USA v. Bonds

Filing 25

RESPONSE to Motion by USA as to Barry Lamar Bonds UNITED STATES' RESPONSE TO DEFENDANTS MOTION TO DISMISS, OR ALTERNATIVELY, TO STRIKE PORTIONS OF THE INDICTMENT (Finigan, Jeffrey) (Filed on 2/14/2008)

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JOSEPH P. RUSSONIELLO (CASBN 44332) United States Attorney BRIAN J. STRETCH (CASBN 163973) Chief, Criminal Division MATTHEW A. PARRELLA (NYSBN 2040855) JEFFREY D. NEDROW (CASBN 161299) JEFFREY R. FINIGAN (CASBN 168285) J. DOUGLAS WILSON (DCBN 412811) Assistant United States Attorneys 450 Golden Gate Avenue San Francisco, California 94102 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff

11 12 13 14 15 16 17 18 v. 19 20 21 22 23 24 25 26 27 28 BARRY LAMAR BONDS, Defendant. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) Criminal No. CR 07-0732 SI U N I T E D STATES' RESPONSE TO D E F E N D A N T ' S MOTION TO D IS M I S S , OR ALTERNATIVELY, T O STRIKE PORTIONS OF THE IN D IC T M E N T Date: February 29, 2008 Time:11:00 a.m. Judge: Hon. Susan Illston UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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T A B L E OF CONTENTS

C o u n ts One through Four are not duplicitous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. B. A p p lic a b le legal principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 E a c h count alleges a group of closely related false statements.. . . . . . . . . . 5 1. 2. 3. 4. 5. C o u n t One.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C o u n t Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C o u n t Three. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C o u n t Four. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C o u n t Five. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0

T h e perjury counts do not rest on fundamentally ambiguous statements.. . . . . . . 1 1 A. B. A p p lic a b le legal principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 T h e questions asked Bonds were not fundamentally ambiguous.. . . . . . . . 1 3 1. 2. 3. 4. C o u n t One.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 C o u n t Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 C o u n t Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 C o u n t Four. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7

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T A B L E OF AUTHORITIES

F E D E R A L CASES B r o n s to n v. United States, 409 U.S. 352 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 U n ite d States v. Aguilar, 756 F.2d 1418 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n ite d States v. Boone, 951 F.2d 1535 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 1 3 , 16, 17 U n ited States v. Bussell, 414 F.3d 1048 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 U n ite d States v. Camper, 384 F.3d 1073 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . 1 2 U n ite d States v. Culliton, 328 F.3d 1074 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . 1 2 , 13 U n ited States v. Garcia, 400 F.3d 816 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n i te d States v. Gebhard, 422 F.2d 281 (9th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . 3 , 7 U n ite d States v. Gordon, 844 F.2d 1397 (9th Cir. 1988).. . . . . . . . . . . . . . . . . . . . . . . . 3 , 4 U n ite d States v. Hinton, 127 F. Supp. 2d 548 (D.N.J. 2000).. . . . . . . . . . . . . . . . . . . . . . . 2 U n ite d States v. Holley, 942 F.2d 916 (5th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ited States v. Mastelotto, 717 F.2d 1238 (9th Cir.1983). . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ite d States v. McKenna, 327 F.3d 830 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 1 2 U n ite d States v. Olsowy, 836 F.2d 439 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ite d States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001). . . . . . . . . . . . . . . . . 2 - 4 U n ite d States v. Robinson, 651 F.2d 1188 (6th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ite d States v. Ryan, 828 F.2d 1010 (3d Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 U n ite d States v. Tyrone, 451 F.2d 16 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ite d States v. UCO Oil Co., 546 F.2d 833 (9th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . 3 U n ited States v. Vitello, 425 F.2d 416 (9th Cir. 1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n ite d States v. Yarbrough, 852 F.2d 1522 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . 4

F E D E R A L STATUTES and FEDERAL RULES 1 8 U.S.C. § 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 8 U.S.C. § 1503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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1 8 U.S.C. § 1623(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 F e d . R. Crim. P. 7(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

M IS C E L L A N E O U S F ed era l Practice and Procedure: Criminal § 145 at 83-84 (1999). . . . . . . . . . . . . . . . . . . . 4

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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 I.

D e f en d a n t Bonds moves to dismiss the indictment on the ground that Counts One th ro u g h Four, which charge Bonds with perjury, and Count Five, which charges Bonds w ith obstruction of justice, are duplicitous. He also argues that some of the questions that su p p o rt the perjury allegations in Counts One through Four are so "fundamentally a m b ig u o u s " that they cannot support perjury charges. Both arguments should be rejected. First, none of the perjury counts is duplicitous; to the contrary, as the evidence at trial will s h o w , each count charges that Bonds repeatedly lied in answering the same question or q u e stio n s on the same subject matter. In any event, duplicitous factual allegations may be re m e d ie d by instructing the jury that it must be unanimous in determining that one or m o re of the statements alleged in each count is perjurious, and not by dismissing the in d ic tm e n t. Second, each count rests on Bonds's answers to unambiguous questions, and B o n d s 's contrary contention ignores the plain language of the prosecutor's questions, the c o n te x t in which they were asked, and Bonds's failure to express any confusion when a n sw e rin g them. Accordingly, the motion should be denied. D IS C U S S IO N C o u n ts One through Four are not duplicitous. B o n d s is charged with four counts of perjury, in violation of 18 U.S.C. § 1623(a), a n d one count of obstruction of justice, in violation of 18 U.S.C. § 1503. Each of the p e rju ry counts alleges that Bonds made more than one false statement to the grand jury on a particular subject matter. Count Five charges Bonds with obstruction of justice based o n his repeated false statements and evasive testimony in the grand jury. A. A p p l ic a b le legal principles

