Home-run champion Barry Bonds has asked a federal appeals court in San Francisco to take another look at his challenge to his 2011 obstruction-of-justice conviction for misleading a grand jury.
The former San Francisco Giants slugger asked the 9th U.S. Circuit Court of Appeals in a filing Monday to convene an 11-judge panel to reconsider a three-judge panel’s decision in September to uphold his conviction.
Bonds’ lawyers argue in the appeal that if the smaller panel’s decision is left in place, “obstruction will function as a way to obtain back-door convictions against witnesses viewed with disfavor by the government even when actual lies on their part cannot be proven.”
Bonds, 49, was convicted in federal court in San Francisco in April 2011 of obstructing justice by giving misleading or evasive testimony to a U.S. grand jury in 2003.
The panel was investigating the sale of steroids and other performance-enhancing drugs by the Burlingame-based Bay Area Laboratory Co-Operative, or BALCO, to professional athletes.
The jury in Bonds’ trial before U.S. District Judge Susan Illston was unable to reach a verdict on three other charges that he lied to the grand jury, and prosecutors later dismissed those charges.
That outcome left the obstruction-of-justice count as the sole conviction in a long-running prosecution of Bonds that began with a five-count indictment in 2007.
The indictment was later revised three times and at one point contained 15 counts, including 14 charges of false statements and one charge of obstruction. It was whittled down as prosecutors voluntarily dismissed some of the charges and Illston dismissed others after Bonds’ defense team of six lawyers challenged them.
Illston sentenced Bonds in December 2011 to one month of home confinement, 250 hours of community service and two years of probation.
After the three-judge panel upheld his conviction on Sept. 13, Bonds notified Illston that he wanted to begin serving his sentence immediately, even while he appealed further. She granted that request on Sept. 17.
The appeals court rarely grants an 11-judge rehearing, known as en banc review. It has no deadline for acting on Bonds’ renewed appeal.
If the circuit court denies a rehearing, the final step in the case for Bonds would be to appeal to the U.S. Supreme Court.
The testimony found by the trial jury to be evasive was a rambling statement he made to the 2003 grand jury in response to a government lawyer’s question about whether his trainer, Greg Anderson, ever gave him anything to inject himself with.
Bonds said he was the “celebrity child” of a baseball-playing father and that he didn’t talk to Anderson about business matters.
His lawyers have argued in the appeal that the answer, even if unresponsive to the question, was truthful and that Bonds soon afterwards did answer the question directly.
They also contend it was unfair that the wording of that statement was not specifically quoted in the indictment.
But the three-judge panel concluded unanimously that the statement impeded the work of the grand jury and the indictment put Bonds on notice that he could be convicted of obstruction in connection with any evasive or misleading statement in his testimony.
“The statement served to divert the grand jury’s attention away from the relevant inquiry of the investigation, which was Anderson and BALCO’s distribution of steroids and performance-enhancing drugs,” Circuit Judge Mary Schroeder wrote in the Sept. 13 ruling.
Bonds set Major League Baseball’s single-season home-run record of 73 while playing for the Giants in 2001 and hit the all-time record of 762 in his last season in 2007.
He is one of 11 athletes, trainers and BALCO officials who were indicted in connection with the BALCO probe and were convicted or pleaded guilty to charges of either distributing illegal drugs or lying or obstructing justice in the probe.
Julia Cheever, Bay City News