USA v. Bonds

Filing 64

Memorandum in Opposition by USA as to Barry Lamar Bonds re 61 MOTION to Dismiss Superseding Indictment UNITED STATES' RESPONSE TO DEFENDANT'S MOTION TO DISMISS COUNTS I, II, V, VII, VIII, IX, XI, XII, XIV, AND XV OF THE SUPERSEDING INDICTMENT (Finigan, Jeffrey) (Filed on 9/24/2008)

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J O S E P H P. RUSSONIELLO (CASBN 44332) U n ite d States Attorney B R IA N J. STRETCH (CASBN 163973) C h ie f , Criminal Division M A T T H E W A. PARRELLA (NYSBN 2040855) J E F F R E Y D. NEDROW (CASBN 161299) J E F F R E Y R. FINIGAN (CASBN 168285) J . DOUGLAS WILSON (DCBN 412811) A s s is ta n t United States Attorneys 4 5 0 Golden Gate Avenue S a n Francisco, California 94102 T e le p h o n e : [phone] F a c sim ile : [phone] E m a il: [e-mail] A tto rn e ys for Plaintiff

11 12 13 14 15 16 17 18 v. 19 20 21 22 23 24 25 26 27 28 B A R R Y LAMAR BONDS, D e f e n d a n t. U N IT E D STATES OF AMERICA, P l a in tif f , ) ) ) ) ) ) ) ) ) ) ) ) C r im in a l 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 I S M I S S COUNTS I, II, V, VII, VIII, I X , XI, XII, XIV, AND XV OF THE S U P E R S E D I N G INDICTMENT D a te : October 24, 2008 T im e :1 1 :0 0 a.m. J u d g e : Hon. Susan Illston U N I T E D STATES DISTRICT COURT N O R T H E R N DISTRICT OF CALIFORNIA S A N FRANCISCO DIVISION

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T A B L E OF CONTENTS

In tro d u c t.io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 .. I. II . C o u n t s Six and Seven are not multiplicitous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N o n e of the perjury counts rests on fundamentally ambiguous statements.. . . . . . . 5 A. B. A p p lic a b le legal principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 T h e questions asked Bonds were not fundamentally ambiguous.. . . . . . . . . 7 1. 2. 3. 4. 5. 6. 7. C o u n t Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C o u n t Five. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C o u n t Eight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 C o u n t Nine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 C o u n t Eleven. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 C o u n t Twelve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 C o u n t Fourteen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4

C o u n t Fifteen is valid and should not be dismissed. . . . . . . . . . . . . . . . . . . . . . . . 1 4

C o n c lu s io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7

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T A B L E OF AUTHORITIES

CASES A p p r e n d i v. New Jersey, 530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 G e b h a rd v. United States, 422 F.2d 281 (9th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 U n ite d States v. Aguilar, 515 U.S. 593 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 U n ite d States v. Berger, 473 F.3d 1080 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U n ite d States v. Boone, 951 F.2d 1535 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 7 , 10 U n ited States v. Bussell, 414 F.3d 1048 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. Camper, 384 F.3d 1073 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. Culliton, 328 F.3d 1074 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. Duran, 41 F.3d 540 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U n ited States v. Gaudin, 515 U.S. 506 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U n ite d States v. Israelski, 597 F.2d 22 (2d Cir. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n ite d States v. Keen, 104 F.3d 1111 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 U n ite d States v. Long, 706 F.2d 1044 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 U n ite d States v. McKenna, 327 F.3d 830 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. Olsowy, 836 F.2d 439 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n ite d States v. Oren, 893 F.2d 1057 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U n ite d States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782 (2007). . . . . . . . . . . . . . 1 6 U n ite d States v. Ryan, 828 F.2d 1010 (3d Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. Salas-Camacho, 859 F.2d 788 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . 3 U n ited States v. Segall, 833 F.2d 144 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n i te d States v. Stewart, 420 F.3d 1007 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U n ite d States v. Williams, 128 S. Ct. 1830 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 U n ite d States v. Zalapa, 509 F.3d 1060 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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STATUTES 1 8 U.S.C. § 1503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 , 17

