USA v. Bonds

Filing 140

Transcript of Proceedings as to Barry Lamar Bonds held on February 5, 2009, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, [e-mail], Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/21/2009.(Ball, Belle) (Filed on 2/23/2009)

USA v. Bonds

Doc. 140

Pages 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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BEFORE THE HONORABLE SUSAN ILLSTON ) ) Plaintiff, ) ) vs. ) NO. CR 07-0732 SI ) BARRY LAMAR BONDS, ) ) San Francisco, California Defendant. ) ) Thursday, February 5, 2009 ___________________________________) 10:32 a.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: JOSEPH P. RUSSONIELLO United States Attorney 450 Golden Gate Avenue San Francisco, California 94102 MATTHEW A. PARRELLA JEFFREY R. FINIGAN JEFFREY DAVID NEDROW J. DOUGLAS WILSON Assistant United States Attorneys LAW OFFICES OF ALLEN RUBY 125 South Market Street Suite 1001 San Jose, California 95113 ALLEN RUBY, ESQ. AND Arguedas, Cassman & Headley, LLP 803 Hearst Avenue Berkeley, California 94710 CRISTINA C. ARGUEDAS, ATTORNEY TED W. CASSMAN, ESQ. MICHAEL WALTER ANDERSON, ESQ. UNITED STATES OF AMERICA,

BY:

For Defendant:

BY:

BY:

(Appearances continued, next page) Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]
Dockets.Justia.com

APPEARANCES, CONTINUED:

Also For Defendant: BY:

Riordan & Horgan 523 Octavia Street San Francisco, California 94102 DENNIS PATRICK RIORDAN, ESQ. DONALD MEREDITH HORGAN, ESQ.

Reported By:

Belle Ball, CSR 8785, RMR, CRR Official Reporter - US District Court

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: versus Barry Bonds. the Record. MR. PARRELLA: For the Government, Matt Parrella, Good morning, FEBRUARY 5, 2009 PROCEEDINGS Calling Criminal 07-732, United States Counsel, please state your appearances for 10:32 A.M.

Jeff Nedrow, Jeff Finigan, and Doug Wilson. Your Honor. THE COURT: MR. RUBY: Allen Ruby. Good morning.

Good morning, Your Honor.

My name is

Mr. Bonds is personally present. Good morning. Good morning. Cris Arguedas, also for

THE COURT:

MS. ARGUEDAS: Mr. Bonds. THE COURT:

Good morning. Good morning, Your Honor. Ted Cassman,

MR. CASSMAN: also for Mr. Bonds. THE COURT:

Good morning. Good morning, Your Honor. Dennis

MR. RIORDAN:

Riordan and Donald Horgan for Mr. Bonds. THE COURT: Good morning. All right, this is a

series of motions in limine that we had to hear this morning. I wanted to tell you what's on my agenda for today, and if there are other -- other matters, you can mention them. But

our first order of business will be the motions, and we will Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talk about them. In addition, though, there were two things I wanted to discuss with Counsel this morning. with respect to selecting the jury. One is procedural issues

Because there are a few

things we need to talk about now in order to get the jury process in motion. And then the third thing I would like to talk about are some procedural questions with respect to how we'll handle the trial, and what kind of access we will give to the media and the press, should they wish to have it, during the trial, itself. So, those -- those two procedural questions I would like to address when we have finished our first discussion of the pending motions. However, with respect to the pending

motions, I would like to start with them. I've read all of your papers, and the exhibits. I'll

give you a couple of my preliminary thoughts, and then I guess it's Defendant's motion, so you can go first. sort of in my order. And, this is

It's similar to, although not identical

with, the order that you put them in your papers. The first issue that I've considered is the BALCO-related lab records that include urine and blood test results. And the BALCO log sheets that reflect them. I'm not

right now talking about lab results from Major League Baseball's tests. Those have different issues. But with

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect to the BALCO-related blood tests, you've discussed

numerous issues that relate to the lab records and the BALCO records and the authentication and business record nature of those. But it seems to me that the main question is the

establishing of whether the blood test was that of the Defendant or not. That is the linchpin of all of those

records, whether or not they can be fit within some other standard hearsay exception. And my preliminary view is there is -- if there is testimony to establish that the blood samples were the Defendant's blood samples, then that's that. If there's no

testimony to establish that, but if you rely on the other kinds of exceptions to the hearsay rule that are discussed in the papers, I don't think any of them works. I don't think that 804(b)(3), the statement against interest works; I don't think the residual exception works; and I don't think the co-conspirator exception under 801(d)(E) works. So, my preliminary view is absent testimony that would establish that establish that the blood samples were the Defendant's blood samples, then the documentation is not hooked up to this case. The second big topic that I have evaluated is the calendars seized from Mr. Anderson's residence relating to the Defendant. If somebody testifies about those calendars, and Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 identifies them, then I'll address that question when it arises. But if nobody testifies about them, about the ones

that are related to Defendant or allegedly related to Defendant, I don't find that the hearsay exceptions that have been urged will get them into evidence. One question I have on this is that is I don't -- I just don't think that the business record exception can be laid out. The statement against interest exception in this instance

I don't think will apply, either. As a footnote to that, the Government has alluded to Mr. Anderson's statement to Agent Novitsky about, "Well, it's not a good idea to put my name on these things" as suggesting knowledge that the conduct was illegal, and therefore would be a statement against interest. That, I think, has a And you didn't

confrontation clause problem under Crawford.

mention that at all in your papers, but it seems to me that that's a problem with that. So, I have not seen a way that there's an exception to get the calendars that relate to the Defendant in evidence, barring somebody testifying about them. The calendars relating to other athletes, I'm going to defer ruling on that, and we'll see what testimony there is. Presumably there could be testimony from other athletes about those other calendars. I don't know.

