USA v. Bonds

Filing 160

Transcript of Proceedings as to Barry Lamar Bonds held on 02/27/09, before Judge Susan Illston. Court Reporter/Transcriber Sahar McVickar, Telephone number [phone]/[e-mail]. 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 6/12/2009.(McVickar, Sahar) (Filed on 3/17/2009)

USA v. Bonds

Doc. 160

Pages 1 - 23 United States District Court Northern District Of California Before The Honorable Susan Illston United States of America, ) ) Plaintiff, ) ) vs. ) ) Barry Lamar Bonds, ) ) Defendant. ) ____________________________)

NO. CR 07-0732 SI

San Francisco, California Friday, February 27, 2009 Reporter's Transcript of Proceedings Appearances: For Plaintiff: Joseph P. Russoniello United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Jeff Nedrow, Esquire Matt Parrella, Esquire Jeff Finigan, Esquire Assistant United States Attorneys Law Offices of Allen Ruby 125 South Market Street, Suite 1001 San Jose, California 95113 Allen Ruby, Esquire

By:

For Defendant: By:

(Appearances continued on next page.)

Reported By:

Sahar McVickar, RPR, CSR 12963 Official Reporter, U.S. District Court for the Northern District of California (Computerized Transcription by Eclipse)

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]
Dockets.Justia.com

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Appearances, continued: For Defendant: By: Arguedas, Cassman & Headley, LLP 803 Hearst Avenue Berkeley, California 94710 Christina C. Arguedas, Esquire Ted Cassman, Esquire Riordan & Horgan 523 Octavia Street San Francisco, California 94102 Dennis Patrick Riordan, Esquire Geragos & Geragos 644 South Figueroa Street Los Angeles, California 90017 Mark John Geragos, Esquire

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Friday, February 27, 2009 PROCEEDINGS THE CLERK: versus Bonds.

10:30 a.m.

Calling criminal 07-732, United States

Counsel, please state your appearances for the record. MR. PARRELLA: Good morning, Your Honor.

Matt Parrella Jeff Nedrow, Jeff Finigan. THE COURT: MR. RUBY: Good morning. Good morning.

Allen Ruby for Mr. Bonds. MS. ARGUEDAS: Good morning, Your Honor.

Chris Arguedas. MR. CASSMAN: Ted Cassman. MR. RIORDAN: Good morning. Good morning, Your Honor.

Dennis Riordan and Donald Horgan. MR. GERAGOS: Good morning, Your Honor.

Mark Geragos, G-e-r-a-g-o-s. THE COURT: Good morning. Thank you for being here.

Mr. Geragos, I had asked that your client be here because I understand that he has been subpoenaed to testify at the trial, which is to begin next week, and there is some question whether he plans to appear and testify. to explore that this morning. And, I wanted

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MR. GERAGOS: my schedule. THE COURT:

Okay.

And thank you for accommodating

You're welcome. My judge down in Southern California

MR. GERAGOS: thanks you.

There is no question, at least in his mind, he will appear whenever ordered to, but he is not going to testify. And that is his position, and it hasn't changed since all of the other litigation that we have done. THE COURT: All right. Has he -- he's been provided

with an immunity order? MR. GERAGOS: He was originally given an immunity

I believe that if they were to try to go down that road I don't want

again, that he would need a new immunity order.

to get into why I believe that, but I believe that is the case. THE COURT: All right, thank you. Okay.

MR. GERAGOS: THE COURT:

Mr. Parrella? First of all, we did provide a

MR. PARRELLA:

immunity order back in May 12th of '06; we believe it continues because it states all ancillary purposes. However, if we want

one specifically for the trial, we can submit one. THE COURT: I think that would be prudent. So, we will do that immediately.

MR. PARRELLA:

And while it wasn't really addressed whether this

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witness would assert a Fifth Amendment right to refuse, to the extent that he does or may, that should not be an issue. THE COURT: Well, that's why I think it would be

prudent to have a fresh order in place. MR. PARRELLA: All right.

(Brief pause in the proceedings.) MR. PARRELLA: You're thinking, but I just would

like to make a suggestion that although I understand counsel's representations about his client's position, the purpose of this is to determine what his clients position is. THE COURT: I understand that. I was just thinking

what I would ask Mr. Anderson to share with me today. I wanted to tell you, Mr. Anderson, that the reason we are having this hearing is to -- the reason that I wanted to have this today, as opposed to next week, is so that the lawyers in the case would know what they could expect to happen at the trial so that as we begin the trial the jurors will be fairly informed of what testimony they might -- might expect to hear. If you agree to testify in this case, I know that the

prosecution will want to have your testimony and will be -- be planning on featuring that testimony in the presentation of their case. If you don't testify, that's going to make a

difference in how they proceed, so that's why we are doing this today. What I do want to tell you, I think we will have to

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do this again after the trial begins. MR. GERAGOS: THE COURT:

So that the --

Can we approach?