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IN T R O D U C T IO N D e f en d a n t Barry Bonds moves to dismiss nine counts of the Superseding I n d ic tm e n t on multiple grounds. He asserts that Count One should be dismissed because it fails to include the word "material." As Bonds acknowledges, however, the Ninth C irc u it has squarely held that "[a]lthough materiality is an essential element of a c o n v ictio n for perjury, the government need not allege materiality if the facts pleaded in th e indictment `warrant the inference of materiality.'" United States v. Duran, 41 F.3d 5 4 0 , 544 (9th Cir. 1994) (quoting United States v. Oren, 893 F.2d 1057, 1063-64 (9th Cir. 1 9 9 0 )) (emphasis deleted). Here, the superseding indictment makes clear that it alleges th a t the false statements alleged in Count One are material by explicitly stating the p u rp o s e and focus of the grand jury's investigation. See Indictment ¶¶ 4-5. Although B o n d s contends that Duran is no longer good law in light of United States v. Gaudin, 515 U .S . 506 (1995), and Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit has re c en tly reaffirmed Duran's holding that an indictment for making false statements need n o t allege materiality. See United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007). Nevertheless, the typographical omission of the word "material" from Count One will be re m e d ie d , either by obtaining a second superseding indictment or obtaining a new in d ic tm e n t solely on that count that could be joined with the current indictment for trial. Bonds's remaining challenges are without merit. Bonds's argument that Counts S ix and Seven are multiplicitous should be rejected because he previously argued that a c o u n t containing both the statements alleged in those counts was duplicitous. In any e v e n t, Counts Six and Seven are not multiplicitous because they do not involve identical a n sw e rs to identical questions and because Bonds's false answers to the two questions im p a ire d different aspects of the grand jury's investigation. Bonds's effort to renew his claim s that the questions that form the basis for several counts of the indictment are "f u n d am en tally ambiguous" should also be rejected. As explained in the government's o p p o s itio n to Bonds's initial motion to dismiss and in Part II of this opposition, each co u n t rests on Bonds's answers to unambiguous questions, and Bonds's contrary

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c o n te n tio n ignores the plain language of the prosecutor's questions, the context in which th e y were asked, and Bonds's failure to express any confusion when answering them. Finally, Bonds's new challenge to the obstruction-of-justice count, Count Fifteen, rests on a misapprehension of the allegations of that count. Count Fifteen alleges that Bonds's g ra n d jury testimony as a whole obstructed the grand jury's inquiry, and therefore any a m b ig u ity, duplicity, or multiplicity in the other fourteen counts of the indictment does n o t require dismissal of that count. I. C o u n ts six and seven are not multiplicitous. B o n d s asserts (Mot. at 4-5) that Counts Six and Seven are multiplicitous because b o th counts rest on the same question and answer. At the outset, Bonds should be f o re c lo s e d from asserting that these two counts are multiplicitous because he has p re v io u s ly alleged that the inclusion of these two statements in Count Three of the o rig inal indictment rendered that count duplicitous. Both cannot be true. If, as this Court f o u n d in deciding Bonds's original motion to dismiss, the government improperly joined tw o or more false statements into Count Three of the original indictment (rendering that c o u n t duplicitous), then separating two of the duplicitous false statements into separate c o u n ts in the superseding indictment cannot create multiplicitous allegations. Put another w a y, either the government improperly charged the two statements in a single duplicitous c o u n t or it improperly charged the two statements in separate, multiplicitous counts, but it c a n n o t have done both. Bonds chose to claim that the former Count Three was duplicitous, and he should not now be heard to argue that Counts Six and Seven are m u l ti p l ic i t o u s . If the Court reaches Bonds's multiplicity challenge, it should be rejected. In s u p p o rt of his contention, Bonds relies on cases addressing whether Congress intended a s in g le act to give rise to multiple violations of the same statute, see United States v. Z a la p a , 509 F.3d 1060 (9th Cir. 2007), United States v. Keen, 104 F.3d 1111 (9th Cir. 1 9 9 7 ), and he ignores Ninth Circuit decisions that directly address the question whether m u ltip le false statements may constitute multiple violations of the same statute. Under

