USA v. Bonds

Filing 188

MOTION in Limine Defendant's Notice of Motion and Motion to Conform Government's Evidence to this Court's February 19, 2009 Order by Barry Lamar Bonds. (Attachments: # 1 Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Riordan, Dennis) (Filed on 12/17/2010)

USA v. Bonds

Doc. 188 Att. 1

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ALLEN RUBY (SBN 47109) LAW OFFICES OF ALLEN RUBY 125 South Market Street #1001 San Jose, CA 95113 Telephone: [phone] ext. 204 Facsimile: [phone] DENNIS P. RIORDAN (SBN 69320) DONALD M. HORGAN (SBN 121547) RIORDAN & HORGAN 523 Octavia Street San Francisco, CA 94102 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant BARRY LAMAR BONDS

CRISTINA C. ARGUEDAS (SBN 87787) TED W. CASSMAN (SBN 98932) ARGUEDAS, CASSMAN & HEADLEY, LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: [phone] Facsimile: [phone] MICHAEL RAINS (SBN 91013) RAINS, LUCIA & WILKINSON, LLP 2300 Contra Costa Blvd., Suite 230 Pleasant Hill, CA 94523 Telephone: [phone] Facsimile: [phone]

UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
M e m o r a n d u m in Support of M o t io n to Conform Evidence

UNITED STATES OF AMERICA, Plaintiff, vs. BARRY LAMAR BONDS, Defendant.

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Case No. CR 07 0732 SI MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFORM GOVERNMENT'S EVIDENCE TO THIS COURT'S FEBRUARY 19, 2009 ORDER Date: January 21, 2010 Time: TBA Judge: The Honorable Susan Illston

Dockets.Justia.com

1 2 3 4 5 6 C. 7 D. 8 9 I. 10 II. 11 III. 12 A. 13 1. 14 2. 15 B. 16 C. 17 D. 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. The Grand Jury Testimony And the Indictment.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Government's Previous Arguments On Relevance, Materiality, and "Explaining the Investigation". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 This Court's Previous Ruling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Government's Proposed Witness and Exhibit Lists. . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 THIS COURT'S EXCLUSIONARY ORDER MUST BE HONORED. . . . . . . . . . . . . . . 5 THE GOVERNMENT HAS FAILED TO CARRY ITS BURDEN. . . . . . . . . . . . . . . . . . 5 THE EVIDENCE MUST BE CONFORMED TO THE COURT'S ORDER.. . . . . . . . . . 7 Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Exhibits Covered by the Court's Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Exhibits Covered by the Logic of the Court's Order. . . . . . . . . . . . . . . . . 10

Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Grand Jury Transcript of Mr. Bonds' Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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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 26 27 28 18 U.S.C. § 1503 18 U.S.C. § 1623(a) 18 U.S.C., § 1956 18 U.S.C. § 3731 United States v. Gaudin, 515 U.S. 506 (1995)

TABLE OF AUTHORITIES CASES United States v. Evans, 216 F.3d 80 (D.C. Cir. 2000) 5 4 5 5 5 2 STATUTES 1 1 3 2

United States v. Hinson, 585 F.3d 1328 (10th Cir. 2010) United States v. Reyes, 18 F.3d 65 (2d Cir. 1994) United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008)

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ALLEN RUBY (SBN 47109) LAW OFFICES OF ALLEN RUBY 125 South Market Street #1001 San Jose, CA 95113 Telephone: [phone] ext. 204 Facsimile: [phone] DENNIS P. RIORDAN (SBN 69320) DONALD M. HORGAN (SBN 121547) RIORDAN & HORGAN 523 Octavia Street San Francisco, CA 94102 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant BARRY LAMAR BONDS

CRISTINA C. ARGUEDAS (SBN 87787) TED W. CASSMAN (SBN 98932) ARGUEDAS, CASSMAN & HEADLEY, LLP 803 Hearst Avenue Berkeley, CA 94710 Telephone: [phone] Facsimile: [phone] MICHAEL RAINS (SBN 91013) RAINS, LUCIA & WILKINSON, LLP 2300 Contra Costa Blvd., Suite 230 Pleasant Hill, CA 94523 Telephone: [phone] Facsimile: [phone]

UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
M e m o r a n d u m in Support of M o t io n to Conform Evidence

UNITED STATES OF AMERICA, Plaintiff, vs. BARRY LAMAR BONDS, Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. CR 07 0732 SI MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONFORM GOVERNMENT'S EVIDENCE TO THIS COURT'S FEBRUARY 19, 2009 ORDER Date: January 21, 2010 Time: TBA Judge: The Honorable Susan Illston

INTRODUCTION On December 4, 2008, a grand jury for the Northern District of California returned a Second Superseding Indictment charging Barry Lamar Bonds with ten counts of making false declarations before the grand jury (18 U.S.C. § 1623(a)), and one count of obstruction of justice (18 U.S.C. § 1503). Trial was set to begin on March 2, 2009. Before trial, Bonds moved in limine to exclude evidence. On February 19, 2009, this Court issued its Order excluding a significant portion of the government's evidence, primarily on

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hearsay grounds. The government appealed the Order, delaying the resolution of this case for over a year. In order to pursue the appeal, the government was required to certify that the excluded evidence was substantial proof of a material fact. See 18 U.S.C. § 3731; United States v. W.R. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en banc). In other words, in order to pursue the appeal, the government was required to certify that this Court's Order would have a substantial impact on its case. On the merits, the Ninth Circuit rejected the government's argument and upheld this Court's ruling. Although it lost the appeal, the government apparently plans to proceed as if it had won. The government's recent filings make clear that it plans to introduce all of the same evidence that was excluded by this Court's Order. The government does not appear to recognize that the Order -- which the government itself certified would have a substantial impact on the case -- does in fact require the government to alter its prosecution in substantial ways. The government may not simply pretend that this Court's prior exclusionary ruling never happened. Mr. Bonds therefore requests that the government be required to conform its evidence to the requirements of the February 19 Order. Achieving such conformity will require several actions. First, the excluded exhibits should not be admitted for any purpose, including the government's purported purpose of explaining its investigation and proving materiality. Second, additional exhibits are subject to the same objections that the Court sustained in the February 19 Order and should be excluded for the same reasons. Third, several government witnesses should be excluded, and those witnesses who do testify should be instructed not to refer to the excluded evidence. Fourth, the grand jury transcript should be redacted to remove references to the excluded evidence. Fifth, the indictment should be redacted to remove references to the excluded evidence. Each of these is necessary to give effect to this Court's February 19 Order.

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M e m o r a n d u m in Support of M o t io n to Conform Evidence

STATEMENT OF THE CASE A. The Grand Jury Testimony And the Indictment

Defendant Bonds was called before a San Francisco grand jury to testify on December 4, 2003. Prior to beginning their questioning, prosecutors made statements to Mr. Bonds concerning the purpose of the grand jury's investigation, among them: "You [Mr. Bonds] understand that this is an ongoing investigation by the grand jury into alleged illegal activities undertaken by Victor Conte and Greg Anderson?" (GJT, at 3-4) After Mr. Bonds replied that he understood "those two people were involved" (id., at 4), the prosecutor continued that "at least some of the charges being looked at as to these individuals' activities include violations of Title 21 United States Code, Section 846, which is conspiracy to possess or distribute illegal substances. And also 18 U.S.C., Section 1956, the money laundering statute." (Id.) When asked whether he understood that "those are the types of charges that this grand jury is looking at in connection with Mr. Conte and Mr. Anderson," Mr. Bonds replied: "This is the first time I've heard exactly how you're stating it. I've just seen what was in the paper." (Id.) The second superseding indictment charges Mr. Bonds with making ten false statements to the grand jury (Counts One to Ten), and one count of obstruction based on the ten alleged false statements. Nine counts allege that Mr. Bonds gave a false answer to a question asking whether Mr. Anderson (or "Greg") gave Mr. Bonds an illegal substance. (Counts One, Two, and Four to Ten) For example, Count One alleges that Mr. Bonds falsely answered the question of whether he ever took any steroids that Mr. Anderson gave him, while Count Two alleges that Mr. Bonds falsely answered the question of whether he obtained testosterone from Mr. Anderson. Count Four alleged a false answer to the question of whether Mr. Anderson ever injected Mr. Bonds, and the Count Five question concerns whether Mr. Anderson ever gave human growth hormone to Mr. Bonds. The only count which does not include Mr. Anderson in the alleged false statement by Mr. Bonds is Count Three, which alleges that Mr. Bonds falsely denied taking steroids in January of 2001. //

