USA v. Bonds

Filing 161

Transcript of Proceedings as to Barry Lamar Bonds held on 11/05/08, before Judge Susan Illston. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863-5179. 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 6/15/2009.(jjy, COURT STAFF) (Filed on 3/18/2009)

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USA v. Bonds Doc. 161 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 BY: 17 18 19 FOR DEFENDANT: 20 21 22 23 24 25 JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 RIORDAN & HORGAN 523 OCTAVIA STREET SAN FRANCISCO, CA 94102 BY: DENNIS PATRICK RIORDAN ATTORNEY AT LAW (APPEARANCES CONTINUED ON FOLLOWING PAGE) JAMES YEOMANS, CSR #4039, RPR OFFICIAL REPORTER COMPUTERIZED TRANSCRIPTION BY ECLIPSE APPEARANCES: FOR PLAINTIFF: UNITED STATES ATTORNEY 450 GOLDEN GATE AVENUE SAN FRANCISCO, CALIFORNIA 94102 J. DOUGLAS WILSON MATTHEW A. PARRELLA JEFFREY DAVID NEDROW JEFFREY R. FINIGAN ASSISTANT UNITED STATES ATTORNEYS SAN FRANCISCO, CALIFORNIA WEDNESDAY, NOVEMBER 5, 2008 TRANSCRIPT OF PROCEEDINGS PAGES 1 - 19 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE SUSAN ILLSTON, JUDGE UNITED STATES OF AMERICA, ) ) PLAINTIFF, ) ) VS. ) ) BARRY LAMAR BONDS, ) ) DEFENDANT. ) ____________________________) NO. CR 07-0732 SI REPORTED BY: Dockets.Justia.com 2 1 2 3 4 5 6 7 APPEARANCES: (CONTINUED) LAW OFFICES OF ALLEN RUBY ATTORNEY AT LAW 125 SOUTH MARKET STREET, SUITE 1001 SAN JOSE, CA 95113 FOR DEFENDANT: FOR DEFENDANT: BY: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARGUEDAS, CASSMAN, HEADLEY 803 HEARST AVENUE BERKELEY, CA 94710 CRISTINA C. ARGUEDAS TED W. CASSMAN ATTORNEYS AT LAW JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 WEDNESDAY, NOVEMBER 5, 2008 4:00 P.M. (THE FOLLOWING PROCEEDINGS WERE HEARD IN OPEN COURT:) THE CLERK: CALLING CRIMINAL CASE NUMBER CR 07-0732, UNITED STATES VERSUS BONDS. APPEARANCES PLEASE, COUNSEL. MR. WILSON: DOUG WILSON. GOOD AFTERNOON. WITH ME IS MATT PARRELLA, JEFF NEDROW AND JEFF FINIGAN FOR THE UNITED STATES. MR. RIORDAN: GOOD AFTERNOON. DENNIS RIORDAN FOR DEFENDANT BONDS, WITH ALLEN RUBY, CHRIS ARGUEDAS AND TED CASSMAN. THE COURT: OKAY. GOOD AFTERNOON. THIS IS DEFENDANT'S MOTION, I READ YOUR PAPERS, I'LL BE HAPPY TO HEAR ANYTHING YOU WANT TO ADD. MR. RIORDAN: THE COURT: DO YOU MIND IF I SIT, YOUR HONOR? NO, THAT'S FINE. I WILL BE BRIEF, YOUR HONOR, SINCE -- MR. RIORDAN: SIMPLY BECAUSE I THINK THE WRITTEN SUBMISSIONS ARE FAR MORE COMPLETE THAN ANYTHING YOU'RE GOING TO HEAR THIS AFTERNOON. IN SUMMARY, I BELIEVE, THERE'S A CONSENSUS THAT COUNT 1 WILL -- THE GOVERNMENT IS ESSENTIALLY WITHDRAWING IT AND HAS INDICATED IT WILL EITHER SUPERSEDE OR FOLLOW IT, FILE A SEPARATE INDICTMENT. THE SECOND QUESTION IS COUNTS 6 AND 7. WE BELIEVE THEY BOTH IT'S CLEAR THAT COUNT 7 IS INCLUDED WITHIN COUNT 6. