United States v. Barry Bonds , 784 F.3d 582 ( 2015 )

FILED
FOR PUBLICATION APR 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10669
Plaintiff - Appellee, D.C. No. 3:07-cr-00732-SI-1
v.
OPINION
BARRY LAMAR BONDS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted September 18, 2014
San Francisco, California
Before: REINHARDT, KOZINSKI, O’SCANNLAIN, GRABER,
WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN,
N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges.
PER CURIAM:
During a grand jury proceeding, defendant gave a rambling, non-responsive
answer to a simple question. Because there is insufficient evidence that Statement
C was material, defendant’s conviction for obstruction of justice in violation of 18
page 2
U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may
be in other circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates defendant’s right under the
Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th
Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His
conviction and sentence must therefore be vacated, and he may not be tried again
on that count.
REVERSED.
page 3
COUNSEL
Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Horgan, San
Francisco, California; Ted Sampsell Jones, William Mitchell College of Law, St.
Paul, Minnesota, for Appellant.
Merry Jean Chan (argued), Assistant United States Attorney, Melinda Haag,
United States Attorney, Barbara J. Valliere, Assistant United States Attorney,
Chief, Appellate Division, United States Attorneys’ Office, San Francisco,
California, for Appellee.
FILED
United States v. Bonds, No. 11-10669: APR 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KOZINSKI, Circuit Judge, with whom Circuit Judges O’SCANNLAIN,
GRABER, CALLAHAN and NGUYEN join, concurring:
Can a single non-responsive answer by a grand jury witness support a
conviction for obstruction of justice under 18 U.S.C. § 1503?
I
Defendant, who was then a professional baseball player, was summoned
before a grand jury and questioned for nearly three hours about his suspected use
of steroids. He was subsequently charged with four counts of making false
statements and one count of obstruction of justice, all based on his grand jury
testimony. The jury convicted him on the obstruction count and was otherwise
unable to reach a verdict.
The jury instructions identified seven of defendant’s statements that the
government alleged obstructed justice. The jury, however, found only one
statement obstructive. That statement was referred to as Statement C at trial and is
underlined in the passage below:
Q: Did Greg[, your trainer,] ever give you anything that
required a syringe to inject yourself with?
A: I’ve only had one doctor touch me. And that’s my only
personal doctor. Greg, like I said, we don’t get into each
others’ personal lives. We’re friends, but I don’t—we don’t
sit around and talk baseball, because he knows I don’t want—
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don’t come to my house talking baseball. If you want to come
to my house and talk about fishing, some other stuff, we’ll be
good friends. You come around talking about baseball, you go
on. I don’t talk about his business. You know what I mean?
Q: Right.
A: That’s what keeps our friendship. You know, I am sorry, but
that—you know, that—I was a celebrity child, not just in
baseball by my own instincts. I became a celebrity child with a
famous father. I just don’t get into other people’s business
because of my father’s situation, you see.
Defendant was again asked about injectable steroids immediately following
this exchange and a few other times during his testimony. He provided direct
responses to the follow-up questions. For example, he was asked whether he ever
“injected [him]self with anything that Greg . . . gave [him].” He responded “I’m
not that talented, no.” The government believed that those answers were false but,
as noted, the jury failed to convict defendant on the false statement counts.
The district court rejected defendant’s post-verdict motion for acquittal on
the obstruction count and a three-judge panel affirmed. United States v. Bonds,
730 F.3d 890 (9th Cir. 2013). We granted en banc rehearing. United States v.
Bonds, 757 F.3d 994 (9th Cir. 2014).
II
page 3
A. Title 18 U.S.C. § 1503(a), which defendant was convicted of violating,
provides in relevant part as follows: “Whoever . . . corruptly or by threats or force,
or by any threatening letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of justice, shall
be punished as provided in subsection (b).” Known as the omnibus clause, this
language “was designed to proscribe all manner of corrupt methods of obstructing
justice.” United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981). We have
held that a defendant “corruptly” obstructs justice if he acts “with the purpose of
obstructing justice.” Id.
As should be apparent, section 1503’s coverage is vast. By its literal terms,
it applies to all stages of the criminal and civil justice process, not just to conduct
in the courtroom but also to trial preparation, discovery and pretrial motions.
Indeed, it arguably covers conduct taken in anticipation that a civil or criminal case
might be filed, such as tax planning, hiding assets or talking to police. And the text
of the omnibus clause, in concert with our definition of corruptly, encompasses any
act that a jury might infer was intended to “influence, obstruct, or impede . . . the
due administration of justice.” That’s true even if no actual obstruction occurs,
because the clause’s use of “endeavors” makes “success . . . irrelevant.” See
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United States v. Richardson, 676 F.3d 491, 503 (5th Cir. 2012) (internal quotation
marks omitted).
Stretched to its limits, section 1503 poses a significant hazard for everyone
involved in our system of justice, because so much of what the adversary process
calls for could be construed as obstruction. Did a tort plaintiff file a complaint
seeking damages far in excess of what the jury ultimately awards? That could be
viewed as corruptly endeavoring to “influence . . . the due administration of
justice” by seeking to recover more than the claim deserves. So could any of the
following behaviors that make up the bread and butter of litigation: filing an
answer that denies liability for conduct that is ultimately adjudged wrongful or
malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary
judgment; seeking a continuance in order to inflict delay on the opposing party;
frivolously taking an appeal or petitioning for certiorari—the list is endless.
Witnesses would be particularly vulnerable because, as the Supreme Court has
noted, “[u]nder the pressures and tensions of interrogation, it is not uncommon for
the most earnest witnesses to give answers that are not entirely responsive.”
Bronston v. United States, 409 U.S. 352, 358 (1973).
Lawyers face the most pervasive threat under such a regime. Zealous
advocacy sometimes calls for pushing back against an adversary’s just case and
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casting a despicable client in a favorable light, yet such conduct could be described
as “endeavor[ing] to . . . impede . . . the due administration of justice.” Even
routine advocacy provides ample occasion for stumbling into the heartland of the
omnibus clause’s sweeping coverage. Oral arguments provide a ready example.
One need not spend much time in one of our courtrooms to hear lawyers dancing
around questions from the bench rather than giving pithy, direct answers. There is,
for instance, the ever popular “but that is not this case” retort to a hypothetical,
which could be construed as an effort to divert the court and thereby “influence . . .
the due administration of justice.”
