USA v. Bonds

Filing 162

Transcript of Proceedings as to Barry Lamar Bonds held on 02/17/2009, before Judge Susan Illston. Court Reporter/Transcriber Lydia Zinn, Telephone number 415 531 6587. 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.(Zinn, Lydia) (Filed on 3/18/2009)

USA v. Bonds

Doc. 162

Pages 1 - 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE SUSAN ILLSTON ) ) Plaintiff, ) ) vs. ) ) BARRY LAMAR BONDS, ) ) Defendant. ) ) ___________________________________) UNITED STATES OF AMERICA,

NO. CR 07-0732-SI San Francisco, California Tuesday February 17, 2009 3:38 p.m.

TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: Joseph P. Russoniello United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102 [phone] [phone] (fax) MATTHEW A. PARRELLA JEFFREY R. FINIGAN JEFFREY DAVID NEDROW Law Offices of Allen Ruby 125 South Market Street, Suite 1001 San Jose, CA 95113 [phone] ALLEN RUBY

BY:

For Defendant:

BY:

(Appearances continued on next page)

Reported By:

Lydia Zinn, CSR #9223, RPR Official Reporter - U.S. District Court

Dockets.Justia.com

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APPEARANCES (CONT'D) Also for Defendant:

BY:

Arguedas, Cassman & Headley 803 Hearst Avenue Berkeley, California 94710 [phone] [phone](fax) CRISTINA C. ARGUEDAS TED W. CASSMAN Riordan & Horgan 523 Ocatvia Street San Francisco, CA 94102 [phone] [phone] (fax) DENNIS PATRICK RIORDAN

Also for Defendant:

BY: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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THE CLERK: versus Barry Bonds.

Calling Criminal 07-732, United States

Counsel, please state your appearance for the record. MR. PARRELLA: For the Government, Matt Parrella, Good afternoon, your Honor. Allen Ruby,

Jeff Nedrow, and Jeff Finigan. MR. RUBY: for Mr. Bonds.

Good afternoon, your Honor.

Mr. Bonds is present. Good afternoon. Cris Arguedas, also

MS. ARGUEDAS: appearing for Mr. Bonds. MR. CASSMAN: MR. RIORDAN: THE COURT: THE COURT:

Ted Cassman, also for Mr. Bonds. And Dennis Riordan, your Honor.

Good afternoon. Okay. This is our final pretrial

scheduling conference.

And I have a list of matters on my And then if there are

agenda that I'd like to go through.

other things you'd like to raise, you may do so. We are set to begin on March 2nd. And I think that

the suggestion that you jointly made at our last hearing -- it was a good one, which is that the questionnaires be provided to the jury panel the morning of March 2nd; that the completed questionnaires, then, could be collected by counsel and reviewed; and then we would begin the actual voir dire process Tuesday morning. we would do it. Now, you'll need to speak with David Weir, who is the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone] So I think that makes sense, and that's how

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jury commissioner, about the mechanics of the questionnaires, because the panel -- they're lengthy. only write on one side. of paper. And you've said they can

So we're talking about a lot of pieces

And Mr. Weir may have ideas about how he obtains the

questionnaires, like who has to photocopy them and give them to whom. And I think he would like the answer to be somebody

gives them to him for the jury to fill out. And then, once they're filled out, a set will be given to counsel jointly. And you can monitor one another at

the machine, and make your copies, I think, and share them with each other. David's done more than -- making a lot of copies So if you guys can work with him, figure

is the bottom line.

out how to make that easy for him to do. MR. RUBY: THE COURT: those things. And then we'll come in Tuesday morning and do the voir dire. This is, as you probably know, different from what So then the Sure. So you'll have all day Monday to look at

I normally do anyway in the voir dire process.

oral voir dire becomes a little different than the normal case. And it would be my plan to really truncate the oral questions, because we will have had so much information on the questionnaires. I think it's still important for the Court to confirm orally with everyone that the basic constitutional rights will Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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be recognized and followed, but in terms of all of the detail in the questionnaires, I wouldn't anticipate myself going over that with the jury panel at any length. And also, we normally give counsel a very modest amount of time to ask their own questions on voir dire. And

because of the questionnaires and the size of the panel, it was my thought that time might be a little lengthened in this instance. So I was contemplating giving each of you an hour It may not be necessary.

that you could use however you want.