That would be good because I need to

have a conversation with Mr. Anderson a little bit. MR. GERAGOS: I believe that Your Honor is correct;

I don't think -- there is a case off the out of the Sixth Circuit, Johnson, you can't have an anticipatory contempt. The

only accommodation, again, I would ask is that I -- they recess the case that I'm in, I should be arguing on Tuesday, and I could come back up on Wednesday, if that's when the Court wanted to do it. THE COURT: I think Wednesday would be fine because

my current plan is that we will pick the jury on Tuesday -MR. GERAGOS: THE COURT: Wednesday, anyway. MR. PARRELLA: MR. GERAGOS: That would be fine. I think under the Johnson case, even Okay.

And so we wouldn't start until

though the Court -- obviously, you can do with him whatever you want, within limits, I think that under that case that it has to be done during the proceeding. THE COURT: Right. That would be my -- that would

be my intention, but I wanted to share with you my thought right now. The Government has represented to me, and I believe

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it to be true, that if you testify, your testimony would be central to the presentation of their case, so it's important. And so, you will need to respond to the subpoena and be here, basically, when I order you to be here and when the subpoena says to. And as far as I'm concerned, Wednesday morning would That would be March 4th?

be fine for that, next week. MR. GERAGOS: THE COURT:

Fourth.

Fourth. I

And at that time, I will order you to testify.

will inquire whether you want to, and if you tell me no, then I'll order that you do so. I'll make sure that between now and

then we get an immunity order so that you will not be able to assert your Fifth Amendment right not to testify. And there

won't be any right left not to testify, and I'll order you to testify. And if you refuse to testify, you'll be in contempt

of my order. MR. ANDERSON: THE COURT: (Nodding head in the affirmative.)

And, I will send you to custody -(Nodding head in the affirmative.)

MR. ANDERSON: THE COURT:

-- until you purge yourself of the So,

contempt, which would be by coming back and testifying.

you will be given an opportunity to change your mind any time during the course of the trial and come to testify, and that would take care of it. testify in this case. But, that's what I will do if you don't

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Do you understand that, sir? MR. ANDERSON: THE COURT: Yes, Your Honor.

Okay.

Is it your plan currently not to testify? MR. ANDERSON: THE COURT: Yes, Your Honor.

Okay.

Mr. Parrella, if you get me an appropriate immunity order, I will sign it. And will we'll get that -- may we serve

that on you, Mr. Geragos? MR. GERAGOS: THE COURT: Absolutely. That's fine, Your Honor.

And your lawyer will get it,

Mr. Anderson, but it will -- it will mean that you don't have the right not to testify; do you understand? MR. ANDERSON: THE COURT: Yes, Your Honor.

Okay. We'll provide that to him.

MR. PARRELLA: THE COURT:

Okay, that would be fine. It will be e-filed, and we'll

I'll sign it today.

get it to you as soon as we can. MR. GERAGOS: THE COURT: Yes, sir? MR. GERAGOS: I'm sorry, I didn't mean to interrupt. I --

And --

I was just going to say I understand the Court's admonition to him about back into custody, and I assume, and I

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don't want do get in the way of your trial, but I assume at some point you will allow me to argue as to why I don't think he can be put back into custody for the refusal? THE COURT: Sure, I'll allow you to do that.

Do you want to do it now, or do you want to do it -MR. GERAGOS: THE COURT: I don't think that I can do it now --

Okay. -- because it would be advisory. So I

MR. GERAGOS:

think I have to wait until the Court does it and we go jump through all the hoops. Otherwise, I'm afraid I would not have

perfected any -- my record. THE COURT: Okay, we can do that at the time. But

assuming we are in trial, we'll do it on a break. MR. GERAGOS: THE COURT: jury. MR. PARRELLA: We agree with that, Your Honor. In your I understand that.

So that we don't interfere with the

I have one just one further request:

admonition to the witness, the Court referred, in effect, to civil contempt, and I would just also ask that these actions may subject to him to actual punishment under criminal contempt as well. THE COURT: what -MR. PARRELLA: Possible, possible. Well, that's possible -- but that's not

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THE COURT:

-- what's for next week.