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B.

The Government's Previous Arguments On Relevance, Materiality, and "Explaining the Investigation"

In its original opposition to Mr. Bonds's motion in limine, the government argued that, in addition to being admissible under various hearsay exceptions, the disputed evidence was admissible for the nonhearsay purpose of showing materiality. It did not make any specific showing about how the disputed evidence actually proved that point -- it did not describe the chain of inferences in any detail. Rather, it argued in general terms that the evidence would show "context" and the background of the investigation. The government argued, for example, that the disputed drug tests would "explain the course of the Balco investigation," that they would help to justify "the government's investigative conduct and decisions in requiring Bonds to testify," and that they would show "the context in which the false statements were made." (Govt. Jan. 29, 2009 Opposition at 17-18.) It argued, in conclusory fashion, that the calenders would show that Bonds's testimony was capable of influencing grand jurors. (Id. at 22.) It argued that log sheets would demonstrate the "evidentiary context in which Bonds made the false statements." (Govt. Jan. 29, 2009 Opposition at 33.) C. This Court's Previous Ruling

In its February 19 Order, this Court did not conclusively rule on the government's materiality arguments. It did warn, however, that the government would not be allowed to admit otherwise inadmissible hearsay simply by reciting "materiality" as a talisman. As guidance for trial, the Court notes that the government cannot use the broad definition of materiality in [United States v. Gaudin, 515 U.S. 506 (1995)] to bootstrap otherwise inadmissible evidence into this case. Should the government seek to admit the evidence excluded in this order to prove materiality, the Court will expect some showing that the particular aspect of materiality cannot be easily proven through another means. (Feb. 19, 2009 Order at 20-21.) D. The Government's Proposed Witness and Exhibit Lists

On October 15, 2010, the government tendered its proposed witness list and exhibit list for Mr. Bonds's upcoming trial, scheduled to begin on March 21, 2011 (See Exhibit A to this
M e m o r a n d u m in Support of M o t io n to Conform Evidence