The handwritten notes from -- seized from BALCO and Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from Mr. Anderson's residence, if there's testimony about the notes, maybe they come in. I don't think they come in. that. The tape-recorded statements to Steve Hoskins -- let me ask you this, Mr. Parrella. Mr. Hoskins as a witness? MR. PARRELLA: THE COURT: That's correct, Your Honor. I Do you anticipate calling If there's no testimony about them, But, we'll see what happens with

This, I think, is a close question.

think the statements made by Mr. Anderson on those tapes, assuming the tapes are properly authenticated, and identified, and testified to, that comes very close, I think, to the statement against interest that would make it admissible under 804(b)(3). I did read the Williamson case that Defendants pointed to. But it seems to me that there's a Ninth Circuit

case subsequent to Williamson, which is Paguio, which reaffirms that the test is whether the statement tends to incriminate. It doesn't have to be an outright confession. those statements may well come in. So, I think

That's my preliminary view.

It appears that the Defendants have withdrawn their motion as to Dr. Catlin's testimony. With respect to

Dr. Bowers, I'm going to request that the Government respond in writing to the Daubert analysis that was done in the reply that the Defendant filed. You really haven't addressed that. And

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is this. I'll take that under consideration. If we need a Daubert hearing, we can do it either before trial or during trial. issue. The motion with respect to lay testimony is denied without prejudice. We'll just see who's going to say what. I don't think that's a big

And to the extent it's not opinion testimony, then I think those issues fall out. So, that's where I'm starting in my evaluation. whoever wants to go first may do so. MR. RIORDAN: Your Honor, we'll wait and -- as to So,

matters which the Court has indicated that it is tentatively inclined to rule in favor of the Defendant's position, we will reserve comment until the Government speaks, which really leaves us -- leaves me with the Hoskins tape. And what I would like to say about that, Your Honor, The -- the test that the Supreme Court has reiterated

that the Rule states is -- is a statement so clearly inculpatory in terms of criminal liability that no one, no reasonable person would make it if it weren't true. So, we look at the circumstances of this particular statement. I do want to clarify this. We have a very, very

different view, and we'll make this as an offer of proof, as to how and why the statement was taken. The Government says it was taken in March of 2003, Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tape-recorded in the locker room at Candlestick Park. What the

Government knows is that, involving Stevie Hoskins, is that in June and July of 2003, before there was any hint that there was any investigation of Mr. Bonds, he went to the Government and said, "Stevie Hoskins, my lifelong friend is stealing from me. He's forging documents, he's ripping me off. I entrusted him

with the memorabilia business because he was a longtime friend, and he's forging documents and stealing money from me." So, and he says, Mr. Bonds says his lawyers say, "We discovered this in spring training," which would be February or March of 2003. So this tape recording, in our view, has nothing do with Mr. Hoskins' altruistic interest in Mr. Bonds, and talking to his father, and enlisting Bobby Bonds in assisting Barry Bonds. What it is is an attempt by Hoskins to manipulate a

conversation so he can get some protection against the investigation that he knows is coming for his thefts. And when we look at the statement, the only person who uses the word "Barry" in this statement is Mr. Hoskins. He's attempting to get Mr. Anderson to make statements about -about Mr. Bonds, hopeful that he can get something that he might be able to blackmail Mr. Bonds with. And in fact, what Mr. Anderson does in each of these things is respond. And the question is, if you take this

statement under Monaco (Phonetic), the Ninth Circuit standard Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here, if you take this statement would a reasonable person know, a reasonable person in Mr. Anderson's shoes know that if he makes the statements he makes in here, he is open to criminal prosecution. Criminal prosecution. If the

And, there simply is no statement in here.

Government had this statement at the time -- they didn't, Mr. Hoskins only came forward with it after he was interviewed by the FBI about his theft. But if they had the statement at

the time, would this render Mr. Anderson subject, clearly subject to criminal prosecution. And it wouldn't.

I mean, if you take Mr. Anderson' statements in here, and the ones the Government emphasizes, Mr. Hoskins is trying to get him to talk about Mr. Bonds. there. (As read) "I just never go I've been giving -- I

I move it all over the place.

learned that first do -- doing that shit 16 years ago." And then a discussion of Major League Baseball's testing procedures, and a discussion which I think you could fairly say in context, refers to the "cream" and the "clear," which were not illegal at the time this statement was made. So the question is, is a statement in a locker room, a men's locker room, the sort of thing that someone making that statement would say, "Gee whiz, if I talk about this shit, if I talk about Major League Baseball's testing standards, if I talk about moving around, I'm going to be subject to criminal prosecution." Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And Your Honor, I would submit that putting aside the question of whether -- anything that he might say to Mister -about Mr. Bonds, which he really didn't say, would be so trustworthy, even though it doesn't involve the Defendant's -Mister -- the Declarant's own interest, is what he says in here the sort of thing where a reasonable person would say, "Boy, if I talked to Stevie Hoskins about moving it around or Major League Baseball standards, I'm going to get prosecuted." I mean, I think the Government can fairly say, I think an objective observer would fairly say that what Mr. Anderson seems to indicate an interest in and a concern about is Major League testing standards. And the possibility that baseball's testing standards could reveal that he -- I mentioned, the one name he mentions in here is Benito, that's the one name Mr. Anderson mentions. And as the Government says, Mr. Benito Santiago was in fact receiving steroids from Mr. Anderson. But he's concerned about Major League standards, he appears to be absolutely concerned about concealing testing results. But, none of that is criminal in 2003. And the

Government can't point to anything prior to 2003 that would lead Mr. Anderson or anyone else to believe that they would be criminally prosecuted for anything involving steroids in sports at that point. So, the test is a real one. The notion is that --

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that it's -- it's that seriousness that would mean that -- that you don't need cross-examination because the cases they cite, for instance, someone gives a detailed description of committing a bank robbery. Well, if you're going to give a

detailed description of committing a bank robbery, a reasonable person would know you could be prosecuted. But when you look at statements in a locker room about testing in 2003, it is simply impossible to say that a reasonable person -- they might fear a lot of things. They But

might fear embarrassment, they might fear public exposure. they don't fear criminal liability.