It is true that any such maneuver would violate section 1503 only if it were
done “corruptly.” But it is equally true that we have given “corruptly” such a
broad construction that it does not meaningfully cabin the kind of conduct that is
subject to prosecution. As noted, we have held that a defendant acts “corruptly,”
as that term is used in section 1503, if he does so “with the purpose of obstructing
justice.” Rasheed, 663 F.2d at 852. In the examples above, a prosecutor could
argue that a complaint was filed corruptly because it was designed to extort a
nuisance settlement, or an answer was filed corruptly because its principal purpose
was to pressure a needy plaintiff into an unjust settlement, or that the lawyer who
parried a judicial hypothetical with “but that is not this case” was endeavoring to
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distract the court so it would reach a wrong result. That a jury or a judge might not
buy such an argument is neither here nor there; a criminal prosecution, even one
that results in an acquittal, is a life-wrenching event. Nor does an acquittal wipe
clean the suspicion that a guilty defendant got off on a technicality.
We have no doubt that United States Attorneys and their Assistants would
use the power to prosecute for such crimes judiciously, but that is not the point.
Making everyone who participates in our justice system a potential criminal
defendant for conduct that is nothing more than the ordinary tug and pull of
litigation risks chilling zealous advocacy. It also gives prosecutors the immense
and unreviewable power to reward friends and punish enemies by prosecuting the
latter and giving the former a pass. The perception that prosecutors have such a
potent weapon in their arsenal, even if never used, may well dampen the fervor
with which lawyers, particularly those representing criminal defendants, will
discharge their duties. The amorphous nature of the statute is also at odds with the
constitutional requirement that individuals have fair notice as to what conduct may
be criminal. See United States v. JDT, 762 F.3d 984, 996 (9th Cir. 2014) (citing
Skilling v. United States, 561 U.S. 358, 402–03 (2010)).
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B. Because the statute sweeps so broadly, due process calls for prudential
limitations on the government’s power to prosecute under it. Such a limitation
already exists in our case law interpreting section 1503: the requirement of
materiality. See United States v. Thomas, 612 F.3d 1107, 1128–29 (9th Cir. 2010).
Materiality screens out many of the statute’s troubling applications by limiting
convictions to those situations where an act “has a natural tendency to influence, or
was capable of influencing, the decision of the decisionmaking body.” See Kungys
v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks omitted);
Thomas, 612 F.3d at 1124. Put another way, the government must prove beyond a
reasonable doubt that the charged conduct was capable of influencing a
decisionmaking person or entity—for example, by causing it to cease its
investigation, pursue different avenues of inquiry or reach a different outcome.
See United States v. McKenna, 327 F.3d 830, 840 (9th Cir. 2003) (finding
statement material because it could have affected the “decision-making process”);
Weinstock v. United States, 231 F.2d 699, 703 (D.C. Cir. 1956) (noting that, to be
material, a statement “must have some weight in the process of reaching a
decision”).
In weighing materiality, we consider “the intrinsic capabilities of the . . .
statement itself,” rather than the statement’s actual effect on the decisionmaker, see
page 8
United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998) (internal
quotation marks omitted), and we evaluate the statement in “the context in which
[it was] made,” United States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007); see also
United States v. McBane, 433 F.3d 344, 352 (3d Cir. 2005); Weinstock, 231 F.2d
at 703 (noting that in context, a statement was “rob[bed] . . . of any
materiality—any possible influence upon the [decisionmaker] in reaching its
decision”).
We start with the self-evident proposition that Statement C, standing alone,
did not have the capacity to divert the government from its investigation or
influence the grand jury’s decision whether to indict anyone. Here it is again:
That’s what keeps our friendship. You know, I am sorry, but that—
you know, that—I was a celebrity child, not just in baseball by my
own instincts. I became a celebrity child with a famous father. I just
don’t get into other people’s business because of my father’s situation,
you see.
The statement says absolutely nothing pertinent to the subject of the grand jury’s
investigation. Even when paired with the question that prompted it,
Did Greg ever give you anything that required a syringe to inject
yourself with?
Statement C communicates nothing of value or detriment to the investigation. Had
the answer been “I’m afraid of needles,” it would have been plausible to infer an
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unspoken denial, with the actual words serving as an explanation or elaboration.
But, as given, the answer did not enlighten, obfuscate, confirm or deny anything
within the scope of the question posed.
The most one can say about this statement is that it was non-responsive and
thereby impeded the investigation to a small degree by wasting the grand jury’s
time and trying the prosecutors’ patience. But real-life witness examinations,
unlike those in movies and on television, invariably are littered with
non-responsive and irrelevant answers. This happens when the speaker doesn’t
understand the question, begins to talk before thinking (lawyers do this with
surprising frequency), wants to avoid giving a direct answer (ditto), or is
temporizing. Courtrooms are pressure-laden environments and a certain number of
non-responsive or irrelevant statements can be expected as part of the
give-and-take of courtroom discourse. Because some non-responsive answers are
among the road hazards of witness examination, any one such statement is not,
standing alone, “capable of influencing . . . the decision of [a] decisionmaking
body.” See Thomas, 612 F.3d at 1124.
This is true even if, as the government now argues, Statement C is literally
false. An irrelevant or wholly non-responsive answer says nothing germane to the
subject of the investigation, whether it’s true or false. For example, if a witness is
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asked, “Do you own a gun?” it makes no difference whether he answers “The sky
is blue” or “The sky is green.” That the second statement is false makes it no more
likely to impede the investigation than the first.
Statement C does not, however, stand alone. It was a small portion of a
much longer examination, and we must look at the record as a whole to determine
whether a rational trier of fact could have found the statement capable of
influencing the grand jury’s investigation, in light of defendant’s entire grand jury
testimony. If, for example, a witness engages in a pattern of irrelevant statements,
or launches into lengthy disquisitions that are clearly designed to waste time and
preclude the questioner from continuing his examination, the jury could find that
the witness’s behavior was capable of having some sway.
On careful review of the record, we find insufficient evidence to render
Statement C material. In conducting this review, we are mindful that we must give
the jury the benefit of the doubt and draw all reasonable inferences in favor of its
verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). At the same time, we
must conduct our review with some rigor for the prudential reasons discussed
above. See pp. 3–8 supra.
The government charged a total of seven statements, only one of which the
jury found to be obstructive. Two of these statements (including Statement C)
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appear to be wholly irrelevant—verbal detours with no bearing on the proceedings.
One statement is “I don’t know,” followed by a brief explanation for the lack of
knowledge. The rest are direct answers that the government claimed were false, all
concerning whether defendant’s trainer had provided or injected him with steroids.