F e d e ra l Rule of Criminal Procedure 7(c)(1) provides that a count of an indictment " m a y allege...that the defendant committed [the offense] by one or more specified m e a n s." The advisory committee notes explain that this provision "is intended to e lim in a te the use of multiple counts for the purpose of alleging the commission of the o ff en se by different means or in different ways." Fed. R. Crim. P. 7, Advisory C o m m itte e Notes; see also United States v. Hinton, 127 F. Supp. 2d 548, 553 (D.N.J.

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2 0 0 0 ) ("An indictment is not duplicitous in cases where the indictment does not charge d if f ere n t offenses in the same count, but instead charges different methods of completing th e same offense."). Although a count may allege that a defendant committed an offense in different ways, a single count may be duplicitous when it "joins two or more distinct a n d separate offenses." United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir. 2 0 0 1 ). An indictment may be either legally or factually duplicitous. For example, in R a m ir e z-M a r tin e z, 273 F.3d at 913-14, a single count charged defendant with two s e p a ra te statutorily defined offenses: (1) attempting to transport illegal aliens and (2) the c o m p le te d offense of transporting illegal aliens. The Ninth Circuit held that including b o th offenses in the same count was duplicitous. See also United States v. Garcia, 400 F .3 d 816, 819-20 (9th Cir. 2005) (charging aiding and abetting and principal liability in th e same count is not duplicitous); United States v. Aguilar, 756 F.2d 1418, (9th Cir. 1 9 8 5 ) (discussing indictment that alleged in single count that defendant was illegally " a ctin g as" an INS officer and was "obtaining money in such character," each in violation o f 18 U.S.C. § 912); United States v. UCO Oil Co., 546 F.2d 833, 837-38 (9th Cir. 1976) (c o n s id e rin g whether 18 U.S.C. § 1001 defines a single offense or multiple offenses). By c o n tra st, in United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988), the defendant a lle g e d that an indictment was factually duplicitous because a single count charged two s e p a ra te conspiracies. Bonds contends that the indictment against him is duplicitous because each count a lleg e s that he made more than one perjurious statement. As the Ninth Circuit noted in U n ited States v. Vitello, 425 F.2d 416, 418 (9th Cir. 1970), however, "well settled law" p e rm its "the inclusion of several specifications of falsity in a single count of perjury" and a llo w s "proof of any one of such specifications...to support a verdict of guilty." In fact, th e Ninth Circuit has reversed convictions because, the court concluded, the government im p ro p e rly charged separate false statements in multiple counts. As the court explained in United States v. Gebhard, [ D e f e n d a n t was charged with thirty-two counts of perjury. If he in fact told se p a ra te lies, each of which could have hindered the grand jury in its
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in v e s tig a tio n , then he could properly be separately charged for each lie. On th e other hand, we do not think it proper that the government bludgeon a w itn e ss who is lying by repeating and rephrasing the same question, thus c r e a tin g more possible perjury counts. 4 2 2 F.2d 281, 289-90 (9th Cir. 1970). In that case, the court examined whether separate c o u n ts "involve[d] the same question for all practical purposes." Using this analysis, the c o u rt reversed six counts that, it found, rested on the same "lie" as another count. Id. at 2 9 0 . Similarly, in United States v. Olsowy, 836 F.2d 439, 443 (9th Cir. 1988), the court h e l d that a defendant was improperly charged with three counts of making a false s ta te m e n t, in violation of 18 U.S.C. § 1001, when he "made exactly the same [false] oral d e n ia l to the same Secret Service agent twice and then signed a document embodying the v e ry same denial." See United States v. Tyrone, 451 F.2d 16, 18 (9th Cir. 1971) (in d ic tm e n t properly charges separate counts of perjury where "[e]ach count charges p e rju ry on a subject entirely separate and distinct from the other" and a "trier of fact could w e ll hold [the defendant] innocent on one and guilty on the other without creating any typ e of conflict"); see also United States v. Holley, 942 F.2d 916, 928 (5th Cir. 1991) (test f o r determining whether multiple offenses are involved in the same count is "whether id e n tic a l evidence will support each of them"). A duplicity claim is directed at the face of the indictment, not at the evidence to be p re s e n te d at trial. United States v. Gordon, 844 F.2d at 1400. For that reason, in re v ie w in g an indictment for duplicity, this Court's "task is...solely to assess whether the in d ic tm e n t itself can be read to charge only one violation in each count." United States v. Y a r b r o u g h , 852 F.2d 1522, 1530 (9th Cir. 1988) (citing United States v. Mastelotto, 717 F .2 d 1238, 1244 (9th Cir.1983)). Finally, contrary to Bonds's assertion, duplicitous counts of the indictment need n o t be dismissed. The "`rules about...duplicity are pleading rules,'" and the inclusion of d u p lic ito u s allegations in a single count "is not fatal to an indictment." United States v. R a m ir e z-M a r tin e z, 273 F.3d at 915 (quoting United States v. Robinson, 651 F.2d 1188, 1 1 9 4 (6th Cir. 1981)); see also 1A Charles A. Wright, Federal Practice and Procedure: C r im in a l § 145 at 83-84 (1999) (duplicity "is not fatal and does not require dismissal of
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th e indictment"). Instead, "a defendant indicted pursuant to a duplicitous indictment may b e properly prosecuted and convicted if either (1) the government elects between the c h a rg e s in the offending count, or (2) the court provides an instruction requiring all m e m b e rs of the jury to agree as to which of the distinct charges the defendant actually c o m m itte d ." Ramirez-Martinez, 273 F.3d at 915 (emphasis added). Moreover, a n e c es s a ry corollary of a finding that a count charges more than one perjury offense is that e a ch of the duplicitous allegations would support a separate count. It follows that the g o v e rn m e n t may remedy any duplicity in the indictment against Bonds by asking the g ra n d jury to return a superseding indictment charging separate counts for each allegedly p e rju re d statement. Accordingly, rather than electing among the charges in a duplicitous c o u n t, the government may elect to obtain a superseding indictment if the defendant is u n w illin g to remedy any duplicity by agreeing to a jury instruction that requires the jury to b e unanimous in finding that at least one of the statements alleged in each count c o n s titu te d perjury. In sum, Ninth Circuit decisions make clear that the government must charge m u ltip le specifications of perjury in a single count when, "for all practical purposes," e a ch allegedly perjured statement repeats a single "lie," when each statement is an answer to the same question, or when the jury could reach inconsistent conclusions about the f a ls ity of the allegedly perjurious statements. In fact, as Gebhard and Olsowy make clear, th e government risks a finding that an indictment is multiplicitous if it charges a d e f e n d a n t in separate counts with perjury based on the defendant's repetition of the same fa lse statement. Against that background, the four perjury counts against Bonds are p la in ly sufficient as charged. B. E a ch count alleges a group of closely related false statements. 1. C o u n t One