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th e test set by applicable Ninth Circuit decisions, and in the context of the entire grand ju ry transcript, Counts Six and Seven are not multiplicitous, and Bonds's motion to d is m is s Count Seven should be denied. " `M u ltip lic ity is the charging of a single offense in more than one count.'" United S ta tes v. Segall, 833 F.2d 144, 146 (9th Cir. 1987) (quoting United States v. Israelski, 597 F .2 d 22, 24 (2d Cir. 1979)). To determine whether multiple counts charging false s ta te m e n ts or perjury are multiplicitous, the Ninth Circuit uses a two-part test. See United S ta te s v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988). First, two or more false s ta te m e n t or perjury counts are not multiplicitous unless they charge "`identical false s ta te m e n ts ... made in response to identical questions.'" United States v. Stewart, 420 F .3 d 1007, 1013 (9th Cir. 2005) (quoting United States v. Olsowy, 836 F.2d 439, 443 (9th C ir. 1987)). Second, even if multiple counts allege identical statements made to identical q u e stio n s , the counts are not multiplicitous if the second false statement further impaired th e operations of government, Salas-Camacho, 859 F.2d at 791, or in this case, the grand ju ry's investigation. H e re , neither prong of the test is met. In the questioning that led to the statement a lle g e d in Count Six, the prosecutor asked Bonds about the first page of Exhibit 503. That page contained the following notation: "`G' 1 Box off season & 2 Box season: $ 1 5 0 0 .0 0 ." Directing Bonds's attention to this notation, the prosecutor asked whether G r e g Anderson ever gave Bonds an item that he referred to as G or the G. Bonds first g a v e an evasive answer and then denied that he received any boxes labeled "G." Grand J u ry Transcript (GJTR) at 47. To conclude the questioning on this notation on the d o c u m e n t, the prosecutor asked the question referenced in Count Six: A n d , again, just to be clear and then I'll leave it, but [Anderson] never gave yo u anything that you understood to be human growth hormone? Did he e v e r give you anything like that? G J T R at 48. Bonds answered, "No." Ibid. This answer forms the basis for Count Six. T h e questioning leading to the allegations of Count Seven occurs 50 pages later in th e grand jury transcript and concerned a different page of Exhibit 503. See GJTR at 96-

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9 7 . In that questioning, the prosecutor asked Bonds about a calendar page from D e c em b e r 2001 that bore the initials "BB," as well as notations such as "clear," "1 cc T 2 0 0 mg," and ".25 G." GJTR at 96. The prosecutor first asked Bonds whether he was g e ttin g "items" ­ referring to "the flax seed oil" and the cream ­ during the month of D e c em b e r 2001. Bonds answered that question, "No." The prosecutor then asked about a n entry that appeared on each Monday of the calendar stating "1 cc T 200 mg" and ".25 G ." In an effort to determine whether these entries reflected the administration of illegal s te ro id s to Bonds during December 2001, the prosecutor asked whether Bonds obtained e ith e r testosterone or growth hormone during December 2001. Bonds answered, "Not at a ll" to both questions. His answer to the prosecutor's question on growth hormone forms th e basis for Count Seven. A s the context shows, these two counts involved separate lines of inquiry and s e p a ra te aspects of the grand jury's investigation. In the questioning leading to Count S ix , the prosecutor sought to determine whether an undated notation on a document (page 1 of Exhibit 503) showed that Anderson had supplied Bonds with boxes containing h u m a n growth hormone, an illegal substance. Because the notation was undated, the p ro s e c u to r's question was not focused on any particular time period. In the questioning le a d in g to the answer that forms the basis for Count Seven, the prosecutor asked Bonds ab o u t a different document, the calendar page dated December 2001. The prosecutor's q u e s tio n s sought to determine whether the entries on the calendar reflected Bonds's use o f testosterone or human growth hormone in a particular time frame, December 2001. In sum, Count Six and Count Seven do not involve identical questions because th e y arise from questioning about different documents, and the question underlying Count S e v e n relates to a specific time period. Although Bonds's negative answer to the q u e stio n alleged in Count Seven was consistent with his negative answer alleged in Count S ix , the prosecutor's questions were not an effort to "bludgeon a witness who is lying by re p e atin g and rephrasing the same question." Gebhard v. United States, 422 F.2d 281, 2 8 9 (9th Cir. 1970). Instead, as is typical in grand jury questioning, the prosecutor sought

