SAN FRANCISCO (CBS SF) – A lawyer for home-run leader Barry Bonds urged a federal appeals court in San Francisco Wednesday to overturn the former San Francisco Giants outfielder’s obstruction-of-justice conviction.
Bonds, 48, was convicted in a federal trial in San Francisco in 2011 of obstructing justice in his 2003 testimony before a grand jury investigating a Burlingame laboratory’s sales of performance-enhancing steroids and hormones to professional athletes.
As part of its verdict, the trial jury found that Bonds was evasive when he gave a rambling statement in response to a question about whether his trainer, Greg Anderson, ever gave him anything to inject himself with.
The jury deadlocked on three other charges that Bonds lied in his answers to other questions, and prosecutors later dismissed those counts.
In the statement found to be evasive, Bonds said he was the “celebrity child” of a baseball-playing father and that he didn’t talk to Anderson about business matters.
In arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals Wednesday, defense attorney Dennis Riordan argued that the conviction should be tossed out because a 2007 indictment did not specifically include that statement.
“Barry Bonds was convicted on the basis of a single statement of 52 words primarily about his relationship with his father,” Riordan said.
The indictment’s failure to give notice of the statement “is a dagger in the heart of this conviction,” Riordan argued.
Federal prosecutor Merry Jean Chan argued that the statement was just one example of a general strategy of evasion in which Bonds was trying to hide his alleged use of steroids during his grand jury testimony on Dec. 4, 2003.
“The indictment very clearly targeted the defendant with obstructive activity on a particular date,” Chan told the court.
“The government has all along maintained that his testimony was a single course of conduct littered with obstructive examples” such as the statement identified by the trial jury, she said.
Circuit Judges Mary Schroeder, Michael Hawkins and Mary Murguia took the case under submission at the close of 35 minutes of arguments and did not indicate how they will rule. The panel has no deadline for issuing a written ruling.
Bonds, who did not attend Wednesday’s hearing, was sentenced by U.S. District Judge Susan Illston to one month of home confinement and 250 hours of community service, but has been allowed to delay his sentence during the appeal.
While playing with the Giants from 1993 to 2007, Bonds set the Major League Baseball career home-run record of 762, as well as the single-season record of 73, which he batted in 2001.
Bonds admitted to the grand jury in 2003 that he had taken substances known as “the clear” and “the cream” from Anderson, but said he thought they were flaxseed oil and arthritis ointment. The substances were later identified as so-called designer steroids that had been engineered to be undetectable.
The former Giants star is one of 11 athletes, trainers and officials of the Bay Area Laboratory Co-Operative who were charged with either illegally distributing drugs or obstructing justice or lying in the grand jury probe. All eventually pleaded guilty or were convicted of various counts at trials.
Anderson, Bonds’ weight trainer and childhood friend, pleaded guilty in 2005 to charges of conspiring to distribute anabolic steroids to unnamed professional athletes and laundering some of the profits, and served a three-month prison sentence.
But he refused to testify against Bonds, either before a grand jury that eventually indicted Bonds in 2007 or in the 2011 trial in Illston’s court, and spent more than a year in jail for contempt of court for declining to participate in the two proceedings.
Anderson’s absence from the trial forced prosecutors to rely on largely circumstantial evidence in their unsuccessful bid to convict Bonds on the three other counts of lying to the grand jury.
Those three counts, on which the trial jury deadlocked, were charges that Bonds testified falsely when he said he never knowingly took steroids provided by Anderson, never received an injection from him and was never given human growth hormone by the trainer.
Riordan argued Wednesday that the statement identified by trial jurors as being evasive concerned a different question—whether Anderson ever gave him anything to inject himself with.
Riordan contended that Bonds wasn’t evasive because he directly answered “no” to several similar follow-up questions immediately afterward, and, according to Riordan, answered truthfully at that point.
“There’s not a shred of evidence Mr. Bonds was ever given anything to inject himself with,” he told the judges.
Hawkins questioned during the hearing whether Bonds could be found to be evasive if he did eventually answer the question directly, whether truthfully or falsely.
“Can a witness be convicted of having obstructed justice by giving a series of evasive answers and then giving an answer that is not evasive? How can the previous answers be obstructive?” the judge asked.
Chan responded that Bonds’ statement was part of “an affirmative calculated deception that he didn’t know anything of relevance to tell the grand jury.”
The obstruction count in Bonds’ indictment alleged he impeded the grand jury’s BALCO probe by giving “intentionally evasive, false and misleading” testimony, but did not specify any particular statements.
The “celebrity child” statement came into play when Illston instructed jurors before their deliberations that they must unanimously agree on at least one of seven specified statements as an example of obstruction in order to convict on that count. The jurors then chose that statement for their verdict.
Murguia commented during the hearing, “In fraud cases I don’t think it’s that unusual to narrow down conduct for the jury.
“How is this different?” she asked. “It seems that the indictment sets forth that it’s charging Mr. Bonds for statements that could have been misleading or evasive. That’s what the indictment says.”
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