And it's on that grounds

that we would say it does not meet the hearsay exception under the declaration against penal interest. There simply was not a coherent argument as to why this would be against his pecuniary interest to make these statements, so I assume the Government will limit itself to the claim of declaration against penal interest, Your Honor. Thank you. MR. NEDROW: Your Honor, if we may, we would like to

address some of the other issues. THE COURT: MR. NEDROW: Oh, absolutely. Okay. So, would the Court prefer to Or does it

hear something in response to that, directly? matter to the Court? THE COURT: Or, --

I just want to know if in the year 2003

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it was not illegal to distribute the "clear" and the "cream." MR. NEDROW: It was illegal in 2003 to distribute the Absolutely. Yes. In the indictment,

"clear" and the "cream."

as we charged, the "clear" was a misbranded drug that was probably an anabolic steroid. And of course, now Congress has

recognized that it is an anabolic steroid. It had not been through the kind of clinical trials where it had -- merely been listed expressly with all the known anabolic steroids such as methenolone and nandrolone and those types, but it was arguably an anabolic steroid under the analogue to the statute as it existed at that time. But there

was an argument it might not be, and that's why in the indictment we called it "a steroid-like substance." It was illegal to distribute it for use in humans because, of course, you can't just cook up something in a lab and have it distributed and used by people in the manner in which Patrick Arnold and Victor Conte and Greg and were doing. And that's why we charged, ultimately, all those individuals for their illegal distribution of the "clear." Separately with respect to the "cream," the "cream" of course had testosterone, an anabolic steroid. It was

concealed within the cream, this testosterone -- heavy testosterone ratio in a manner that made it difficult for drug testing authorities to detect. steroid. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone] But it, itself, was an anabolic

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 steroid. And Victor Conte pled guilty to steroid distribution based upon the "cream" and other items, as did Greg Anderson. So they were both illegal substances in 2003, beyond any doubt, to distribute without having a doctor involved. The "cream" was without any doubt, an anabolic BALCO Defendants pled guilty to it. The "clear," had

the case gone to trial, Your Honor, the evidence would have shown it was an anabolic steroid. However, it would have -- it would not be candid to say there isn't -- there wasn't at least some legal argument as to whether -- there was an expert saying things like -- does it really have steroid-like effect, and things of that sort. And that's why, again, we were clear -- clear in our indictment to say that the "clear" is a steroid-like item, as opposed to just coming out and saying it's a steroid. THE COURT: MR. NEDROW: Thank you. Thank Your Honor. Well if I may, Your

Honor, since I'm here -- and again, I don't want to jump topics too -- Mr. Finigan is going to respond to Mr. Riordan's argument. But I'd like to, if I could, be heard on the

documents found at BALCO. THE COURT: MR. NEDROW: Sure. There's no question that these test

results are from legitimate labs, that the Government wants to introduce. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. THE COURT: Whose blood is it. MR. NEDROW: straight to that. THE COURT: You don't need to talk about the rest of Thank you, Your Honor. Yes. I'll go I think the only question is the link.

I don't necessarily disagree with you on the rest of it,

but I find that to be the insuperable problem. MR. NEDROW: Understood, Your Honor. Then I think

what I would like to address -- and I appreciate the guidance -- is to go to the log sheet which was in the defense exhibits -- Your Honor, it's Bates-stamped 114, and it's just under 2B. I have it right here, if I can -THE COURT: MR. NEDROW: I got it. Okay. I have it.

Okay, thank you.

Your Honor, the Government is going to call the vice-president at the time of BALCO, James Valente. The Court

may recall he pled guilty for his known involvement in being involved and distributing the drugs through BALCO. And Mr. Valente's testimony and the offer of proof we would make is that he's going to testify, "It was one of my jobs at BALCO to keep records." And, he's going to identify this document (Indicating), and actually it's a five-page document, 114 through 118, as a log he kept in his duties at BALCO to monitor circumstances where he was sending out samples, urine samples Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the labs, Quest (Phonetic), to get them checked to see whether or not they were detectible for steroids. His testimony, we believe -- and we would ask the Court to at least defer ruling until he testifies -- as a records custodian is going to really fit, just check the box all the way down on 803-6. He's going to say, "I personally

made these entries in my normal course of duties, based on information known to me, and based upon my day-to-day responsibilities at BALCO." THE COURT: known to him? MR. NEDROW: Your Honor, I understand. And, he is How did he get the information that was

going to say the reason, at least as to Mr. Bonds -- and I don't know about all the other athletes -- but as to Mr. Bonds, he's going to say, "Greg Anderson, on a regular basis, would come in and give me samples." And he'll say that "I knew these

were Barry Bonds' samples because Greg Anderson told me." And, I understand why the defense argument that's hearsay has a surface appeal, because the Government is not going to offer prove that James Valente or anybody else was in the room when Mr. Anderson collected his samples of Mr. Bonds. The Government does not have that evidence. Understood.

What I ask the Court to consider and think about is really this kind of normal business-records type application that the Court sees every day, in which a person comes in from Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Microsoft -- not to pick on Microsoft, but a company where they say, "Yes, here's records showing our shipments coming in from, say, China or Canada, and this is our regular shipping log. And on a regular basis what we do is we get boxes in from Canada, and we enter as a part of our regular course of duties a box coming in, this one says it came from China. I know it

to be the case from working at Microsoft that things come from China. And then we weigh it, and we log it, and it goes to the

place where they sell the boxes or the computers." And the reason I illustrate that, Your Honor, is that person isn't in the shipping dock, that person isn't knowledgeable of getting things from China, and bringing them over from China and putting them into the Microsoft shipping dock until it goes further. That person is testifying based on

their knowledge and their experience working at the company, and their knowledge of the way that that's the way things work at their company. And frankly, I think Mr. Valente's level of knowledge exceeds that here. What he's going to say is "I knew Greg

Anderson as a person who is associated with Mr. Bonds. Mr. Anderson would come in on a regular basis, comments to me like, 'Yeah, this is on behalf of Barry,' or 'I knew him to be associated with Barry.'" He would give him the sample, Mr. Valente would enter it and assign it a donor number (Indicating) or a -- you know, Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a code number. He would then, per his normal course of

business, which is logged on here, personally be involved in sending the sample off to Quest. THE COURT: And what's the exception that gets you

Mr. Anderson's statement into evidence? MR. NEDROW: Well, Your Honor, the statement of