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 DEAL WITH HUMAN GROWTH HORMONE 6S, A BROAD ALLEGATION THAT WOULD INCLUDE ANY USE OF HUMAN GROWTH HORMONE AND, THEREFORE, INCLUDES 7, AND 7, THEREFORE, IF CONVICTED ON THAT WOULD REPRESENT MULTIPLICITOUS CONVICTION ON COUNT RELATED TO THAT. THE COURT: WHAT ABOUT 8 THEN? YES, I WAS GOING TO GET TO THAT, YOUR MR. RIORDAN: HONOR. 8 IS RATHER THAN BEING -- 8 IS MULTIPLICITOUS AND DUPLICITOUS IN A SENSE THAT IT REFERS BOTH TO CHARGES. THE QUESTION IS FRAMED BOTH IN TERMS OF TESTOSTERONE AND HUMAN GROWTH HORMONE, WHICH WOULD MEAN THAT A JURY COULD SPLIT SIX TO SIX ON TESTOSTERONE AS WELL AS HUMAN GROWTH HORMONE. BUT WE THINK THE SOLUTION, YOUR HONOR, AND THE HUMAN GROWTH HORMONE PART WHILE DUPLICITOUS AS TO, INTERNALLY AS TO 8 IS MULTIPLICITOUS AS TO 6 AND 7. IF THE COURT STRIKES THE PART -- PORTION OF THE QUESTION DEALING WITH HUMAN GROWTH HORMONE, THAN IT IS NO LONGER DUPLICITOUS AND THAT PORTION OF 8 IS NO LONGER MULTIPLICITOUS AS TO 6 AND 7. AND 8, YOUR HONOR. ON COUNT 2 MR. BONDS -- THE ONLY PORTION OF THE COLLOQUY CITED IN COUNT 2 THAT IS CITED AS A FALSE ANSWER IS THE QUESTION REGARDING WHETHER HE TOOK ANYTHING LIKE THAT. WE JUST THINK THAT IS FAR TOO VAGUE TO PERMIT A JURY TO MAKE AN INTELLIGENT DECISION ON WHETHER THERE WAS ANY JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 SO THOSE THREE ARE RELATED 6, 7 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 MEETING OF THE MINDS ON WHAT IS BEING DISCUSSED AND CERTAINLY TOO VAGUE FOR THE DEFENSE TO KNOW WHAT PROOF WOULD BE OFFERED IN SUPPORT OF COUNT 2. I SHOULD POINT OUT, THAT VIRTUALLY EVERYTHING IN THE COUNTS THAT -- WERE THE COURT TO GRANT EACH REQUEST THAT WE MAKE IN TERMS OF VAGUENESS, MULTIPLICITY AND DUPLICITY, THE GOVERNMENT WOULD BE LEFT WITH ESSENTIALLY FIVE OR SIX COUNTS THAT COVER ALL THE SAME GROUND AS THE COUNT THAT WE'RE CHALLENGING. IN COUNT 5, AGAIN, THIS IS FRAMED IN TERMS OF DID YOU RECEIVE ANYTHING FROM ANDERSON OR ANY ASSOCIATE. WE THINK THAT THE PROBLEMS WITH THE COUNT CAN BE -- COULD BE CURED BY STRIKING THE LANGUAGE AS TO ASSOCIATES, WHICH THE GOVERNMENT IN ITS RESPONSE BASICALLY SAYS IS SURPLUSAGE IN ANY CASE. AND WE'RE THEN LEFT WITH ONE, TWO, THREE, FOUR ADDITIONAL COUNTS THAT WE SIMPLY THINK ARE -- THE QUESTIONS AND ANSWERS ARE FAR TOO CONFUSING OR VAGUE TO SUPPORT A VALID CONVICTION. AND I'M PREPARED TO RESPOND TO ANY QUESTIONS ON ANY OF THOSE FOUR. YOUR HONOR, YOU KNOW, WE HAVE A SITUATION, FOR INSTANCE, IN 14 WHERE GOVERNMENT HAS UNDERLINED AS A FALSE ANSWER BOTH THE RESPONSE WHETHER MR. BONDS WAS RECEIVING SUBSTANCES IN PARTICULAR TIME AND HIS RESPONSE THAT HE COULD BE WRONG ABOUT HIS ASSERTION, I REALLY DON'T THINK -- THAT COUNT IS SIMPLY INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 CONVICTION, GIVEN THE QUALIFICATION ON THE CENTRAL ALLEGATION. WE HAVE A QUESTION IN 12 WHERE MR. BONDS ACCORDING TO THE GOVERNMENT GIVES AN ANSWER THAT, NO, HE WASN'T TAKING SOMETHING IN 2001, HE THOUGHT IT WAS IN THE END OF 2000, HE THOUGHT THAT IT WAS AT THE END OF THE WORLD SERIES AND HIS FATHER WAS GOING THROUGH CANCER. THE GOVERNMENT ASSERTS THAT THOSE ARE PERIODS