Next week is

not criminal contempt, next week would be civil contempt, which is meant to persuade you to testify. And any time you say,

yes, I'm ready to testify, why, then the contempt would be purged, and you could come in and testify. And, the reason

that I'm doing that is because the Government has represented that your testimony is very important in this case. But Mr. Parrella is right; in addition to the civil contempt, there could be a finding of criminal contempt. It

would require a hearing and you would have a right to be heard or not, depending on if you wanted to talk. actually -- that could result in punishment. And that could But that's

separate and apart from what I'm suggesting will happen next week, which is just an effort to make you testify. MR. ANDERSON: THE COURT: (Nodding head in the affirmative.)

Anything else for now, Mr. Parrella? Not on this matter, Your Honor. All right.

MR. PARRELLA: THE COURT:

Okay.

MR. GERAGOS:

The order is for 10:00 clock on the

THE COURT:

Is that what you said in the subpoena? I believe that would be adequate.

MR. PARRELLA:

10:00 o'clock on Wednesday, the 4th. MR. GERAGOS: THE COURT: Wednesday, the 4th, okay.

Well, if things go as I'm currently

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planning that they go, we would be having opening statements on Wednesday. 10:00 o'clock would be fine, but it probably won't

really happen, till, say, noon. MR. GERAGOS: want us here at noon? THE COURT: Why don't you be here at 10:00. But you Do you want us here at 10:00 or do you

may have to wait a little bit. MR. GERAGOS: I'll bring reading material.

Thank you, Your Honor. THE COURT: All right. May we be excused?

MR. GERAGOS: THE COURT:

Mr. Parrella? Yes, Your Honor?

MR. PARRELLA: THE COURT:

Is there any the reason that

Mr. Anderson and Mr. Geragos have to stay any longer? MR. PARRELLA: THE COURT: Not from our side.

All right, thank you. Thank you very much, Your Honor.

MR. GERAGOS:

(Attorney Geragos and Mr. Anderson exit courtroom.) THE COURT: There are some housekeeping matters I

have to speak with all counsel about. And Mr. Parrella, I don't know what else is on your list. MR. PARRELLA: Well, I don't want to waste

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everyone's time here:

I feel obligated to inform the Court

that the department is contemplating an appeal on the February 19th order. contemplated. I say that because it is being

And, we will inform the Court and counsel as But that's --

soon as -- as possible on that. THE COURT:

Just so you know -That's where it lies right now.

MR. PARRELLA: THE COURT:

We have 90 jurors who have been time That is an enormous

qualified for a month-long trial.

undertaking and a huge commitment on the part of the Court to get this case tried. We've got the questionnaires prepared. to go. We are ready

We have made enormous accommodations so that the First

Amendment rights of the press and the public to hear this matter can be accommodated. And it will be an enormous expense

and inconvenience if the trial doesn't begin next week, as we've planned. So, I just want you to understand that. I understand that. Thank you, Your

MR. PARRELLA: Honor. THE COURT:

When do you anticipate you would know? Um --

MR. PARRELLA: THE COURT: you will tell me? MR. PARRELLA:

And I'm really asking what time today

Today.

And beyond as soon as

possible, I really could not give you an estimate of time.

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THE COURT:

Well, I need more than that,

Mr. Parrella, because we've to call off 90 jurors today if they are not to come in on Monday. MR. PARRELLA: 3:00 o'clock. THE COURT: MR. RUBY: All right. Your Honor, may I please inquire through Well, then, I would have to say

the Court whether what is also being mulled over is an application for a stay of the trial? THE COURT: than that, Mr. Ruby. MR. PARRELLA: THE COURT: Yes, I believe it is. Well, I think it might be more automatic

Looks to me like it is automatic. I believe that the -- if a notice of

MR. PARRELLA:

appeal was filed, for the time period that it's active, divests this Court of jurisdiction for that time period. THE COURT: Now, I mean, I would be delighted to

know that I'm wrong about that, but I'll tell you what I was looking at was 18 U.S.C. 3731. Is that what you were looking at, Mr. Parrella? MR. PARRELLA: MR. RUBY: Yes, Your Honor.

Well, as usual, everyone is ahead of me

THE COURT:

I read the New York Times, Mr. Ruby --

(Laughter.)

