U.S. Court of Appeals Scrutinizes Novel Obstruction of Justice Theory in Barry Bonds Case

By David Benowitz, criminal defense attorney and firm co-founder

Last week, the United States Court of Appeals for the Ninth Circuit, sitting in an en banc session, heard argument in the case United States v. Barry Bonds. Bonds seeks to overturn his conviction at trial for obstruction of justice, arguing the evidence was insufficient to sustain a conviction. During oral argument, the panel seemed particularly upset with the government’s defense of the obstruction of justice conviction because it was based upon Bonds’ rambling and evasive answer to a question at a grand jury proceeding about whether he was given steroids to inject. Bonds ultimately answered the grand jury’s questions and denied the allegation.

During his grand jury appearance, prosecutors asked Bonds whether trainer Greg Anderson ever gave him “anything that required a syringe to inject yourself with?” Bonds referred to his father Bobby Bonds, a former major league player in his response, “I was a celebrity child, not just in baseball but in 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.” Bonds then answered “no” to similar questions later in his testimony, which his attorney argued was sufficient to cure any non-responsive answers.

At trial, the jury hung on three counts charging Bonds with making false statements when he denied receiving steroids and human growth hormone from Anderson, but was convicted of obstruction of justice for his evasive answer at the grand jury.

The prosecutor arguing before the Ninth Circuit panel, Merry Jean Chan, argued that Bonds had a “corrupt intent” to mislead the grand jury with his rambling answer. Circuit Judge William Fletcher challenged Ms. Chan, calling the prosecution’s definition of obstruction “alarming” because even though Bonds’ initial answers were evasive, he ultimately answered the questions put to him in the same grand jury proceeding.

The government’s novel theory of obstruction in the Bonds case is expansive and dangerous. If the government chooses to promote the standard of obstruction that ascribes criminal intent to an evasive answer given in a grand jury proceeding, even if it is followed by non-evasive answers to similar questions, then a large number of witnesses who testify for the government at trial are guilty of the same offense. For example, in many cases prosecuted by the United States Attorney’s Office in the District of Columbia, a witness testifies at a grand jury proceeding and then subsequently returns at a later date to change his or her testimony. Many times the witness states that their original testimony was prompted by fear or a desire to not be involved in the case as a witness. However, the government’s formulation of “corrupt intent” as a desire to divert the grand jury’s attention away from the relevant inquiry of the investigation could easily apply to these fearful or unwilling witnesses.

It could also apply to prosecutors who act in an evasive manner, such as those described in United States v. Alonzo Vaughn, 93 A.3d 1237 (D.C. 2014) just reversed by the D.C. Court of Appeals (click here for pdf of case).

In Vaughn, the Court of Appeals found prosecutorial misconduct in violation of Brady v. Maryland, 373 U.S. 83 (1963) where prosecutors in an aggravated assault case disclosed only a portion of a report detailing the investigation of a key government witness, a corrections officer. The prosecutors repeatedly informed the trial court that the entire report had been disclosed to it for review and in fact filed a motion to preclude the defense from cross-examining the officer about it. After the jury returned a guilty verdict for Defendant Vaughn and his co-defendant, the defense and the trial court learned for the first time that the government had disclosed only a portion of the report and it did not disclose a section that included conclusions that the officer had previously fabricated allegations of inmate assault upon him to justify his own violence toward that inmate. As well, the prosecutors asserted to the trial court and to defense counsel that it was not apparent in the investigative report that the officer at issue had lied, although the report directly contradicted this assertion. The Court of Appeals held that the prosecutors’ failure to disclose this material in a timely manner prior to trial violated their obligations under Brady. Using the theory of obstruction asserted by the government on appeal in the Bonds case, the governments’ own prosecutors in Vaughn could be charged with obstruction if federal courts were to adopt this expansive outlook.

David Benowitz is a veteran criminal defense attorney based in Washington, DC who has successfully defended clients against a variety of charges, including state and federal offenses. Mr. Benowitz is licensed to practice law in the District of Columbia and Maryland as well as the United States District Courts for the District of Columbia and the District of Maryland, and the United States Court of Appeals for the District of Columbia Circuit.