Divided Ninth Circuit Affirms Exclusion Of Testing Evidence In Bonds Case

Statements and log records concerning positive test results from samples obtained by trainer contained inadmissible hearsay and were properly excluded for the trial; the government failed to meet its burden to show the statements of the trainer who obtained the test samples were made as an authorized agent of Bonds, under FRE 801(d)(2)(C), or that his statements were within the scope of his employment or agency, under FRE 801(d)(2)(D); the fact that the statements “almost” satisfied the residual hearsay exception, under FRE 807, was insufficient, in United States v. Bonds, 608 F.3d 495 (9th Cir. June 11, 2010) (No. 09-10079)

The pending prosecution of Barry Bonds highlights the importance of overcoming a hearsay challenge to blood and urine samples which were submitted to a laboratory for testing. Without a key witness, the evidence has been found to be inadmissible.

As part of the Bay Area Laboratory Co-operative (“BALCO”) investigation concerning the use of performance enhancing drugs by various athletes, baseball slugger Barry Bonds testified before a federal grand jury. Ultimately, he was charged with ten counts of perjury and one obstruction of justice count. See Second Superseding Indictment (filed Dec. 4, 2008).

The government had two key categories of evidence. First, the government hoped to admit testimony that blood and urine samples that Bonds had provided to a trainer, who then submitted them to BALCO, contained positive test results. Second, the government sought to introduce BALCO log sheets recording that “Bonds’ urine test[ed] positive for steroids.” Bonds, 608 F.3d at 498.

Before trial, the defendant moved to exclude testimony concerning the samples and the log sheets as inadmissible hearsay. Specifically, the truth of the matter asserted (that the urine and blood samples contained positive test results from Bonds) was hearsay without the testimony of a key witness. The government had hoped to show the positive test results through the testimony of Bonds’ trainer, Greg Anderson. However, the trainer refused to testify and was incarcerated for contempt of court. Without the trainer’s testimony, the government offered the testimony of a BALCO employee James Valente who would testify that the trainer gave him the samples which belonged to Bonds. The trial court excluded this testimony after concluding the government failed to meet its burden to show it was admissible under a hearsay exception or exemption. The log sheets recording the test results also contained inadmissible hearsay when offered to show Bonds’ test results. Consequently, the trial court granted the defense motion to exclude the evidence. See United States v. Bonds, 2009 WL 416445 (NDCA Feb. 19, 2009) (No. CR 07-00732 SI); see also On Eve Of The Barry Bonds Perjury Trial, Government Appeals Evidence Ruling. Without this evidence, the government could not show that these particular samples were linked to Bonds.

The government filed an interlocutory appeal contending that the trial court abused her discretion in excluding the evidence. A majority Ninth Circuit panel affirmed, in an opinion written by Circuit Judge Mary Schroeder which was joined by Circuit Judge Stephen Reinhardt.

Residual Hearsay Exception Inapplicable

First, the majority found no abuse of discretion in the trial court’s conclusion that the challenged statements did not qualify under the residual hearsay exception, FRE 807. The majority rejected the government’s argument that “the district court adopted an improperly narrow view of FRE 807 by not taking into account that [trainer] Anderson’s statements ‘almost’ fell within several other hearsay exceptions.” Bonds, 608 F.3d at 501. The majority noted: “In this case, even though this was a ‘near miss’ it was nevertheless a ‘miss’ that may have permitted, but did not alone compel the trial court to admit Anderson’s statements under FRE 807” and the trial court “correctly noted that courts use FRE 807 only in exceptional circumstances and found this situation unexceptional because it involves statements of an unavailable witness like those FRE 804 excludes, with limited exceptions here not applicable.” Bonds, 608 F.3d at 502. Additionally, the trial court correctly concluded that the trainer’s statements were untrustworthy since BALCO employee Valente had “admitted that he once mislabeled a sample when [trainer] Anderson asked him to do so.” Bonds, 608 F.3d at 502.

FRE 801(d)(2)(C): Authorized Party Statements

Under FRE 801(d)(2)(C), a statement by a person authorized by a party is admissible against the party as non-hearsay. Because the government noted that it could not “establish that Bonds explicitly authorized [trainer] Anderson to identify the samples as his,” the issue was whether “Bonds implicitly authorized Anderson to speak to the lab on his behalf.” Bonds, 608 F.3d at 503. The circuit majority noted that while “certain relationships do imply an authority to speak on certain occasions,” trainers “do not traditionally have such any such implicit authorization to speak.” Bonds, 608 F.3d at 503 (emphasis added). The mere fact that Bonds allowed the trainer to “have the samples tested,” did not establish implied authority. As the majority explained:

