Lawyers for Barry Bonds, Major League Baseball’s home-run record holder, who was rejected for the sport’s Hall of Fame last month, asked a federal appeals court to overturn his 2011 conviction for obstructing a U.S. probe of steroid use.
Bonds, 48, was the first Major League Baseball player to be charged in a years-long federal probe of steroid use in professional sports. He was found guilty in federal court in San Francisco of making evasive statements to a 2003 grand jury examining performance-enhancing drug use among pro athletes.
When he was asked whether his trainer ever gave him anything that needed to be injected with a syringe, Bonds didn’t immediately say yes or no, and instead spoke about being a “celebrity child” and not talking baseball with the trainer. Later, he answered no to the question.
The grand jury didn’t consider Bonds’s 52-word “celebrity child” answer when deciding whether to indict him, and the response itself wasn’t charged in the indictment, so the obstruction conviction must be thrown out, Dennis Riordan, Bonds’s lawyer, told a three-judge panel of the U.S. Court of Appeals today in San Francisco.
“There is one thing we know for sure, this grand jury did not consider that those 52 words were criminal activity,” Riordan said. “That is a dagger in the heart of this conviction.”
The jury couldn’t agree on whether Bonds lied when he denied ever getting injections by anyone other than his doctor, injecting anything from his trainer and receiving injectable testosterone from the trainer. A mistrial was declared on those three perjury charges.
Despite that outcome, the “celebrity child” response -- a reference to his father, Bobby Bonds, a three-time All-Star who played for the Giants and the New York Yankees -- didn’t have to be in the indictment for the jury to have found that Bonds obstructed justice, Assistant U.S. Attorney Merry Jean Chan said.
Bonds was on notice that he was testifying under oath to the grand jury about distribution by his trainer and others of steroids to athletes, she said. The indictment charged Bonds with impeding the steroid investigation by giving false statements “including but not limited to” lying about taking performance enhancing drugs, which encompasses everything he said that was meant to be evasive, she said.
“The indictment very clearly charges the defendant with obstructive activity that was false,” Chan said. “And that it was ‘included but not limited to’ the statements in the perjury counts.”
Justice Michael Daly Hawkins said Bonds ultimately gave a direct answer of “no” to the question about whether his trainer Greg Anderson ever gave him an injectable substance.
“How was the grand jury misled by that?” Hawkins asked. “He dodges and dips and talks about stuff that wasn’t responsive, then is asked one more time and gives an answer that is not evasive.”
If a defendant “finally fesses up and is no longer evasive, can he or she be obstructing” justice? the judge asked.
“Yes, the whole statement is delaying” the truth, Chan said. “It was a calculated deception.”
The panel didn’t say when it would issue a ruling, which could take weeks or months.
Former Yankees player Jason Giambi and other athletes testified at Bonds’s trial that the slugger’s trainer provided them with injectable testosterone and syringes. In his grand jury testimony, Bonds said only his personal physician touched him and he didn’t talk baseball with his trainer because he was a “celebrity child with a famous father.”
Bonds was sentenced to two years’ probation, 30 days of house arrest and 250 hours of community service, and fined $4,000. He appealed the conviction and sentence in December 2011.
Bonds and Roger Clemens, two of the sport’s most decorated players, were snubbed in voting for baseball’s Hall of Fame in January. Each got about half of the percentage of votes needed for induction. Clemens was acquitted in June of charges that he lied to Congress about his use of performance-enhancing drugs.
Bonds broke Hank Aaron’s record of 755 career home runs in August 2007. He was indicted in November of that year.
The case is U.S. v Bonds, 11-10669, U.S. Court of Appeals for the Ninth Circuit (San Francisco).