OF 2000, 2002 AND 2003. AGAIN, THIS IS AN AREA THAT'S BEEN COVERED BY OTHER QUESTIONS AND THE FAILURE OF THE GOVERNMENT TO FOLLOW UP WITH PRECISE QUESTIONS THAT DEAL WITH RESISTANCE AS BRONSON REQUIRES, SIMPLY MAKE THESE COUNTS IMPOSSIBLE TO GET A -- TO FRAME AS A QUESTION OF GUILT OR INNOCENCE BEFORE THE JURY. SO WE HAVE CHALLENGED -- AND THAN ULTIMATELY WE HAVE THE QUESTION OF COUNT 15, WHICH IS GOING TO BE CONTINGENT ON THE COURT'S RESPONSE TO THE OTHER CHALLENGES, DEPENDING ON WHETHER THOSE ARE GRANTED, WE HAVE A SITUATION IN COUNT 15 WHERE IF MULTITUDE OF COUNTS ARE STRICKEN, WE HAVE THE GOVERNMENT ALLEGING ALL OF THE PRIOR COUNTS AS A BASIS FOR THE OBSTRUCTION OF JUSTICE COUNT. WE THINK THAT RAISES DUPLICITY PROBLEMS. CERTAINLY DOES RAISES PROBLEMS IF THAT COUNT WOULD REST ON ALL OF THESE ALLEGATIONS, WERE TO REST ON ALLEGATIONS THAT THE COURT STRIKES FOR ANY OF THE NUMBER OF REASONS THAT WE WOULD ADVANCE, YOUR HONOR. THE COURT: LET ME ASK YOU THIS QUESTION. ON 8, WHICH JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 INCLUDES THE QUESTION YOU WEREN'T GETTING ANY TESTOSTERONE OR GROWTH HORMONE DURING THAT PERIOD OF TIME, WHICH IS AS YOU SUGGEST BOTH MULTIPLICITOUS AND DUPLICITOUS, THE FIX IS STRIKE GROWTH HORMONE BECAUSE IT'S ALREADY IN 6, RIGHT? MR. RIORDAN: THE COURT: NUMBER THREE? MR. RIORDAN: WELL, YOUR HONOR, I'M NOT GOING TO ARGUE THAT'S RIGHT. WHAT ABOUT TESTOSTERONE WHICH IS BACK IN AGAINST THE COURT'S POSITION. THE COURT: MAYBE IT'S A DIFFERENT TIME FRAME. I WANT TO HAVE AN END TO THE NUMBER OF MOTIONS WE HAVE ON THIS EXACT POINT. MR. RIORDAN: RIGHT. THREE DOES INCLUDE ALLEGATION AS TO A SPECIFIC PERIOD OF TIME AND IT IS A PERIOD OF TIME THAT DIFFERS, IF ONE READS THE LATER STATEMENT IN CONJUNCTION WITH THE EARLIER STATEMENT IN THREE IT COULD REFER TO JANUARY DECEMBER OF 2001 WHILE 8 REFERS TO JANUARY OF 2002. YOU KNOW WHY WE'RE SLICING, I WAS ABOUT TO SAY SLICING THE BABY, I'LL SLICE SOMETHING ELSE IN TERMS OF THAT, I MEAN, THE GOVERNMENT COULD DEFEND IT ON THE GROUND THOSE ARE TWO DIFFERENT TIME PERIODS. THE COURT: ON THAT, ARE YOU? MR. RIORDAN: HONOR. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 WELL, WE HAVEN'T MADE THAT MOTION, YOUR YOU'RE NOT PLANNING TO MAKE ANOTHER MOTION 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 THE COURT: I KNOW. ACTUALLY, I'M NOT -- I'M KIND OF TEASING ABOUT THAT, BUT I'M TRYING TO UNDERSTAND THE SORT OF LOGICAL PRINCIPLE THAT'S BEING USED HERE AND I WONDERED ABOUT THAT ONE AS WELL. MR. RIORDAN: I HAD TO GO BACK TO THAT, YOUR HONOR, AND I FAIRLY THINK THE REASON WE DIDN'T CHALLENGE IT AS BEING MULTIPLICITOUS WAS THAT THE GOVERNMENT READS IT AS BEING TWO DIFFERENT TIME PERIODS AND -THE COURT: BUT THEY'RE AWFULLY CLOSE IN TIME? I BELIEVE, I BELIEVE THE GOVERNMENT MAY MR. RIORDAN: TAKE THE POSITION IT HAS DIFFERENT DOCUMENTS IN THAT PERIOD OF TIME. THE COURT: ALL RIGHT. THANK YOU. MR. RIORDAN: THE COURT: MR. WILSON: THANK YOU. MR. WILSON. GOOD AFTERNOON, YOUR HONOR. STARTING