C o u n t One alleges that Bonds lied in response to five questions intended to d e te rm in e whether he had used anabolic steroids, and, in particular, whether Greg A n d e rs o n had ever given Bonds anabolic steroids. In the first allegedly perjured

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sta tem e n t (statement 1(a)), Bonds denied that he had ever taken any steroids given to him b y Anderson. In the second set of questions, the prosecutor referred to a document s h o w in g that "Barry B." tested positive for anabolic steroids in November 2000 and asked w h e th e r Bonds was taking steroids in the weeks and months leading up to November 2 0 0 0 . Bonds answered, "No" (statement 1(b)). When the prosecutor added "or anything lik e that?," Bonds said, "Not at all" (statement 1(c)). In the third set of questions, the p ro s e c u to r, referring to a document that contains the initials "BB," asked whether Bonds o b ta in e d testosterone, a steroid, from Anderson in December 2001, and Bonds responded, " N o t at all" (statement 1(d)). And in the fourth set of questions, Bonds denied that in J a n u a r y 2001, he was taking "flax seed oil or the cream" or "any other steroids" (s ta te m e n t 1(e)). All five of these specifications of perjury are properly alleged in a single count. At the outset, there is no conflict between or among the statements, and the jury can render a s in g le guilty verdict on Count One without making inconsistent findings about the truth or f a ls ity of the five false statements alleged in the count. In other words, on the face of the in d ic tm e n t , there is no logical inconsistency between any of the five alleged statements, a n d the jury could therefore find that each alleged statement was false without reaching a n inconsistent result. Moreover, although Bonds's allegation of duplicity raises a facial challenge to the in d ic tm e n t, the question whether each of the five alleged false statements is the same " lie " will depend on the government's evidence at trial. For example, the first sp e c if ica tio n (statement 1(a)) alleges that Bonds falsely denied that he "ever" knowingly to o k steroids that he obtained from Greg Anderson, and the fourth specification (sta tem e n t 1(d)) alleges that Bonds testified falsely when he said that he did not obtain te s to s te r o n e from Anderson in December 2001. Bonds argues (Mot. at 8) that "because te sto s te ro n e was not defined by the prosecutors or Mr. Bonds to be a steroid," the proof th a t statement 1(d) is false may be "distinct" from the proof that statement 1(a) is false. But if the government's evidence at trial (including the grand jury transcript as a whole)

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s h o w s that Bonds knew that testosterone was a steroid, then the evidence proving that s ta te m e n t 1(a) is false also would necessarily show that statement 1(d) is false. Similarly, in statement 1(e), Bonds denied that in January 2001 he was taking "the flax seed oil or th e cream" or any other steroid. If the evidence shows that Bonds received the so-called " f la x seed oil or the cream" or other steroids only from Anderson, then evidence showing th a t statement 1(a) was false would also prove that statement 1(e) was false. In short, Bonds's assertion that the allegations of perjury within Count One are " d is tin c t," and therefore duplicitous, asks the Court to ignore the prospect that the e v id e n c e at trial will show that all five false statements rest on a common nucleus of fact a n d involve essentially the same "lie." Put another way, the government submits that b e f o re hearing the evidence at trial the Court cannot conclude that the five specifications in Count One are duplicitous. If after hearing the evidence at trial, the Court concludes th a t the five statements are duplicitous, then it can address that flaw by giving an a p p ro p ria te jury instruction on unanimity. A n y other approach could lead to the error identified in Gebhard. If the Court co n clud es, without hearing the evidence at trial, that the specifications of Count One are d u p lic ito u s , then the government may obtain a superseding indictment that charges each f a ls e statement as a separate count. If the evidence at trial shows that each of these four s ta te m e n ts essentially repeats the same "lie," then Bonds can allege that the evidence e sta b lis h e d that the indictment is multiplicitous and that, as in Gebhard, the government is seeking to "bludgeon" him with multiple, repetitive counts. For that reason, the g o v e rn m e n t submits, Bonds's allegation that Count One is factually duplicitous should be d e n ie d . 2. C o u n t Two