You may have so much information from the questionnaires that you don't feel the need to do that, but in the event there are follow-ups, it seems like that ought to be enough. would be my plan, is to give you each an hour. I think -- I was talking with Mr. Weir last week. And I think in terms of just the numbers that we may be processing here, what we would do would be voir dire in the first instance -- enough people to make up the entire panel plus the alternates plus the total available peremptory challenges, which -- I had the number the other day. or something like that. It's 32 Allow So that

Ask questions of all of them.

challenges for cause to be made as to that initial group. Those for whom the challenges are granted would then be excused. And we would take in a new wave of however many we

needed to fill up that complement, and then ask questions again. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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Do you see what I'm saying?

It's different from how

I normally do it, but I think, given the numbers that we're dealing with, it might be more sensible to do it this way. think this is closer to what some of the other judges do anyway. So if there are questions about that, you can ask me or ask Tracy about it. MR. FINIGAN: Jeff Finigan. For the record, I don't I

know if you said this before.

Are you going to be dark on

Fridays for this trial, like you typically are? THE COURT: Mm-hm. Okay. Thank you. Monday through

MR. FINIGAN: THE COURT:

We'll be dark on Fridays.

Thursday, 8:30 to 3:30.

We'll have a break in the morning, and

a break in the afternoon, and a modest break for lunch, roughly at noon. So that's my plan. And deliberating juries are allowed to deliberate on Fridays; we just don't take evidence on Fridays. Yes. MR. RUBY: In respect to the questionnaires, if, as

sometimes happens, the questionnaires yield some dramatic cause issue -- one of the jurors is kinsfolk of somebody who's going to be a witness -- how do you want to handle that? THE COURT: Or --

It would seem to me that if there are

obvious things -- and I mean only obvious things -- we ought to Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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talk about that before we even get going, and let them go right then. MR. RUBY: THE COURT: Yeah. I just don't want to have a lot of time

spent on things that aren't that obvious off of the papers, but sure. Things that are clear challenge for cause, we might as

well just do that before we even have people come in, rather than make them wait. MR. PARRELLA: Along the same lines, your Honor, you

mentioned that you planned on truncating your own oral questioning of the panel. I would just suggest, from having

done these cases in here before, that if, in the questionnaire, there's some issue that's raised that is better addressed by the Court, that you still be open to our suggesting that perhaps it would be better addressed by the Court than by either side. THE COURT: Oh, I'll be happy to do that. It's just

I would want you to let me know -MR. PARRELLA: THE COURT: Right.

-- the areas that you're worried about,

because I may not be sensitive to them in the same way that you are. MR. PARRELLA: THE COURT: We'll go through the questionnaires.

Yeah. And we should know the 32 that we're

MR. PARRELLA:

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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starting with -- is that correct? -- before we leave with the questionnaires. Is that -Well, that's a good question. I think

THE COURT:

the answer to that would be yes. in, in order, at some point.

I think that they will be put

Normally that happens right when

they come in court, but I don't know any reason it couldn't happen then. MS. ARGUEDAS: Along the same lines, some judges put

them all in order all the way, until the end. THE COURT: Yeah. That's what I usually do.

MS. ARGUEDAS: THE COURT:

That's what we're talking about.

That's what we're talking about. So that we know who the next person

MS. ARGUEDAS: coming in is. THE COURT:

That would be the idea.

And I don't see

any reason why, at the time that you are given the questionnaires, they couldn't themselves -MS. ARGUEDAS: THE COURT: Yes.

-- be put in order then. With a number on it that we can -I'll check with David Weir

MR. PARRELLA: THE COURT:

Right, right.

after our conference here today.