Mr. Anderson, I understand -- and we've made the arguments and I understand the Court's considered them -- we would do think it qualifies under the co-conspirator exception and the statement against penal interest and things of that sort. But, I guess what I would ask the Court to consider is the Government doesn't need to have Mr. Valente testify "Mr. Anderson told me these things." It could be that his

testimony is, as he discusses this sheet (Indicating) and again just as a regular business records custodian, that Mr. Anderson says, "Right, I personally completed this document based upon my daily responsibilities at BALCO" -THE COURT: But the document's only relevant if they And urine. Right?

were testing the Defendant's blood. MR. NEDROW:

Ye- -- Your Honor, I would agree that it

needs to be -- it needs to show some relevance to Mr. Bonds for it to matter in this case. that's right. THE COURT: So I still need to get some explanation Yes. I agree with that, yes,

for how I'm allowed to rely on the out-of-court, non-sworn Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement of a non-testifying witness in evidence. hearsay. That's classic hearsay. That's

So you need to give me some

way that I can let that into evidence. MR. NEDROW: Your Honor, you know, again we have made There is one other exception

the arguments that we have made.

that frankly we haven't briefed extensively in the brief but I would like to raise it and if the Court would like maybe a brief supplement on it, we will put it in. And there is another exception under 801(d)(2) -actually there are two of them, 801(d)(2)(C) and 801(d)(2)(D) as in David, where Mr. Anderson's statement I think qualifies under both of those as admissions by a party opponent. way it would come about is it's a statement by a person authorized by the party to make a statement concerning the subject. THE COURT: How do we get proof that he was And the

authorized by the Defendant to make the statement to Mr. Valente? MR. NEDROW: THE COURT: MR. NEDROW: THE COURT: Your Honor, Mr. Bonds -Because he says so? I'm sorry, Your Honor? Because he says so? I mean, then you're

back in the same old soup. MR. NEDROW: No, I understand, and again, I'm sorry,

we really should have flagged this particular angle a little Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bit earlier, but Your Honor, Mr. Bonds in his grand jury testimony, under oath, says he provided samples to Mr. Anderson, and that he knew that those samples were going to be given to BALCO, and he knew that something was going on. He kind of trails off at that point, Mr. Bonds does, as to what was going to be done with them. But he specifically

says -- and we can submit something with the parts of the grand jury transcript that highlight this -- "I knew that the samples that I was giving to Mr. Anderson were going to BALCO." And we think that's pretty career in terms of Mr. Bonds saying he authorized -- and that's what the language is in the Rule -- Mr. Anderson to provide the samples to BALCO. And it would seem, given that's the link for Mr. Anderson -not only would matter to BALCO, to Mr. Bonds, because Mr. Anderson's communicating information, this is Mr. Bonds' sample, that he's authorizing representation to be made to BALCO. I would also ask the Court to consider again subsection D, because that's the segment that says (As read) "A statement by the party's agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship," and I think that applies as well. It's pretty clear that Mr. Anderson and Mr. Bonds had a professional relationship, and that Mr. Anderson worked for Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Bonds essentially as his trainer, and of course, the Government's argument is as his steroid supplier. And

Mr. Anderson, as a part of his work responsibilities for Mr. Bonds, was going through this testing practice to help Mr. Bonds make sure that his urine didn't come up with a positive test result. So, again, (d)(2)(C) and (d)(2)(D) we really think are on point with respect to at least this statement by Mr. Anderson, saying, "Yeah, these urine samples belong Barry Bonds," being a part of that chain. And then once you're

there, we think both the log sheets and the other test results should be admissible. One other point we would like to make, Your Honor, obviously the defense can and will be free to argue at trial that just Anderson's representations don't prove somehow that they're Barry Bonds' urine. In other words, again, the Government doesn't have proof that anybody was there with Mr. Bonds when these samples are being provided. of things at trial. at trial. But in terms of admitting it, and having it get over the threshold for reliability and trustworthiness, it's necessary to have it admitted. We think that, you know, the That's an argument that goes to the weight And they'll have the ability to argue that

basis I've just outlined meets the test. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. NEDROW: Thank you. So, thank you. I'll keep my comments

briefer on the calendars and the handwritten notes, except to say we believe that these statements on the calendars and the notes are a part both of this ongoing conspiracy to distribute steroids and statements against penal interest. There's actually no doubt they're statements in furtherance of a conspiracy to distribute steroids, and the issue of course is whether Mr. Bonds was a part of the conspiracy. And we understand that's -- you know, some -- it's

arguable because certainly we're not saying Mr. Bonds is involved in distributing steroids. But it was in the original indictment that the athletes -THE COURT: MR. NEDROW: BALCO indictment? I'm sorry, Your Honor, yes, in the And it's actually It was

original BALCO indictment, yes, yes, it was.

in Count 8, it's the conspiracy regarding misbranding.

in the original BALCO indictment that athletes were provided cover stories and were told to keep things secret. And I think

from that, the inference that one could very reasonably draw is that Mr. Bonds' role as a prominent athlete in this, who was allowing his urine to be tested and was participating in keeping his secret puts him, you know, squarely in the middle of the conspiracy. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And with that in mind, we think that the statements should be admissible under that theory as well. I also think

under the admissions theory I've just laid out under 801, with respect to again maybe not the authorization part, but the agency part, again Mr. Anderson is essentially working for Mr. Bonds. And what Mr. Anderson is doing is he's creating calendars so that he can work with Mr. Bonds in both monitoring the steroids he's distributing to him and also Mr. Bonds' usage of them. And under that theory, as an agent or employee or -"servant" is the word they use, kind of an outdated word, Mr. Anderson really is entering admissions that are on behalf of Mr. Bonds. And I do think that the calendars and the notes

may be a little more attenuated, but I think that they can all be considered as admissions under those theories, as well. So again, we would respectfully ask the Court to consider that theory as well. I'll be brief on the expert comment, and I would like to defer to Mr. Finigan. Mr. Riordan's argument. But with regard to the experts, obviously, these two individuals are among the top people in the world in terms of drug testing. So, the Government is pretty confident we'll be able Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone] He's going to address, again,

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to demonstrate and get past any Daubert threshold the Court has concerns about. And if tested, by his experts before Your So, we'll be happy to

Honor before, as Your Honor is aware.

schedule that and make that showing at the Court's direction. And with that, I appreciate it very much. Your Honor. And again, Mr. Finigan is now going to address the tape issue. THE COURT: MR. NEDROW: MR. FINIGAN: THE COURT: Thank you. Thank you very much. Good morning, Your Honor. Thank you,

Good morning. Your Honor, first, just a couple of

MR. FINIGAN: points on the tape.