WITH MULTIPLICITY ON COUNTS 6 AND 7, WE READ THE COURT'S ORDER ON THE PRIOR DUPLICITOUS MOTION TO REQUIRE US TO SPECIFY ONE ALLEGATION OF PERJURY OR FALSE STATEMENT PER COUNT. THE FIRST TWO SENTENCES OF THE COURT'S ORDER BASICALLY SAY ELECT ONE SPECIFICATION PER COUNT OR SUPERSEDE, AND WE TOOK THAT TO MEAN THAT IF WE SUPERSEDE WE COULD ONLY HAVE ONE SPECIFICATION PER COUNT. THEREFORE, WE THINK WE FOLLOW THE COURT'S ORDER IN DRAFTING THE INDICTMENT THE WAY WE HAVE. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 GOING BEYOND THAT, I THINK, FOR THE REASONS SET FORTH IN OUR PLEADINGS, COUNT 6 AND 7 ARE NOT MULTIPLICITOUS. I THINK, THE MOST FUNDAMENTAL REASON IS THAT THE QUESTIONING FOR EACH COUNT WAS TRYING TO GET AT SOMETHING DIFFERENT. BOTH COUNTS -- EACH COUNT REVOLVED AROUND QUESTIONING ABOUT DIFFERENT DOCUMENTS AND THE DEFENDANTS -- THE QUESTIONS MAY HAVE BEEN VERY SIMILAR IN ASKING ABOUT THE SAME STEROID, AND THE DEFENDANT'S ANSWERS OBVIOUSLY WERE CONSISTENT, BUT THE QUESTIONING WAS MEANT TO FURTHER THE GRAND JURY INVESTIGATION OF TWO SEPARATE DOCUMENTS AND THAT, IN OUR VIEW, SUFFICIENT TO KEEP THEM FROM BEING MULTIPLICITOUS. THE COURT: DO YOU HAVE ANY CASES THAT SAY THAT WHERE IT'S ALL ONE GRAND JURY HEARING? MR. WILSON: NO, YOUR HONOR. THE CASES ARE THE ONES WE CITED WHICH ARE THE FALSE STATEMENT CASES, BUT WE THINK THEY SET OUT -THE COURT: I UNDERSTAND IT MUCH BETTER CONCEPTUALLY, TWO DIFFERENT FOLKS OR TWO DIFFERENT AGENCIES AND THEY'RE OFF DOING TWO DIFFERENT THINGS, HERE IT'S JUST ONE GRAND JURY PROCEEDING. MR. WILSON: ONE GRAND JURY PROCEEDING, BUT TWO SEPARATE SETS OF QUESTIONS ABOUT TWO DIFFERENT DOCUMENTS. THE COURT: THAN LOGICALLY YOU COULD HAVE 10 DOCUMENTS THAT HAVE THE SAME THING IN IT AND YOU COULD ASK HIM THE SAME QUESTION 10 TIMES AND CHARGE HIM WITH 10 COUNTS OF PERJURY ON JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 THE SAME ANSWER. MR. WILSON: I THINK, IF THEY WERE QUESTIONS ABOUT, IF THE GRAND JURY TRYING TO ASCERTAIN THE MEANING OF A DOCUMENT AND THE WITNESS IS BEING ASKED ABOUT THAT PARTICULAR DOCUMENT, EACH ANSWER WOULD SUPPORT A SEPARATE COUNT OF PERJURY. BUT AS I SAID, YOUR HONOR, WE TRIED TO FOLLOW THE ORDER. IF THE COURT BELIEVES THAT THESE STATEMENTS SHOULD BE IN THE SAME COUNT, WE'LL PUT THEM IN THE SAME COUNT. THE COURT: MY MEMORY IS, I DON'T HAVE IT BEFORE ME, THERE WERE LIKE FOUR SUBPARTS IN ONE OF THESE COUNTS. MR. WILSON: YES. YES. COUNT 3 IN THE FIRST INDICTMENT ALLEGES FOUR INSTANCES IN WHICH THE DEFENDANT DENIED HE RECEIVED HUMAN GROWTH HORMONE. THE COURT: MR. WILSON: THIS IS THE TWO IN THE MIDDLE THAT WAS -THIS IS C, THREE C. WE READ THE DEFENDANT'S MOTION TO CLAIM ALL FOUR OF THEM WERE DUPLICITOUS. IN ADDITION, WE HAD YOUR ORDER WHICH REQUIRES THEM TO TAKE THEM OUT. AS OUR PAPERS CONCEDE WE HAVE A TYPOGRAPHICAL PROBLEM IN THE FIRST COUNT, WE'RE GOING TO SUPERSEDE -THE COURT: MR. WILSON: ANYWAY, RIGHT? WE'RE GOING TO SUPERSEDE. IF THE COURT TELLS US THOSE TWO COUNTS CAN BE PART