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motion). There is no notable difference between those lists and the witness and exhibit lists the government submitted to the Court prior to its February 19th Order. (See Exhibit B to this motion). Thus the government seeks to present precisely the same witnesses and evidence that it intended to present before the Court's order and the government's unsuccessful interlocutory appeal. Nor does the government's recent submission contain any argument or explanation as to why the evidence the Court has ordered excluded as inadmissible hearsay may nonetheless be introduced for a non-hearsay purpose. ARGUMENT I. THIS COURT'S EXCLUSIONARY ORDER MUST BE HONORED This Court's provisional ruling was indisputably correct as a matter of law. Courts have long recognized that a prosecutor "cannot justify the receipt of prejudicial, inadmissible evidence simply by calling it `background' or `context' evidence." United States v. Hinson, 585 F.3d 1328, 1336 (10th Cir. 2010) (quoting United States v. Benitez-Avila, 570 F.3d 364, 369 (1st Cir. 2009)). Indeed, as Judge Easterbrook put it: "Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant's rights under the sixth amendment and the hearsay rule." United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Such evidence, even if it is relevant for some nonhearsay purpose, is unfairly prejudicial because it presents an overwhelming risk that the jury will use the evidence for a forbidden purpose -- namely, that it will use the evidence for the truth of the matter asserted. Limiting instructions in this context are insufficient, and the evidence must therefore be excluded under Rule 802 and Rule 403. United States v. Evans, 216 F.3d 80, 86-87 (D.C. Cir. 2000); United States v. Reyes, 18 F.3d 65. 70-72 (2d Cir. 1994). II. THE GOVERNMENT HAS FAILED TO CARRY ITS BURDEN The government's proffer here must fail for the simple reason that it has not complied with this Court's prior Order. That Order stated explicitly that before the government could admit any of the disputed evidence for a nonhearsay purpose, it would be required to make a
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showing that such evidence was necessary. The government has made no such showing. In its recent filings, it simply asserted in conclusory fashion that the excluded evidence is admissible to prove materiality. (Govt. October 15, 2010 Trial Memorandum at 5) The government has not even suggested how the excluded evidence, which it must concede cannot be considered for the truth of what it asserts, is nonetheless relevant to show materiality. For example, the government has sought to offer the result of a test of a urine sample analyzed by the Quest laboratory and blood samples tested by the LabOne and Specialty Laboratories. This Court excluded the test results on the ground that the government had failed to offer an adequate evidentiary foundation for their admission -- that is, the government had no admissible proof that the test results were attributable to Mr. Bonds. The Ninth Circuit affirmed that ruling. Because as a matter of law jurors could not find that the test results concerned Mr. Bonds, they also could not find that those results have any probative value in proving his guilt or innocence. Furthermore, even if the excluded evidence had some relevance to the issue of materiality, the government cannot possibly demonstrate, as required by the Court's order, that materiality cannot be established through other means, most notably the portions of the grand jury transcript that do not contain or refer to evidence that the Court has ordered excluded. In this case, Mr. Bonds was informed by prosecutors at the commencement of his testimony that the grand jury was investigating whether Greg Anderson and Victor Conte were engaged in distributing illegal substances. The questions that Mr. Bonds is accused of falsely answering concern whether Mr. Anderson ever distributed to Mr. Bonds steroids, testosterone, and human growth hormone. The government cannot reasonably argue that the excluded evidence adds anything of probative value on the issue of materiality to those portions of the grand jury transcript that remain admissible. Still less has the government demonstrated that any nonhearsay relevance of the excluded evidence outweighs the certain extraordinarily high risk that the jury would consider the evidence for the forbidden hearsay purpose. Imagine instructing the jury:
M e m o r a n d u m in Support of M o t io n to Conform Evidence

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"Ladies and gentlemen, you are about to hear evidence of positive drug tests that the government believes are from the defendant. You should consider this evidence only for the purpose of context and explaining the government's investigation. You should not in any way consider whether the defendant did, in fact, test positive for drugs." It is simply inconceivable that any juror could honestly follow such a limiting instruction. Indeed, the very absurdity of such a limiting instruction demonstrates that the government's purported nonhearsay purpose is nothing more than a ruse designed to put inadmissible hearsay before the jury. This Court should not allow such a subterfuge to succeed. THE EVIDENCE MUST BE CONFORMED TO THE COURT'S ORDER For the foregoing reasons, the following materials should be excluded under this Court's February 19 Order, as well as under Rules 402, 403, and 802. A. Exhibits 1. Exhibits Covered by the Court's Order

The following exhibits are covered, either directly or implicitly, by this Court's February 19 Order: Ex. # 1 3 6 7 13 17 Description Balco Log Sheets BLB Quest Documents Specialty Lab & Fedex Documents B, B Specialty Lab Results LabOne Tests (1) & BLB Calendars R. Estalella Documents Objection Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Calendars excluded by the February 19 Order; Other documents irrelevant; Other players should be excluded on relevance grounds

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L. Izzo Documents

Calendars excluded by the February 19 Order; other documents irrelevant; other players should be excluded on relevance grounds

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Jason Giambi Documents

Calendars excluded by the February 19 Order of the February 19 Order; Other documents irrelevant; Other players should be excluded on relevance grounds