There is no evidence of discussions about how [trainer] Anderson was to deal with the samples. The district court could have quite reasonably concluded that Bonds was accommodating the wishes of a friend rather than providing Anderson with ‘the authority to speak’ on his behalf. We cannot agree with the dissent’s assertion that the nature of the task of testing blood and urine samples implies that the person who makes the necessary arrangements for the testing and delivers the samples is authorized to identify the samples’ origin. Even assuming that Bonds allowed Anderson to have his blood and urine tested in order to obtain medical information rather than to accommodate Anderson’s wishes, it was not necessary for Anderson to reveal Bonds’ identity to accomplish that purpose. The samples could easily have been identified by a number or a code word. Indeed, there are many legitimate reasons to perform medical testing anonymously. The dissent’s conclusion that Anderson was impliedly authorized to identify Bonds depends on the assumption that identifying Bonds by name was the only way to ensure accurate test results. Because we disagree with that assumption, we do not find the dissent’s reasoning persuasive. The district court also expressly found that the government had failed to carry its burden of showing that Bonds had provided Anderson the authority to identify the samples on each particular occasion, because Bonds could not remember how many samples he had provided.

Bonds, 608 F.3d at 503.

FRE 801(d)(2)(D): Agency Statement

The circuit majority turned to another hearsay exception to consider the admissibility of the trainer’s statements. Under FRE 801(d)(2)(D), a statement of a party’s agent, including under an agency or employment relationship, may be admissible against the party as non-hearsay. The circuit majority concluded that the trainer was not an employee or agent of Bonds. The trial court correctly concluded that the trainer was an independent contractor and not an employee. The circuit majority considered the independent contractor factors under the Second Restatement and found, under the totality of the circumstances, that the trainer was an independent contractor.

Nonetheless, the independent contractor status alone did not foreclose the chance that the trainer could have been “an independent contractor does not preclude a finding that the speaker is also an agent for some purposes.” However, the record did not establish an agency relationship, as the majority noted, since the trainer “defined the scope of the testing” and “Bonds provided Anderson no guidance or direction in terms of what specific tests BALCO would run on the samples” and did not ask about the test results. In sum, the majority concluded, “There is nothing in the record that requires a finding that Bonds actually controlled Anderson with respect to the testing or that Bonds and Anderson had agreed that Anderson would be obligated to follow Bonds’ instructions if Bonds chose to provide them.” Bonds, 608 F.3d at 507.

The BALCO Log Sheets

The test results reflected on the log records were also inadmissible. While the log records would have been admissible as business records under FRE 803(6), they were inadmissible for the truth of the matter asserted (to show a positive steroid test result) since another layer of hearsay was involved. As the circuit majority noted:

The log sheets were business records reflecting that BALCO recorded test results in the name of Barry Bonds. The records themselves, however, go no further toward showing the actual samples came from Barry Bonds than [BALCO employee] Valente’s testimony about what [trainer] Anderson told him. If anything the logs, when offered for the truth of the identification of the sample donor, created an additional level of hearsay rather than removing one.

Bonds, 608 F.3d at 508. Consequently, there was no abuse of discretion in excluding the log sheet records.


Circuit Judge Carlos Bea dissented after concluding the challenged statements of the trainer were admissible. He believed that the trainer’s statements to BALCO employee Valente were made involving a matter within the scope of his agency relationship, under FRE 801(d)(2)(D). Under his analysis:

[Trainer] Anderson acted as Bonds’s agent for the collection of samples from Bonds, and in the delivery of those samples to BALCO for the purposes of their testing. Further, Anderson acted as Bonds’s agent when he dealt with BALCO to procure the tests and the test results, and when he reported the results back to Bonds. Bonds’s sole role was to give Anderson the samples. Everything else was up to Anderson and BALCO. Because the task Bonds entrusted to Anderson was to accomplish testing Bonds’s blood and urine, from start to finish, Anderson’s mid-task statements to [BALCO employee] Valente about whose samples were being tested concerned a matter within the scope of his authority as Bonds’s agent.

Bonds, 608 F.3d at 508 (dissenting, J., Bea).

Second, under FRE 801(d)(2)(C), the trainer was “impliedly authorized to identify the samples as coming from Bonds.” The authority was to perform the specific task of obtaining the test results. As the dissent noted,

by asking [trainer] Anderson to deliver blood samples to BALCO for testing and to report the results back to Bonds, Bonds necessarily authorized Anderson to identify the source of the blood; otherwise, Bonds could not be assured of the accuracy of the results, which was the whole purpose of the Task entrusted by Bonds to Anderson. Without identification of who had supplied the samples, Anderson’s Task would have been a fool’s errand.

Bonds, 608 F.3d at 522 (dissenting, J., Bea).

Without this key evidence, and given the continuing unavailability of the trainer who claims to be ready to return to prison if found in contempt of court again, questions are raised concerning the strength of the government’s remaining proof at trial. Will the government seek rehearing en banc of the divided decision? Even if the government does not request rehearing en banc, will another member of the Ninth Circuit ask for rehearing, as permitted under the circuit rules? If the majority decision is undisturbed, the case will be set for trial, possibly as early as the fall of 2010.


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