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THE COURT: MR. RUBY:

-- and so I figured this might happen. Just so -- again, so in the same spirit

of letting everybody know where they stand, if there is a discretionary component to whether the trial goes forward, notwithstanding the appeal that they are mulling over, we oppose any delay in the trial. And, if the law permits us to But, we are getting

be heard on that, we will ask to be heard.

-- I'm getting ahead of myself, and but that is where we stand. THE COURT: you can see. All right, well, take a look at 3731 and

Because I would be delighted to have discretion

to deny the stay, but I don't know if I do. MR. RUBY: THE COURT: with counsel -MR. PARRELLA: THE COURT: Yes. Thank you. So 3:00 o'clock today. And you'll share

-- your view? (Nodding head in the affirmative.)

MR. PARRELLA: THE COURT:

Assuming for a moment that we go forward

next week, there are a few other things I wanted to mention. One is that we currently have two capital trials in process down the hall on this floor. And you may have noticed

that there are some magnetometers for the folks going into those courtrooms in place, so the scrutiny that the marshals and the other security personnel are providing for us now is particularly acute because there is the issues of the capital

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cases down the hall as well as just the general number of people involved in the trial going on here. As a consequence, everyone coming into this building is being very carefully scrutinized. So I just want to

emphasize that weapons are not allowed in any audience in my courtroom or in any other courtroom on this floor. So, nobody

should try or be under the misapprehension that whether they are otherwise authorized to carry weapons that they may carry weapons into this courtroom, they may not do that. want to emphasize that. Oh, I wanted to ask, and I don't know if I've issued an order related to this or not: here on Monday? MR. RUBY: We were going to ask to the Court. Our Does the defendant plan to be So, I just

impression was none of us needed to be here. THE COURT: That was my impression as well. That was our understanding, is that

MR. PARRELLA:

while we will be in the building to collect the completed questionnaires at whatever time they are completed -THE COURT: Right. -- we didn't actually have a court

MR. PARRELLA: date. THE COURT:

Right, that's my thought, too.

So if

nobody objects, I don't see any reason for the defendant to be here Monday. Tuesday, but not Monday.

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MR. RUBY: THE COURT: questionnaires.

Thank you. Oh, the questionnaires: We have the

And I believe the Government has agreed to So

make the photocopies for Mr. Weir, in the Jury Office.

those will be -- the jurors are going to get here around 9:00 on Monday, they will fill out the questionnaires, and they will be ready for you, I think David said, by about noon. And I

want a copy, and you guys have copies, and you can go over them. If there are any jurors as to whom you just completely agree they are disqualified for cause, you jointly agree on that, by, say, 4:00 o'clock on Monday, you may let me know. And if I agree with you, we will leave a message for

those jurors that they don't to have come back on Tuesday. I'm not urging you to try to do that because I don't want us to get bogged down in fights over for-cause challenges in advance, but if there are some that you just feel there is really no question about and you jointly agree on that, let me know -- if you could let me know by 4:00, we can put a phone message up that those folks don't need to come in so we would save them a trip. Oh, and I want you to know that my plan on Monday is to meet -- to go into the jury room after they are all there and before they have begun doing the questionnaires. I'll have

a court reporter; I did not contemplate having counsel there,

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just to tell them that they -- just to order them not to read any newspapers or watch any TV stories or listen to any radio stories or go on the Internet or communicate about this case between Monday and Tuesday. That's my plan because otherwise I

don't think they would know that. So I want to know if there is any objection to that. MR. PARRELLA: I have no objection on that, but I

would go further and add that to the admonition at the end of every day. THE COURT: Oh, I will every day, but I'm just I

talking about when counsel and the clients are not there.

don't normally hang out with the jurors, so I just wanted to alert you that that is my plan on Monday, before anybody anybody's even filled out a questionnaire. they don't start researching on Monday. MR. RUBY: THE COURT: No objection. And as I say, I'll take a court reporter I want to make sure

and put it on the record so you'll have a record of what that was. Oh, we -- we have been allocating space in this room for the process, and I see Joan Anyon out there; Joan's been just doing such wonderful work to help us get organized. And

we have roughly, I think we've said 60 seats for the press in this room, and that leaves 28 seats for everybody else in the room.