B o n d s 's duplicity challenge to Count Two suffers from similar flaws. That count re sts on Bonds's testimony that Anderson never injected him with anything or gave him a n yth in g that had to be injected. In the first statement, the prosecutor asked Bonds, in e ss e n c e, whether Anderson or any associates of his had ever injected anything into Bonds

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o r taken anything out of Bonds by a syringe, and Bonds answered, "No, no" (statement 2 (a )). In the second statement, the prosecutor asked whether Anderson gave Bonds " a n yth in g that [Anderson] told [Bonds] had to be taken with a needle or syringe?," and B o n d s confirmed that Anderson "never" gave him "anything like that" (statement 2(b)). Both allegedly perjured statements turn on whether Anderson injected Bonds with a n yth in g or gave him any substance that necessarily had to be injected. Bonds argues (M o t. at 9-10) that the difference between Bonds's denial that Anderson injected him w ith anything and his statement that Anderson never gave him anything that had to be injected is sufficient to render Count Two "distinct and duplicitous." Plainly, however, th e prosecutor's questioning is an effort to ensure that Bonds's answer to the first q u e s tio n is not literally true but misleading. See Bronston v. United States, 409 U.S. 352, 3 6 2 (1973) (literally true but misleading statement is not perjurious). The point of the p ro se c u to r's first question is to find out whether Anderson had ever injected Bonds with a n yth in g . If in fact Anderson had given Bonds an injectable substance, and Bonds had in jec ted himself, Bonds's negative answer to the first question would have been literally tru e , but misleading. Put another way, the prosecutor had to ask both questions to nail d o w n a single point: Whether Anderson or Bonds himself had ever injected Bonds with a n yth i n g that Anderson provided. For that reason, the two questions are not duplicitous. 3. C o u n t Three

B o n d s's duplicity challenge to Count Three is also without merit. That count rests o n four occasions during Bonds's testimony in which he denied that he ever received h u m a n growth hormone from Anderson. Bonds concedes (Mot. at 10) that statements 3 (a ) and 3(b) are "effectively the same to the extent that they address whether Mr. Bonds h ad received human growth hormone from Anderson." He argues that they are d u p licito u s because in statement 3(a), Bonds denied both that Anderson ever "talk[ed] to h im " about human growth hormone and that Anderson gave him human growth hormone. But statements 3(a) and 3(b) (as well as statement 3(c)) contain the same alleged lie: that A n d e rs o n never gave Bonds human growth hormone. Similarly, in statement 3(d), Bonds

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d e n ie d that Anderson had ever given him testosterone or human growth hormone, but the g o v e rn m e n t could prove that statement 3(d) is false by proving only that Anderson had g iv e n Bonds human growth hormone. Accordingly, statements 3(a), 3(b), and 3(d) each a lle g e that Bonds told the same lie, and proof that Anderson gave Bonds a substance that B o n d s knew to be human growth hormone would establish that each statement was false. Finally, Bonds concedes (Mot. at 10) that statement 3(c) "is essentially identical to p o rtion s of statements" 3(a) and 3(b). 4. C o u n t Four

C o u n t Four arises out of the prosecutor's repeated effort to ascertain when Bonds f irs t received from Anderson substances that Anderson called "flax seed oil," "the clear," a n d "the cream." In the statements that form the basis for this count, Bonds repeatedly a ss e rte d that Anderson had not given him those substances or any substance (other than v ita m in s ) before 2003 or until after the 2002 baseball season. Bonds's repeated assertion th a t he did not receive any of these substances before 2002 is the "lie" that forms the b a sis for this count. Each of the eight statements repeats this lie, and therefore each of th e se statements is appropriately included in a single count. In the first statement (statement 4(a)), Bonds said that the first time that Anderson ru b b e d him with a "cream" and gave him "some flax seed oil" was "[n]ot until 2003, this sea so n ." The second statement (statement 4(b)) arose directly out of the prosecutor's e f f o rt to ensure that Bonds meant to say that the first time Anderson gave him "flax seed o il" was in 2003. In response to that inquiry, Bonds agreed that the "first time" he got f la x seed oil from Anderson was in 2003. Similarly, Bonds made statements 4(c) and 4 (d ) in response to the prosecutor's repeated inquiry into whether Anderson had given B o n d s anything "other than vitamins" "before the 2003 season." Bonds agreed that he n e v e r took anything that Anderson asked him to take, including any "oils," which in c o n te x t is plainly a reference to the "flax seed oil" that had already been the subject of e x te n siv e questioning. Bonds concedes (Mot. at 12) that these statements "duplicate" e a c h other. Although the colloquy that leads to statements 4(c) and 4(d) does not directly

