Disgraced home run king Barry Bonds is appealing his obstruction of justice conviction this week. Jim Jividen explains why it should be overturned.
Barry Bonds is appealing his conviction this week. I do not expect that decision to be overturned. But it should be.
Below are the instructions given to the Bonds jury. I have not edited them. I will insert my comments in bold.
OBSTRUCTION OF JUSTICE
(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
So, recognize the elements of obstruction of justice. The testimony you’re about to read from Bonds has to be intentionally targeted to obstruct justice. It can’t just be that Bonds doesn’t know how to answer a question or is embarrassed or uncomfortable. He has to be trying to obstruct justice. Further, the testimony has to be material – meaning it has to be important to that particular case. What was that case? That grand jury was targeting BALCO – whose founder, Victor Conte, eventually did four months in jail. So – somewhere in this transcript below, Bonds had to be intentionally trying to obstruct justice in a way that could have influenced the grand jury (which, again, wasn’t after him; it was after BALCO). This isn’t a perjury question – it’s not “Barry lied”.
Let’s go to the transcript. The government asks the questions. Bonds gives the answers. Let’s see if we can spot the obstruction of justice.
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?
Q: Is that fair?
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.
So, clearly it’s not this one. The government asked questions. Bonds answered them.
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.
Almost as clearly, it’s not this one. Bonds doesn’t provide a numerical answer; he says he doesn’t recall, which is an answer to the question. If answering “I don’t recall” when giving sworn testimony is a felony, Alberto Gonzalez would be doing life.
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? …
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…
And folks, this is our winner. That’s the felony for which Bonds was convicted. Here’s the foreman:
“When you’re in front of a grand jury you have to answer. … He gave a story rather than a yes-or-no answer”
So: is that a felony?
Beyond a reasonable doubt – which means you are as certain as you can reasonably be — is Bonds intentionally obstructing justice with his answer to that question? And does that answer, to that question, have the natural tendency to influence, or was capable of influencing, the decision of the grand jury. Is that answer the difference between a grand jury indicting BALCO and not? And to what extent is Bonds attempting to do that – to what extent is that answer actually obstructing justice? Enough to make it a felony? What percentage of people giving sworn testimony who give an answer like that wind up convicted of felonies? Have I somehow missed the stories of the Goldman Sachs executives all getting perp. walked?
Let’s make it you. You walk into grand jury testimony by yourself, without a lawyer because that’s how it works, and you answer that question in that way. Remember, you’re not under indictment, you’re testifying in front of a grand jury going after BALCO. Would you expect the result would be you are convicted of a felony almost 8 years later? That answer – right there – that’s the crime that Bonds committed. Assuming it’s not overturned, and assuming the government doesn’t ever get a conviction on the other charges, when we think about Bonds historically and some jackass sportswriter opposes his induction to the Hall of Fame because of his conviction – remember, his entire crime is contained in that passage you just read. No racketeering. No tax evasion. No dog fighting. No dead bodies in an Atlanta nightclub. That’s Barry Bonds’s felony. That’s it and that’s all it is. That’s it right there.
For purposes of completion, and because it furthers the point, here’s the last question asked:
7. Statement D:
Q: Did Greg ever give you testosterone in injectable form for you to take?
Q: Would you have taken it if he gave it to you?
A: He wouldn’t jeopardize our friendship that way.
Now, obviously it’s not this question, as Bonds answered directly (and this ends the jury instruction for count 5, there are no more relevant portions of his grand jury testimony to this count) and what I want you to note is this question is clearly another way to get to the material in statement C. The government asked Bonds if Anderson gave him anything that required a syringe – and, presumably dissatisfied with the response, then asked if Anderson gave him testosterone that required a syringe. Bonds says no.
If you are the government, and you believe that statement C will influence the decision of the grand jury, and you clearly have the ability to ask questions that will cause Bonds to clarify that point, you would – right? If after statement D, you still feel like that statement C is out there, deliberately trying to obstruct your ability to get a grand jury to justly decide whether to indict BALCO, then aren’t you asking “did Greg ever give you X in injectable form for you to take?” in as many different ways, with as many different possibilities as are needed in order to remove the obstruction from the justice you’re pursuing? You just asked the question with the word testosterone – if you have more examples, you would use them, right?
If it’s a material fact – and you can clearly ask more questions – and you can get Bonds to answer very directly and specifically as demonstrated in statement D – what is the reason why you don’t do so?
I’ll wait while you consider the myriad possibilities.
Either it’s not a material fact, meaning not important enough to continue to follow up on (meaning it isn’t obstruction of justice), or you are satisfied that the answer to the testosterone question has clarified the previous answer (meaning it isn’t obstruction of justice) or, or, or… you know that obstruction of justice might be a card you can play later; might give you an extra piece of leverage later, if your real target isn’t the drug pusher, Victor Conte, who will only get 4 months in jail, but instead the drug user Bonds. Which obviously would be an unusual choice for a drug prosecution. Maybe you don’t want further clarification. Maybe the government wants an answer that seems evasive on the record. Because you’re setting a trap. You’re not looking for justice; you’re setting a trap. And maybe, when sportswriters are moralizing about Bad, Bad, Barry Bonds (or the right wing is complaining about the excessive power of big government), we consider the ramifications of that. There’s a reason why Aaron Swartz is in the ground.
Could be any of those three possibilities. But are we seriously going to say that what Barry Bonds did in answering that question should be regarded as a felony?