Barry Bonds Swings at the Obstruction Charge but Doesn't Hit This Time

In United States v. Barry Lamar Bonds, 2011 U.S. Dist. LEXIS 15906 (ND CA 2011), the third superseding indictment charged four counts of false declarations before a grand jury. A fifth count charged

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.

In order to assure that there was a unanimous verdict as to guilt, the Government agreed that the jury must be instructed "to agree unanimously as to which statement or statements constitute obstruction of justice." In other words, for example, the six members of the jury could not pick one or more statements for conviction and the other six pick other statements to use for conviction. The jurors would need to agree upon at least one or more actions -- in this case statements -- that constitute obstruction.

The court identified defendant's general objections as follows:

Defendant continues to object to the phrase "including but not limited to," arguing that the obstruction charge should be limited to the statements set out in counts one through four. Defendant argues that the phrase "including but not limited to" does not provide him with fair notice as to what the charge is against him; that it deprives him of his Sixth Amendment right to be convicted only upon a charge returned by a grand jury; and that including in the jury instructions and on the verdict form the twelve additional specific answers that have been identified by the government would render the count "irremediably duplicitous."

Specifically, the defendant claimed that the Government impermissibly continued to add actions beyond those four that, the Government asserts, was proof of obstruction even though not charged nor even identified by the grand jury in the indictments culminating in the third superseding indictment.

The Court first rejected the defendant's argument that adding such post indictment acts to the mix meant that the indictment did not adequately put him on notice. The Court disagreed, reasoning in part that I found particularly interesting:

Defendant also argues that the Petit Jury not only needs to agree unanimously on the specific statement or statements that constituted obstruction, but that it needs to agree with the specific statements relied upon by the Grand Jury that indicted defendant; otherwise, there is an impermissible constructive amendment of the charge. To support this argument, defendant cites a case, United States v. Shipsey, 190 F.3d 1081 (9th Cir. 1999), in which the appellant was indicted for theft through "false pretenses" and a judge impermissibly expanded the possible grounds for conviction by giving jury instructions that permitted the jury to convict the appellant if he obtained the money in question by any "wrongful act." Id. at 1086. Here, in contrast, the Grand Jury indicted defendant for obstructing justice through his Grand Jury testimony generally. Any jury instruction or verdict form that contains specific statements from defendant's Grand Jury testimony will serve to narrow the permissible grounds for conviction, not to amend the indictment.

Similarly, a verdict form that contains nearly two dozen possible statements that could serve as a basis for conviction on the obstruction charge does not transform an otherwise permissible single charge into an impermissibly duplicitous charge. Count five contains one charge: obstruction of justice through grand jury testimony. The instructions and verdict form then specify for the jury several ways that it might arrive at the conclusion that defendant did, in fact, obstruct justice through grand jury testimony. The cases that defendant cites to argue that multiple statements cannot be included together in a single count all discuss charges for making a false statement. See United States v. Graham, 60 F.3d 463, 467 (8th Cir. 1995); Bins v. United States, 331 F.2d 390, 393 (4th Cir. 1964). Making false statements and obstruction of justice are different types of crimes, and the logic of these cases does not transfer. Defendant's motion to dismiss or strike language from the obstruction of justice charge is DENIED.

The same reasoning would logically apply to tax obstruction under § 7212(a) which traces it text back to the general obstruction statutes in Title 18.

In the course of its discussion of this issue, the court does reject Bonds' claim that the Ninth Circuit's decision in United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010) "hinted that the 'including but not' phrase might be impermissible."  The court did not find that hint or take it in any case.  I previously discussed Thomas in another context here.