I think -- first of all, I don't believe

Mr. Riordan really said anything that was different than what was in their papers, and should really cause Your Honor to decide any differently than you have indicated. The two small points are that first of all, with respect to why Mr. Hoskins made the tape, again, that's purely cross-examination that goes to the weight of the evidence. The second point is that what -- what the defense is really focusing on is that in that tape -THE COURT: May I just interrupt you on one point?

In evaluating the tape, I relied on the accuracy of what you put in your papers, and what they put in theirs. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone] And

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm assuming it all comes in more or less that way when Mr. Hoskins testifies. If there was any suggestion that Mr. Hoskins did the tape recording in order to investigate on behalf of the Government, or in order to investigate for purposes of a prosecution, then I would have a different view, because then it would be testimonial, and then you would run into Crawford. So I'm assuming it was not that kind of a situation. MR. FINIGAN: You are correct, the Government has

zero involvement in this tape recording. THE COURT: That's what I was assuming. Yes.

MR. FINIGAN: THE COURT:

What Mr. Riordan said, I don't know If there

what -- the timing of all that gave me some pause.

was some suggestion that Mr. Hoskins was working for the Government or with an eye toward Government prosecution, that would color my thinking. MR. FINIGAN: Understood. And how I understood

Mr. Riordan's argument, if he is arguing that Mr. Hoskins was working for the Government, that's just wrong. evidence of it. What I understand Mr. Riordan to be saying is that Mr. Hoskins was doing it in order to blackmail the Defendant. THE COURT: That is a different point. Exactly. That's a different issue. There's no

MR. FINIGAN:

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With respect to what I perceive to be the thrust of the defense argument which is, well, you cannot look at these statements and say that Greg Anderson is admitting to a particular crime, I think as Your Honor has noted that is not what needs to be shown, and you have focused properly on the fact that it just need to tend to show that the Defendant is subject to that. And you've pointed out that there's Ninth Circuit authority later in time than Williamson. All I want to do is point out

that Williamson itself, Your Honor, contemplates that these are the types of statements that can come in, specifically at Page 2436 and 2437, the Court in Williamson points out that even statements that are on their face neutral may actually be against the declarant's interest, and then it gives two examples. One, this is at the top of Page 2437, Your Honor (As read), "'I hid the gun in Joe's apartment' may not be a confession of a crime, but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory." Secondly, the next example, "'Sam and I went to Joe's house' might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's conspiracy." And that's exactly what we have here. We have

statements by the Defendant -- or excuse me, by Mr. Anderson on Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the tape, that clearly when put together in the context of the facts of the case subject him to or inculpatory -- inculpating with respect to Mr. Anderson and against his penal interests. So, those are my comments on the tape, Your Honor. And I think that that fits in with the log sheets as well, which is what I want to comment on as well. And with

respect to the log sheets, Your Honor, I think if the -- the statements that Mr. Anderson makes on the tape come in, then the statements about the log sheet absolutely come in under the same theory. Again, he is simply saying, "This is Barry's urine," or something, words to that affect. Again, on their face,

maybe not something that subjects somebody to criminal prosecution. But as Williamson says, and as the other

authorities that we have cited say, if you put that together with the other facts that you have, does that subject the Defendant to criminal prosecution? And it absolutely does, because what Mr. Anderson and the other -- the employees of BALCO and the Defendant were doing were administering an undetectible substance, and they were running clients' -- not just the Defendant's but lots of their clients' urine and blood through testing, through BALCO, to make sure that their substances could not be detected. And he would have known, any reasonable person would have known at that time that that could subject him to criminal Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecution. guilty. Indeed, it did. He was prosecuted, and he pled

So, I think that the statements are the same -- the

analysis is the same with respect to the tape, and the statements underlying the log sheet. Putting the tape aside, Your Honor, with respect to the log sheet, I think it's telling that the defense has never argued that Mr. Anderson's statement is untrue. argued that. They've never

It's simply that we technically can't fit it in And the hearsay exceptions that we

under hearsay exception.

have given to Your Honor, argued to Your Honor, they all really relate back to trustworthiness. And indicia of reliability.

And the Court absolutely has that with respect to the very simple statement of Mr. Anderson passing a urine sample to Mr. Valente and saying, "This is Barry's urine." Idaho v. Wright talks about two examples, which is does a person have a motive to make that statement up, or is it the type of statement that you would expect that person to make up? And obviously, the answer to either of those is no.

There's no reason for Greg Anderson to lie that that is Mr. Bonds's urine sample. There's no reason for Mr. Anderson That was

to make up that that was Barry Bonds's urine sample. his job. He was working for Mr. Bonds.

And part of his job

for Mr. Bonds was to submit his urine, to make sure that it wasn't showing the presence of any of the substances that he was giving to him. There's absolutely no reason to disbelieve

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that statement. And when you look at the other evidence, Your Honor, it's really -- again, this sort of goes to the weight. proving that the samples belong to Mr. Bonds is a circumstantial process, Your Honor. any other case. But it's no different than And

You have the Defendant again admitting in his

grand jury testimony, which if Your Honor wants to review, I think about Page 18 through 20, where the Defendant specifically admits, "Yeah, I gave urine to Anderson, approximately four times. BALCO. And I knew he was taking it to

My doctor, Dr. Ting, withdrew my blood multiple times,

and I knew he was giving it to BALCO." So you've got the most important piece of evidence in a circumstantial case, Your Honor. You've got the Defendant Really, what else

admitting "I gave these samples to BALCO." do you need?

But you have Dr. Ting confirming that, "Yes, I

did draw the Defendant's blood, and I did give it to BALCO on occasion". And you've got Mr. Anderson making that statement.

I understand that's the hearsay statement, and that's the issue, Your Honor. But when you look at the exceptions and

you look at what they tie back to, which is the trustworthiness, as you sit there and look at the evidence, I think the question for Your Honor really is, do you have any reason to disbelieve this statement. Is there any reason that

I should find this statement not to be not trustworthy. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. THE COURT: Well, that's not really the question.

