Ninth Circuit Affirms Barry Bonds Conviction for Obstruction (9/14/13)

The Ninth Circuit yesterday affirmed the conviction of Barry Bonds, the ball player (Wikipedia here).   United States v. Bonds, 730 F.3d 890 (9th Cir. 2013), here.  Bonds was convicted of obstruction of justice under the "omnibus clause" of 18 USC, Section 1503, here.  Section 1503's omnibus clause is the "source" for the tax obstruction omnibus clause in Section 7212(a), here.  See John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 268-280 (2009), here.  Hence, I write on the Bonds' affirmance because the interpretations of Section 1503 will apply to tax obstruction under Section 7212(a).

The Ninth Circuit panel offers this introduction (footnote omitted):

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 late-1990s 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 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. 

* * * * 

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." 

The grand jury thereafter charged Bonds with several crimes, including obstruction arising from his testimony before the grand jury.  The jury convicted, "finding on the verdict form that Statement C was misleading or evasive."

Bonds appealed, asserting the following 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.

The Ninth Circuit rejected the charges and affirmed.

1. The Omnibus Clause May Apply to Misleading or Evasive Answers:

The Ninth Circuit interpreted that the omnibus clause broadly (citations omitted):

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 justice." The essence of the statute is that it criminalizes conduct intended to deprive the factfinder of relevant information. 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.\ 

We can easily think of examples of responses that are true but nevertheless obstructive. Consider a situation where a prosecutor asks a grand jury witness if the witness drove the getaway car in a robbery. The witness truthfully responds, "I do not have a driver's license." This response would be factually true, but it could also imply that he did not drive the getaway car. If the witness did in fact drive the getaway car, his answer, although not in itself false, would nevertheless be misleading, because it would imply that he did not drive the getaway car. It could also be deemed evasive since it did not answer the question.

The Court then discusses the case authority supporting the proposition that literally true but misleading statements fall within the ambit of the omnibus clause.

Bond's fallback was that his statements were not misleading or material.  The Court addressed that argument as follows:

The jury instructions provided that the government had to prove that Bonds, "(1) for the purpose of obstructing justice, (2) obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which [he] testified, (3) by knowingly giving material testimony that was intentionally evasive, false, or misleading." Bonds does not challenge the instructions as to these elements. 

Bonds made Statement C in response to a question that asked whether Greg Anderson ever gave Bonds any self-injectable substances. Bonds responded that he and Anderson did not discuss each other's "business." Bonds stated: 

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. 

Bonds's description of his life as a celebrity child had nothing to do with the question, which asked whether Anderson provided him with self-injectable substances. The statement served to divert the grand jury's attention away from the relevant inquiry of the investigation, which was Anderson and BALCO's distribution of steroids and PEDs. The statement was therefore evasive. 

The statement was also at the very least misleading, because it implied that Bonds did not know whether Anderson distributed steroids and PEDs. Yet, the jury at trial heard testimony from the Giants former team athletic trainer who testified about a conversation he had with Bonds before Bonds's grand jury testimony. According to the trainer, Bonds stated in this conversation that he knew that Anderson distributed steroids. Bonds also told the trainer about techniques Anderson used to conceal the identities of players taking steroids. This evidence at trial showed that Bonds's statement to the grand jury was misleading. It is irrelevant that Bonds eventually provided a direct response to the question about self-injectable substances. Section 1503 punishes any "endeavor" to obstruct. Obstruction occurred when Bonds made Statement C. 

With respect to materiality, we have said that a statement is material so long as it had "a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed." United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (internal quotation marks omitted). The question asking whether Anderson provided Bonds with injectable substances was well within the scope of the grand jury's investigation, since many steroids and PEDs are injectable. Bonds's evasive and misleading "celebrity child" response was capable of influencing the grand jury to minimize Anderson's role in the distribution of illegal steroids and PEDs. The statement was material.

Although not discussed in the opinion, one has to wonder why the Government did not charge Bonds with perjury under 18 USC 1621.  The reason is that perjury will permit something like a defense of truth even if misleading.  See The Limits of Literal Truth as Defense to Perjury (or Even 18 USC 1001) Federal Tax Crimes (7/24/10), here, discussing the Ninth Circuit opinion in United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010), here.

2. The Omnibus Clause Can Apply to Grand Jury Testimony.

The Court also rejected Bonds' argument that "even if § 1503 applies to evasive or misleading statements that are factually true, the statute does not apply to statements a witness makes to the grand jury."  This is presented succinctly in the opinion, so I don't address it further.

3.  "Corruptly" in the Omnibus Clause is not Unconstitutionally Vague.

The Court's discussion of this issue is cryptic, but the bottom-line is that it concludes:

Therefore, the only opinions discussing vagueness challenges to the use of the term "corruptly" in § 1503 have rejected such challenges. Their analysis is sound, and there is no basis for holding that Bonds lacked notice that he could be punished under § 1503 for providing the grand jury with misleading or evasive testimony. Grand jury testimony "intended to influence, obstruct, or impede, the due administration of justice [is] obviously wrongful, just as [it is] necessarily 'corrupt.'" Id. (internal quotation marks omitted).

For more discussion of the role of the word "corruptly" in the obstruction statutes, see my article under the heading "Corruptly" is No Potted Plant," pp. 292-300.

4.  The Indictment Sufficiently Notified Bonds of the Statements that Were Tried.

This is a straight forward holding, so I see no need to discuss here.

5.  Adequacy of the Jury Instruction.

Bonds next argued that the Court should have instructed the jury on his requested nuance that the instructions "contain the words 'when considered in its totality,' such that the instructions would have read 'by knowingly giving material testimony that, when considered in its totality, was intentionally evasive, false, and misleading.'"  The Court said:

The district court correctly rejected Bonds's proposed addition because it added little or nothing to the instructions given, and was covered adequately by those instructions. See United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir. 2010). The jury knew it had to consider statements in context because it was instructed to "consider[] all the evidence," and was instructed that a statement was material "if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury." To the extent Bonds's proposed language deviated from the given instructions by implying that the jury had to find that Bonds's entire testimony was evasive or misleading in order to convict him, Bonds's proposed language was incorrect. The indictment and the jury instructions made clear that Bonds could be convicted on the basis of individual statements that were evasive or misleading.

In other words, considering the other instructions, the jury would have gotten the concept that the statements must be viewed in context or, as Bonds requested, in totality.  But Bonds wanted something more then, the Court held, he was entitled.

For my discussion on the prior interim appeal in Bonds covering some of these issues, see Materiality and Corruptly in Tax Obstruction under Section 7212(a) (Federal Tax Crimes Blog 9/10/11), here.