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to sharpen the inquiry by focusing on a specific time period and using different d o c u m e n ts in an effort to refresh the witness's recollection or induce him to concede that th e document required him to change his prior testimony. Thus, the consistency between B o n d s 's false statements in Counts Six and Seven is not a result of identical questions p o s e d by the prosecutor but of the prosecutor's effort to use different questions and d o c u m e n ts to elicit the truth. M o re o v e r, because the questioning underlying each count rested on a different d o c u m e n t, each of Bonds's allegedly false answers impaired a different aspect of the g ra n d jury's investigation. Bonds's false answer to the question alleged in Count Six im p a ire d the grand jury's ability to understand the meaning of the first page of Exhibit 5 0 3 , and Bonds's false answer to the question alleged in Count Seven impaired the grand ju ry's ability to determine the meaning of the entries on the December 2001 calendar p a g e . For these reasons, the two counts are not multiplicitous. II. N o n e of the perjury counts rests on fundamentally ambiguous statements. B o n d s renews his contention (Mot. at 5-13) that seven of the questions that led to th e false statements alleged in the indictment are so "fundamentally ambiguous" that they c a n n o t support the perjury counts. For the reasons stated in the government's opposition to Bonds's first motion to dismiss, that contention should be rejected. First, Bonds's c la im is premature, because questions concerning the meaning of a question and the d e f en d a n t's interpretation of it are ordinarily left to the jury. For that reason, a court may n o t 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. Despite the government's detailed effort in its opposition to Bonds's prior motion to d ism iss to explain the context of the questions and answers charged in the indictment, B o n d s 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. To reiterate, that context in c lu d e s the fact that the prosecutor specifically told Bonds that if he did not understand a

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q u e s tio n , he could consult with counsel or ask the prosecutor to rephrase it. GJTR at 5-6. Bonds never said he was confused about, or asked the prosecutor to rephrase, a question. Finally, even viewed outside of the context in which they were asked, none of the q u estio n s asked Bonds was so fundamentally ambiguous that it cannot support a perjury p r o s e c u ti o n . 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 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

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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." This he fails to do; in fact, the grand ju r y transcript demonstrates that Bonds understood the questions perfectly well and chose h is answers carefully, if falsely. B. T h e questions asked Bonds were not fundamentally ambiguous. 1. C o u n t Two

In the questioning leading up to the statement alleged in Count Two, the p ro s e c u to r confronted Bonds with a document showing that "Barry B." tested positive for tw o anabolic steroids in November 2000. The prosecutor then asked, "So I'm going to a sk you in the weeks and months leading up to November 2000, were you taking s te ro id s ? " Bonds answered, "no." The prosecutor continued, "or anything like that?," a n d Bonds answered, "No, I wasn't at all. I've never seen these documents. I've never s e e n these papers." The underlined portion of the answer forms the basis for Count Two. Although Bonds's first answer ("no") was charged as a separate specification of perjury in the first indictment, the superseding indictment alleges only that the statement, "No, I w a s n 't at all" is perjurious. Bonds argues (Mot. at 8) that the question alleged in Count Two is ambiguous in tw o respects. First, Bonds contends that the question leading up to Bonds's answer, "No, I wasn't at all," is fundamentally ambiguous because the prosecutor failed "to reasonably id e n tify what substances can be deemed `anything like' steroids." Second, Bonds asserts (M o t. at 8) that the question "in the weeks and months leading up to November 2000, w e re you taking steroids?" is "fundamentally ambiguous as to time period at issue." He c o n te n d s that "a truthful answer to the `weeks' question could be different than a truthful a n sw e r to the `months' question." 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