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re f e r to "cream" or "flax seed oil," it does not discuss any other substance. Thus, it s h o u ld not be held to be duplicitous unless the government's evidence at trial shows that th e prosecutor was asking about some substance other than "the cream" or the "flax seed o il." The questioning that led to statement 4(e) arose out of the prosecutor's effort to " re c h ec k " Bonds's memory of when Anderson gave him "flax seed oil" and "the cream." In response to the prosecutor's question whether it was possible that Bonds received those item s after the 2001 season in December 2001, Bonds replied, "No. Like I said, I don't re c a ll having anything like this at all during that time of year." Statement 4(e) implicitly re p e ats Bonds's allegedly false statement that he first received "flax seed oil" from A n d e rs o n in 2003. Bonds went on to say, according to the indictment, "It was toward the e n d of 2000, after the World Series, you know when my father was going through c a n c e r." The government does not allege that that statement was false. In statement 4(f) and 4(g), Bonds repeated his allegedly false assertions that he had n o t received "the clear" and "the cream" in December 2001 and that he first received th o s e substances "toward the end of 2002," after the 2002 season. Finally, statement 4(h) rests on the prosecutor's inquiry into whether Bonds received "flax seed oil" in January 2 0 0 2 . In response to that question, Bonds's said that he recalled that he received it "in the 2 0 0 2 time and 2003 season." In sum, each of the false statements alleged in Count Four arises out of Bonds's s ta te m e n ts concerning when he first received "flax seed oil," the clear, and the cream. Although some of the questions address only "flax seed oil" and some are phrased more g e n e ra lly to refer to any "substances" that Bonds received from Anderson, the truth or f a ls ity of each statement alleged in Count Four will turn on the evidence showing when B o n d s first received any of these substances from Anderson. In particular, evidence that A n d e rs o n gave Bonds these substances before the 2003 season would show that all of the s ta te m e n ts alleged in this count are false. Bonds's duplicity claim distorts the minor d is tin c tio n s in the manner in which the questions to Bonds were phrased and ignores the

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f a c t that the government can prove that all the statements are false based on the same e v id e n c e at trial. Accordingly, his duplicity challenge to this count, as well as his attack o n Counts One through Three, should be rejected. 5. C o u n t Five

B o n d s summarily asserts (Mot. at 16-17) that Count Five, which charges him with o b stru c tio n of justice, is also duplicitous. Although Bonds's argument is not entirely c lea r, he appears to assert that because Count Five rests in part on the false statements a lle g e d in Counts One through Four, it must be duplicitous for the same reasons that those c o u n ts are duplicitous. That argument misapprehends the theory behind Count Five. That count alleges that Bonds's grand jury testimony as a whole was so evasive and p e rju rio u s that it constituted obstruction of justice. Accordingly, the essence of that count is Bonds's repetition of false statements, coupled with his evasive testimony in response to other questions posed by the prosecutor. In other words, this count rests on Bonds's g ra n d jury testimony as a whole, not on individual questions and answers. For that re a so n , this count is not subject to the duplicity challenge that Bonds levels at Counts One thro u g h Four. II. T h e perjury counts do not rest on fundamentally ambiguous statements. B o n d s contends (Mot. at 17-24) that a "host" of questions and answers alleged in the indictment are so fundamentally ambiguous that they cannot support the perjury c o u n ts of the indictment. That contention should be rejected, for several reasons. First, B o n d s 's claim is premature, because questions concerning the meaning of a question and the defendant's interpretation of it are ordinarily left to the jury. For that reason, a court m ay not ordinarily determine before trial whether questions and answers in a perjury in d ic tm e n t are fundamentally ambiguous. Second, whether a question that elicits an a lle g e d ly false answer is ambiguous depends on the context of the question and answer. Bonds makes no effort to situate the questions the prosecutors asked or the answers he g a v e within the context of his grand jury testimony as a whole. That context includes the f a ct that the prosecutor specifically told Bonds that if he did not understand a question, he

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c o u ld consult with counsel or ask the prosecutor to rephrase it. Grand Jury Transcript (G J T R ) at 5-6.1 Bonds never said he was confused or asked the prosecutor to rephrase a q u e stio n . Finally, even viewed outside of the context in which they were asked, none of th e questions asked Bonds was so fundamentally ambiguous that it cannot support a p e rju ry prosecution. A. A p p l ic a b le legal principles

" G e n e ra lly speaking, the existence of some ambiguity in a falsely answered q u e stio n will not shield the respondent from a perjury or false statement prosecution." United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003); United States v. McKenna, 3 2 7 F.3d 830, 841 (9th Cir. 2003). Instead, when a perjury indictment rests on an a lle g e d ly ambiguous question, "[i]t is ordinarily for the jury to decide which construction th e defendant placed on a question." McKenna, 327 F.3d at 841; see United States v. C a m p e r, 384 F.3d 1073, 1076 (9th Cir. 2004) ("Ordinarily, the finder of fact decides w h ic h of the plausible interpretations of an ambiguous question the defendant a p p re h e n d ed and responded to."). Only when "a question is `excessively vague,' or `fu n d am en tally ambiguous,' the answer may not, as a matter of law, form the basis for a p ro s e c u tio n for perjury or false statement." Culliton, 328 F.3d at 1078 (quoting United S ta te s v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987)). A "question is not fundamentally ambiguous simply because the questioner and re sp o n d e n t might have had different interpretations." Camper, 384 F.3d at 1076. Instead, to determine whether a question is "fundamentally ambiguous," a court must e x a m in e whether the "context of the question and other extrinsic evidence relevant to the d e f en d a n t's understanding of the question may allow the finder of fact to conclude that th e defendant understood the question as the government did and, so understanding, a n sw e re d falsely." Id.; accord United States v. Bussell, 414 F.3d 1048, 1057 (9th Cir. 2 0 0 5 ). After looking at the context and relevant extrinsic evidence, a court may find a