OF THE SAME COUNT WE'LL PUT THEM BACK TOGETHER AGAIN, BUT FOR THE REASONS THAT I'VE JUST EXPLAINED WE THINK THEY'RE NOT MULTIPLICITOUS. ON THE QUESTION OF AMBIGUITY, MR. RIORDAN'S SUGGESTION JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 TODAY THAT THE COURT CAN STRIKE LANGUAGE IS NOVEL AND I DON'T BELIEVE IT'S SUPPORTED BY ANY CASE LAW. THE COURT: THAT? MR. WILSON: I DON'T BELIEVE SO. THESE ARE THE I WAS GOING TO ASK YOU THAT. CAN I DO QUESTIONS THE PROSECUTOR ASKED IN THE GRAND JURY, THOSE ARE THE QUESTIONS MR. BONDS RESPONDED TO, THOSE ARE THE QUESTIONS THAT THE TRIAL JURY HAS TO DECIDE BASED ON THOSE QUESTIONS WHETHER MR. BONDS GAVE FALSE STATEMENTS. AND THAT, I THINK, IS THE FUNDAMENTAL POINT HERE. THIS IS REALLY A JURY QUESTION. THE AMBIGUITY OF THE ALLEGED, AMBIGUITY OF THE QUESTIONS IS SOMETHING THAT MR. BONDS CAN ARGUE TO THE JURY. HE CAN SAY THEY'RE SO AMBIGUOUS MR. BONDS COULD NOT HAVE UNDERSTOOD THEM, THAT HIS ANSWERS ARE, THEREFORE, NOT FALSE. BUT THE CASE LAW MAKES PRETTY CLEAR THIS IS BASICALLY A JURY QUESTION, UNLESS IT'S SO FUNDAMENTALLY AMBIGUOUS THAT NO ONE COULD MAKE SENSE OF THEM, THEN IT'S NOT MATTER TO BE RESOLVED AT THIS STAGE OF THE PROCEEDINGS. SO OUR SUBMISSION WOULD BE THAT THIS SHOULD GO FORWARD TO THE JURY. IF THE EVIDENCE AT TRIAL CONVINCES THE COURT THIS QUESTION NEEDS TO BE REVISITED, IT CAN DO SO AFTER THE JURY HAS RENDERED A VERDICT. AT THIS POINT WE THINK IT'S PREMATURE TO FIND THAT ANY OF THE QUESTIONS ARE SO FUNDAMENTALLY AMBIGUOUS THAT THEY JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 SIMPLY CAN'T BE SUBMITTED TO THE JURY AT TRIAL. ON QUESTIONS -- ON COUNTS 13 AND 14, I'D LIKE TO POINT OUT DEFENDANTS CLAIM THERE IS REALLY NOT -- THE QUESTIONS ARE AMBIGUOUS, THE ANSWERS ARE AMBIGUOUS. THAT'S NOT A GROUND FOR DISMISSAL AT ALL, THAT'S JUST SIMPLY A JURY ARGUMENT. AGAIN, DEFENDANTS FREE TO MAKE THAT ARGUMENT TO THE JURY THAT HIS ANSWERS ARE SO AMBIGUOUS THEY'RE NOT FALSE, BUT THE ERRORS OR THE ALLEGATIONS HE'S MAKING ABOUT THOSE COUNTS ARE -- REALLY GO TO THE ANSWERS AND NOT TO THE QUESTIONS AND WE THINK THAT HE HASN'T REALLY IDENTIFIED ANY AMBIGUITY IN THOSE COUNTS. FINALLY ON COUNT 15 I, AGAIN, I THINK, MR. RIORDAN IS, PERHAPS, IS MISCHARACTERIZING THE NATURE OF THAT COUNT. IT DOESN'T REALLY MATTER IF OTHER COUNTS ARE DUPLICITOUS, IT DOESN'T MATTER HOW THE OTHER STATEMENTS ARE ARRANGED, THE POINT IS BY REPEATING THE SAME LIES OVER AND OVER AGAIN AND MAKING THE SAME FALSE STATEMENTS OVER AND OVER AGAIN AND BY ENGAGING IN THE EVASION OF THE PROSECUTOR'S QUESTIONS MR. BONDS IS ALLEGED TO HAVE OBSTRUCTED JUSTICE AND THAT'S THE COUNT -- IT'S NOT A COUNT THAT'S REALLY RISES OR FALLS ON THE MULTIPLICITY OR DUPLICITY OF THE OTHER COUNTS. I'D BE HAPPY TO ANSWER ANY QUESTIONS THE COURT HAS. WE SUBMIT ON OUR PAPERS. THE COURT: ALL RIGHT. THANK YOU. DID YOU HAVE ANYTHING FURTHER, MR. RIORDAN? JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 MR. RIORDAN: I GATHER, THE ONE QUESTION THE