The Barry Bonds Saga: A Look at Barry Bonds’ Appeal

BY:  Andrew Riley, Ruling Sports Intern (Twitter:  @BuriedTalents)

By now most people are aware of the Barry Bonds story. Baseball fans surely know of his highly successful career that ended tumultuously due to the crackdown on performance enhancing drugs (PEDs). Most baseball fans have also heard many of the Barry Bonds rumors in regards to how he has treated people in the past. Many have formed opinions based on those rumors, or instead, his awesome display of hitting throughout his career. Either way, his court issues are no longer a Major League Baseball problem. Fans have shown a great ability to forgive throughout the PED crackdown. Andy Pettite’s career has been rejuvenated despite his admission and apology for using Human Growth Hormone (HGH). Mark Maguire has been accepted back as the hitting coach for the St. Louis Cardinals with open arms after his apology. It seems that anybody who has been implicated in taking PEDs but has admitted and apologized for doing so has been forgiven. MLB also now has a testing system in place to discourage PED use. Parks across the country are reaching attendance records. Things are good for baseball.

Barry Bonds, however, was implicated in the “BALCO” scandal. The Bay Area Laboratory Co-operative (BALCO) was a nutritional supplement company that provided PEDs to professional athletes. The company had gained popularity from the late 1980s to the early 2000s until an anonymous tip of BALCO’s activities was sent to the authorities. An indictment resulted for those associated with BALCO including Barry Bonds’ trainer, Greg Anderson. Numerous athletes were outed as PED users in multiple sports. Many were required to testify before a grand jury in relation to the indictments, including Barry Bonds. As a result of his testimony, the government charged him with counts of perjury and obstruction of justice.

The four counts of perjury were based on testimony at the grand jury where Bonds–in different variations–denied having been injected by Greg Anderson or anyone else with steroids, or HGH. Barry Bonds was acquitted of these charges. The most compelling reason he was acquitted of these charges was because Greg Anderson refused to testify. As a result, the government could not substantiate any of the documentation presented as evidence that Bonds had taken a test for PEDs, let alone failed one. Therefore, if the government could not prove that he failed a test, then they could not prove beyond a reasonable doubt that he provided a false statement to that fact. The obstruction charge for which he was found guilty is the basis for his appeal filed on May 3, 2012. The conviction of obstruction was largely weighted on the content of what is labeled “statement C,” also known as the “celebrity child” statement. In this statement, after being asked if Greg Anderson had ever injected him with anything, Bonds spoke about his personal relationship with Greg Anderson including what it was like to grow up as a celebrity child. The government heavily relied on this statement and claimed it was evasive.

Recently, Bonds, through his attorneys, filed an appeal to his conviction. Bonds’ appeal consists of four arguments as to why his conviction should be overturned. The first suggests that the obstruction charge, 18 U.S.C. § 1503, does not cover Bonds’ alleged conduct because, 1) §1623 (perjury) is supposed to cover false statements of witnesses, 2) neither section has ever been extended to include truthful statements, and 3) if a witness is refusing to answer a question then he should be charged with contempt of court, §401. The second argument concedes, in theory, that if such a truthful statement is extended to fit under §1503, then it would not meet the materiality element. Bonds argues, that his statement was actually encouraged by the prosecution and that it was nothing more than a “temporary digression”. Bonds further supported this theory by citing the prosecution’s own words which state that Barry Bonds had gone “off into the cosmos” when answering some questions. Third, Bonds argues that statement C was not even mentioned in the indictment to which he was convicted. As a result, the indictment was deficient. In effect, Bonds was convicted on a charge that he was not informed of and that the grand jury never found probable cause for. Fourth, Bonds’ legal team argues that even if the government’s theory was true, the jury instruction was “fatally deficient”. Further, Bonds appeal asserts that, since the government claims Bonds should be convicted based on the totality of his testimony and that statement C is incorporated into that totality, the jury instruction should have included that “it could not find Mr. Bonds guilty unless his statement, considered in light of the totality of his testimony, was false, misleading, and evasive.” This instruction was denied at trial.

The arguments presented in the appeal should have a high likelihood of success. As for the first argument Bonds presented, it seems that if a witness is not answering a question in a trial, certain measures can be taken during the trial to rectify the problem. At the very least the prosecution should have warned Bonds that his answer was evasive and ask him the question again in attempt to prompt a more direct response. In fact, Bonds was asked the question again and he did answer directly. Contempt of court laws were created so that there is immediate recourse when somebody stands in the way of the pursuit of justice. It seems sneaky for the prosecution to hold their tongue and allow a witness to ramble on about being a celebrity child without warning that they will be charged with obstruction of justice if the rambling continues. More importantly, the defense points out that an obstruction charge has never been extended to include truthful statements in any circuit court. If that claim is accurate, then strong precedent exists in favor of the defense that the conviction was overextended and will likely be found invalid.

As for the second argument regarding the element of materiality, it would be tough to prove that the celebrity child remark was both material and evasive. The defense points out that if the government proves that statement C was irrelevant, then it ultimately proves that Bonds’ testimony was immaterial and therefore did not satisfy that element. Thus, arguing that the statement was irrelevant would likely be a fatal position for the prosecution.

Thirdly, the defense argues that Bonds was not given sufficient notice of the charge. There was no mention of statement C in the indictment. Since there was no mention of the statement to which the government heavily relies upon, the defense argues the indictment is insufficient. The government argues that since the indictment reads that the evasiveness should be judged on Bonds’ testimony as a whole, then it was not required to explicitly state statement C in the indictment. The attempt to include a “catch-all” provision has the unfortunate side effect of the appearance of desperation by the prosecution. Not specifying a particular statement that can satisfy a charge for obstruction and deciding to rather focus on Bonds’ “testimony as a whole” is the equivalent of asking the finders of fact, “how do you feel about Bonds’ testimony?” One person’s impression of testimony could be significantly different than another’s. More importantly though, how does the accused prepare a proper defense for an indictment that does not state its theory of prosecution?

Bonds’ fourth argument regarding a flawed jury instruction is less compelling and would likely not be found for in favor of the defense. The defense argues that it was the government that used the totality of the testimony to incorporate statement C into the obstruction charge. However, the jury was instructed without any emphasis on the totality of the testimony. Therefore, the defense argues that the jury did not find a conviction on the proper set of guidelines. Specifically, the defense is concerned that the jury reviewed statement C out of context. It is unclear how adding the terms “in totality of the testimony” would alter the context of statement C and the defense does not present how the statement could have been clarified. Therefore, it is doubtful that the fourth argument will be successful on appeal.

The significance of this case faded years ago. Is it in the public interest to prosecute those who lie to investigators? It sure is. But the outcome is no longer important to baseball fans, since Bonds’ grand jury testimony had been leaked. Fans are not subject to a “beyond a reasonable doubt” standard, so it is likely that most have already come to a conclusion regarding whether Bonds used PEDs. Both sides appear to be grasping for the last bits of pride that they can from these proceedings. The government watched as fifteen counts dwindled to five counts before the trial even began. After years of investigation and a substantial amount of money, only one count was successfully brought by the prosecution—the obstruction conviction. At the time that the prosecution’s investigation began, Barry Bonds was at the top of baseball and knew his rightful place as a likely future Hall of Famer. However this investigation has diminished his standing to a place close to baseball irrelevancy. Both sides seem desperate to escape with at least a splinter of success. Barry Bonds may ultimately win this match-up, but both sides will come out a loser.

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