To provide the relevant context for the Court, the government is filing under seal a copy of the grand jury transcript shown to Bonds during his grand jury testimony.
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q u e stio n fundamentally ambiguous only when "`men of ordinary intelligence' cannot a rriv e at a mutual understanding of its meaning." United States v. Culliton, 328 F.3d at 1 0 7 8 (quoting United States v. Boone, 951 F.2d 1526, 1534 (9th Cir. 1991)). In short, to p re v a il on his motion, Bonds must show that in light of the context of the questions and a n y relevant extrinsic evidence, a jury could not find that a reasonable person would have " u n d e rs to o d the question[s] as the government did." B. T h e questions asked Bonds were not fundamentally ambiguous. 1. C o u n t One

B o n d s argues that three of the five specifications of perjury in Count One are " f u n d a m e n ta lly ambiguous." He raises no challenge to statements 1(a) or 1(e). Statements 1(b) and 1(c): In the questioning leading up to statements 1(b) and 1(c), th e prosecutor confronted Bonds with a document showing that "Barry B." tested positive f o r two anabolic steroids in November 2000. The prosecutor then asked, "So I'm going to ask you in the weeks and months leading up to November 2000, were you taking s te ro id s ? " Bonds's answer, "No" is statement 1(b). The prosecutor continued, "or a n yth i n g like that?," and Bonds answered, "No, I wasn't at all. I've never seen these d o c u m e n ts. I've never seen these papers." The underlined portion of the answer is statem en t 1(c). B o n d s argues (Mot. at 20) that the question, "in the weeks and months leading up to November 2000, were you taking steroids?" is "fundamentally ambiguous as to time p e rio d at issue." He contends that "a truthful answer to the `weeks' question could be d if f ere n t than a truthful answer to the `months' question." Bonds argues that statement 1 (c ) is fundamentally ambiguous because the prosecutor failed "to reasonably identify w h a t substances can be deemed `anything like' steroids." These contentions ignore the context of the questions and answers alleged in C o u n t One and the grand jury examination as a whole. First, as the indictment itself m a k e s clear, the questions that led to statements 1(b) and 1(c) arose out of the p ro s e c u to r's effort to examine Bonds about the meaning of two documents that, taken

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to g e th e r, show that Bonds tested positive for steroids. At trial, the government will seek to introduce those documents and present testimony to explain their meaning. Until the jury sees those documents and hears the explanatory testimony ­ that is, until the jury u n d erstan d s the context of the questions ­ any inquiry into whether the questions were am b igu o u s is premature. Second, the additional context supplied by Bonds's grand jury tes tim o n y as a whole shows that the questions are not ambiguous. Throughout his tes tim o n y, Bonds denied that he ever knowingly took steroids. For that reason, he could n o t have perceived the prosecutor's question about the "weeks and months leading up to N o v e m b e r 2000" as ambiguous; as Bonds's answer shows, he did not distinguish between " w e e k s " and "months," because his answer would have been the same for any time p e rio d . Third, in statement 1(a), Bonds denied that he ever knowingly took steroids p ro v id e d by Anderson. At trial, the government's evidence will show that Bonds re c eiv e d steroids from Anderson in the period before the November 2001 positive drug te st, and that evidence raises the inference that Anderson gave Bonds the steroids that c a u se d him to test positive in November 2001. Thus, the questions that led to statements 1 (b ) and 1(c) simply sought to narrow the focus of the questions that led to statement 1(a). Even divorced from their context, however, the questions that led to statements 1 (b ) and 1(c) are not fundamentally ambiguous. The prosecutor's question plainly sought to determine why Bonds apparently tested positive for anabolic steroids in November 2 0 0 0 , and the phrase "weeks and months" must be interpreted in that context. Thus, the q u e stio n is reasonably interpreted to ask Bonds whether he took steroids in the period b e f o re the test that resulted in the positive test. Likewise, the phrase "anything like that" a s k s whether Bonds took anything like steroids that could have led to a positive test. Bonds's straightforward answers ("no," "not at all") show that he understood the q u e s tio n s and did not believe they were ambiguous. S ta te m e n t 1(d): In the question that led to statement 1(d), the prosecutor asked, " W e re you obtaining testosterone from Mr. Anderson during this period of time?" Bonds re p lied , "Not at all." Bonds argues (Mot. at 21) that the phrase "this period of time" is

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a m b ig u o u s . Although the prior section of Count One references December 2001, Bonds a ss e rts that the indictment does not make clear that this question refers to December 2001 b e c au s e it is separated from statement 1(d) by asterisks. That hypertechnical reading ig n o re s the plain meaning and structure of the indictment. The portion of Count One that in c lu d e s the prosecutor's questions relating to December 2001 does not end in a question, a n d thus the reasonable inference is that the question leading to statement 1(d) builds on the prior question relating to December 2001. In any event, the full transcript of Bonds's g ra n d jury testimony shows that in these questions the prosecutor was asking about a c a le n d a r that showed that "BB" received steroids in December 2001. See GJTR at 97-98. Also, immediately following Bonds's statement, "Not at all," the prosecutor said, "In D e c em b e r 2001," and then asked another question about that time period. GJTR at 98. T h u s, the context of the prosecutor's questions shows that "this period of time" refers to D e c e m b e r 2001. 2. C o u n t Two