In the context of three hours of grand jury testimony, these six additional
statements are insufficient to render the otherwise innocuous Statement C material.
If this were enough to establish materiality, few witnesses or lawyers would be safe
from prosecution.
FILED
APR 22 2015
United States v. Bonds, No. 11-10669 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
N.R. SMITH, Circuit Judge, with whom Circuit Judges WARDLAW,
CALLAHAN, and FRIEDLAND join, concurring::
I agree that no reasonable juror could have found Bonds guilty of violating
18 U.S.C. § 1503.
Bonds was convicted of obstructing justice by offering a “misleading or
evasive” statement—Statement C—to the grand jury. The Government expressly
declined to seek a conviction on the grounds that Statement C was false.1 When
evaluating whether the evidence was sufficient to show that Statement C violated
§ 1503, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). This standard of review requires us to determine
whether the jury could “draw reasonable inferences from basic facts to ultimate
facts.” Id. In this particular case, we must determine whether a single truthful but
evasive or misleading answer could constitute evidence of obstruction of justice
1
The Government asserts that, despite the position it argued to the jury, the
evidence was sufficient to conclude that Statement C was literally false. The
Government will not be allowed to change its position on appeal. See McCormick
v. United States, 500 U.S. 257, 270 n.8 (1991) (“Appellate courts are not permitted
to affirm convictions on any theory they please simply because the facts necessary
to support the theory were presented to the jury.”).
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under § 1503. It cannot.
Section 1503(a) punishes those who “corruptly . . . influence, obstruct[], or
impede[], or endeavor[] to influence, obstruct, or impede, the due administration of
justice.”2 The Supreme Court has imposed a materiality requirement on the broad
reach of § 1503, requiring that “the endeavor must have the natural and probable
effect of interfering with the due administration of justice.” United States v.
Aguilar, 515 U.S. 593, 599 (1995) (internal quotation marks omitted). The
Government is required to prove materiality to the jury. United States v. Gaudin,
515 U.S. 506, 511-12 (1995). The Supreme Court further instructs us, when
2
We need not accept Bonds’s invitation to reassess the reach of § 1503.
Doing so would require us to overturn the weight of Ninth Circuit precedent
applying § 1503 to in-court testimony. See United States v. Thomas, 612 F.3d
1107 (9th Cir. 2010) (applying § 1503 to false statements made before a grand
jury); United States v. Gonzalez-Mares, 752 F.2d 1485 (9th Cir. 1985) (applying
§ 1503 to false statement made before a magistrate judge); United States v.
Rasheed, 663 F.2d 843 (9th Cir. 1981) (applying § 1503 to concealment of
documents from grand jury). This approach would also bring us into conflict with
other circuits that have applied § 1503 in the same manner. See United States v.
Petzold, 788 F.2d 1478 (11th Cir. 1986) (applying § 1503 to grand jury testimony);
United States v. Griffin, 589 F.2d 200 (5th Cir. 1979) (same); United States v.
Cohn, 452 F.2d 881 (2d Cir. 1971) (same). Further, even if we were to consider
Bonds’s arguments that the legislative history of § 1503 limits the application of
the statute, we would run up against the Supreme Court’s decision in Aguilar,
which implied that false testimony offered directly to a grand jury could support a
conviction under § 1503. United States v. Aguilar, 515 U.S. 593, 601 (1995).
Given our conclusion that Bonds’s conviction cannot stand even if § 1503 reaches
in-court testimony, we need not confront this issue.
-2-
dealing with the sweeping language of § 1503, to “exercise[] restraint in assessing
the reach of a federal criminal statute . . . out of concern that a fair warning should
be given to the world in language that the common world will understand, of what
the law intends to do if a certain line is passed.” Aguilar, 515 U.S. at 600 (internal
quotation marks omitted).
1.
Congress could not have intended § 1503 to be so broadly applied as to
reach a single truthful but evasive statement such as Statement C. Our conclusion
that Statement C could not have “the natural and probable effect” of impeding the
grand jury’s investigative function stems from two sources: (1) the Government’s
duty to clarify merely misleading or evasive testimony and (2) relevant precedent
indicating that the Government must show that truthful but misleading or evasive
testimony must amount to a refusal to testify before it is material. Taken together,
these two sources lead to the conclusion that a single truthful but evasive or
misleading statement cannot satisfy § 1503’s materiality requirement.3
3
In coming to this conclusion, I do not mean to suggest that the materiality
of Statement C turns on whether it was truthful. Because Statement C was
obviously non-responsive, it could not have constituted obstruction even if it had
been false. A witness who is asked about the location of key documents and
responds “I am surprised it is raining” is not liable for obstruction regardless of
whether it is raining. But if the same witness knows where the documents are and
yet claims never to have heard of them, that potentially could be material and so
-3-
The Supreme Court’s decision in Bronston v. United States, 409 U.S. 352
(1973), requires the conclusion that Statement C does not violate § 1503.
Although Bronston dealt with a conviction for perjury, the Supreme Court’s
language regarding the government’s duty to conduct competent and thorough
questioning is illuminating. In short, “[t]he burden is on the questioner to pin the
witness down to the specific object of the questioner’s inquiry.” Id. at 360.
Extending § 1503’s reach to transient evasive or misleading statements would
obviate the prosecutor’s duty to thoroughly examine the witness. Id. at 358 (noting
that competent cross-examination should be conducted “by counsel alert–as every
examiner ought to be–to the incongruity of [the witness’s] unresponsive answer”).
It would be contrary to the statute’s purpose to allow the government to permit an
evasive or misleading statement to go unchallenged, in the hopes of obtaining an
obstruction of justice conviction later. The government is obligated to do all it can
to obtain a direct statement in response to its questioning. The truth-seeking
function of the grand jury may be impaired by lax questioning as much, if not more
could amount to obstruction. See United States v. Williams, 874 F.2d 968, 982 (5th
Cir. 1989) (affirming obstruction of justice conviction based on repeated false
denials of knowledge before a grand jury regarding material matters). The Aguilar
standard applies to all conduct under § 1503. The truthfulness or falsity of a
statement alone is not dispositive: the relevant inquiry will be whether the
statement was material, applying the Aguilar standard.
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than, an inarticulate or wandering answer.
Bronston counsels that, to convict a defendant for violating § 1503, the jury
must find more than that the witness uttered an evasive or misleading statement at
some point during his testimony—the “natural and probable effect” of a single
truthful but evasive or misleading statement is merely to prompt follow-up
questions. Given this burden, Statement C did not have the natural or probable
effect of interfering with the due administration of justice, because the Government
had a duty to clarify any single misleading or evasive statement Bonds made.