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Jeremy Giambi Documents

Calendars excluded by the February 19 Order of the February 19 Order; Other documents irrelevant; Other players should be excluded on relevance grounds

29 32 33

Handwritten Note BLB Handwritten Notes Calendars, BLB Tests, Quest, & LabOne in folder labeled "B"

Excluded by the February 19 Order Excluded by the February 19 Order BB/Bonds tests and calendars excluded by the February 19 Order; Evidence pertaining to other athletes is irrelevant

34 18 19

A. Rios File

Calendars excluded by the February 19 Order Irrelevant; Other players should be excluded on relevance grounds

20 21 22 23 24 25 26 27 28

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R. Velarde File

Calendars excluded by the February 19 Order, Irrelevant; Other players should be excluded on relevance grounds

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"Greg Anderson 25" File - LabOne & Quest Docs w/ BLB DOB

Excluded by the February 19 Order

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39

B. Estalella File

Calendars excluded by the February 19 Order; Irrelevant; Other players should be excluded on relevance grounds; Lack of foundation

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B. Santiago File

Calendars excluded by the February 19 Order; Irrelevant; Other players should be excluded on relevance grounds; Lack of foundation

45 46 47 48 49 50 51 52 53 54 59 60 62

Quest Documents 100121 Quest Documents 100145 Quest Documents 100155 Quest Documents 100321 Quest Documents 100404 Quest Documents 100424 Quest Documents 100545 Quest Documents 100552 Quest Documents 100572 Quest Documents 100573 LabOne Blood Tests Barry Bonds Specialty Lab Tests Photo Log Sheets - Balco (Photos of documents at Balco, including the handwritten logs at Exhibit 1)

Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Excluded by the February 19 Order Photograph of exhibit excluded under the February 19 Order

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Photos-drawer w/Barry notes & drugsAnderson Residence (Photos of Exhibits 29 and 31)

Photograph of exhibit excluded under the February 19 Order

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Photo - Brown Portfolio-Anderson Vehicle

Photograph of exhibit excluded by the February 19 Order 9

M e m o r a n d u m in Support of M o t io n to Conform Evidence

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 26 Ex. # 27 28 2 · · ·

To summarize: Exhibits 1, 3, 6, 7, 13, 29, 32, 33, 34, 37 and 38 consist of alleged internal BALCO documents or documents that were allegedly seized from Greg Anderson that were excluded by the February 19 Order. To the extent these exhibits include test results or other documents allegedly referring to other athletes, they lack foundation, are irrelevant and prejudicial, and should be excluded under Rules 402 and 403. Exhibits 45 through 54, 59 and 60 consist of alleged urine or blood test results obtained from laboratories that were also excluded by the February 19 Order. Exhibits 17, 18, 19, 20, 39 and 40 consist of documents allegedly seized from Greg Anderson that pertain to other athletes. To the extent these documents include calendars, they were excluded by the February 19 Order. To the extent these exhibits include other documents and notes allegedly pertaining to other athletes, they lack foundation, are irrelevant and prejudicial, and should be excluded under Rules 402 and 403. Exhibits 62, 65 and 70 include photographs of documents that are actually Exhibits that were excluded by the February 19 Order. The government should not be permitted to present documentary evidence that the Court has excluded through photographs of the same. 2. Exhibits Covered by the Logic of the Court's Order

The government's Exhibit List includes numerous other items that were not expressly subject to the previous motion in limine and therefore not subject to the Court's February 19 Order. However, the Court's analysis applies with equal force to these items. For example, in the February 19 Order, the Court determined that calendars allegedly referring to athletes other than Mr. Bonds should be excluded because they lacked foundation and were irrelevant. February 19 Order at 13-14. We now move to exclude additional items on the government's Exhibit List that are subject to the same objections previously sustained by the Court. Description 2 Balco Letters 10 Objection Excluded by the February 19 Order

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4

Balco Letter, 7/3/03 (2 p.) (Transmittal letter to Quest for Larry Izzo)

Irrelevant; Other players should be excluded on relevance grounds

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Other Athlete Quest Documents (14 reports, 30 p.)