COURT'S MIND WAS WHETHER IT COULD RESORT TO STRIKING LANGUAGE IN ORDER TO AVOID ISSUES. ONE OF THE QUESTIONS WERE, WELL, NUMBER ONE, WE WOULD SUBMIT IF THE COURT'S CONCLUSION WERE THAT IT COULDN'T CURE A DEFECT BY STRIKING LANGUAGE, THAN IT WOULD BE REQUIRED AS THE CASE COUNT 8 TO DISMISS THE COUNT. THE COURT: DO YOU THINK I CAN STRIKE THINGS? WELL, THE GOVERNMENT HAS TAKEN THE MR. RIORDAN: POSITION, FOR INSTANCE, AS TO THE ASSOCIATE LANGUAGE, THAT THAT REALLY WASN'T THE QUESTION, THAT THE QUESTION IS CLEAR THAT IT REFERS TO MR. ANDERSON. IF THAT'S THE CASE THAN IT'S ARGUING THAT, IT'S AGREEING THAT THE REMAINING LANGUAGE IS SURPLUSAGE. YOU CAN STRIKE SURPLUSAGE. WHEN WE GET TO THE QUESTION OF COUNT 8, OBVIOUSLY, THE GOVERNMENT FREQUENTLY HAD ANSWERS. JUST LOOKING DOWN AT COUNT I THINK, 2, FOR INSTANCE, WHERE AT LINE 15 HAS THE RELEVANT ANSWER THAT IT'S INDICTING MR. BONDS ON AND IT CONTAINS SEVERAL STATEMENTS AND IT UNDERLINES ONE RATHER THAN SEVERAL OF THEM. IT FELT NO COMPULSION TO UNDERLINE ALL THE ANSWER, IT DOES THAT IN ANY NUMBER OF OTHER INSTANCES HERE. OBVIOUSLY, TO THE QUESTION OF DID YOU TAKE TESTOSTERONE IT COULD HAVE UNDERLINED THAT PORTION OF THE ANSWER ON 8 AND NOT UNDERLINED THE HUMAN GROWTH HORMONE AND THERE WOULDN'T HAVE BEEN A JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 MULTIPLICITY PROBLEM. THE COURT: I DON'T KNOW IF YOU'RE RIGHT, WHAT THEY'VE YOU UNDERLINED IS HIS STATEMENTS, NOT THEIR QUESTIONS. COULDN'T FIX IT BY UNDERLINING SOME PART OF THE QUESTION AND LEAVING THE OTHER PART OF THE QUESTION UNDERLINED, THAT WOULDN'T HELP IN TERMS OF THE ANSWER. MR. RIORDAN: I UNDERSTAND. WELL, I THINK, IF THE COURT HAS ANY RESERVATIONS ABOUT THAT, THAN THE SOLUTION TO IT IS TO DISMISS COUNT 8 BECAUSE IN ITS PRESENT FORM I DON'T THINK THERE'S ANY QUESTION THAT IT IS BOTH DUPLICITOUS AND MULTIPLICITOUS, YOUR HONOR. I PROBABLY SHOULDN'T BE TRYING TO HELP THE GOVERNMENT OUT IN TERMS OF SAVING THE COUNT. I THINK -- I THINK, LACKING AUTHORITY THE SOLUTION TO COUNT 8 IS SIMPLY TO DISMISS. THANK YOU. THE COURT: MR. WILSON: THE COURT: MR. WILSON: ANYTHING FURTHER? CAN I RESPOND BRIEFLY? SURE. ON THE COUNT INVOLVING MR. ANDERSON OR HIS ASSOCIATES, OUR POSITION NOT THAT OR HIS ASSOCIATES IS UNNECESSARY OR THAT IT CAN BE STRUCK, OUR POSITION IS IT'S LIKE ASKING SOMEONE IS IT RAINING OR SNOWING OUTSIDE, IF THEY SAY NO, THEY MEAN IT'S NEITHER RAINING OR SNOWING. BY DENYING EITHER ANDERSON OR HIS ASSOCIATES HAD INJECTED HIM HE'S DENYING THEY BOTH HAD, IN PARTICULAR ANDERSON HAD. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 SO WE'RE NOT SAYING IT'S SUPERFLUOUS OR EXTRANEOUS, HIS ANSWER COVERS ANDERSON, THAT'S THE QUESTION. IT'S NOT A COMPOUND QUESTION IN THE SENSE OF DO YOU WANT SOUP OR SALAD, IT'S A COMPOUND QUESTION DID YOU HAVE SOUP OR SALAD FOR LUNCH. IF YOU SAY, NO, YOU DIDN'T HAVE NEITHER, THAT'S WHY IT'S NOT AMBIGUOUS BECAUSE IT -- A NO ANSWER CLEARLY DENIES BOTH. THANK YOU. THE COURT: WILL BE SUBMITTED. ALL RIGHT. THANK