2.
The Supreme Court’s materiality standard reinforces Bronston’s core
holding: we should not find liability for a single statement that is merely
misleading or evasive. The judicially-created materiality requirement is a primary
objective limitation on § 1503’s expansive reach. See United States v. Thomas,
612 F.3d 1107, 1128-29 (9th Cir. 2010). This materiality standard necessarily
takes into account the context of the charged conduct, evaluating whether the
misleading or evasive statement could have “the natural and probable effect of
interfering with the due administrative of justice” given the entirety of a witness’s
examination. Aguilar, 515 US. at 599 (internal quotation marks omitted). The
Government may not isolate a single statement, prove it misleading or evasive, and
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argue that the statement is material based solely on that fact.
Evasive or misleading statements are different from false statements.
Instead of providing the tribunal with bad information, information that can be
evaluated for its capability to influence, a misleading or evasive statement is meant
to divert or slow the truth-seeking function in the first instance; it does not so much
influence an investigation as divert it by depriving the question of its force. In this
sense, offering evasive or misleading testimony is closely analogous to the
destruction of evidence. See United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.
1981) (“the destruction or concealment of documents can fall within the
prohibition of the statute” by “suppress[ing] evidence”). We should evaluate the
materiality of evasive or misleading testimony the same way: for its capability to
impede the investigative function of the grand jury.
The Fifth Circuit’s explanation of the materiality standard in United States v.
Griffin is particularly persuasive precedent. A false, misleading, or evasive
statement may be material, taken in the context of the entire examination, when it
amounts to “a flat refusal to testify.” United States v. Griffin, 589 F.2d 200, 204
(5th Cir. 1979). Evasive or misleading testimony, in this light, can only obstruct
the due administration of justice when it completely thwarts the investigative
nature of the tribunal—when it derails the grand jury “as effectively as if [the
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witness] refused to answer the question at all.” Id. The proper question is not
whether a statement had the intrinsic capability to influence the grand jury, but
whether the statement, viewed in the context of the witness’s testimony as a whole,
“closed off entirely the avenue of inquiry being pursued by” the grand jury. United
States v. Brown, 459 F.3d 509, 531 (5th Cir. 2006) (internal quotation marks
omitted); see also United States v. Cohn, 452 F.2d 881, 884 (2d Cir. 1971) (“The
blatantly evasive witness achieves th[e] effect [of impeding the gathering of
relevant evidence] as surely by erecting a screen of feigned forgetfulness as one
who burns files or induces a potential witness to absent himself.”).
Applying the materiality standard a single truthful but evasive or misleading
statement can never be material. Our examination of Statement C—a single
evasive or misleading statement—reveals why. No rational juror could have found
that Statement C amounted to a refusal to testify, such that Bonds’s testimony
thwarted the grand jury’s investigative function.
In summary, the “natural and probable effect” of a single true but evasive
response to the government’s questioning is not to impede the grand jury but,
rather, to prompt follow-up questioning. A statement that “goes off into the
cosmos” merely triggers the prosecutor’s duty to pin the witness down and elicit a
clear response. Indeed, that is exactly what happened in this case. Faced with a
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rambling response, the prosecutor restated the same question and elicited a direct,
unambiguous answer from Bonds: “No.” No rational juror could conclude that
Bonds refused to answer the question; it is plain in the record that Bonds gave his
testimony to the grand jury. Further, this is thus not a situation in which a witness
testified evasively for so long and with such persistence that the grand jury’s
investigation would likely have been thwarted, as would be required for the
testimony to be material. Statement C was therefore not material, and Bonds’s
conviction must be reversed.
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FILED
United States v. Bonds, No. 11-10669 APR 22 2015
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring: U.S. COURT OF APPEALS
Because I concur not only with the per curiam opinion but also with parts of
Judge Kozinski’s and Judge N.R. Smith’s opinions (while disagreeing with other
parts), I offer my separate views regarding what is in a fact a very simple case, as
well as my thoughts concerning the proper construction of 18 U.S.C. § 1503, the
obstruction of justice statute.
I.
My answer to the question with which Judge Kozinski begins his opinion,
“Can a single non-responsive answer by a grand jury witness support a conviction
for obstruction of justice under 18 U.S.C. § 1503?” is simple: No. My response
would be the same regardless of the context in which the answer was given.
I reach the conclusion that Bonds’s Statement C was not material and thus
could not (and did not) obstruct justice on different and narrower grounds than
does Judge Kozinksi. I do not agree, for example, with his opinion’s sweeping
statements regarding the scope of the statute or with its intimations that non-
responsive answers that are not later cured by way of direct replies might constitute
obstruction of justice. Similarly, I would not suggest that there may be a category
of non-responsive or irrelevant answers that could be characterized as evasive or
1
misleading and thus subject to differing treatment from other kinds of non-
responsive answers.
In my opinion, Statement C “cannot be said to have the ‘natural and
probable effect’ of interfering with the due administration of justice.’” United
States v. Aguilar, 515 U.S. 593, 601 (1995).1 As Judge Kozinski himself puts it,
“[it] says absolutely nothing pertinent to the subject of the grand jury’s
investigation.” Kozinski Op. at 8. At most, Statement C was non-responsive, and in
no respect could it (or did it) constitute a criminal act.
I concur with Judge Kozinski’s opinion as well as Judge N.R. Smith’s
insofar as they state that Statement C could not have been material even if it had
been false. A non-responsive answer that is false is “no more likely to impede the
investigation than” a non-responsive answer that is true. Kozinski Op. at 10; see
also N.R. Smith Op. at 3 n.3. Indeed, even “perjured relevant testimony . . . need
not necessarily . . . obstruct or halt the judicial process.” In re Michael, 326
U.S.224, 227–28 (1945) (emphasis added) (explaining that contempt for
“obstruct[ing] the administration of justice,” under predecessor statute to 18 U.S.C.
§ 401, required more than a false statement). I also agree heartily with Judge
Kozinski’s statements that “a certain number of non-responsive or irrelevant
1
See infra p.3 and note 2.
2
statements can be expected as part of the give-and-take of courtroom discourse,”
and that we must consider the practicalities of “real-life witness examinations”
when interpreting the statute. Kozinski Op. at 9. Moreover, in my view the
appropriate course in the event of material false testimony is a perjury prosecution,
not a prosecution for obstruction of justice. In fact, the prosecutors tried to convict
Bonds of perjury on several counts in this very proceeding, but had no better luck
with the jury in that effort than they have had with this court on today’s appeal.