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Is that right, Joan? MS. ANYON: THE COURT: Yes. In addition, of course, there is the

overflow room in the ceremonial courtroom, which will have a lot of seats. I do not contemplate any -- anybody sitting in front of the bar except lawyers and people affiliated in some way with the lawyers. So my question to you, Mr. Ruby, is does

Mr. Bonds have any number of seats he wants in the -- for family, for example? MR. RUBY: THE COURT: MR. RUBY: Yes, Your Honor. How many? At the beginning of the trial -- I don't

know how many seats go into a row, but at the beginning of the trial would the consider setting aside the first two rows, half -THE COURT: No. I would consider his family, and I

don't know how many that is, but nobody else. MR. RUBY: Um, well, then can -- may we please have If we need to make

one row, and we'll see how that goes?

application to the Court we will, but that might work. THE COURT: How many family is that? That's a lot

I don't want bodyguards, I want family.

Bodyguards

can come, but they are going to have to stand in line with

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everybody else.

But the family comes to the head of the line.

That's my view, anyway. MR. RUBY: THE COURT: MR. RUBY: there are children. We weren't talking about bodyguards. Okay. There are family; there are friends; I mean, and again, I don't know exactly

how many seats comprise a half row. MS. ANYON: THE COURT: MR. RUBY: Eleven. Eleven? I think that -- if by "family" the Court

means immediate family, well, there aren't 11 immediate family, but there are kin folk who I think would fit the description of family. And if -- and again, if a life-long friend doesn't qualify, then 11 seats would do it. We'll take -- under the We are not trying

circumstances, we'll take what we can get.

to intrude or on anybody else's prerogatives. THE COURT: MR. RUBY: Right. There is also some consideration: There

may be times during the trial when Mr. Bonds would want to sit next to his wife or mom and be in the row with them, and so if that is a public seating area or if half the row is a public seating area, maybe that isn't the most desirable sort of thing, so I would ask you to take that into account in deciding whether one of those rows is suitable.

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THE COURT:

All right, well, I'll think about that.

I don't -- I want to make sure that non-press public has enough room to come watch the trial, to the extent that they care to. And the -- access will be, you know, first come/first serve. And of course, by the second week the

interest may be less acute than it is in the first week as people realize what trials are actually like. (Laughter.) THE COURT: So if your request is particularly with

respect to the first day or two, let me think about that. MR. RUBY: THE COURT: MR. RUBY: All right, thank you. Okay. Will there be a minute order whether the

Court makes this decision, if we could know who to contact when Tuesday morning comes, so that we know for sure what the real estate is and that person will know -THE COURT: Okay.

Joan, may I tell them to contact you? MS. ANYON: THE COURT: Yes. In any event, you can contact Joan

MR. RUBY: THE COURT:

Pardon me? In any event, you can contact Joan Anyon She has been the

with respect to that particular issue, too. guru of those kinds of matters.

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MR. RUBY: THE COURT:

Thank you. Um-hmm. Is there anything else

Okay, that's all on my list. on other folks' list? MR. RUBY: A question:

Will Mr. Weir be providing

us with the rank jurors, that is, the list, so we will know the order in which people will be called? THE COURT: Yes, in the following way: He'll give

you a random -- they are going to generate a random order. MR. RUBY: THE COURT: Yes. So, they'll give you that list which is

all the names, and that will be the order that we follow when we do the voir dire. So that will be the order.

The questionnaires will be in alphabetical order, so somebody is going to have to rearrange the questionnaires to put them in the order that the random list generates. you will know. MR. RUBY: Thank you. We're grateful to Mr. Weir. But then

And, it will save everyone a lot of time. THE COURT: I think so, yeah.

Mr. Parrella, anything else? MR. PARRELLA: MR. RIORDAN: couple of seconds? THE COURT: Sure. Nothing further, Your Honor. Your Honor, could we have just a

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(Attorneys Riordan and Ruby confer.) MR. RUBY: Your Honor, with the Court's permission,

what we intend to do later today is to file a brief on the subject of whether Mr. Anderson could be called in front of the jury. He can't, but we have a brief on this. THE COURT: Good. I would like that. I would like

to see what your thoughts are. MR. RUBY: We'll get that filed as soon as we can

THE COURT:

Thank you.

Anything else? MR. PARRELLA: THE COURT: No, Your Honor.

So we'll hear from you by 3:00? Yes.

MR. PARRELLA: THE COURT:

Thank you.

(Proceedings adjourned at 10:55 a.m.)

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CERTIFICATE OF REPORTER

I, Sahar McVickar, Official Court Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's

certification of said transcript may be void upon disassembly and/or removal from the court file.

/s/ Sahar McVickar Sahar McVickar, RPR, CSR No. 12963 March 16, 2009

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]