On Eve Of The Barry Bonds Perjury Trial, Government Appeals Evidence Ruling

Trial court concludes key evidence is inadmissible as unauthenticated or as hearsay, in United States v. Bonds, _ F.Supp.2d _ (NDCA Feb. 19, 2009) (No. CR 07-00732 SI)

The Barry Bonds trial was set to begin March 2 on ten counts of perjury and one obstruction count. See Second Superseding Indictment (filed Dec. 4, 2008). On February 27, 2009, the government appealed the ruling of U.S. District Court Judge Susan Illston excluding key evidence from the trial. See, e.g., Barry Bonds trial postponed after prosecutors decide to appeal judge's ruling; Prosecutors to Appeal Evidence Ruling; Bonds Trial Faces Delay; Bonds' positive steroid tests barred from trial, Judge won't allow evidence because of personal trainer's refusal to testify.

What evidence was excluded and what were the reasons in support of the court’s ruling?

As part of an investigation concerning the distribution of anabolic steroids and other performance-enhancing drugs and money laundering allegations involving the Bay Area Laboratory Co-operative (“BALCO”), the government executed search warrants in September 2003 at BALCO and the residence of Greg Anderson, the personal trainer for Bonds. During the investigation the government also obtained a March 2003 tape recording between Anderson and Steve Hoskins, a trainer and friend of defendant Bonds. The court considered the defense motion in limine to exclude evidence, which was filed under seal. The government filed an opposition brief, and the defense replied. A table of links to selected documents in the Bonds case, including many of the documents referenced in this blog essay, is posted below at Selected Court Filings.

Seized BALCO Documents

These documents purport to record the results of "tests performed on defendant’s urine by Quest Diagnostics, Inc., a laboratory”

Unauthenticated. The court ruled that the test results were inadmissible as unauthenticated under FRE 901. Trainer Greg Anderson indicated he would refuse to testify at trial, subject to contempt of court. Anderson previously served twelve months in prison for civil contempt after refusing to testify before the federal grand jury.

Statement Against Interest. The government alternatively sought to admit the documents through BALCO employee James Valente, who would testify that Anderson told him the results belonged to Bonds. The court found this proffer inadequate since it would be based on inadmissible hearsay. The statements of Anderson to Valente were inadmissible as statements against penal interest under FRE 804(b)(3) since a statement that “this sample is from Bonds,” would not subjected Anderson to criminal liability.

Co-Conspirator Statement. The co-conspirator hearsay exception, under FRE 801(d)(2)(E), did not apply because the government did not show that “Anderson gave defendant’s urine samples to Valente in furtherance of their drug distribution conspiracy” or “that defendant acted with an intent to further the conspiracy when he gave samples of his urine to Agnderson.” Bonds, _ F.Supp.2d at __.

Residual Hearsay. The residual hearsay exception, under FRE 807, did not apply because the government did not show “exceptional circumstances” or circumstantial guarantees of trustworthiness “[i]n light of this evidence that on occasion BALCO employees tampered with the labels of samples”. Bonds, _ F.Supp.2d at __.

Authorized Party. The government did not show that Anderson was making an authorized statement on behalf of defendant Bonds when he provided the samples to BALCO, as required under FRE 801(d)(2)(C). As the court noted, “Trainers, unlike lawyers, brokers, sales personnel, and those with supervisory responsibilities, are not generally authorized to speak for principals. In addition, Anderson’s statement identifying the source of the samples is not an ‘admission’ of the type contemplated by Rule 801(d)(2)(C) because, as discussed above, the government has not established that it was against Anderson’s interest to identify the samples for Valente.”

Agent Of Party. The government did not establish that Anderson served as an agent of defendant Bonds. As the court noted, “Although it appears to be undisputed that Anderson was defendant’s trainer, the government has not cited any evidence of the nature of their relationship. For example, it is not evident that defendant even paid Anderson, much less whether Anderson was an employee rather than an independent contractor. Accordingly, the government has not established by a preponderance of the evidence that Anderson was defendant’s agent or that the task of identifying defendant’s samples was within the scope of Anderson’s agency. Anderson’s statements are therefore not admissible under Rule 801(d)(2)(D).” Bonds, _ F.Supp.2d at __ (footnote omitted).

BALCO Log Sheets

The court excluded “log sheets that Valente created to record the receipt of urine samples tested at BALCO, the assignment of identification numbers to samples, and the results of analyses performed on each sample by outside labs.” Bonds, _ F.Supp.2d at __. Without Anderson’s testimony, statements to admit the logs sheets were based on inadmissible hearsay.

Lab Results from LabOne and Specialty Laboratories

The government sought to admit test results from the defendant’s blood by LabOne and Specialty laboratories. The government indicated it would call the doctor who obtained the blood from the defendant and then provided the blood samples to Anderson. However, without Anderson’s testimony, there was a missing “link” concerning “how BALCO’s records came to contain information identifying the blood samples as coming from defendant.” Bonds, _ F.Supp.2d at __.

Calendars Seized from the Residence of Greg Anderson

The government wanted to admit calendars which it considered to be “doping calendars” purportedly reflecting the dates that defendant Bonds was given performance-enhancing drugs from Anderson. The court reviewed a number of hearsay exception theories offered by the government and concluded the records were inadmissible.