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m a k e s clear, the questions that led to the statement that forms the basis for Count One a ro s e out of the prosecutor's effort to examine Bonds about the meaning of two d o c u m e n ts that, taken together, show that Bonds tested positive for steroids. At trial, the g o v e rn m e n t will seek to introduce those documents and present testimony to explain their m e a n in g . Until the jury sees those documents and hears the explanatory testimony ­ that is , until the jury understands the context of the questions ­ any inquiry into whether the q u e s tio n s were ambiguous is premature. Second, the additional context supplied by Bonds's grand jury testimony as a w h o le shows that the questions are not ambiguous. Throughout his testimony, Bonds d e n ie d that he ever knowingly took steroids. For that reason, he could not have perceived th e prosecutor's question about the "weeks and months leading up to November 2000" as a m b ig u o u s ; as Bonds's answer shows, he did not distinguish between "weeks" and " m o n th s," because his answer would have been the same for any time period. Third, in th e colloquy that forms the basis for Count One, Bonds denied that he ever knowingly to o k steroids provided by Anderson. At trial, the government's evidence will show that B o n d s received steroids from Anderson in the period before the November 2000 positive d ru g test, and that evidence raises the inference that Anderson gave Bonds the steroids th a t caused him to test positive in November 2000. Thus, the questions that led to the f a ls e statement alleged in Count Two simply sought to narrow the focus of earlier q u e s tio n s , including the question alleged in Count One. Even divorced from their context, the questions that led to the false statement a lle g e d in Count Two are not fundamentally ambiguous. The prosecutor's question p lain ly sought to determine why Bonds apparently tested positive for anabolic steroids in N o v e m b e r 2000, and the phrases "weeks and months" and "anything like that" must be in ter p re ted in that context. Thus, the "weeks and months" question is reasonably in te rp re te d to ask Bonds whether he took steroids in the period before the test that re su lte d in the positive test. Likewise, the phrase "anything like that" asks whether Bonds too k anything like steroids that could have led to a positive steroid test. Bonds's

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stra ig h tf o rw a rd answers ("no," "not at all") show that he understood the questions and did n o t believe they were ambiguous. 2. C o u n t Five

In the questions that led to the false statement alleged in Count Five, the p ro s e c u to r sought to ascertain whether Anderson ever injected Bonds with anything. The p ro s e c u to r first directly asked Bonds, "Did Greg [Anderson] ever give you anything that re q u ire d a syringe to inject yourself with?" Bonds evaded this question by referring to his " p e rso n a l doctor" and his friendship with Anderson. In an effort to obtain an answer to h is question, the prosecutor made clear that he was not referring to the Giants team p h ysician , anyone involved in the surgeries that Bonds had undergone, or Bonds's p e rs o n a l physician. 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 9) 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 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 was insufficiently specific in n a rro w in g the universe of persons to whom it refers, the question clearly asks whether A n d e rs o n ever injected Bonds with anything. Thus, even if Bonds could not have u n d e rs to o d who the "individuals" and "associates" were, his answer of "no" means that n e ith e r Anderson nor any "associate" ever injected him with anything. Accordingly, that a n s w e r is false if the evidence shows that Anderson injected Bonds. See United States v.

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B o o n e , 951 F.2d at 1535 (ambiguous portion of "disjunctive" question does not render e n tire question ambiguous). Indeed, as noted above, Bonds denied that he ever took s te ro id s so the inclusion of the phrase "or any associates of his" did not render the q u e s tio n ambiguous for Bonds. 3. C o u n t Eight

Count Eight charges that Bonds made a material false statement when he answered "N o " to the question, "In January of 2002, then, again, just to be clear, you weren't g e ttin g any testosterone or growth hormone from Mr. Anderson during that period of tim e ? " In his initial motion to dismiss, Bonds did not argue that this question was f u n d a m e n ta lly ambiguous. Bonds now argues, however (Mot. at 9), that "the compound n a tu re of the question count [sic] renders it sufficiently duplicitous and misleading to re q u ire dismissal." As set forth above, however, the Ninth Circuit has held that a question phrased in th e disjunctive that contains an ambiguous phrase is not "fundamentally ambiguous" as lo n g as the remainder of the question is sufficiently precise. See Boone, 951 F.2d at 1535. Here, there is no ambiguity in the question because it did not ask Bonds to choose b e tw e e n two alternatives; rather, it asked whether either of two things was true: 1) did A n d e rs o n give Bonds testosterone or 2) did Anderson give Bonds growth hormone. Bonds's answer of "no" is a denial that Anderson had given him either drug. Moreover, B o n d s 's unambiguous answer shows that he comprehended the question completely. 4. C o u n t Nine

