Dennis Riordan, Riordan & Horgan partner
Image: Jeff Chiu/AP Pool
SAN FRANCISCO — The courtroom was packed and the TV cameras were rolling, but there wasn't much grandstanding or theatrics at Wednesday's Ninth Circuit arguments in Barry Bonds' criminal appeal.
Instead, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit methodically questioned both sides over 30 minutes of argument, poking and prodding at the sufficiency of the indictment and whether the former Giants slugger's momentarily evasive testimony to a grand jury a decade ago — what his lawyers call "rambling under oath" — can support a conviction for obstruction of justice.
"This is a really important point here," Judge Michael Daly Hawkins told Assistant U.S. Attorney Merry Jean Chan. If a grand jury witness "dodges and dips" but then "finally 'fesses up" and "gives an answer that's not evasive, how can the preceding answers be obstructive?"
"If you delay and delay and finally give them false evidence ... yes, of course that's obstructive," Chan replied.
Bonds' attorney, Dennis Riordan of Riordan & Horgan, ridiculed the notion that the 52 words of testimony at issue caused meaningful delay. "Even if you read it slowly, it takes less than 20 seconds," he told the court.
The judges — three Democratic appointees from Arizona, each of whom once worked as a federal prosecutor — didn't obviously tip their hands. Their questions to AUSA Chan were pointed, but frequently came with the qualifier that they were based on her opponent's arguments. And they seemed caught off guard by Riordan's argument about sufficiency of the indictment. "The argument was made this morning perhaps more forcefully than was made in the brief," Judge Mary Schroeder said. It wasn't clear, though, if it would be enough to persuade her.
Bonds, who did not attend arguments, was tried for perjury and obstruction in 2011 based on testimony he gave to a grand jury in 2003 in the BALCO steroids scandal. A jury deadlocked on three perjury counts but convicted Bonds for obstruction based on a long-winded answer he gave to the question of whether his personal trainer had ever given him an injectable substance. "I've only had one doctor touch me. And that's my only personal doctor," Bonds answered, before digressing into his upbringing as a "celebrity child with a famous father." Bonds directly answered "no" after the question was repeated.
Riordan argued Wednesday that the government never specified the "celebrity child" statement in its indictment. In fact, he said, the government quoted other testimony while using ellipses to exclude the "celebrity child" remark. "That is a dagger in the heart of this conviction," Riordan told the court.
Judge Mary Murguia sounded skeptical, saying it didn't seem "that unusual" for the government to refer to Bonds' grand jury testimony generally in the indictment, then narrow it down during trial to particular statements.
Riordan disagreed, saying it was unfair for the government to say "you committed a crime in some way" in the indictment, and then "change its theory constantly" during trial.
When it was Chan's turn, Hawkins focused on whether Bonds' testimony was materially evasive. If the government thought so, he asked, why didn't it take Bonds before the judge who was on grand jury duty "and say, judge, make him answer the question"?
Chan argued that when Bonds did finally answer, he did so falsely, further supporting the obstruction count. Hawkins asked how the court could find Bonds' testimony false if the jury deadlocked on perjury charges, but Chan argued the deadlock merely rendered the charges "a nullity" and there was plenty of evidence in the trial record that Bonds testified falsely.
Schroeder brought Chan back to the indictment issue. "The argument could be made that he doesn't know about the 'celebrity child' argument because it's in the ellipses, so it doesn't appear in the indictment," she told Chan.
Chan gave a somewhat artful answer before concluding her argument. And Riordan didn't miss an opportunity to use that to his advantage.
Under the prosecutor's own standard, Riordan argued in rebuttal, Chan had just given an answer that was "false, evasive and misleading on this record."
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