YOU. WELL, THE MATTER I SHALL PROVIDE A RESPONSE TO YOUR QUESTIONS PRESENTLY. DO WE NEED TO TALK ABOUT ANYTHING ELSE TODAY? MR. RUBY: PROBABLY NOT. IT'S BEEN A LONG DAY, I'M SURE FOR THIS COURT, BUT DO HAVE TO TALK ABOUT OUR CASE MANAGEMENT ISSUE. THE COURT: MR. RUBY: SURE. WE BEEN TALKING ABOUT THE IDEA OF WHEN TO HAVE HEARINGS, IF HEARING ARE GOING TO BE HAD ON FOUNDATIONAL ISSUES. THERE'S EVIDENCE WE GOTTEN IN DISCOVERY WHICH WE THINK CAN'T COME INTO EVIDENCE BECAUSE THERE'S NO FOUNDATION FOR IT. AND WE WOULD LIKE TO EXPLORE THE IDEA OF NOT HAVING THAT ALL HASHED OUT AT THE TIME WHEN THE JURY IS WAITING AND WE'RE IN TRIAL. SO SORT OF TO GET TO THE POINT, I HOPE TO CONTINUE TO TALK TO THE GOVERNMENT ABOUT WHETHER WE CAN PRESENT A PROPOSED JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 STIPULATION TO YOUR HONOR THAT, AT LEAST, AGREE TO SUBMIT TO THE -- AS TO HOW TO DEAL WITH THIS TO STREAMLINE, TRULY TO STREAMLINE THINGS AND TO AVOID THE CRUNCH THAT COMES AT TRIAL WHEN A LOT OF VERY IMPORTANT LEGAL ISSUES AND EVIDENTIARY QUESTIONS COME UP AND NEED TO BE RESOLVED IN THE TIME OF A JURY RECESS. AND IF WE CAN'T AGREE WE'LL KNOW THAT PRETTY QUICKLY, AND I WOULD PROPOSE THAT BY THE 21ST OF NOVEMBER THE PARTIES, IF WE CAN'T AGREE SEPARATELY, SUBMIT THEIR SUGGESTIONS, IF THEY HAVE ANY, TO YOUR HONOR AS TO HOW THERE MIGHT BE A PHASING OR SCHEDULING OR AN ORDER OF TAKING UP WHAT I'M CALLING FOUNDATIONAL MATTERS. COULD I JUST BE SPECIFIC? FOR EXAMPLE, SUPPOSE THERE'S A CHEMICAL TEST, I THINK, THERE IS A CHEMICAL TEST THE GOVERNMENT WANTS TO PUT INTO EVIDENCE, I THINK, THEY WOULD LIKE TO GET IT INTO EVIDENCE, WE THINK THAT THEY CAN'T POSSIBLY ESTABLISH A FOUNDATION ON SEVERAL ESSENTIAL -- ACCESS A SCIENTIFIC FOUNDATION FOR THE RELEVANCE OF THE TEST ON DAUBERT OR DAUBER GROUNDS, A CHAIN OF CUSTODY, THAT SORT OF THING. AND SEEMS TO US IT WOULD MAKE SENSE AT SOME TIME BEFORE A JURY IMPANELED TO TAKE THAT UP AND DEAL WITH THAT. THAT'S JUST AN EXAMPLE OF THE SORT OF THING WE'RE TALKING ABOUT. THE COURT: MR. PARRELLA. WELL, WE'RE PERFECTLY HAPPY TO CONTINUE MR. PARRELLA: TALKING ABOUT THESE THINGS AND I'D LIKE TO RESOLVE THEM JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 PRETRIAL AS WELL. I'M NOT QUITE SURE WHAT MR. RUBY IS REFERRING TO IN HIS SUBMISSION, SOME SORT OF A BRIEFING SCHEDULE OR SOMETHING MORE TO IT. THE COURT: MR. RUBY: SOUNDED LIKE PRESENTATION SCHEDULE. SO, FOR EXAMPLE, DIDN'T MEAN TO INTERRUPT YOU, IF WE CAN'T AGREE WE MIGHT SUGGEST, WE'LL SAY, IN JANUARY GOVERNMENT WOULD DO THIS AND WE COULD DO THAT AND YOUR HONOR WOULD FIX A DATE TO HEAR US IF THE COURT WAS SO INCLINED AND MAKE A DECISION ON SOME OF THESE THINGS. I CAN TELL YOU ONE OF OUR PROPOSALS IF WE CAN'T REACH AN AGREEMENT WOULD EMBRACE OFFERS OF PROOF THAT WOULD APPLY TO BOTH SIDES. FOR EXAMPLE, IF THE GOVERNMENT WANTED TO OFFER A TEST OR IF WE IDENTIFIED A TEST AND WE THOUGHT THERE WAS NO FOUNDATION, THE GOVERNMENT WOULD HAVE AN OPPORTUNITY TO MAKE AN OFFER OF