Politics can be a contact sport as is evident from the recent appointment of a Special Prosecutor to investigate alleged misdeeds by the Trump Administration including obstruction of justice. Ironically, the decision of an “en banc” panel of the Ninth Circuit Court of Appeals in Barry Bond's obstruction of justice case is newly relevant. The case is instructive for its varied definitions of the crime of obstruction of justice and for the character flaws of a seemingly reckless defendant that led the government to indict sports star Barry Bonds. The matters discussed in this article are relevant not only to high flying politicians but to individuals and businesses coping with an increasingly regulated environment.
I. Introduction
More so than the other major sports, the sport of baseball has an especially rich lore which covers a wide range from the noble, to the comic and fabulous, with a strong dose of scandal and depravity in between. For a sublime moment, consider for example, Babe Ruth’s called shot in the 1932 World Series between the New York Yankees and the Chicago Cubs, where he allegedly indicated where his home run would land. For the comic and zany, consider Jimmy Piersall of the New York Mets, who ran the bases backward in 1963 upon hitting his 100th career home run, or the pitcher Rube Waddell, of the Philadelphia Athletics, who upon hearing a fire truck siren would leave the pitcher’s mound during a game to chase the fire truck. Returning to the noble, who can forget Lou Gehrig’s farewell speech at Yankee Stadium in 1939. For scandal we can mention Shoeless Joe (“Say It Ain’t So”) Jackson who in 1921 was banned from baseball merely for being associated with the scoundrels who allegedly tried to fix the 1919 World Series. More recently on the scandal front, we can point to Pete Rose, now relegated to autographing baseball paraphernalia in Las Vegas, who admitted to gambling on his players. Which finally leads us to the steroid scandal of the late 1990s and early 2000s, and a little nugget of grand jury testimony (hereafter “the Testimony”) by Barry Bonds who, as a result of the Testimony, has a chance for baseball immortality, in the baseball “Hall of Shame,” but not the Hall of Fame.
As reported, in United States v. Barry Lamar Bonds, 784 F.3d 582 (9th Cir. 2015) (en banc), Barry Bonds was summoned to testify before a grand jury convened in San Francisco, California to investigate drug use by athletes. Barry Bonds was granted transactional immunity
from prosecution, the broadest form possible, to ensure his cooperation. As stated in the dissenting opinion in Bonds: “[t]he purpose of immunizing a witness in exchange for his testimony is to ensure that the witness, freed from the specter of prosecution will provide complete and truthful testimony.” Id. at 602 (Rawlinson, J., dissenting). Notwithstanding
the foregoing grant of immunity, during the Grand Jury proceeding Barry Bonds “gave a rambling, non-responsive answer to a simple question.” Id. at 582 (per curiam). In the Bonds case this testimony was called “Statement C.” For purposes of this paper, and, with apologies
to Barry Bonds, who has allegedly characterized the various steroid creams allegedly applied on him as “the clear” and “the cream,” we are calling the testimony at issue “the Testimony.”
II. The Testimony
During the Grand Jury proceedings at issue in the Bonds case, the following question and answer exchange took place during the testimony given by Barry Bonds:
Q. Did Greg, your trainer, ever give you anything that required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t – we don’t sit around and talk baseball, because he knows I don’t want – don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about business. You know what I mean?
Q. Right.
A. That’s what keeps our friendship. You know, I am sorry, but that – you know, that – 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. Id. at 583 (Kozinski, J., concurring).
At best, the Testimony could be characterized as humorous, amusing and somewhat bizarre soliloquy. We could view the Testimony as another example of the “boys will be boys” mentality that permeates the baseball locker room. Clearly, the Testimony could be the basis of a great locker room war story about how the show- boating Bonds threw the “Feds” off the scent; another triumph for the bad boys of baseball. The problem for Barry Bonds was that the Testimony was given in the context of a grand jury investigation where Barry Bonds had been granted transactional immunity and was under a legal duty to testify in a straightforward truthful manner. Thus, the United States Attorney (hereafter the “Government”), who was conducting a complex investigation into a serious matter was presumably not amused by the Testimony. From the Government’s point of view, the best that could be said of the Testimony was that it was an act of disrespectful, self-absorbed arrogance and that at worst it was a violation of federal criminal law.
III. Procedural Summary
From a reading of Bonds, it is obvious that the Government thought the Testimony was more than a show of arrogance and disrespect. The Government concluded the Testimony constituted a felony obstruction of justice under 18 U.S.C. § 1803 and so indicted Barry Bonds on a count of obstruction of justice based on the Testimony.
If we equate the trial of the case to a baseball game, the Government was ahead going into the bottom of the ninth with the following runs scored:
1. Guilty on one count of felony obstruction of justice under 18 U.S.C. § 1803;
2. Denial of post-verdict motion for acquittal on the obstruction count; and
3. Affirmation of verdict by a three judge panel of the Ninth Circuit Federal Court of Appeals, United States v. Bonds, 730 F.3d...
