United States v. Bonds

784 F.3d 582

UNITED STATES of America, Plaintiff–Appellee

v.Barry Lamar BONDS, Defendant–Appellant.

No. 11–10669.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Sept. 18, 2014.

Filed April 22, 2015.

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Horgan, San Francisco, CA; Ted Sampsell Jones, William Mitchell College of Law, St. Paul, MN, for Appellant.

Merry Jean Chan (argued), Assistant United States Attorney, Melinda Haag, United States Attorney, Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division, United States Attorneys' Office, San Francisco, CA, for Appellee.

Appeal from the United States District Court for the Northern District of California, Susan Illston, Senior District Judge, Presiding. D.C. No. 3:07–cr–00732–SI–1.

Before: STEPHEN REINHARDT, ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, N. RANDY SMITH, JACQUELINE H. NGUYEN and MICHELLE T. FRIEDLAND, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge KOZINSKI

; Concurrence by Judge N.R. SMITH ; Concurrence by Judge REINHARDT ; Concurrence by Judge W. FLETCHER ; Dissent by Judge RAWLINSON

OPINION

PER CURIAM:

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant's conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503's scope may be in other circumstances, defendant's conviction here must be reversed.

A reversal for insufficient evidence implicates defendant's right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir.2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.

REVERSED.

KOZINSKI, Circuit Judge, with whom Circuit Judges O'SCANNLAIN, GRABER, CALLAHAN and NGUYEN join, concurring:

Can a single non-responsive answer by a grand jury witness support a conviction for obstruction of justice under 18 U.S.C. § 1503 ?

I

Defendant, who was then a professional baseball player, was summoned before a grand jury and questioned for nearly three hours about his suspected use of steroids. He was subsequently charged with four counts of making false statements and one count of obstruction of justice, all based on his grand jury testimony. The jury convicted him on the obstruction count and was otherwise unable to reach a verdict.

The jury instructions identified seven of defendant's statements that the government alleged obstructed justice. The jury, however, found only one statement obstructive. That statement was referred to as Statement C at trial and is italicized in the passage below:

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 his 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.

Defendant was again asked about injectable steroids immediately following this exchange and a few other times during his testimony. He provided direct responses to the follow-up questions. For example, he was asked whether he ever “injected [him]self with anything that Greg ... gave [him].” He responded “I'm not that talented, no.” The government believed that those answers were false but, as noted, the jury failed to convict defendant on the false statement counts.

The district court rejected defendant's post-verdict motion for acquittal on the obstruction count and a three-judge panel affirmed. United States v. Bonds, 730 F.3d 890 (9th Cir.2013). We granted en banc rehearing. United States v. Bonds, 757 F.3d 994 (9th Cir.2014).

II

A. Title 18 U.S.C. § 1503(a), which defendant was convicted of violating, provides in relevant part as follows: “Whoever ... corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).” Known as the omnibus clause, this language “was designed to proscribe all manner of corrupt methods of obstructing justice.” United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981). We have held that a defendant “corruptly” obstructs justice if he acts “with the purpose of obstructing justice.” Id.

As should be apparent, section 1503's coverage is vast. By its literal terms, it applies to all stages of the criminal and civil justice process, not just to conduct in the courtroom but also to trial preparation, discovery and pretrial motions. Indeed, it arguably covers conduct taken in anticipation that a civil or criminal case might be filed, such as tax planning, hiding assets or talking to police. And the text of the omnibus clause, in concert with our definition of corruptly, encompasses any act that a jury might infer was intended to “influence, obstruct, or impede ... the due administration of justice.” That's true even if no actual obstruction occurs, because the clause's use of “endeavors” makes “success ... irrelevant.” See United States v. Richardson, 676 F.3d 491, 503 (5th Cir.2012) (internal quotation marks omitted).

Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence ... the due administration of justice” by seeking to recover more than the claim deserves. So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari—the list is endless. Witnesses would be particularly vulnerable because, as the Supreme Court has noted, “[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive.” Bronston v. United States, 409 U.S. 352, 358, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).

Lawyers face the most pervasive threat under such a regime. Zealous advocacy sometimes calls for pushing back against an adversary's just case and casting a despicable client in a favorable light, yet such conduct could be described as “endeavor[ing] to ... impede ... the due administration of justice.” Even routine advocacy provides ample occasion for stumbling into the heartland of the omnibus clause's sweeping coverage. Oral arguments provide a ready example. One need not spend much time in one of our courtrooms to hear lawyers dancing around questions from the bench rather than giving pithy, direct answers. There is, for instance, the ever popular “but that is not this case” retort to a hypothetical, which could be construed as an effort to divert the court and thereby “influence ... the due administration of justice.”

It is true that any such maneuver would violate section 1503 only if it were done “corruptly.” But it is equally true that we have given “corruptly” such a broad construction that it does not meaningfully cabin the kind of conduct that is subject to prosecution. As noted, we have held that a defendant acts “corruptly,” as that term is used in section 1503, if he does so “with the purpose of obstructing justice.” Rasheed, 663 F.2d at 852. In the examples above, a prosecutor could argue that a complaint was filed corruptly because it was designed to extort a nuisance settlement, or an answer was filed corruptly because its principal purpose was to pressure a needy plaintiff into an unjust settlement, or that the lawyer who parried a judicial hypothetical with “but that is not this case” was endeavoring to distract the court so it would reach a wrong result. That a jury or a judge might not buy such an argument is neither here nor there; a criminal prosecution, even one that results in an acquittal, is a life-wrenching event. Nor does an acquittal wipe clean the suspicion that a guilty defendant got off on a technicality.

We have no doubt that United States Attorneys and their Assistants would use the power to prosecute for such crimes judiciously, but that is not the point. Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass. The perception that prosecutors have such a potent weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly those representing criminal defendants, will discharge their duties. The amorphous nature of the statute...