealed an adverse evidentiary ruling. The district court had excluded on hearsay grounds evidence the government contended linked Bonds to steroid use. We affirmed the district court's decision to exclude the evidence. Bonds, 608 F.3d at 508. The trial then continued.

At the close of its case-in-chief, the government dismissed one of the false statement charges. On April 13, 2011, the trial jury returned its verdict. The jury convicted Bonds of the obstruction of justice charge, finding on the verdict form that Statement C was misleading or evasive. It was unable to reach a verdict on the remaining three false statement counts. The district court sentenced Bonds to 30 days home confinement and two years probation.

Bonds now appeals the judgment of conviction. He asserts five principal challenges. First, he asserts that the obstruction of justice statute, 18 U.S.C. § 1503, does not apply to statements that are misleading or evasive, but nevertheless factually true, and even if § 1503 does apply, there was insufficient evidence to support his conviction. Second, he claims that § 1503 does not cover a witness's testimony to a grand jury. Third, he contends that the use of the word “corruptly” in § 1503 is unconstitutionally vague. Fourth, he maintains that the indictment did not provide him with sufficient notice of the obstruction of justice charge. Fifth and finally, he argues that the trial court should have granted his request to modify the jury instructions. We affirm the conviction.

DISCUSSION I.

Bonds claims that he could not have been convicted of obstructing the grand

[730 F.3d 895]

jury's investigation with an answer that was misleading or evasive, no matter how far removed that answer was from the question asked, unless the answer was false. According to Bonds, because his response in Statement C that he was a “celebrity child” was factually true, his conviction should be reversed. The problem is that while Bonds was a celebrity child, that fact was unrelated to the question, which asked whether Anderson provided Bonds with any self-injectable substances. When factually true statements are misleading or evasive, they can prevent the grand jury from obtaining truthful and responsive answers. They may therefore obstruct and impede the administration of justice within the meaning of the federal criminal statute, 18 U.S.C. § 1503, a statute that sweeps broadly.

The obstruction of justice statute provides in relevant part:

Whoever ... 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).

18 U.S.C. § 1503(a).

That portion of the statute, known as the omnibus clause, is comprehensive. We have described it as being “designed to proscribe all manner of corrupt methods of obstructing...