Unlike Judge Kozinski, I concur with the part of Judge N.R. Smith’s opinion
that would hold that the “natural and probable effect” test articulated in United
States v. Aguilar constitutes the proper standard for materiality with respect to
§ 1503.2 I also concur with the part of Judge N.R. Smith’s opinion that would hold
that under Bronston v. United States, 409 U.S. 352 (1973), the natural and probable
effect of Statement C is merely that counsel will have to ask follow-up questions.
Faced with a statement that is “unresponsive on [its] face,” id. at 361, “[i]t is the
responsibility of the lawyer to probe; testimonial interrogation . . . is a probing,
prying, pressing form of inquiry. If a witness evades, it is the lawyer’s
responsibility to recognize the evasion and to bring the witness back to the mark, to
2
Cf. Kozinski Op. at 7 (describing materiality standard as whether conduct
“has a natural tendency to influence, or was capable of influencing, the decision of
the decisionmaking body” ).
3
flush out the whole truth with the tools of adversary examination.” Id. at 358–59.
In the instant case, the prosecutors did exactly that: they continued to press Bonds
until he gave a direct answer.
The breadth of Judge Kozinski’s opinion, its unwarranted speculation
regarding context, and its use of United States v. Thomas, 612 F.3d 1107, 1124
(9th Cir. 2010), rather than Aguilar, 515 U.S. at 601, to define the materiality
requirement prevent me from joining more of that opinion than I have. As to Judge
N.R. Smith’s opinion, I find it in several respects more persuasive than Judge
Kozinski’s, especially in its use of the Aguilar standard for materiality and its
discussion of Bronston. However, in the end, I cannot join that opinion either, for
several reasons. One, I disagree that a flat refusal to testify may be prosecuted
under § 1503. Two, I do not agree that non-responsive answers are in any respect
“closely related to the destruction of evidence.” N.R. Smith Op. at 5. In my view,
had Bonds refused to testify or continued to answer evasively, the appropriate
course would have been a contempt proceeding, not an obstruction of justice
prosecution. See In re Grand Jury Proceedings, Ortloff, 708 F.2d 1455, 1457–58
(9th Cir. 1983). Three, I do not agree with the unnecessary and, in my view,
incorrect discussion of misleading or evasive testimony or with his implicit
endorsement of United States v. Griffin, 589 F.2d 200 (5th Cir. 1979), as the proper
4
rule for this circuit. See N.R. Smith Op. at 5.
Many fundamental questions persist regarding the meaning and scope of
§ 1503, notwithstanding our court’s broad construction of the statute in the past,
see generally United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981), and the
Supreme Court’s indication of a similar view in dictum in Aguilar, see generally
515 U.S. 593. Both Judge Kozinski’s and Judge N.R. Smith’s opinions have much
to commend them. However, neither succeeds in its efforts to answer the critical
questions regarding the purpose and role of the statute, in Judge N.R. Smith’s case
at least, partly because of currently conflicting circuit law that he may,
understandably, be reluctant to overrule in light of the Supreme Court dictum in
Aguilar. See N.R. Smith Op. at 2 n.2. Rather than attempting to resolve those
problems in this case, however, I would simply hold that Bonds’s answer in no
way constitutes a violation of § 1503 because it is non-responsive and thus non-
material, and that his prosecution for the charged offense was therefore wholly
unwarranted under the law. I would leave the rest of the speculation and the
unnecessary, if not erroneous, analysis in my colleagues’ opinions to another time,
preferably after the Supreme Court has spoken.
II.
My own view is that § 1503 should not be construed as covering testimony
5
of witnesses at court proceedings. I explain my reading of the statute only briefly
in light of what appears to me to be the Supreme Court’s current view of the
law—a view that also causes me to refrain from suggesting at this time that we
overrule Ninth Circuit cases that construe § 1503 overly broadly, see Rasheed, 663
F.2d at 851–52, or that apply it to in-court testimony. See Thomas, 612 F.3d at
1125–29. Although our court has previously affirmed a § 1503 conviction based on
in-court testimony, see id., the Supreme Court has never done so and has indicated
its view only in dictum contained in Aguilar. See 515 U.S. at 600–01. Given the
history and circumstances of § 1503, I would hope that the Court would not follow
the Aguilar dictum when it confronts the issue directly.3
The history underlying § 1503 strongly supports the conclusion that in-court
testimony is not a subject of criminal sanctions under that statute. The predecessor
to § 1503 was originally enacted in 1831 in response to abuse of the contempt
power by a federal district judge who had imprisoned a man for publishing a
criticism of one of his opinions. Nye v. United States, 313 U.S. 33, 41 (1941). In
3
In this respect my approach is somewhat less bold than Judge W.
Fletcher’s. I do not believe that we need confront the Aguilar dictum in order to
reverse, so, as a prudential matter, I would not rely on the far broader ground
discussed in this section of my concurrence. Nevertheless, should it become
necessary in a future case to address the Aguilar dictum, I reserve the right to
consider further the question of its binding nature.
6
establishing the crime of obstruction of justice, Congress created, as Nye put it, a
“geographical” divide between the conduct constituting that crime and conduct
subject to contempt: “misbehavior of any person or persons in the presence of said
courts, or so near thereto as to obstruct the administration of justice” constituted
contempt under section 1 of the Act of March 2, 1831, whereas persons outside of
court who “corruptly, or by threats of force, obstruct, or impede, or endeavor to
obstruct or impede, the due administration of justice” committed the crime of
obstruction of justice under section 2. Id. at 46–49 (emphasis added). Section 1
survives today as 18 U.S.C. § 401, the contempt statute, while section 2 became
the clause of § 1503 at issue in this case. Thus, the original understanding of the
crime of obstruction of justice was that it applied to conduct outside the presence
of a court. Such was and is the intent of Congress, and “[w]e cannot by process of
interpretation obliterate the distinctions which Congress drew.” Nye, 313 U.S. at
50.
When one considers the other criminal statutes available to punish in-court
misbehavior by a witness—that is, misconduct during testimony—this
“geographical” delineation, id. at 48, whereby only out-of-court conduct
constitutes obstruction of justice under § 1503, makes sense. A false statement
made during in-court testimony constitutes perjury. See 18 U.S.C. §§ 1621, 1623.