Irrelevant; Other players should be excluded on relevance grounds Hearsay under logic of the February 19 Order Hearsay under logic of the February 19 Order

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Balco Blood Test Log Books, 20012003

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Balco BLB Blood Tests

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LabOne Blood Test Fedex Documents (Two Fedex Airbills for alleged BB blood test)

Hearsay under logic of the February 19 Order

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BLB Nutritional Program (2 p.)

Hearsay under logic of the February 19 Order

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Other Athlete Balco & Specialty Blood Tests

Irrelevant; Other players should be excluded on relevance grounds Irrelevant Irrelevant; Other players should be excluded on relevance grounds

14 15

Brown portfolio B. Santiago Invoice

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A. Rios Fedex Receipts

Irrelevant; Other players should be excluded on relevance grounds

21

Misc. Notes re Other Athletes

Irrelevant; Other players should be excluded on relevance grounds; Lack of foundation and/or hearsay by logic of the February 19 Order

28

Envelopes located with cash

Lack of Foundation; Hearsay under logic of the February 19 order; Irrelevant

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Handwritten Notes & Fedex Rec'tOther Athletes

Irrelevant; Other players should be excluded on relevance grounds; Lack of foundation 11

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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 26 27 · · · · ·

41

Jason Giambi Document & Fedex Rect.

Irrelevant; Other players should be excluded on relevance grounds; Lack of foundation Excluded under logic of the February 19 Order; Irrelevant evidence pertaining to other athletes

64

Photo Athlete Folders From ClosetAnderson Residence

67

Photo - Safe w/ $ & note-Anderson Residence

Excluded under logic of the February 19 Order; Irrelevant; Lack of Foundation

To summarize: Exhibits 2, 4, 5, 8, 9, 10, 11 and 12 consist of alleged internal BALCO documents that should be excluded under the logic of the February 19 Order either because (1) they allegedly refer to Barry Bonds but lack foundation and are inadmissible hearsay or (2) refer to other athletes and therefore irrelevant. Exhibits 14, 15, 16, 21, 31, and 41 consist of documents allegedly seized from Anderson that include information regarding other athletes. Without Mr. Anderson's testimony, these documents lack foundation and are rendered irrelevant by the February 19 Order. See Order, at 13-14. Exhibits 28 consists of documents allegedly seized from Anderson that purportedly refer to Mr. Bonds. Under the logic of the February 19 Order, these documents lack foundation and are irrelevant. Exhibit 64 consists of a photograph of files for other athletes allegedly seized from Anderson. The photograph should be excluded for the same reasons as the files ­ lack of foundation, irrelevant and prejudicial. Exhibits 67 consists of a photograph of documents included in Exhibits 28. The photograph should be excluded for the same reasons. B. Witnesses

The following witnesses' testimony should be excluded by this Court's February 19 28
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Order: Witness Wendy Bergland Govt. Proffer She will testify that she is a Special Agent with IRS-CID and that she transported the box of folders located by Mike Wilson to Special Agent Jeff Novitzky. Special Agent Qaqish, an agent with Internal Revenue Service- Criminal Investigation, will testify regarding his identification, seizure, and disposition of documents taken from Anderson's residence during the September 3, 2003 search, including calendars and handwritten notes. Dr. Sample will testify regarding the records of Quest Diagnostics as well as to the methodology utilized to test urine specimens and to certain lab test results. He will testify that he is a Special Agent with IRS-CID and that he located a box of folders during the execution of a search warrant at a storage locker belonging to Balco Laboratories. He will also testify regarding the transport and handling of the defendant's urine specimen from its seizure pursuant to search warrant at Quest Laboratories to the UCLA Analytical Lab. Mr. Benard, a former professional baseball player, will testify that he met Greg Anderson during Benard's tenure with the San Francisco Giants. He will also testify that he began working with Anderson in approximately 1999 and that Anderson assisted him in having his blood tested. Mr. Benard will testify about receiving performance enhancing substances from Anderson, about instructions from Anderson about how to administer the substances, about the schedule Anderson gave to him for administering the substances, and about what Mr. Anderson told him about the efficacy of those substances. Objection Irrelevant to the extent the box contained documents excluded under the February 19 Order. Irrelevant to the extent he will testify about calendars, handwritten notes, and other documents excluded under the February 19 Order. Irrelevant to the extent his testimony concerns documents (i.e. urine test results) already excluded under the February 19 Order. Irrelevant to the extent the box contained documents excluded under the February 19 Order.