PROOF, HERE'S HOW WE'RE GOING TO LAY THE FOUNDATION. WE HAVE -- WOULD HAVE AN OPPORTUNITY TO SAY, NO, THAT DOESN'T WORK, YOU CAN'T GET THERE FROM HERE FOR THESE REASONS, AND I THINK WE GET THROUGH A LOT OF THE LEGAL FOUNDATION FOR THINGS PRETTY QUICKLY. MR. PARRELLA: WELL, I THINK, IF WHAT'S BEING I'M NOT SUGGESTED WE TRY THE CASE BEFORE WE TRY THE CASE. QUITE SURE THE GOVERNMENT IS ON BOARD WITH THAT. DEFENSE HAS SOME ISSUES WITH SOME OF THE EVIDENCE THAT WE'VE TURNED OVER, MY UNDERSTANDING WHICH, I GUESS, I WAS A JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 LITTLE PREMATURE, IS HE WAS SUGGESTING SOME SORT OF BRIEFING SCHEDULE, THAT'S WHAT WE WOULD SUGGEST. IF THE DEFENSE HAS A DAUBERT MOTION, SHOULD MAKE THE DAUBERT MOTION, WE'LL RESPOND TO IT. I JUST DON'T THINK IT'S TYPICAL OR NECESSARY THAT THE GOVERNMENT BE REQUIRED TO COME IN AND MAKE OFFERS FOR PROOF FOR ITS CASE AND THEN WE SORT OF TRY THOSE ISSUES AND MOVE ON. THE DEFENSE HAS OUR VAST AMOUNT OF -- VAST MAJORITY OF OUR DISCOVERY, I BELIEVE, SEEMS TO BE ANYWAY, THAT THEY KNOW WHAT THEY WANT TO MAKE THEIR MOTIONS ON AND WE SHOULD AGREE ON A MOTION SCHEDULE AND MOVE AHEAD. THE COURT: THINGS. MR. PARRELLA: THE COURT: VIEW. OKAY. WELL, YOU MAY BE TALKING ABOUT SIMILAR COMING AT IT FROM DIFFERENT POINTS OF I DO AGREE IF THERE ARE THORNY QUESTIONS THAT WE CAN RESOLVE BEFORE THE JURY IN THE BOX THAT WOULD BE BETTER BECAUSE IT GIVES US MORE TIME TO THINK THROUGH. IF YOU WANT TO PROPOSE A SCHEDULE, THAT WOULD BE FINE, JUST OR COMPETING SCHEDULES THAT WOULD BE FINE, I'M HERE. MR. PARRELLA: MR. RUBY: IS THE -THE COURT: MR. RUBY: HOW ABOUT NOVEMBER 21? NOVEMBER 21. WE COULD DISCUSS THIS OFF -JUST SO WE HAVE A DATE, HAVE IN MIND SURE. JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 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 MR. PARRELLA: THAT WOULD BE A DATE FOR US EITHER JOINTLY OR SEPARATELY TO GET BACK TO THE COURT? THE COURT: WITH A PROPOSAL. NOT AN APPEARANCE DATE? IF YOU WANT TO START SETTING MR. PARRELLA: THE COURT: CORRECT. THINGS, WE'RE SET TO GO FIRST PART OF MARCH, SO IF YOU WANT TO SET THINGS YOU NEED TO SET THEM IN JANUARY OR FEBRUARY. MR. RUBY: THE COURT: MR. WILSON: OKAY. THANK YOU. THANK YOU. (PROCEEDINGS ADJOURNED.) JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179 CERTIFICATE OF REPORTER I, THE UNDERSIGNED, 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. I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE OUTCOME OF THE CAUSE NAMED IN SAID CAPTION. THE FEE CHARGED AND THE PAGE FORMAT FOR THE TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL CONFERENCE. FURTHERMORE, I CERTIFY THE INVOICE DOES NOT CONTAIN CHARGES FOR THE SALARIED COURT REPORTER'S CERTIFICATION PAGE. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS 18TH DAY OF MARCH, 2009. /S/ JAMES YEOMANS ___________________________________ JAMES YEOMANS, CSR, RPR JAMES YEOMANS - OFFICIAL REPORTER - (415)863-5179

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