Nearly 11 years after Barry Bonds testified before a grand jury investigating the illegal distribution of performance-enhancing drugs, a group of judges will hear arguments Thursday on whether baseball's career home-run leader should have his obstruction of justice conviction thrown out.
The 9th U.S. Circuit Court of Appeals will convene an 11-judge panel in San Francisco to decide whether Bonds' rambling response to a question about injectable substances was "corruptly" an attempt to "obstruct, influence or impede the grand jury proceeding ... by knowingly giving material testimony that was intentionally evasive, false or misleading."
"If I was Bonds' lawyers, at this moment I would be really feeling pretty good that they've got a real shot of reversing the conviction," said William B. Gould IV, a professor emeritus at Stanford Law School.
Bonds was indicted in 2007, and four years later a jury deadlocked on three counts charging him with making false statements when he denied receiving steroids and human growth hormone from trainer Greg Anderson and denied receiving injections from Anderson or his associates.
Bonds was convicted for his response when he was asked whether Anderson ever gave him "anything that required a syringe to inject yourself with?"
"That's what keeps our friendship," Bonds said during a meandering reply. "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."
A seven-time NL MVP, Bonds is the son of three-time All-Star Bobby Bonds.
Barry Bonds was sentenced in 2011 by U.S. District Judge Susan Illston to 30 days of home confinement, two years of probation, 250 hours of community service in youth-related activities and a $4,000 fine.
A three-judge panel of the 9th Circuit upheld the conviction in a unanimous vote last year, but a majority of the court's 28 participating judges voted to have the larger group rehear the appeal. A decision is not likely until 2015.
"Bonds tried to impede the grand jury's investigation by falsely denying that he knew anything about his trainer Greg Anderson's distribution of performance-enhancing drugs," the government said in its appellate brief. "This conduct is plainly encompassed by the catchall provision of the obstruction of justice statute."
Bonds' lawyers argue the answer that led to the conviction was truthful. They cite a unanimous 1973 U.S. Supreme Court case, Bronston v. U.S., that dealt with the perjury conviction of movie producer Samuel Bronston. When asked at a bankruptcy hearing whether he had any Swiss bank accounts, Bronston replied that the company had an account in Zurich for about six months.
The Supreme Court voted 9-0 to reverse his conviction.
"Essentially what Bronston was about is if in fact you don't have a responsive answer, it's up to the questioner to ask another question," Sheldon H. Elsen, the lawyer who argued Bronston's case before the Supreme Court, said this week. "If a non-responsive answer can't be evasive for a perjury charge, how can it be the basis for obstruction?"
The panel hearing the case this week includes Chief Judge Alex Kozinski, appointed by President Ronald Reagan, and Circuit Judge Stephen Reinhardt, appointed by President Jimmy Carter. They were among the majority that reversed the conviction of a federal judge in a 1996 opinion in U.S. v. Aguilar.
The three-judge panel that upheld Bonds' conviction in September 2013 cited a dissent by Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas in Aguilar that rejected the contention "corruptly" as used in the obstruction statute was unconstitutionally vague.
Known for political liberalism, the 9th Circuit has the highest percentage of judges appointed by Democratic presidents: 69 percent overall and seven of 11 on Bonds' panel. The other judges hearing his appeal are Diarmuid F. O'Scannlain (a Reagan appointee); Susan P. Graber, William A. Fletcher, Johnnie B. Rawlinson and Kim McLane Wardlaw (Bill Clinton); Consuelo M. Callahan and N. Randy Smith (George W. Bush); and Michelle T. Friedland and Jacqueline H. Nguyen (Barack Obama).
"The jury probably erroneously failed to convict on the essential crime of perjury — Bonds most probably did lie under oath," New York Law School Professor Robert Blecker said. "Bonds' 'child of a famous father' irrelevancy was literally true, but not at all misleading — merely irrelevant — and therefore not corruptly obstructive as the statute commands. Obstruction should not be extended to cover it.'"