Amjad Qaqish

Dr. Barry Sample

Mike Wilson

Marvin Benard

Irrelevant as a consequence of the February 19 Order.

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Jason Giambi

Mr. Giambi will testify that he is a professional baseball player and that he met Greg Anderson through the defendant. He will also testify that he began working with Anderson in approximately November 2002 and that Anderson assisted him in having his blood and urine tested through Balco. Mr. Giambi will testify about receiving performance enhancing substances from Anderson, about instructions from Anderson about how to administer the substances, about the schedule Anderson gave to him for administering the substances, and about what Mr. Anderson told him about the efficacy of those substances. Mr. Giambi will testify that he was a professional baseball player and that his brother, Jason Giambi, introduced him to Greg Anderson shortly after Jason began working with Anderson in approximately November 2002. He will also testify that he provided blood and urine specimens to Anderson to be tested through Balco. Mr. Giambi will also testify about receiving performance enhancing substances from Anderson, about instructions from Anderson about how to administer the substances, about the schedule Anderson gave to him for administering the substances, and about what Mr. Anderson told him about the efficacy of those substances. Mr. Izzo will testify that he was a professional football player and that he first contacted Greg Anderson by phone in approximately January 2003. Mr. Izzo will also testify that he first met Anderson in person in approximately May 2003 at Balco and submitted a urine specimen at Balco at Anderson's request. Mr. Izzo will also testify that he submitted additional urine specimens to Anderson at later times as well. Mr. Izzo will also testify about receiving performance enhancing substances from Anderson, about instructions from Anderson about how to administer the substances, about the schedule Anderson gave to him for administering the substances, and about what Mr. Anderson told him about the efficacy of those substances.

Irrelevant as a consequence of the February 19 Order.

Jeremy Giambi

Irrelevant as a consequence of the February 19 Order.

Larry Izzo 17 18 19 20 21 22 23 24 25 26 27 28

Irrelevant as a consequence of the February 19 Order.

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Armando Rios

Mr. Rios will testify that he was a professional baseball player and that he met Greg Anderson during Rios's tenure with the San Francisco Giants. He will also testify that he began working with Anderson in 2001 and that Anderson assisted him in having his urine tested after Rios left the Giants for another team in 2002. Mr. Rios will testify about receiving performance enhancing substances from Anderson, about instructions from Anderson about how to administer the substances, about the schedule Anderson gave to him for administering the substances, and about what Mr. Anderson told him about the efficacy of those substances. Mr. Santiago will testify that he was formerly a professional baseball player for several teams, including the San Francisco Giants in 2001, 2002, and 2003. While playing for the Giants, Mr. Santiago met Greg Anderson and ultimately received performance enhancing substances from Anderson. Mr. Santiago will also testify about the process of providing urine samples to Greg Anderson for testing for the presence of steroids. Mr. Santiago will also testify about schedules or calendars Greg Anderson made for him in connection with the performance enhancing substances regimen Anderson designed for Mr. Santiago.

Irrelevant as a consequence of the February 19 Order.

Benito Santiago

Irrelevant as a consequence of the February 19 Order.