In the questions that led to false statement 2(a) in Count Two, the prosecutor s o u g h t to ascertain whether Anderson ever injected Bonds with anything. The prosecutor f irs t directly asked Bonds, "Did Greg [Anderson] ever give you anything that required a s yrin g e to inject yourself with?" Bonds evaded this question by referring to his "personal d o c to r" and his friendship with Anderson. In an effort to obtain an answer to his q u e stio n , the prosecutor made clear that he was not referring to the Giants team physician, a n yo n e involved in the surgeries that Bonds had undergone, or Bonds's personal p h ys ic ia n . After excluding these individuals from the scope of his question, the p r o s e c u t o r asked whether "other individuals like Mr. Anderson or any associates of his" h a d ever injected Bonds with anything. Bonds argues (Mot. at 21) that this question is f u n d a m e n ta lly ambiguous because "it is impossible to determine the identity of the in d iv id u a ls the prosecutor's question reasonably placed in issue." This contention should be rejected, for at least two reasons. First, taken as a w h o le , the portion of the questioning quoted in the indictment makes clear that the

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p ro s e c u to r sought to inquire whether Anderson had ever injected Bonds with anything. Because Bonds failed to answer that straightforward question, the prosecutor clarified th a t he was not asking whether any medical personnel of any kind had ever injected B o n d s with anything. The prosecutor then repeated the gist of his original question. Bonds's response ("no, no") shows that he understood the prosecutor's ultimate question to refer to Anderson. Second, even if the question is insufficiently specific in narrowing th e universe of persons to whom it refers, the question clearly asks whether Anderson e v e r injected Bonds with anything. Thus, even if Bonds could not have understood who th e "individuals" and "associates" were, his answer of "no" means that neither Anderson n o r any "associate" ever injected him with anything. Accordingly, that answer is false if th e evidence shows that Anderson injected Bonds. See United States v. Boone, 951 F.2d a t 1535 (ambiguous portion of "disjunctive" question does not render entire question am b igu o u s). 3. C o u n t Three

Of the four statements alleged to be false in Count Three, Bonds challenges only th e question that led to statement 3(a). In that question, the prosecutor asked Bonds, "Did G re g [Anderson] ever talk to you or give you anything called human growth hormone." Bonds flatly answered, "No." Notwithstanding his unequivocal answer, Bonds contends th a t question is ambiguous for the following reason: "because the prosecutor did not c la rif y the question, it cannot be ascertained whether Mr. Bonds can be deemed untruthful if he in fact had any discussion about this substance at some time, or whether the question w a s understood as referencing significant or prolonged discussions between Anderson a n d Mr. Bonds about the substance as part of the latter's personal training regimen, or a n yth in g in between." Mot. at 22. W h a te v e r objection Bonds intends to raise by this cryptic assertion, he has not sh o w n that the prosecutor's question is ambiguous. First, the question itself is u n a m b ig u o u s: did Anderson ever talk to Bonds about human growth hormone or did A n d e rso n ever give Bonds human growth hormone. Second, as set forth above, the Ninth

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C irc u it has held that a question phrased in the disjunctive that contains an ambiguous p h ra se is not "fundamentally ambiguous" as long as the remainder of the question is s u f f ic ie n tly precise. See Boone, 951 F.2d at 1535. Here, even if Bonds's objection has m e rit, there is no ambiguity in the question to the extent that the prosecutor asked whether A n d e rs o n had ever given Bonds human growth hormone, and the government will show a t trial only that Bonds's answer to that portion of the question is knowingly false. Bonds's unambiguous answer shows that he did not believe the question to be unclear. 4. C o u n t Four

A s explained above, Count Four charges Bonds with perjury based on statements h e made about when he first received "flax seed oil," "the clear," and cream from A n d e rs o n . Of the eight alleged specifications of perjury in the count, Bonds challenges f iv e , statements 4(a), 4(c), 4(d), (4(e) and 4(h). None of these statements is f u n d a m e n t a lly ambiguous. S ta te m e n t 4(a): In the colloquy leading to statement 4(a), Bonds described how A n d e rs o n came to the ballpark and rubbed "some lotion-type stuff" on Bonds's arm and g a v e him something that Anderson called "flax seed oil." In response, the prosecutor a sk e d , "When did that happen for the first time?" Without expressing any doubt about th e meaning of the prosecutor's question, Bonds responded, "Not until 2003, this season." Bonds argues (Mot. at 22) that the word "that" is ambiguous because "there is no reliable m e a n s for determining the event to which the prosecutor referred when he inquired about `th a t' having happened for the first time." In fact, the question simply follows up on Bonds's own description of an incident in which Anderson rubbed him with a cream and gave him "flax seed oil." That is how B o n d s described the incident, and the prosecutor's question is merely an effort to d e ter m in e when it occurred. Moreover, even if the question contained some ambiguity, it a t most raises a question for the jury to determine based on the full context of the q u e stio n in g and other evidence presented by the government at trial. S ta te m e n ts 4(c) and 4(d): Statements 4(c) and 4(d) arise out of the prosecutor's