7
A failure to answer a question or a material evasion that the witness refuses to
correct during in-court testimony constitutes contempt. I seriously doubt that the
obstruction of justice statute was intended to duplicate these crimes. Something
more than a witness merely lying or being non-responsive during testimony is
required in order to violate § 1503. Otherwise, the crime of obstruction of justice
would be to that extent wholly superfluous.
More important, the argument for coverage of such actions under § 1503
hinges entirely on the single word “corruptly.” The other specified means of
obstructing justice enumerated in that section—“by threats or force, or by any
threatening letter or communication”—when viewed in context dictate the opposite
conclusion: “corruptly” does not describe the in-court conduct of a witness, but
rather, like those enumerated means, describes the conduct of a third party who
seeks to obstruct the proceedings. The specified means necessarily describe the
attempts of a third party to affect the judicial proceedings by corrupt means. As
Judge W. Fletcher explains, the interpretative canon noscitur a sociis—literally
“[i]t is known from its associates”—tells us that “the meaning of questionable or
doubtful words or phrases in a statute may be ascertained by reference to the
meaning of other words or phrases associated with it.” Black’s Law Dictionary
1060 (6th ed. 1990). Because obstructing proceedings by “threats or force” plainly
8
refers to the conduct of persons outside of court who seek to obstruct the
proceedings and not to the witness who is testifying in court in the proceedings,
“corruptly” must similarly be understood as referring to the means used by third
parties to influence, obstruct, or impede proceedings, and not to in-court testimony
by a witness who may well be the object but not the subject of the corrupt tactics.
Even if § 1503 covered in-court conduct, “corruptly” would, under the
noscitur a sociis canon, as well as under any other reasonable means of statutory
construction, require a greater magnitude of misconduct than simply giving a false
or non-responsive answer to a question. Clearly, a mere lie or evasive answer is not
akin to using threats or force to cause another to lie. Indeed, the Supreme Court has
on occasion recognized that lies and evasive answers are part and parcel of the
process of uncovering the truth through adversarial witness examination. See
Bronston, 409 U.S. at 358; Michael, 326 U.S. at 227–28. The use of threats or
force to impede a proceeding, by contrast, is not a customary incident of that
process and constitutes a far more serious offense. “Corruptly” in the obstruction
of justice statute covers conduct at the same level of obstruction as the use of
threats or force and may not properly be interpreted so as to bring a mere lie or
evasive answer by a witness within the scope of the statute. Although I am not
certain that “corruptly” is limited to bribery as Judge W. Fletcher contends, I am
9
wholly confident that it does describe conduct of that magnitude and not a simple
lie or evasive answer by a witness during in-court testimony.
For the reasons discussed above, I would hope that the Supreme Court
would revisit its dictum in Aguilar and would conclude that § 1503 does not cover
a witness’s in-court testimony. After all, Congress has enacted criminal statutes
other than § 1503 that sufficiently address a witness’s in-court conduct. The
problems created by the misuse of § 1503 by overeager prosecutors to punish
witnesses for what they say in court are all too evident from the facts of this case. It
is time for them to cease using that section as a substitute for vigorous cross-
examination or for the criminal statutes that properly apply to in-court testimony.
***
In short, this case involves nothing more than an irrelevant, rambling
statement made by a witness during the course of a grand jury investigation.
Statement C was not material and could not possibly have interfered with the due
administration of justice. I therefore concur in the per curiam opinion (and the
parts of Judge Kozinski’s and Judge N.R. Smith’s opinions that I have identified
above). Bonds’s conviction for obstruction of justice cannot stand and he may not
be retried on the same charge.
10
FILED
United States v. Bonds, No. 11-10669 APR 22 2015
MOLLY C. DWYER, CLERK
W. FLETCHER, Circuit Judge, concurring in the judgment: U.S. COURT OF APPEALS
I strongly but respectfully disagree with the rationale advanced by the per
curiam opinion and by the principal concurrence. I concur only in the judgment.
The issue before us is the meaning of the federal obstruction of justice
statute, 18 U.S.C. § 1503(a). Section 1503(a) provides, in relevant part:
Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand
or petit juror, or officer in or of any court of the United States . . . or
corruptly or by threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice, shall be
punished as provided in subsection (b).
(Emphasis added.) Section 1503(a) applies to obstruction of justice, as defined by
the statute, in both criminal and civil proceedings. Section 1503(b) provides
punishments of varying severities, depending on the nature of the act. The most
lenient punishment is “imprisonment for not more than 10 years, a fine under this
title, or both.” Id. § 1503(b)(3).
Bonds was prosecuted under the second, or “omnibus,” clause of § 1503(a),
the emphasized portion above. The government and the principal concurrence read
the word “corruptly” at the beginning of the clause to refer to a state of mind,
meaning “with intent to influence, intimidate, or impede the due administration of
1
justice.” They read the clause as criminalizing even entirely truthful statements, so
long as those statements are made with such intent.
In the government’s view, any truthful answer given in the course of civil or
criminal litigation, if intended to influence, obstruct, or impede the administration
of justice, violates the omnibus clause. At oral argument, the government made
terrifyingly clear the result of its reading of the statute. The government contended
that the obstruction statute criminalizes a truthful but intentionally evasive or
misleading answer to an interrogatory in civil litigation. The government also
contended that the statute criminalizes a truthful but intentionally evasive or
misleading answer during appellate oral argument:
Q: I think it’s a common experience among all of us on the appellate
court to ask of the lawyer in front of us in a criminal case that’s
come up on appeal: “Counsel, could you please explain to me
what happened at trial?” and for the lawyer arguing from the U.S.
Attorney’s Office to say, “Your Honor, I was not the trial
attorney.” Now, sometimes that’s an evasive answer. They may
well know the answer, but it’s true that they weren’t the trial
attorney. . . . Has the lawyer just committed a crime? . . . [T]he
answer that I just hypothesized was designed to put me off the
track. . . . A truthful but evasive answer.
...
A: I think that would be obstructive, Your Honor.
When asked how many San Francisco lawyers it planned to throw in jail, the
government declined to specify.
2
The principal concurrence agrees with the government’s reading of the
statute. But it seeks to limit the scope of its operation, writing, “Because the
statute sweeps so broadly, due process calls for prudential limitations on the
government’s power to prosecute under it.” Concurrence at 7. According to the
concurrence, “due process” and “prudence” dictate that a truthful but intentionally
evasive or misleading statement can be prosecuted under the statute only if it was
“material.” Id. at 7–8. The concurrence defines “material” as “capable of
influencing a decisionmaking person or entity.” Id. at 8.
