Argued and Submitted February 13, 2013 —San Francisco, California
Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding D.C. No. 3:07-cr-00732-SI-1
Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Horgan, San Francisco, California; Ted Sampsell Jones, William Mitchell College of Law, St. Paul, Minnesota, for Defendant-Appellant.
Melinda Haag, United States Attorney, Barbara J. Valliere, Assistant United States Attorney, Merry Jean Chan (argued), Assistant United States Attorney, San Francisco, California, for Plaintiff-Appellee.
Before: Mary M. Schroeder, Michael Daly Hawkins, and Mary H. Murguia, Circuit Judges.
The panel affirmed Barry Bonds's conviction of one count of obstruction of justice, in violation of 18 U.S.C. § 1503, arising from Bonds's testimony before a grand jury investigating whether the proceeds of the sales of performance enhancing drugs were being laundered. The panel held that § 1503 applies to factually true statements that are evasive or misleading.
The panel held that there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child – in response to a question asking whether his trainer ever gave him any self-injectable substances – was evasive, misleading, and capable of influencing the grand jury to minimize the trainer's role in the distribution of performance enhancing drugs.
The panel rejected as foreclosed by precedent Bonds's contention that § 1503 does not apply to a witness's statements before a grand jury.
The panel rejected Bonds's contentions that the use of the word "corruptly" in § 1503 is unconstitutionally vague.
The panel held that the indictment – which covered any false, misleading, or evasive statement Bonds made during his grand jury testimony – was sufficient, and that narrowing the indictment via jury instructions listing the specific statements for which Bonds could be convicted – was permissible.
The panel concluded that the district court properly rejected Bonds's request to add the words "when considered in its totality" to the jury instructions.
SCHROEDER, Circuit Judge:
Barry Bonds was a celebrity child who grew up in baseball locker rooms as he watched his father Bobby Bonds and his godfather, the legendary Willie Mays, compete in the Major Leagues. Barry Bonds was a phenomenal baseball player in his own right. Early in his career he won MVP awards and played in multiple All-Star games. Toward the end of his career, playing for the San Francisco Giants, his appearance showed strong indications of the use of steroids, some of which could have been administered by his trainer, Greg Anderson. Bonds's weight and hat size increased, along with the batting power that transformed him into one of the most feared hitters ever to play the game. From the late-1990s through the early-2000s, steroid use in baseball fueled an unprecedented explosion in offense, leading some commentators to refer to the period as the "Steroid Era." In 2002, the federal government, through the Criminal Investigation Division of the Internal Revenue Service, began investigating the distribution of steroids and other performance enhancing drugs ("PEDs"). The government's purported objective was to investigate whether the distributors of PEDs laundered the proceeds gained by selling those drugs.
The government's investigation focused on the distribution of steroids by the Bay Area Laboratory Co-operative ("BALCO"), which was located in the San Francisco Bay Area. The government raided BALCO and obtained evidence suggesting that Anderson distributed BALCO manufactured steroids to Bonds and other professional athletes. The government convened a grand jury in the fall of 2003 to further investigate the sale of these drugs in order to determine whether the proceeds of the sales were being laundered. Bonds and other professional athletes were called to testify. Bonds testified under a grant of immunity and denied knowingly using steroids or any other PEDs provided by BALCO or Anderson. The government later charged Bonds with obstructing the grand jury's investigation. After a jury trial, Bonds was convicted of one count of obstruction of justice in violation of 18 U.S.C. § 1503. He now appeals. We affirm the conviction.
Our earlier opinion provides the background of the government's investigation into BALCO and Bonds. See United States v. Bonds, 608 F.3d 495, 498–99 (9th Cir. 2010). Because Bonds's grand jury testimony is central to this appeal and was not at issue in the earlier opinion, we below briefly describe his grand jury testimony and the resulting criminal trial.
On December 4, 2003, Bonds testified before the grand jury under a grant of immunity pursuant to 18 U.S.C. § 6002. The immunity order stated that "the testimony and other information compelled from BARRY BONDS pursuant to this order . . . may not be used against him in any criminal case, except a case for perjury, false declaration, or otherwise failing to comply with this order." Before Bonds testified, the government informed him that the purpose of the grand jury was to investigate any illegal activities, including the distribution of illegal substances, that Anderson and Victor Conte (the founder of BALCO) engaged in. The government also explained the scope of the immunity grant under which Bonds would testify.
Bonds testified before the grand jury that Anderson never offered him, supplied him with, or administered to him any human growth hormone, steroids, or any substance that required injection. A portion of Bonds's testimony, referred to as "Statement C, " formed the basis for the later criminal charge of obstruction of ...