In the colloquy leading to the question that forms the basis for Count Nine, Bonds d e sc rib e d how Anderson came to the ballpark and rubbed "some lotion-type stuff" on B o n d s 's arm and gave him something that Anderson called "flax seed oil." In response, th e prosecutor asked, "When did that happen for the first time?" Without expressing any d o u b t about the meaning of the prosecutor's question, Bonds responded, "Not until 2003, th is season." Bonds argues (Mot. at 10) that the word "that" in the prosecutor's question is ambiguous because "there is no reliable means for determining the event to which the

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p ro s e c u to r referred when he inquired about `that' 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 te rm in e when it occurred. In other words, the defendant set the context for Count N in e 's question in his previous answer; it is illogical to argue now that Bonds did not u n d e rs ta n d the issue he himself raised. Moreover, even if the question contained some a m b ig u ity, it at most raises a question for the jury to determine based on the full context o f the questioning and other evidence presented by the government at trial. 5. C o u n t Eleven

C o u n t Eleven arises out of the prosecutor's effort to confirm that Anderson never g a v e Bonds anything other than vitamins before the 2003 season. After Bonds evaded the p r o s e c u t o r' s first effort to ask that question, the prosecutor asked it again, "prior to last s e a so n [i.e., the 2003 season], you never took anything that [Anderson] asked you to take, o th e r than vitamins." Bonds answered, "Right. We didn't have any other discussions." The prosecutor continued, "No oils like this or anything like this before?" Bonds a n sw e re d , "No, no, no, not at all. Not at all." Count Four of the first indictment charged th a t both of Bonds's answers during this colloquy ­ "Right. We didn't have any other d is c u s s io n s " and "No, no, no, not at all. Not at all" ­ were material false statements. Count Eleven of the superseding indictment sets forth the entire colloquy but alleges only th a t Bonds's answer, "Right" constitutes a material false statement. Accordingly, the q u e stio n that forms the basis for Count Eleven is "prior to last season, you never took a n yth in g that [Anderson] asked you to take, other than vitamins?" B o n d s argues (Mot. at 10-11) that the prosecutor's question could refer to water or o v er-the-c o u n ter substances "or any number of innocuous substances" and is therefore a m b ig u o u s. Put in context, however, the prosecutor's question is part of an effort to d e te rm in e when Anderson first gave specific substances to Bonds, not what substances he g a v e him. Thus, the question that forms the basis for Count Eleven was part of the

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p ro s e c u to r's effort to determine 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 also argues that Bonds's reference to "discussions" in his answer shows that h e misunderstood the question. That contention ignores the colloquy that came directly b e f o re Bonds's allegedly false statement. Initially, the prosecutor asked whether A n d e rs o n "had ever given [Bonds] anything or asked [Bonds] to take anything before the 2 0 0 3 season." Bonds apparently chose to answer only that part of the question relating to w h e t h e r Anderson asked him to take anything; he replied, "We never had those d is c u s s io n s ." The prosecutor then sought to clarify by telling Bonds, "That's not my q u e stio n , My question is...prior to the last season, you never took anything that he asked yo u to take, other than vitamins?" Bonds's interrupted the question to say, "No," and th e n unequivocally answered the question, "Right." In short, put in context, the p ro s e c u to r's question contains no ambiguity, and Bonds's answer ­ "Right" ­ displays no d o u b t as to its meaning. In any event, the question whether Bonds misunderstood the q u e stio n , and therefore did not give a knowingly false answer, is a question for the jury to d e c id e , not an issue to be resolved in a challenge to the sufficiency of the indictment. 6. C o u n t Twelve