Business Records. The government suggested that the Anderson’s statements to the case agent when the search warrant was executed at his residence could provide help admit the records. The government noted that Anderson told the agent that “he distributed steroids and other drugs to athletes,” but did not answer questions concerning defendant Bonds. Bonds, _ F.Supp.2d at __. The court was unpersuaded. First, any statements by Anderson to the case agent would be inadmissible under the Confrontation Clause, unless Anderson testified and was subject to cross-examination, as required under Crawford v. Washington, 541 U.S. 36, 59 (2004), see also Davis v. Washington, 547 U.S. 813, 822 (2006). Even assuming the statements were admissible, the government did not show the calendar records “were regularly maintained records of Anderson’s distribution of drugs to defendant,” as required under FRE 803(6). Bonds, _ F.Supp.2d at __. The government conceded that other than Anderson there were no other witnesses who could authenticate the records.

Statements Against Interest. The calendar was inadmissible under FRE 805(b)(3). First, the same Confrontation Clause concerns, noted under the business records argument, applied. The references in the calendar were “ambiguous” and did not necessarily subject Anderson to criminal or civil liability. As the court summarized this point, “It is equally plausible that Anderson used code and initials in the calendars for convenience. The letters ‘B.B.’ are not, after all, particularly cryptic. Without more evidence of the circumstances under which Anderson made the calendars, the Court cannot determine whether he believed they tended to be against his penal interest when he made them.” Bonds, _ F.Supp.2d at __. The calendar statements also were not made against pecuniary interest since the defendant would not be hurt financially by his relationship with defendant Bonds.

Co-Conspirator Statements. As with the seized BALCO records, noted above, the “government has not provided any evidence that defendant gave BALCO his urine and blood samples in furtherance of the distribution conspiracy,” as required under 801(d)(2)(E). Bonds, _ F.Supp.2d at __.

Residual Exception. Finally, the calendars were not admissible under FRE 807, the fallback hearsay exception, since “there is not sufficient evidence of the circumstances in which the calendars were created for the Court to make this determination.” Bonds, _ F.Supp.2d at __.

Calendars Purportedly Pertaining To Other Athletes

For similar reasons, the court concluded that calendar statements involving other athletes were inadmissible.

Handwritten Notes

The court denied without prejudice defendant Bonds’ motion to exclude five pages of handwritten notes which were seized from Anderson’s residence and BALCO. The notes from Anderson’s residence were inadmissible without Anderson’s testimony to authenticate them and on hearsay grounds. The court suggested that one BALCO page, which was not described, may be admissible as a business record.

Tape Recorded Locker Room Statements

The court also excluded tape recorded statements or Anderson which were obtained in March 2003 in the Giants’ locker room by Steve Hoskins, who was a trainer and friend of defendant Bonds. [Transcripts from three portions of the recording, designated by the court as “A,” “B,” and “C,” are listed in the court’s ruling.]

The recording of Anderson discussing “his strategy for evading Major League Baseball’s procedures to test for the use of steroids,” labeled recording “B,” was inadmissible as a statement against interest, under FRE 804(b)(3) since “[t]he government has not established that it was a criminal or civil offense in 2003 to help athletes evade detection by professional sports associations.” Bonds, _ F.Supp.2d at __.

The court denied the defense motion to exclude two other passages, including Anderson’s statements concerning “techniques to avoid infections when injecting a substance,” labeled recording “A,” and Anderson’s statements that he created an undetectable substance which was “the ‘same stuff’ being used by runner Marion Jones and other athletes at the Olympics,” labeled recording “C”. These recordings could be admitted at trial if the government could show the substances in issue (including “cream” and the “clear”) was illegal in March 2003, when the recording was made.

Lay and Expert Opinion

Finally, the court denied the defense motion to exclude the expert testimony of Dr. Larry Bowers concerning the physical symptoms demonstrated by takers of anabolic steroids and human growth hormone (“HGH”), which would include “increased hair growth on the trunk and extremities (primarily in women), male pattern baldness, the development of acne, particularly on the upper back, decrease in testicular size, increased aggressiveness, feelings of invincibility, ‘roid rage,’ weakening of the heart, hypertension, injury to the liver and possible links to prostate cancer.” Bonds, _ F.Supp.2d at __. The court dismissed the defense claim that the expert testimony was unreliable. The court concluded that the weight of the evidence could be determined by the jury including through cross-examination. The expert testimony was preliminarily determined to be relevant subject to “an offer of proof from the government before Dr. Bowers testifies establishing that there is or will be evidence in the record that defendant developed some of the symptoms Dr. Bowers will describe.” Bonds, _ F.Supp.2d at __.

The court also requested further briefing from the government, filed under seal, concerning the lay testimony of Kimberly Bell who was proffered to testify about changes she observed in the defendant’s body. The court would review the witness declaration to determine the admissibility of this lay testimony, including its relevance, under FRE 401, and for unfair prejudice, under FRE 403.

Given the government appeal, the trial was vacated. The Ninth Circuit will have a chance to review the evidentiary ruling of the district court. Whether a jury will ultimately hear the perjury allegations regarding defendant Bonds’s testimony to a December 2003 federal grand jury, remains to be seen.

United States v. Barry Lamar Bonds

Selected Court Filings
Date Description Of Document
Dec. 4, 2008 Superseding indictment
Jan. 29, 2009 U.S. opposition to defense motion in limine to exclude evidence
Feb. 2, 2009 Defense reply to U.S. opposition to defense motion in limine to exclude evidence
Feb. 9, 2009 U.S. supplemental response to defense motion in limine to exclude evidence
Feb, 13, 2009 Defense response to US supplemental filing on defense motion in limine to exclude evidence
Feb, 13, 2009 U.S. witness list
Feb. 13, 2009 Defense witness list
Feb. 18, 2009 Defense supplemental memorandum on admissibility of U.S. proffered expert testimony
Feb. 19, 2009 Judge Illston's order regarding defense motions in limine
Feb. 27, 2009 Clerk's notice of suspended jury selection due to U.S. filing of notice of appeal

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