If there's some reason that

can't be done, I'll let you know; but that makes a lot of sense to me. You each have -- we've determined to have a jury of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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12 members plus 2 alternates; so the Government has 6 challenges, the defendant has 10 challenges, and each side has 1 additional challenge for the alternates. Now, the challenges for cause, as I've indicated -some of them you may want to do in advance. Some of them you

will do as we go through the 32 group flights of folks. However, the peremptory challenges -- once we've got the 32 folks who have passed for cause, the peremptories would still be done on paper. So I'll give you a sheet of paper, and you

pass it back and forth for that. MS. ARGUEDAS: Your Honor, do you have a procedure

for a case like that, that has had so much publicity, so that, if the follow-up questions either by the Court or by counsel are eliciting information that is publicity based, do you have some plan for how we're going to do that? Are we going to do

that in some segregated way, so that everybody else isn't hearing what is perhaps misinformation from a juror? THE COURT: That's a compound question. Yeah.

MS. ARGUEDAS: THE COURT:

The answer is no to a lot of the things do I have a plan?

you said, which are like:

But it would be my thought generally when we hit sensitive things of any stripe -MS. ARGUEDAS: THE COURT: Mm-hm. And I

-- I'm happy to do it at side bar.

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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usually tell the jurors in advance, "If there is an issue that you feel you'd be more comfortable talking about in private, you can come over to side bar. You still have to tell me and

the lawyers about it, but it's less public than the open court." So we will allow that to happen. And if you feel

like somebody's getting into the kind of publicity you're anxious about, just let me know, and we'll do that. On the other hand, I think that we will not find any jurors who have not been exposed to a good deal of publicity. MS. ARGUEDAS: THE COURT: Right.

So I'm a little less anxious about that.

As you say, if there's misinformation or something you're concerned about, we can do that. Mr. Riordan, were you scratching, or did you have a comment? MR. RIORDAN: THE COURT: You caught me scratching, your Honor.

So that's voir dire.

Anything else on that? MR. FINIGAN: question. THE COURT: Yeah. In the questionnaire that's been Your Honor, Jeff Finigan, with another

MR. FINIGAN:

submitted, your Honor, in the instructions section -I don't know if you have a copy of that in front of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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you. THE COURT: I do. Hang on. Yeah.

MR. FINIGAN:

The very last sentence of the first

paragraph of the instruction section reads that this questionnaire will not be made public. I just want to make sure that's a promise -- if we're going to make it to the jurors -- that we can keep. Obviously, I

the rest of voir dire is going to be in the public record. don't know if you're going to have requests for these questionnaires or not. public. I'm not asking that they be made

I just don't want to make a promise to the potential

jurors that cannot be kept. THE COURT: Well, Mr. Finigan, I am not certain about With respect to questionnaires

the answer to your question.

for jurors who were not selected, it is my understanding that they will be destroyed, and that there's no public record unless there's some issue or challenge for cause that's disputed. There might be some reason for that, I suppose; but

generally, we do not retain the questionnaires for the individuals who are not selected for the jury. With respect to those who are selected, I believe we retain those questionnaires, because I can think of ways that it might become relevant on appeal; but I don't know about whether those are necessarily made public, because they do contain -- some of them -- information that's really quite Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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personal. MR. FINIGAN: THE COURT: question. Right.

So I don't know the answer to that And we'll have to As long as we're

So I'm glad you flagged that.

figure out whether we can obviously say that.

on the questionnaire, there are disputes about that. MR. FINIGAN: THE COURT: Okay.

First, let me say I am relieved and This is the

gratified to see how much was agreed upon here.

most you folks have ever agreed upon; at least, in my memory. And with respect to the things that were not agreed upon, I'm willing -- I'm prepared to give you rulings. looking, now, at the defendant's proposed additions. I am

You gave

me a separate document that had proposed additions on it. I am prepared to add the question that you've listed as Question 1, concerning substance abuse. I am not prepared

to add the questions that you've listed as 2, 3, 4, 5, -- 2, 3, 4, or 5. I am prepared to add 6. I am not prepared to add 7.

And I am prepared to add the addendum to Question 43 that you've requested. And now, with respect to the Government's

two additional questions that it put on page 3 of its letter to me -- I am not prepared to add either of those. So I'll be happy to hear any brief comments either of you wish to make, but that's my thought on the questionnaire. MR. NEDROW: We're prepared to submit. Thank you.

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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MS. ARGUEDAS: THE COURT:

We are, too. Thank you.

All right.