Applying its prudence-based definition of materiality, the principal
concurrence tells us that Bonds’s wandering and non-responsive answer was not
material and therefore not criminal, even if given with intent to influence, obstruct,
or impede. It concludes, “Statement C, standing alone, did not have the capacity to
divert the government from its investigation or influence the grand jury’s decision
whether to indict anyone.” Id. at 9. The concurrence contrasts Bonds’s answer
with an answer that would have been criminal. Bonds was asked, “Did Greg ever
give you anything that required a syringe to inject yourself with?” If Bonds had
answered “I’m afraid of needles,” the concurrence tells us that he could have been
successfully prosecuted. Id. If Bonds had given that answer, “it would have been
plausible to infer an unspoken denial, with the actual words serving as an
3
explanation or elaboration.” Id.
The principal concurrence’s “prudential” narrowing of “the government’s
power to prosecute” is hardly reassuring. An attorney who provides a truthful but
evasive answer to an interrogatory in civil litigation often does so in the hope that
his answer will “influence the decisionmaking person” who receives it. If there is
a reasonable chance that the hope will be realized, the attorney is a criminal. An
appellate attorney who answers during oral argument, “I was not the trial attorney,”
sometimes knows what happened at trial but gives that answer in the hope that the
judge will not pursue the matter. This attorney, too, may be a criminal.
I disagree. The omnibus clause of § 1503(a) is not an open-ended provision
whose constitutionality we can uphold only by manufacturing a “prudential”
limitation on the government’s power to prosecute. Rather, it is a narrowly
targeted provision that had a specific meaning when enacted and whose text has
remained substantially unchanged for over 180 years. The key to a proper
understanding of the statute is the meaning of the word “corruptly.”
I. Meaning of “Corruptly”
As used in § 1503(a), “corruptly” does not describe a state of mind. Rather,
it describes a forbidden means of influencing, obstructing, or impeding the due
administration of justice. As used in § 1503(a), “corruptly” most likely means “by
4
bribery.” There are two arguments supporting this reading: first, the text of the
statute; second, a comparison with 18 U.S.C. § 1621, the federal perjury statute.
A. Text of the Statute
The predecessor to § 1503(a) was enacted in 1831, in reaction to perceived
overreaching by a federal judge who had held a lawyer in contempt for an out-of-
court writing. See Walter Nelles & Carol Weiss King, Contempt by Publication in
the United States: To the Federal Contempt Statute, 28 Colum. L. Rev. 401,
423–31 (1928). The 1831 statute had two parts. The first described, and set limits
on, the contempt power of federal judges. The second, at issue in this case,
criminalized out-of-court conduct that improperly sought to influence judicial
proceedings. Section 1503(a) is the successor to the second part.
The 1831 statute read, in relevant part:
And be it further enacted, That if any person or persons shall, corruptly,
or by threats or force, endeavor to influence, intimidate, or impede any
juror, witness, or officer, in any court of the United States, in the
discharge of his duty, or shall corruptly, or by threats or force, obstruct
or impede, or endeavor to obstruct or impede, the due administration of
justice therein, every person or persons, so offending, shall be liable to
prosecution therefor . . . .
Act of Mar. 2, 1831, ch. 99, 4 Stat. 487, 488 (emphasis added). For convenience, I
quote again the corresponding provisions of the modern § 1503(a):
Whoever corruptly, or by threats or force, or by any threatening letter or
5
communication, endeavors to influence, intimidate, or impede any grand
or petit juror, or officer in or of any court of the United States, . . . in the
discharge of his duty . . . or corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs, or impedes,
or endeavors to influence, obstruct, or impede, the due administration
of justice, shall be punished as provided in subsection (b).
18 U.S.C. § 1503(a) (emphasis added). The omnibus clause, highlighted above, is
at issue here.
There are three differences between the omnibus clause as originally enacted
in 1831 and as it appears today. First, in 1872, Congress enacted a provision that
prohibited obstruction “by threatening letters, or any threatening communications,”
in addition to the 1831 prohibitions on obstruction “corruptly” and “by threats or
force.” Act of June 10, 1872, ch. 420, 17 Stat. 378, 378. As part of the general
revision and codification of the federal criminal code in 1909, Congress simplified
the statute by replacing “any threatening letters, or any threatening
communications,” with “any threatening letter or communication.” Act of Mar. 4,
1909, ch. 321, 35 Stat. 1088, 1113. Second, the 1831 law prohibited obstructing or
impeding the administration of justice. The 1872 statute added a prohibition
against influencing its administration. Act of June 10, 1872, ch. 420, 17 Stat. 378,
378. Third, as part of the 1909 revision, the comma after “corruptly” was dropped,
almost certainly inadvertently. Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088, 1113.
6
There had been a comma after the word “corruptly” in both the first and omnibus
clauses in the 1831 and 1872 statutes, and a comma was retained after “corruptly”
in the first clause of the obstruction statute. See Act of Mar. 2, 1831, ch. 99, 4 Stat.
487, 488; Act of June 10, 1872, ch. 420, 17 Stat. 378, 378; Act of Mar. 4, 1909, ch.
321, 35 Stat. 1088, 1113. No reason was given in 1909 for dropping the comma
after the word “corruptly” in the second, omnibus clause.
As written in 1831, the omnibus clause provided two methods, separated by
commas, by which a person could improperly “obstruct or impede” the “due
administration of justice.” A person could do it “corruptly,” or he could do it “by
threats or force.” As written in 1872, the clause provided three such methods,
again separated by commas, by which a person could improperly “influence,
obstruct, or impede” the “due administration of justice.” A person could do it
“corruptly,” “by threats or force,” or “by threatening letters, or any threatening
communications.” Finally, as revised and codified in 1909, the clause continued to
provide three means, now partially separated by commas, by which a person could
“influence, obstruct, or impede”: a person could do it “corruptly,” “by threats or
force,” or “by threatening letter or communication.” The omnibus clause has
remained essentially unchanged since the 1909 general revision and codification.
A “commonsensical interpretive principle” is that “words mean what they
7
conveyed to reasonable people at the time they were written.” Antonin Scalia &
Bryan Garner, Reading Law: The Interpretation of Legal Text 15–16 (2012). The
1828 American Dictionary of the English Language, published three years before
the enactment of the original version of § 1503(a), gave two definitions for
corruptly:
1. In a corrupt manner; with corruption; viciously; wickedly; without
integrity. We have dealt very corruptly against thee. Nehemiah 1.