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e f f o rt to confirm that Anderson never gave Bonds anything other than vitamins before the 2 0 0 3 season. After Bonds evaded the prosecutor's first effort to ask that question, the p ro s e c u to r asked it again, "prior to last season [i.e., the 2003 season], you never took a n yth in g that he asked you to take, other than vitamins." Bonds answered, "Right. We d id n 't have any other discussions." The prosecutor continued, "No oils like this or a n yth i n g like this before?" Bonds answered, "No, no, no, not at all. Not at all." These tw o answers are statements 4(c) and 4(d). B o n d s argues (Mot. at 22-23) that the prosecutor's first question could refer to w a te r or over-the-counter substances "or any number of innocuous substances" and th e re f o re that Bonds's answer ("Right") is ambiguous. Put in context, however, the p ro s e c u to r's question is part of an effort to determine when Anderson first gave specific s u b s ta n c es to Bonds, not what substances he gave him. Thus, all of the questions in c lu d e d in Count Four go to the timing of Anderson's actions, and it is clear from the c o n te x t that Bonds understood these questions to have to do with when he received s p e c if ic substances from Anderson. Bonds argues (Mot. at 23) that the question leading to statement 4(d) is ambiguous b e c a u se the prosecutor did not identify what the word "this" referred to. Again, this a rg u m e n t improperly lifts the question from its context. As Bonds is aware, the grand ju ry transcript reveals that the prosecutor was showing Bonds a tube containing an oil w h e n he asked that question. GJTR 25-33. The question thus sought to ask Bonds when A n d e rs o n first gave him an oil like the one in the tube. Bonds's complaint that the q u e stio n fails to specify a time period is equally without merit. The line of questioning that ends in statement 4(d) plainly refers to the period "prior to last season." Bonds's e m p h a tic answer shows that he had no doubts about the meaning of the question. Statement 4(e): In statement 4(e) Bonds specifically denied that he received "the f la x seed oil and the cream" from Anderson "after the 2001 season." He then added, a c co rd in g to the transcript and the indictment, "It was toward the end of 2000, after the W o rld Series, you know, when my father was going through cancer." The indictment

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a lle g e s only that Bonds testified falsely in denying that he received the substances "after th e 2001 season," not that he falsely said that he received the substances from Anderson " to w a rd the end of 2000." The statement "toward the end of 2000" is not consistent with B o n d s's prior testimony that Anderson first gave him flax seed oil and other substances in 2 0 0 3 ; Bonds's reference to his father's cancer, however, shows that he meant to refer to th e 2003 season. See GJTR at 23-24 (Bonds's testimony that his father died of cancer "at th e end of 2003, 2003 season"). In addition, by saying "after the World Series," Bonds is re f e rr in g to the 2002 World Series in which he and the Giants played. Nevertheless, Bonds argues (Mot. at 23-24) that his apparent mistake in saying " to w a rd the end of 2000" shows that the question was ambiguous. But there is nothing a m b ig u o u s about the question, which references a document that was shown to Bonds and a sk s in a straightforward manner whether Bonds actually received the substances from A n d e rs o n after the 2001 season. At trial, Bonds is free to argue that his apparent mistake in saying "toward the end of 2000" shows that he did not understand the question and that h is unequivocal denial that he received the substances in 2001 is therefore not knowingly f a ls e , but Bonds's misstatement in his explanatory comment does not show that the q u e s tio n is ambiguous. S ta te m e n t 4(h): In the question that led to statement 4(h), the indictment alleges th a t the prosecutor asked, "And you weren't getting this flax seed oil stuff during that p e rio d of time [January 2002]?" Bonds answered, "Not that I recall. Like I said, I could b e wrong. But I'm ­ I'm ­ going from my recollection it was, like, in the 2002 time and 2 0 0 3 season." Bonds argues (Mot. at 24) that by alleging that the phrase "I could be w ro n g " is false, the indictment alleges an "oxymoron." In other words, Bonds asserts, his sta tem e n t that he could not recall getting flax seed oil in January 2002 cannot be false if h is statement "I could be wrong" is also false. Bonds's contention improperly seeks to dissect his answer and obscures its intent. The prosecutor clearly asked Bonds if he was getting the flax seed oil in January 2002, a n d Bonds answered that he could not recall getting it at that time and that he did recall

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g e ttin g it "in the 2002 time and 2003 season." To prove that this statement is false, the g o v e rn m e n t must show that Bonds got the flax seed oil in January 2002 and that he lied in s a yin g that he did not recall getting it then. The fact that Bonds interjected, "I could be w ron g " does not make his statement "Not that I recall" any less false. Indeed, if that were tr u e , a witness could always avoid a perjury charge simply by qualifying every false s ta te m e n t with "I could be wrong." In any event, Bonds's argument misapprehends the C o u rt's inquiry. A "fundamental ambiguity" challenge raises the question whether the g o v e rn m e n t's question is ambiguous, not whether the witness's answer is. If Bonds w ish e s to argue that his assertion in statement 4(h) is not false because it is inherently c o n f u sin g , he is free to do so at trial. But whatever ambiguity resides in his answer is not a ground for finding the question "fundamentally ambiguous" or dismissing statement 4 (h ) from the indictment. CONCLUSION F o r the foregoing reasons, Bonds's Motion to Dismiss or Alternatively to Strike P o rtio n s of the Indictment should be denied.

DATED: February 14, 2008

R e sp e c tf u lly submitted, J O S E P H P. RUSSONIELLO U n ite d States Attorney

_ _ _ _ _ /s /_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ M A T T H E W A. PARRELLA J E F F R E Y D. NEDROW J E F F R E Y R. FINIGAN J. DOUGLAS WILSON Assistant United States Attorneys

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