United States v. Barry Bonds

FILED

FOR PUBLICATION APR 22 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10669

Plaintiff - Appellee, D.C. No. 3:07-cr-00732-SI-

v.

OPINION

BARRY LAMAR BONDS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding

Argued and Submitted September 18, 2014 San Francisco, California

Before: REINHARDT, KOZINSKI, O’SCANNLAIN, GRABER,

WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN,

N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges.

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 page 2 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…

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 con *583 victed 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:

Defendant was again asked about inject-able 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…

concurring:

I agree that no reasonable juror could have found Bonds guilty of violating 18 U.S.C. § 1503 .

*587 Bonds was convicted of obstructing justice by offering a “misleading or evasive” statement — Statement C — to the grand jury. The Government expressly declined to seek a conviction on the grounds that Statement C was false. 1 When evaluating whether the evidence was sufficient to show that Statement C violated § 1503, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). This standard of review requires us to determine whether the jury could “draw reasonable inferences from basic facts to ultimate facts.” Id. In this particular case, we must determine whether a single truthful but evasive or misleading answer could constitute evidence of obstruction of justice under § 1503. It cannot.

Section 1503(a) punishes those who “corruptly ... influence, obstruct ], or impede[], or endeavor[] to influence, obstruct, or impede, the due…

concurring:

Because I concur not only with the per curiam opinion but also with parts of Judge Kozinski’s and Judge N.R. Smith’s opinions (while disagreeing with other parts), I offer my separate views regarding what is in a fact a very simple case, as well as my thoughts concerning the proper construction of 18 U.S.C. § 1503 , the obstruction of justice statute.

I.

My answer to the question with which Judge Kozinski begins his opinion, “Can a single non-responsive answer by a grand jury witness support a conviction for obstruction of justice under 18 U.S.C. § 1503 ?” is simple: No. My response would be the same regardless of the context in which the answer was given.

I reach the conclusion that Bonds’s Statement C was not material and thus could not (and did not) obstruct justice on different and narrower grounds than does Judge Kozinski. I do not agree, for example, with his opinion’s sweeping statements regarding the scope of the statute or with its intimations that nonresponsive answers that are not later cured by way of direct replies might constitute obstruction of justice. Similarly, I would not suggest that there may be a category of non-responsive or irrelevant…

concurring in the judgment:

I strongly but respectfully disagree with the rationale advanced by the per curiam opinion and by the principal concurrence. I concur only in the judgment.

The issue before us is the meaning of the federal obstruction of justice statute, 18 U.S.C. § 1503 (a). Section 1503(a) provides, in relevant part:

(Emphasis added.) Section 1503(a) applies to obstruction of justice, as defined by the statute, in both criminal and civil proceedings. Section 1503(b) provides punishments of varying severities, depending on the nature of the act. The most lenient punishment is “imprisonment for not more than 10 years, a fine under this title, or both.” Id. § 1503(b)(3).

Bonds was prosecuted under the second, or “omnibus,” clause of § 1503(a), the emphasized portion above. The government and the principal concurrence read the word “corruptly” at the beginning of the clause to refer to a state of mind, meaning “with intent to influence, intimidate, or impede the due administration of justice.” They read the clause as criminalizing even entirely truthful statements, so long as those statements are made with such intent.

In the government’s view, any truthful answer…

dissenting:

There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out.

Strike One — The per curiam and concurring opinions second-guess the jury’s verdict rather than deferring to it.

I join the principal concurring opinion in its view that context matters in determining whether sufficient evidence supports the conviction in this case. See Kozinski Concurring Opinion, p. 586. A vital part of that context is the evidence before the jury. After all, it is that evidence we examine to determine whether any reasonable juror could have convicted the defendant. In doing so, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); see also United States v. Whittemore, 776 F.3d 1074, 1078 (9th Cir.2015).

Barry Bonds was convicted of one count of obstruction of justice in violation of 18 U.S.C. § 1503 . That statute provides for the punishment of “[wjhoever, corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice ...”

*602 At the trial of this matter, the jurors were informed…

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

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.