The instructions you've both proposed -- basically, that the forms be used -- that's what we'll do. work on that. MR. RUBY: Your Honor, there was one special And we can

instruction that the Government proposed -THE COURT: MR. RUBY: Oh, yeah. -- in respect to Count 11, the obstruction We view it as

And it -- we won't argue about it now.

an attempt to amend the indictment. flag it.

And so we just wanted to

And, assuming it will be a while before we instruct, we'd like to, in a reasonable time -- to submit a paper to you which sets out the basis for our objections. THE COURT: All right. That would be fine.

Where was that? MR. RUBY:

Was that in the pretrial memo?

It was something we got on Friday. Your Honor, it's listed in the list of

MR. FINIGAN:

instructions; but pursuant to your Order, we're to provide you with a disk with the actual hard copies, which I haven't made yet, but will get to the Court shortly. THE COURT: you're saying. MR. FINIGAN: Right. The lists are for all Ninth So I actually don't have it, is what

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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Circuit model instructions except for the final special instruction, your Honor, which -THE COURT: Special Number 1, which I don't have. Right.

MR. FINIGAN:

-- we drafted and we will put that on disk for the Court. THE COURT: MR. RUBY: referring to. Have you seen it? We've seen it. That's what I was

It adds some -You know, I saw all of these materials

THE COURT:

this morning, although I hadn't read about them earlier. Anyway -MR. RUBY: And it asks to add some uncharged

statements to the obstruction count; statements which are not charged in Counts 1 through 10. THE COURT: MR. RUBY: THE COURT: We'll deal with it when the time comes. Yeah. The trial exhibits -- what I'd like is

that on the Friday before the Monday of trial, which would be Friday, February 27th, whatever exhibits you're proposing, and all of the -- all of the plaintiff's exhibits and such exhibits as the defendant knows it wants to submit -- he wants to submit -- be submitted to the Court on paper in binders with exhibit tabs. Let me ask you this question. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone] When the time comes to

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present the exhibit at trial, what is your plan? to have it on computer disks? MR. PARRELLA:

Do you plan

We will have, obviously, some paper

documents; but we will also have it in the computer systems, so it will be called up. You know, our plan would be, once the

item of evidence is entered, although we may -- we would then make it available to the jurors and the whole courtroom. There may be times when, in order to expedite things, we have it on the computer system, so the defense and the Court can see it without having to pass around the actual volume. THE COURT: What I would like with respect to paper

is I want a binder that has all the exhibits on pieces of paper. MR. PARRELLA: THE COURT: Yes. We will do that.

And I think it's useful for the witness.

Although you can use your discretion on that, it's helpful to have binders that have all the exhibits in them; but if you feel like it's easier to do it witness by witness, you can do it however you like. Ms. Sutton does not need a separate set for herself of copies. So whatever the originals are, once the trial has

ended, those originals then need to be given to Tracy. MR. PARRELLA: THE COURT: Okay.

Okay?

Now, you both indicated -Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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Mr. Ruby, did you have something? MR. RUBY: No. We'll also have paper exhibits, and

do as your Honor says.

And we'll also have a hard drive with

exhibits loaded into that; except -- unless something comes up at the last minute. THE COURT: And we'll do what you just said. Okay, all right. And then the other --

one other issue is that when last we met, we talked about the conduct of the trial itself, and how there will be, to the extent that there's an audience for it, a feed of the audio and visual into the Ceremonial Courtroom as well as into the media room on the first floor. And then you both indicated, I think, in your letters to me that you did not object to providing the media with copies of exhibits once they're admitted into evidence. that right? MR. RUBY: Yes. That's correct. And what I will do is figure Is

MR. PARRELLA: THE COURT: out how that happens.

All right.

Whether it happens by Xeroxing or

photocopying, or whether it happens with -- in a -- if there's an easier electronic way to do it, I do not know; but I take it it's agreeable to you either way. MR. RUBY: Yes, it is. And if -- if it turns out the

simplest thing is for us to just bring an extra set of copies, please tell us. I'm sure we're all glad to do that. There are

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enough copies. MR. PARRELLA: THE COURT: MR. RUBY: We could do that as well.

That has a certain surface appeal to it. Primitive, but -Media room or something.