Jim Valente

Mr. Valente, the former vice-president of Balco Irrelevant as a consequence Laboratories, will testify to his observations as of the February 19 Order. an employee at Balco responsible for maintaining certain business records, including log sheets reflecting the receipt of urine specimens from athletes, the assignment of codes to those specimens, the referral of those specimens to outside labs, and the receipt of test results for those specimens. Valente will testify that Greg Anderson provided him with blood and urine specimens for a number of athletes, including the defendant, and Valente would record the names of those athletes on a log sheet and assign each specimen a number in order to keep track of the specimen's testing referral date and results. Valente will specifically testify that the entries "Barry B" on Balco internal documents reference the urine samples and results he entered for the urine samples Greg Anderson submitted to Balco on behalf of the defendant.

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Randy Velarde

Mr. Velarde will testify that he was a professional baseball player and that he met Greg Anderson during his tenure with the Oakland Athletics. Mr. Rios [sic] will testify about receiving performance enhancing substances from Anderson, including anabolic steroids.

Irrelevant as a consequence of the February 19 Order.

In addition, the Court should order the government to instruct all of its witnesses not to refer to any of the exhibits or other evidence excluded by the February 19 Order. C. Indictment

8 The Second Superseding Indictment should be redacted to exclude references to excluded 9 materials. The following items should be redacted: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Page 4, lines 4-10: on this page, again, there's BB here, which obviously are consistent with your initials; correct? A: Q: A: He could know other BBs. Correct. But BB would also be your initials; is that correct? That's correct.

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Page 9, lines 21-23:, Because this first calendar is dated December 2001 with "BB" on it and its got a number of entries that I'd like to ask you about.

D.

Grand Jury Transcript of Mr. Bonds' Testimony

The grand jury transcript should likewise be redacted to exclude reference to excluded materials. For the convenience of the Court, we are submitting a copy of the transcript in which we have highlighted those portions of the transcript that should be deleted. (See Exhibit C to this motion.) The redactions are summarized as follows: · · · Page 44, line 23, to Page 46, line 9. Page 47, lines 19-23. Page 50, lines 1-5.

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· · · · · · · · · · ·

Page 52, lines 4-11 and 19-20. Page 53, lines 7-9. Page 56, lines 12-17. Page 57, line 28 to Page 58, line 16. Page 58, line 22, to Page 59, line 21. Page 65, lines 2-18. Page 66, line 22, to Page 68, line 1. Page 68, line 15 to Page 71, line 5 Page 72, line 23, to Page 73, line 14. Page 74, line 5, to Page 80, line 17 Page 80, line 25, to Page 81, line 24., beginning with "I've never seen" and ending with "Definitely yes."

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Page 89, line 21, to Page 93, line 1. Page 96, lines 6-21 Page 97, lines 7-10. Page 97, line 17 to Page 98, line 12, ending with the word "Okay". Also add reference to date so that question at Page 98, line 12-13 makes sense.

15 · 16 17 18 19 20 21 22 23 24 25 26 27 28 · · · · · · · · · · ·

Page 99, lines 1-12. Page 100, lines 11-14. Page 101, lines 8-24. Page 102, line 9 to Page 103, line 8. Page 104, line 5, to Page 106, line 18 Page 106, line 24, to Page 108, line 4. Page 108, line 20, to Page 111, line 1. Page 111, line 7 to Page 115, line 17 Page 116, line 19, to Page 118, line 11. Page 120, line 8 to Page 121, line 3. 17

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Page 121, line 10, to Page 123, line 23. CONCLUSION

For the reasons and in the manner stated above, the government must be ordered to conform its proof at trial to the Court's previous order of February 19, 2010 Dated: December 17, 2010 Respectfully submitted, LAW OFFICES OF ALLEN RUBY ARGUEDAS, CASSMAN & HEADLEY, LLP RAINS, LUCIA & WILKINSON, LLP RIORDAN & HORGAN By /s/ Dennis P. Riordan Dennis P. Riordan By /s/ Donald M. Horgan Donald M. Horgan By /s/ Ted Sampsell-Jones Ted Sampsell-Jones Counsel for Defendant Barry Lamar Bonds

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