C o u n t Twelve alleges that Bonds made a false statement in the following exchange: Q: O k a y. So first of all, Mr. Bonds, I guess I want to recheck with you o r ask again exactly when you started getting the ­ what I'll call the re c o v e ry items, what you understood to be flax seed oil and the cream, w h e n you started getting that from Greg Anderson. I think you said ­ but p le a se correct me if I'm wrong ­ that you thought it was prior to this current b a se b a ll season. B u t let me ask, I mean, is it possible it's actually a year before, after the 2 0 0 0 ­ well, actually two years before, after the 2001 season? Because this first c a le n d e r is dated December 2001 with "BB" on it and it's got a number of entries th a t I'd like to ask you about. W e re you getting items during that period of time from Greg? A: N o . Like I said, I don't recall having anything like this at during that time o f year. It was toward the end of 2000, after the World Series, you know, when
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m y father was going through cancer. In d ic tm e n t ¶ 33; GJTR at 96-97. Bonds argues (Mot. at 11) that the question forming the basis for Count Twelve " is , by any measure, unintelligible" and that "it is simply impossible to know what f a ls e h o o d Mr. Bonds is accused of telling at this juncture in his testimony." Apparently, h o w e v e r, he does not seek dismissal of this count and demands only to know the question o n which "the government will rest its case." Mot. at 12. In fact, the colloquy quoted in Count Twelve contains only one question, and it is stra ig h tf o rw a rd : was Bonds getting "flax seed oil and the cream" from Anderson in D e c e m b e r 2001. The prosecutor told Bonds what he was asking about ­ "flax seed oil a n d the cream" ­ and, referencing the December 2001 calendar bearing the initials "BB," th e prosecutor then asked Bonds whether he was getting those items from Anderson d u rin g that time period. There is no ambiguity in that question. A s the transcript and the indictment make clear, Bonds added, "It was toward the e n d of 2000, after the World Series, you know, when my father was going through c a n ce r." The statement "toward the end of 2000" is not consistent with Bonds's prior te stim o n y that Anderson first gave him flax seed oil and other substances in 2003; B o n d s 's reference to his father's cancer, however, shows that he meant to refer to the 2 0 0 3 season. See GJTR at 23-24 (Bonds's testimony that his father died of cancer "at the e n d of 2003, 2003 season"). In addition, by saying "after the World Series," Bonds is re f errin g to the 2002 World Series in which he and the Giants played. Whatever the e f f e c t of Bonds's apparent mistake, the indictment alleges only that Bonds testified f a ls e ly in denying that he received the substances "after the 2001 season," not that he f a ls e ly said that he received the substances from Anderson "toward the end of 2000." At tria l, Bonds is free to argue that his apparent mistake in saying "toward the end of 2000" s h o w s that he did not understand the question and that his unequivocal denial that he rec eive d the substances in 2001 is therefore not knowingly false, but Bonds's m is s ta te m e n t in his explanatory comment does not show that the question is ambiguous.

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7.

C o u n t Fourteen

In Count Fourteen, the indictment alleges that the prosecutor asked, "And you w e re n 't getting this flax seed oil stuff during that period of time [January 2002]?" Bonds a n sw e re d , "Not that I recall. Like I said, I could be wrong. But I'm ­ I'm ­ going from m y recollection it was, like, in the 2002 time and 2003 season." Bonds argues (Mot. at 1 2 -1 3 ) that by including the phrase "I could be wrong" in the statement alleged to be f a lse , the indictment alleged an "oxymoron." In other words, Bonds appears to argue, 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 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 Count Fourteen 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 Count F o u rt e e n . III. C o u n t Fifteen is valid and should not be dismissed. C o u n t Fifteen charges that Bonds obstructed justice during his grand jury te s tim o n y by giving evasive, false, and misleading testimony, including the false sta tem e n ts that are alleged in the other counts of the indictment. In his initial motion to