MR. PARRELLA: THE COURT:

You can figure out how to do that then, And I know

but I do -- we have certainly received inquiry.

that would be welcome to the people who are following this. Let me ask this question. We -- the charges in the And, as I understand

case center on the grand jury testimony.

from reading your papers, there may be references to grand jury testimony of various other witnesses as well; but at least with respect to Mr. Bonds, how do you plan to get the grand jury testimony into evidence? MR. PARRELLA: defense. Well, we've communicated with the

And in a preliminary -- for a preliminary matter, I

believe the actual foundation -- in other words, the ability to put the document into evidence before the Court -- will either be stipulated to, or we'll arrive at some agreement on it; but is the Court asking about how are we going to communicate that to the jury? THE COURT: Yes. In other words, question-and-answer

MR. PARRELLA: format? THE COURT:

"How do you plan to communicate it to the

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jury?" is my question. MR. PARRELLA: Right. I would suggest that we do it

once more in a question-and-answer format, where we -- last perjury trial we did here, we did that, where members of the Court staff actually, after the document was put into evidence, sort of play-acted and read the questions and answers. And I

think that was effective, and it saved time, and it got the full document before the jury. THE COURT: MR. RUBY: All right. Have you thought about this?

Not about that part of things, your Honor. There may be 403 issues. There

There may be issues.

may be other things we'll ask you to take up before any part of the grand jury testimony is offered; but I'd like to, if it's all right, think about what they just said. THE COURT: MR. RUBY: Okay. Once you've ruled on whatever there might

be to rule on as a way of doing -- we'll talk about that. THE COURT: All right. Well, let me tell you this.

It's my view that, given that certain questions and answers have been isolated in the transcript as the basis of the charges in this case, it's important for the trial jury to have the full context of the testimony. So it would be my thought

that they should hear everything that was testified to, unless there are specific objections for specific reasons to various parts of it; but in general, I think the whole thing ought to Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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come in. One question is: what does "come in" mean?

I think "come in" means they hear it; but what is your thought about the transcript? MR. PARRELLA: THE COURT: Should it come in as well?

Could we have one moment, your Honor?

Mm-hm.

(Discussion off the record) MR. PARRELLA: I think, your Honor, in a prior trial,

we -- and I was conferring with Mr. Nedrow on this, because I couldn't recall. We marked the transcript, but it was not

actually accepted into evidence, and it did not go back to the trial jury. And so there, the evidence of the testimony was And we would suggest that here as well. Okay. And if it is read, then I think there's no It ought to be offered to the And so if what's finally

just read to them.

THE COURT: MR. RUBY:

need to give a transcript, too. jury in one form or the other.

adopted is to read the testimony, then I agree; mark a copy of it as part of the Court's record, but I wouldn't envision that the transcript would go back in the jury room as well. THE COURT: All right. I think you both just said

the same thing, but I mean, I'm willing to work with you and do it however seems fairest; but I think that's what we did before. And that's what seems fairest to me; that, you know,

if we had tape-recordings that are played, for example, and if Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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there's a transcript made to make it easier to understand the tapes, the tapes are the evidence; not the transcript. So I

think it would be the same thing here -- would be what they hear. In terms of who reeds it -- I'll think about that. It so happens that the last defendant we had this issue arise with was a woman. all worked out evenly. that might be awkward. do that. But, Mr. Ruby, if there are portions of the transcript that you feel we need to -- we need to excise or we need to alter in some way because it doesn't belong in this trial, I'd appreciate knowing that before the trial starts, so we can get some of that out of the way before we get going. MR. RUBY: THE COURT: All right. Thank you, your Honor. And I had female staff. And it

I still have female staff.

And I think

So we'll just have to figure out how we

There were a couple of things mentioned The Government has

in the Government's pretrial memo.

requested that witnesses be excluded, except the Government's designated agent. And I will issue such an Order, with the

exception, of course, of experts who may sit in if they want to. The Government raised the question of Mr. Anderson. What is your plan on that? that your plan? Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone] Would you wait until the trial? Is

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MR. PARRELLA: THE COURT: MR. RUBY:

Yes, your Honor. That's what we'll do. We had asked

Okay.