The question is, under the Rules of Evidence, does it come in. That's the question. I'm going to apply the Rules of Evidence to this You know, whether it's true or not, I don't know. But

I'm applying the Rules of Evidence to this case, not thinking about whether it was probably true, because that's not the test I'm required to apply. MR. FINIGAN: Very well. And the rules of evidence

are, with respect to the statement against interest, again as I've already pointed out, saying that that was Mr. Bonds's urine is against his interest, for the same reason the statements in the tape are. With respect to the residual exception, what that really ties back to is in looking at the statement, do these circumstances surrounding that statement indicate it was trustworthy? And looking at it in that framework -- which is

similar to evaluating whether it's true, but I understand your point -- looking at it in that framework, is that statement trustworthy, was there a motive for Mr. Anderson to make it up? No. By all means, he had every motive to make sure he was accurate, because he wants to see what the results are of Mister -- of the Defendant's urine test, and of the Defendant's blood test. And he wants to accurately communicate those. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Either he wants to know those so he can adjust what he's doing, or he needs to activity communicate those later on to his client. So there was no motive. And when you look at the corroboration that we've already gone through, I think all of that shows that the statement qualifies, under the residual exception. qualifies under the Rules of Evidence, Your Honor. And the thing that I would point out with respect to the residual exception is Valdez Soto (Phonetic) specifically says, and I know the defense has indicated that we need unique circumstances, that you must read this rule narrowly, and in support of that they offer a, quote, history lesson, and a Fifth Circuit case from the 1960s. rejected the same argument. In that case, the defense argued that the Court should interpret 807 narrowly by looking at its legislative history. And they specifically said, "We're not going to do That's at Page 1471 of Valdez Soto. Valdez Soto specifically It

that," Your Honor.

And what the Court just says is that (As read) "Rule 80324" -- which was the precursor to 807, Your Honor -- "exists to provide courts with flexability in admitting statements traditionally regarded as hearsay, but not falling within any of the conventional exceptions." So if for some reason Your Honor should find that Mr. Anderson' statement doesn't fall within the co-conspirator Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trial. MR. FINIGAN: He did, Your Honor. But he was exception or within 801(e) or (d)(2), or within the statement against penal interest, it does fall within the residual exception based on the authorities that we have cited, and for the reasons and the facts that we have cited to the Court. THE COURT: Well, Valdez Soto, wasn't --

(The Court examines document) THE COURT: Valdez Soto, the declarant testified at

testifying about testimonial statements, which Mr. Anderson's statement is not, under Crawford. distinction. Mr. Anderson' statement, "This is Mr. Bonds's urine" to James Valente is not testimonial. It's not in court, it's Crawford doesn't apply So that's a significant

not sworn, it's not to law enforcement. to that, Your Honor.

So, the reasoning of Valdez Soto applies.

And,

even -- even if you were to find that, Your Honor, what Valdez Soto is just talking about in general is how to interpret the residual exception, which is that it's not a narrow interpretation so that the rule is never used. there for a reason, to be used. circumstances. We don't believe that highly unique or exceptional circumstances are required. But even if they are required, The rule is

And these are the

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. they are certainly present here, Your Honor. When you look at

the situation here, where a witness, Mr. Anderson, who's been immunized, has chosen to spend over a year in jail rather than simply tell the truth about what he knows, that's a unique circumstance, Your Honor. And he is not somebody that the

Government's hiding or he's taken off, he simply doesn't want to testify because of his link to the Defendant. significant. THE COURT: Okay. Thank you. Mr. Riordan? We And that's

MR. RIORDAN:

Your Honor, one preliminary remark.

have been briefing this for a month. pages of briefing in front of it.

The Court has a hundred

The Government has just

gotten up and talked about hearsay exceptions that cannot be found anywhere in that hundred pages. The Court should rule on the things briefed before And the Government, if it has something other to say,

that's for another day. But it's just outrageous to get up here after all this briefing, and start citing sections that it didn't think to cite in a hundred pages. incompetence. done. At a minimum, it's an admission of

But it simply -- it's not the way things are

If this was an appeal, the Appellate Court would rule it So, let's decide

out of hand, for not being in the briefing.

the issues that are briefed, and anything else is for another day. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We've just heard about the residual exception. Government has cited four cases. Two of them involve The

situations where the -- the opposing party had cross-examination available. stand. All right? Valdez Soto, the guy is on the

If Mr. Anderson is on the stand here, it's It's

a new day in terms of admissibility and everything else.

just absolute nonsense to say a situation in which someone can be cross-examined fully, and they apply the residual exception, is comparable to a situation where they're proposing to base a case -- their entire case, and a case where somebody's liberty is at stake -- on out-of-court hearsay statement. If this Court finds that the jury relied on an out-of-court statement that wasn't cross-examined, it tosses a conviction immediately. case. The second case, Sanchez Lima (Phonetic), is a case in which the Government had the opportunity -- these were tape-recorded, photographed, videotaped statements. could observe the demeanor. The jury Valdez Soto has nothing do with this

The Government had the opportunity

to participate in the cross examination, and declined to do so. That's got nothing to do with our situation here. The other two cases are cases where, quite unremarkably, very reliable documents from foreign governments or associations were offered, and the Court simply said there's absolutely no reason to doubt the bills of lading or the Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 customs declarations here, you don't need to bring people in from Chile and Thailand in order to do it. So, there is nothing comparable under the residual exception. There is nothing comparable to the denial of

confrontation or cross-examination that the Government proposes here. On the issue of -- oh, we just had a discussion of the Hoskins statement, and the Government got up here and admitted that the "cream" and the "clear" were legislated into the illegal steroids list subsequent to these events. So, there is -- you know, it's preposterous to suggest that you could evoke the ex post facto clause and prosecute -THE COURT: different. I heard Mr. Nedrow say something quite

I heard him say that one of them was testosterone,

which is always there as an anabolic steroid, and the other one was dicier. MR. RIORDAN: Well, I'll examine his remarks. But I

don't think that there's any question that there was a legislative enactment after this time. But the critical point here is whether a reasonable person in 2003 believed that criminal prosecutions could be based on the statements here. And, what we're getting at is

that if there's a clear statement of liability, then the -- the need for cross-examination is lifted. Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "clear." Santiago? place." Take a statement like this: "I move it all over the Is that a statement that Anderson should be And who is he

cross-examined -- what is he talking about? talking about?