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d ism iss , Bonds argued only that Count Fifteen (Count Five in the original indictment) w a s duplicitous. Bonds's current motion mentions that contention only in passing and in ste a d raises new challenges to Count Fifteen. First, he argues that Count Fifteen should b e dismissed because it rests in part on the false statements alleged in the other 14 counts o f the indictment. Because, Bonds asserts, "most of those charges are defective," Count F if te e n must be dismissed as well. Second, Bonds claims that because Count Fifteen uses th e phrase "including but not limited to the false statements made by the defendant as c h a rg e d in Counts One through Fourteen of this indictment," it is "so vague as to deprive th e defendant of the due process notice required to prepare a defense." Third, Bonds claim s that Count Fifteen does not allege that the false statements on which it rests were m a te ria l. None of these contentions has merit. Bonds's first argument ­ that Count Fifteen must be dismissed because of a m b ig u itie s in other counts ­ misapprehends the theory behind Count Fifteen. That count a lleg e s that Bonds's grand jury testimony as a whole was so evasive and perjurious that it co n stituted obstruction of justice. Accordingly, the essence of that count is Bonds's re p e titio n of false statements, coupled with his evasive testimony in response to other q u estio n s posed by the prosecutor. In other words, this count rests on Bonds's grand jury te stim o n y as a whole, not on individual questions and answers. For that reason, this count is not subject to dismissal even if Bonds's duplicity or ambiguity challenges result in the d i sm is s a l of other counts. B o n d s 's second argument also fails. Bonds does not claim that 18 U.S.C. § 1503, th e statute under which he is charged, fails to give him sufficient notice that his conduct w a s criminal. See United States v. Williams, 128 S. Ct. 1830, 1845 (2008) ("A conviction f a ils to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless th a t it authorizes or encourages seriously discriminatory enforcement."). Instead, he m e re ly claims that Count Fifteen fails to include all of the conduct on which the g o v e rn m e n t will rely to prove that Bonds obstructed justice. That contention is without

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m e rit, because Count Fifteen rests solely on Bonds's grand jury testimony and thus gives B o n d s adequate notice of the conduct that will be included in the government's proof at trial. In addition, by referencing the other counts of the indictment, Count Fifteen directs B o n d s to 14 examples of testimony that contributed to his obstruction of justice. M o re o v e r, even if Bonds's grand jury transcript did not give him adequate notice, he is n o t entitled to dismissal of the indictment. Instead, he should file an appropriate motion f o r a bill of particulars. See United States v. Long, 706 F.2d 1044, 1054 (9th Cir.1983) (" A motion for a bill of particulars is appropriate where a defendant requires clarification in order to prepare a defense.... It is designed to apprise the defendant of the specific c h a rg e s being presented to minimize danger of surprise at trial, to aid in preparation and to protect against double jeopardy.") (citations omitted). F in a lly, Bonds argues (Mot. at 13-14) that Count Fifteen must be dismissed b ec au se it fails to charge "that the purportedly false statements identified therein were m a te ria l." Section 1503 does not contain the word "material," however, and the case on w h ic h Bonds relies, United States v. Aguilar, 515 U.S. 593 (1995), does not impose a m a te ria lity requirement for that statute. Instead, that case merely explained that an " e n d e a v o r" to obstruct justice "must have a relationship in time, causation, or logic with th e judicial proceedings" that the defendant tried to obstruct. Id. at 599. Nothing in A g u ila r says that when false statements form the basis for a violation of Section 1503, th e y must be material. E v e n if a Section 1503 allegation requires proof that false statements forming the b a sis for an obstruction-of-justice allegation were material, Count Fifteen of the in d ic tm e n t is sufficient. Count Fifteen charges a violation of Section 1503 in the la n g u a g e of the statute, and that language implicitly or explicitly sets forth all of the e le m e n ts of the offense. See United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 7 8 2 , 788 (2007) (indictment that charges offense in the language of the statute, but failed to expressly allege an element of the offense, was not defective).

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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 _ _ _ _ _ /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 A s s is ta n t United States Attorneys DATED: September 24, 2008 R e sp e c tf u lly submitted, J O S E P H P. RUSSONIELLO U n ite d States Attorney C O N C L U SIO N F o r the foregoing reasons, Bonds's Motion to Dismiss Counts I, II, V, VII, VIII, IX , XI, XII, XIV, and XV of the Superseding Indictment should be denied.

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