Well, I'm sorry, your Honor.

that whatever is done in respect to Mr. Anderson not be done in front of the jury. THE COURT: Oh, no, no. Exactly. I wouldn't --

well, we'll talk about that.

It is -- it is not my thinking

now that it would happen in front of the jury, but my guess -I guess my real question is: are we going to go through this

before we start the trial, or are we going to go through it after the trial has begun? And you've called him. And I take

it your plan would be the latter. MR. PARRELLA: And I think there are actual reasons

for that, in that there may be -- going from the history of the case, there may be a situation where there's -- a contempt issue arises. contempt. trial. And we feel that there can't be an anticipatory

And if the person is called -- should be called to

So we would like to do that. On the issue that was just discussed about whether it

is done in the front of the jury or not, we would like to be heard on that at the proper time. We don't need to, I think,

army through today, but we're not of that opinion that it should not be before the jury. THE COURT: MR. RUBY: Mr. Ruby. Well, we respectfully ask that this be So --

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done before jury selection; I mean, we do it during the trial. Among other things, the opening statements might be different, depending upon people's expectations as to whether this witness testifies or not. And if the Government's suggesting we wait until -what? -- the second week of trial, or after opening statements, that -- I mean, that doesn't seem -THE COURT: Well, there's another problem, too, which I'm

is that there are a number of evidentiary motions pending. prepared. on them. I've been waiting on your Daubert papers, which I

And I will, later today or tomorrow, I guess, rule

think are set to come in tomorrow; but some of those rulings would be conditional on testimony coming in or not. Prior to opening statements, we probably need to know if that's -- if those materials are coming in or not, because if you say they're coming in and they don't come in because there's no foundation for them, that could be a problem. So your suggestion, then, is that we determine in advance whether Mr. Anderson plans to testify. MR. RUBY: Before jury selection. Yes.

And before jury selection is a recognition that there will be a lot of public attention on that hearing, as there are on other hearings. And if there's some part of that that

particularly impresses itself upon the jury pool, it would be Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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better to know about that when we -- before we select a jury rather than afterwards. THE COURT: What do you think about that? Well, I would just say I'm not aware And if you find --

MR. PARRELLA:

of any authority for doing that. THE COURT:

I haven't found any authority, period.

Mr. Parrella, can you find me a case where somebody's been imprisoned for a year during grand jury proceedings, and then is called to testify at a subsequent trial, and is put in jail again? Have you ever had found that? MR. PARRELLA: THE COURT: No. No, your Honor.

Neither have I. We don't have cases on all fours like

MR. PARRELLA: that.

However, there are cases where witnesses are called to testify at trial, take the Fifth, are immunized, and then refuse to testify; all happening before the jury. So at least on some portion of this situation, the cases are similar. So I just think that doing this before the This

trial is not addressing the issue the way it should be. witness was subpoenaed for trial. THE COURT: I'll tell you what.

I'll tell you what. we can

We can do a belt-and-suspenders, if you like, which is:

hold the hearing prior to the jury selection, and find out if Mr. Anderson plans to testify. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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Assume for a moment -- I mean, he could say "Yes" or he could say "No." Let's say for a moment he says "No." That

would guide at least what the opening statements may or may not include. And then if you feel that there's some issue of anticipatory-ness about that that would require that he be called again during trial, you could do that during trial; not necessarily in front of the jury, but during the trial. make sure that the -MR. PARRELLA: THE COURT: Mm-hm. And

And make sure that his decision hasn't

changed; but I agree that we need to know prior to opening statements whether he's planning to testify. MR. PARRELLA: Well, if I'm reading the Court

correctly -- and based on tentative ruling, the sort of conditional nature which you just laid out -- I would imagine that the ruling would be something along the lines of excluded unless this -- unless -THE COURT: Unless there's a basis or for it. -- unless there's some other

MR. PARRELLA: testimony.

So I don't know.

I think that gives everybody enough

notice to proceed, but maybe on this particular grounds, we could think about this a little bit, and either schedule another appearance before the Court, or submit something before Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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the end of the week, or something, on just -- just on the pretrial appearance of Anderson. THE COURT: Why don't you talk to each other? See

how you want to do that. But I think we should have a hearing prior to the commencement of jury selection. So that would mean, like,

during the week of -- what is it? -- February 22nd, the last week in February -MR. PARRELLA: THE COURT: Next week.