He then goes on and discusses the "cream" and the Who is he talking about here? Is he talking about This is a

Who is he talking about on the Giants?

case where this statement cries out for cross-examination. And the final thing is he's saying this is all undetectable. What is his subjective state of mind? I'm not

exposing myself to criminal liability in this situation at all. Plus, the fact that we're talking about a statement made in a men's locker room. And there is no greater pit of

mendacity in the world than a men's locker room. So, it simply doesn't have the clarity of liability that's required, because we're talking about an adequate substitution for cross-examination. The Court would be saying

that what this statement means is so clear that Greg Anderson need not be here to explain it. If he is, you know, then the

residual exception or whatever is a different ball game. So Your Honor, we urge you to rule on the basis of the arguments made. I think the Court has made tentative

rulings on them, and we -- we think we have made a compelling argument on the Hoskins tape. I would ask for the Court's indulgence to consult for Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a second with my Co-counsel. THE COURT: Of course.

(Off-the-Record discussion). MR. RUBY: Your Honor, if the Court please,

Mr. Riordan pointed out, and I share his view, that this new argument, the one that we have never seen before -- I mean, I don't want to use any harsh language, but fair is fair. I mean, we've all known this is pretty important. And if the Government had an afterthought, somebody could have called me this morning and said, "Why don't you take a look at your Evidence Code." So -- but with the Court's indulgence, I

can't let it just hang here. And these two sections that they're talking about, 801(d)(2)(C) and (D), they're agency sections. And there's no

evidence, Mr. Bonds never said that Mr. Anderson was anything other than his trainer. What the Government is doing, I think

it's obvious, is a big circle. Well, if you start with the proposition that Mr. Anderson was a supplier -- I think that was the expression -- of steroids, if you start there and work back, you can construct an agency arrangement. maybe you can't. that. Secondly, Your Honor, Mr. Bonds' testimony at the Grand Jury does not even come within the same time zone as Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone] Well, maybe you can,

But I don't think the Rules of Evidence allow

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suggesting that Mr. Anderson was an agent for purposes that the Government wants to make him an agent of now. trainer. He was his

I mean, that's what he said at the grand jury. And finally on this point, if I may, Your Honor, the

-- the Government says that well, while Mr. Bonds' testimony was pretty vague on this point, okay, we can agree on that, he was at the grand jury. the vague answers? If the Government had these BALCO records at the time of the grand jury, if this is was of interest to the Government, if the Government was interested in trying to establish some kind of agency, there was Mr. Bonds -- actually, I've never been in a grand jury room, I don't know where Mr. Bonds was. But Mr. Bonds was testifying, the Government was getting to ask questions. They didn't ask questions that laid And now they Who was asking the questions that got

any kind of foundation for a hearsay exception.

say, "Well, he gave vague testimony, but if you hold it up to the light a certain way, it's an exception." And so once you get past -- if you get past the idea we're hearing this for the first time, it doesn't fit. Thank you. THE COURT: MR. NEDROW: THE COURT: Thank you. If I may, briefly, Your Honor? Sure.

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. NEDROW: matter here. If I may briefly, this is a procedural

Your Honor, it's a month before, the trial and They're right. And I apologize.

you know what?

We didn't see the argument, and frankly, it came up to us yesterday afternoon on this idea of (C) and (D), and you know, I agree, fair is fair. to it. With that said, fair is fair. trial, Your Honor. It's a month before They ought to be able to respond

We're not in the Ninth Circuit, we are in And I'll be very surprised if this is

an ongoing fluid thing.

the last time somebody seeks leave to make a request of the Court. So my request respectfully would be, we be permitted

and we will take a page limit, we will file at any time, they can have weeks they can have a month to respond to it. We

would ask leave of the Court, please, to file a brief addendum on this theory -THE COURT: MR. NEDROW: When do you want to file it. We can file it any time, file it

tomorrow, we will file it Monday, whatever. THE COURT: MR. NEDROW: THE COURT: File it Monday. Yes. And if you want to respond in writing you

may do so by Friday, okay. MR. RUBY: Sure. I very much appreciate that. Thank you,

MR. NEDROW:

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 briefly. THE COURT: Oh. We would urge the Court to have a We think the issues -that. MR. FINIGAN: I did, Your Honor. Did you have any Your Honor. The pots other matter Your Honor is just the Court

is right and the defense us just deed wrong on their discussion of the "cream" and the "clear" in 2003 and the Court had that right. And then I don't want to cut off Mr. Cassman, but Mr.,

ckck , if the Court wants to hear further argument on the tape issue, I don't know if the Court did or not -THE COURT: I thought Mr. Parrella -- Mr. Finigan did

questions based on Mister -THE COURT: MR. NEDROW: Your Honor. THE COURT: Mr. Cassman. Expert testimony, Your Honor. Just No. Then that's fine. Thank you,

MR. CASSMAN:

MR. CASSMAN:

Daubert hearing before trial. THE COURT:

We're not talking about Doctor -Catlin.

MR. CASSMAN: THE COURT:

Catlin. Well, we don't withdraw our objection.

MR. CASSMAN:

We understood the Government to have said that they were not going to present him with testimony concerning side effects of Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testing. MR. CASSMAN: no objection. With regard to Bowers, what we understood from the Government's papers is they're seeking to admit testimony about the side effects of steroids only, no other substances. then you look at Dr. Bowers' declaration, he submits information concerning testosterone, only. The most objectionable parts -- and I want to crystallize this for the Court -- are with regard to side effects of acne, and what they refer to as testicular shrinkage. These issues are going to be presented, if at all, through one or two lay witnesses, with observations that are subjective. Not doctors, not measurements, not any objective And it will be a circus, and a sideshow. And Testing. If that's true, then there's the substance -THE COURT: Right, they were just going to do the

circumstance, at all.