-- next week, to get that straightened

out as much as we can. MR. NEDROW: Your Honor, before we move on, if I

may -- just if it were to come to pass that hearing were to occur, we would ask the Court to order Mr. Anderson to be here. Subpoenas from March 2nd. And he's actually said he's not

going to respond to the Government's subpoena. So, in other words, we would ask that the Court order Mr. Anderson to be here as a part of whatever scheduling is set up. We'll submit an order if it's going that way. I just want to alert the Court to Mr. Anderson. Though he's been served with a subpoena, he's not going to respond to the subpoena. There's a mechanical problem in terms

of him getting here and coming in. THE COURT: Well, you'll just have to do what you

have to do, but my suggestion is that we figure out among Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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counsel and with the Court when we would like to have this preliminary hearing that we're talking about. And then the

next step would be to make sure that Mr. Anderson was available. MR. NEDROW: THE COURT: Okay. He has counsel? Yes, your Honor.

MR. PARRELLA: THE COURT:

The next point in the Government's brief

was a concern about witnesses from out of state being recalled at the behest of defendants, and who should pay for that. I am not going to order in advance that a recalled witness be paid by the defense. the time comes. And it was okay that you didn't submit voir dire questions, because we do have a question. There were some We'll just deal with that when

points raised in the defense brief which were anticipated as areas that may become of concern, but were not framed as immediate motions in lim. And I don't see that I can rule on

any of these at this time, because nothing has happened. MR. RUBY: Your Honor, we're not asking for a ruling.

We'll -- I mean, there may be many issues or none; but whatever issues there are, we think we're now at a point where most of them -- the Court would want some context and we'd want some context. And it's our intention, if we see an issue coming up

down the road, to try to give notice and present it to the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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Court in a seasonable way to take it off. THE COURT: MR. RUBY: be ruled on now. THE COURT: Okay. All right. We also have Daubert And I'm expecting That would help. None of these things, in our view, need to

issues which the Government has briefed. I'll get briefs from you tomorrow. MR. CASSMAN: THE COURT:

Yes, you will, your Honor. And in that connection, we'll see And, to the

Okay.

what the expert testimony is likely to cover.

extent there are lay witnesses whose testimony would be offered as a predicate or foundation for the experts, I will consider that as well in light of some of the issues that have been raised in the papers of the parties so far. I may require

offers of proof concerning what the lay witnesses might or might not testify to prior to making any final decisions on that, but that would be clear in my Order. MR. PARRELLA: Your Honor, that's on the lay witness

opinion, or the lay witness sort of factual underpinnings for others' opinions? THE COURT: Right.

So that's what I have. Are there other issues we need to address today? MR. RUBY: Your Honor, I had suggested to the

Government some procedures about notifying each other about Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

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witnesses. THE COURT: MR. RUBY: Okay. I think, just in the crush of getting all

the paperwork done, we didn't have a chance to get back to each other. Could I be excused for a moment to talk to Mr. -- maybe

that's something we can solve in 30 seconds. THE COURT: Of course.

(Discussion off the record.) MR. RUBY: We've agreed, your Honor, that the

Government will -- when they're putting on their case at the end of one court day, they'll tell us who their witnesses are for the next court day. And since we're not in session on

Friday, by two o'clock Friday, they'll let us know who the Monday witnesses are. And when we're putting on our case,

we'll do exactly the same. THE COURT: Is that agreeable? Yes, your Honor. Anything else?

MR. PARRELLA: THE COURT:

All right.

MR. PARRELLA: MR. RUBY: THE COURT:

Not from the Government.

I don't think so, your Honor. All right. Thank you.

MR. PARRELLA:

Thank you, your Honor.

(At 4:15 p.m. the proceedings were adjourned.)

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]

CERTIFICATE OF REPORTER I, LYDIA ZINN, Official Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in CR. 07-0732-SI, United States of America v. Barry Lamar Bonds, 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/ Lydia Zinn, CSR 9223, RPR Wednesday, March 18, 2009

Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court [phone]