And we would be required to call witnesses to rebut those -those observations. So, we think it behooves the Court and Counsel to have the issue addressed before trial, to find out if they do have any scientific evidence that would pass muster under Daubert, and put the issues aside. THE COURT: What I heard Mr. Finigan or somebody or

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Nedrow say is that that's fine, if we want to have a Daubert hearing. So, how would you like to handle that? We can pick a date before trial,

MR. CASSMAN:

anything that's convenient to the Court and Counsel. THE COURT: All right. Because what I was thinking

was this, that your main Daubert argument focusing on not Dr. Catlin -MR. CASSMAN: THE COURT: Bowers. So what I

-- Bowers, came in your reply.

thought was we should probably give them an opportunity to write anything down they want to concerning the Daubert issues on Bowers, and then we'll just have a hearing. MR. CASSMAN: THE COURT: Okay.

So, how long will it take -What I would urge is that they be

MR. CASSMAN:

required to make a proffer of evidence that they would present to pass muster on Daubert in their papers. MR. NEDROW: If I may, Your Honor, we have no

objection to that, actually. THE COURT: MR. NEDROW: Okay. What we thought was, we actually think,

if -- and I think Mr. Cassman is in agreement -- we can provide a written document that actually may obviate the need to have a Daubert hearing, by addressing these concerns. So what we would propose, if it's okay, is we submit Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that in writing. a hearing. can decide. THE COURT: That would be fine. We anticipate we will need a hearing. So, how long will it take you And we'll probably argue there's no need for

Of course the defense can respond, and the Court

MR. CASSMAN: THE COURT: to do that? MR. NEDROW:

All right.

If I may, very briefly, Your Honor.

Would next Friday be acceptable? THE COURT: next Friday. That's fine. So they will file that by

Then you can -- next Friday would be the 13th? Yes, the 13th. Yes, thank you.

MR. NEDROW: THE COURT: following Wednesday. MR. CASSMAN: THE COURT:

So if you could respond by, say, the

That's fine.

With either cetera a written oppo or a

statement of how come we definitely need a hearing, or whatever you want to say. At that point, when I get that, I'll decide

whether we need to have a formal hearing. Will that work? MR. CASSMAN: THE COURT: MR. NEDROW: THE COURT: That's fine. Great.

Okay.

Thank you, Your Honor. Okay. Anybody else on the first set of

questions, which is the pending motions? Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as well. trial is. Okay. The second thing I wanted to talk to you about Mr. Weir is

is the -- well, let's do the jury questions first. here.

He's the Jury Commissioner, and I have been speaking

with him about selecting the jury. Our tentative plan is as follows, that we need, we think,-- well, we will have to decide how many alternates we need. THE COURT: And in part that depends on how long the

And, and the bottom line of what I'm about to say is

I want to time-screen the potential jurors in advance of the trial so that we don't have to time-screen them that morning. So, how long do you think the trial is going to take? MR. PARRELLA: Your Honor, I think, I think the

Government case, about two weeks. THE COURT: Okay. How long do you think, if you

know, you might add to that? MR. RUBY: If the Government's case is -- a four-day

week, if the Government's case is eight days, I don't think our case will take more than a week after that. THE COURT: testimony. MR. RUBY: THE COURT: Based on their estimate. Okay. That's kind of what I was thinking Okay, so three weeks, roughly, for

And we want to err on the side of caution in terms of

having the jury available, so maybe we'll just tell them four Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weeks, they should plan on a four-week trial. So, Mr. Weir is going to send out notices to potential jurors, just saying that we're time-screening to see if they're available for a four-week trial. They will not say

what trial it is, or with whom it is being held, just that it's a four-week trial. And we are hoping to have plus or minus 90

potential jurors to select on March 2nd. Have you considered how many alternates you want? I'm suggesting two. Do you think that's enough? (Nods head) I think that's (Inaudible).

MS. ARGUEDAS: MR. PARRELLA: MR. RUBY: THE COURT:

Okay. Okay. If there are two, then that means

we need 32, you would have ten peremptory challenges, you would have six peremptory challenges, you would each have one peremptory challenge for the alternates. total peremptories. So we figure we need 32 jurors available before you begin exercising peremptory challenges. enough to get there. So I think 90 is That would be 18

That's what we are expecting.

Which isn't exactly a question, but I'm willing to listen to any response you have to that proposal. MR. PARRELLA: Government. MR. RUBY: Your Honor, we would like to ask the Court That's fine, Your Honor from the

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Monday. to consider a jury questionnaire. send to the Government soon. to get their thoughts on it. THE COURT: MR. RUBY: Okay. Can we agree on a date by which the And we have one that we will

We can send it today or tomorrow,

parties will advise the Court at least as to how we view the idea of a questionnaire? MR. PARRELLA: Your Honor, we also would ask that a And just since we're suggesting

questionnaire be implemented.

things here, perhaps jurors could come in on the Friday before, complete the questionnaire, have the results distributed to both sides, no in-court actual questioning going on. And then on Monday, we will avoid the Monday -Monday the 2nd, we'll avoid the -- the issue of jurors trying to get to where they need to be, and fill out the questionnaire, and -THE COURT: MR. RUBY: THE COURT: Is that consistent with -Oh, yeah -Mr. Weir, will that work? That's very tight, because So that's less

JURY COMMISSIONER WEIR:

the summonses are going to go out tomorrow. than a three-week turnaround time. THE COURT:

Well, or three days later, the following

It's tight either way, I guess. JURY COMMISSIONER WEIR: Tight either way.

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court [phone]

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I mean, the alternative is that they

would come in and do it on Monday, and if you ask nicely then we presumably wouldn't start until Tuesday actually picking it. Either of those things is possible. MR. PARRELLA: MR. RUBY: THE COURT: We're available either way, so --

Same thing. Mr. Weir, what would your preference be? I'm more comfortable with

JURY COMMISSIONER WEIR: the Monday.

Just the added mail time for the week, and

Friday's a bad day for a jury. THE COURT: How about we do that, then? Just have

them come in and what -- in answer to your question of when, if you can get me the -- your joint proposal by next Friday, -MR. RIORDAN: THE COURT: Okay.

Because we won't give it to them in It's

advance, we will only give it to them when they get here. not like we will mail it out.

Then we'll tentative