2. By bribery. A judgment was obtained corruptly.
A contemporaneous document, as well as an interpretive canon, show that when it
wrote the word “corruptly,” Congress was likely using the narrow and specific
second definition.
The National Intelligencer, publisher of the Register of Debates and the
predecessor to what later became the Congressional Record, reported an action of
the House of Representatives on the Senate Bill that became the 1831 statute. It
reported that on Wednesday, March 2, 1831, the House amended and then agreed
to the Senate Bill punishing “attempts to corrupt or intimidate jurors”:
The Senate’s amendments to the Act declaratory of the powers of the
Courts of the United States on the subject of Contempts; adding a second
section for punishing all attempts to corrupt or intimidate jurors, &c.
was amended on the suggestion of Mr. BUCHANAN, and then agreed
to.
8
Twenty-First Congress, Second Session, Daily National Intelligencer, Mar. 3, 1831
(emphasis added). The reference is to the first clause rather than the omnibus
clause of the statute, but there is no reason to believe that “corruptly” had different
meanings in the two parallel clauses. The National Intelligencer’s use of the
infinitive, “to corrupt,” in connection with the direct object, “jurors,” indicates that
the prohibition against acting “corruptly” was a prohibition against a specific act
— corrupting, or attempting to corrupt, jurors, and thereby obstructing or impeding
justice. That is, the prohibition against acting “corruptly” was a narrow and
specific prohibition against bribing jurors, using the second definition. It was not a
broad general prohibition against acting “wickedly” or “viciously” in obstructing
or impeding justice.
The text following the word “corruptly” in the omnibus clause of § 1503(a)
reinforces the conclusion that it means “by bribery.” In the current version, there
are three specific forbidden methods of “influencing, obstructing, or impeding the
due administration of justice”: (1) “corruptly,” (2) “by threats or force,” or (3) “by
any threatening letter or communication.” In the 1831 version, there were two
specific forbidden methods: (1) “corruptly,” or (2) “by threats or force.” Where
statutory terms “are susceptible of multiple and wide-ranging meanings . . . those
meanings are narrowed by the commonsense canon of noscitur a sociis — which
9
counsels that a word is given more precise content by the neighboring words with
which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). “The
maxim noscitur a sociis, . . . while not an inescapable rule, is often wisely applied
where a word is capable of many meanings in order to avoid the giving of
unintended breadth to the Acts of Congress.” Jarecki v. G. D. Searle & Co., 367
U.S. 303, 307 (1961); see also United States v. Kimsey, 668 F.3d 691, 701 (9th Cir.
2012) (even when an interpretation is conceivable “based on etymology alone,”
that definition is “severely undermined” when it is illogical in light of the
neighboring statutory terms).
The text of the omnibus clause of § 1503(a) is precisely the kind of text to
which the canon applies. Several methods of obstructing the administration of
justice are listed immediately following the word “corruptly”: “by threats,” by
“force,” “by threatening letter,” and by threatening “communication.” These are
not states of mind. They are specific methods of obstructing justice. We can read
“corruptly” as describing a state of mind. Or we can read it as describing another
specific method of “influencing, obstructing, or impeding” the “due administration
of justice.” The canon of noscitur a sociis, as well as common sense, instruct us to
choose the latter.
Read in light of a contemporaneous dictionary meaning of “corruptly,” in
10
light of the contemporaneous report on the bill that became the predecessor to §
1503(a), and in light of the noscitur a sociis canon, I conclude that § 1503(a)
forbids individuals from obstructing the administration of justice (1) by bribery, (2)
by threats or force, or (3) by any threatening letter or communication.
B. Comparison to Perjury
A comparison of the federal obstruction of justice statute with the federal
perjury statute reinforces the conclusion that “corruptly” means “by bribery.” The
obstruction of justice statute prescribes different ranges of punishment depending
on the act. The most lenient is “imprisonment for not more than 10 years, a fine
under this title, or both.” 18 U.S.C. § 1503(b)(3). The federal perjury statute, by
contrast, prescribes only one range of punishment. It provides that someone found
guilty of perjury “shall . . . be fined under this title or imprisoned not more than
five years, or both.” 18 U.S.C. § 1621.
If we accept the principal concurrence’s reading of the word “corruptly,” a
person who makes a material truthful statement with the intent to “influence,
obstruct, or impede the due administration of justice” may be punished by a term
of imprisonment of up to ten years. A person who makes a material untruthful
statement with the same intent may be punished by a term of imprisonment of up
to only half that. It makes no sense for Congress to punish a truthful statement
11
more severely than a lie. If, on the other hand, we accept that “corruptly” means
“by bribery” in § 1503(a), the disparity in punishment makes perfect sense.
In Bronston v. United States, 409 U.S. 352 (1973), the Court explained the
difference between truthful but misleading statements, on the one hand, and
perjurious statements, on the other. The Court faced a question related to the
question now before us: “whether a witness may be convicted of perjury for an
answer, under oath, that is literally true but not responsive to the question asked
and arguably misleading by negative implication.” Id. at 352–53.
The government had charged Bronston with violating § 1621, the federal
perjury statute, based on statements he had made at a hearing before a bankruptcy
referee. When asked whether he had ever had any bank accounts in Swiss banks,
Bronston replied that his “company had an account there for about six months, in
Zurich.” Id. at 354. Bronston did not mention that he had previously had a
personal bank account in Geneva. Id. Bronston’s answer was true. His company
had indeed had an account in Zurich. However, his answer, while true, was
designed to mislead the questioner. The United States successfully prosecuted
Bronston for perjury on the theory that he had testified under oath “with literal
truthfulness but unresponsively.” Id. at 355. The Court reversed Bronston’s
conviction because “the federal perjury statute cannot be construed to sustain a
12
conviction based on [his] answer.” Id. at 357.
The Court explained, “[W]e perceive no reason why Congress would intend
the drastic sanction of a perjury prosecution to cure a testimonial mishap that could
readily have been reached with a single additional question by counsel alert — as
every examiner ought to be — to the incongruity of [Bronston]’s unresponsive
answer.” Id. at 358. “If a witness evades, it is the lawyer’s responsibility to
recognize the evasion and to bring the witness back to the mark, to flush out the
whole truth with the tools of adversary examination.” Id. at 358–59. This is so
even when a witness’s answers were “not guileless but were shrewdly calculated to
evade.” Id. at 362.
The Court rejected the very argument that the government makes in the case
now before us:
It is no answer to say that here the jury found that [the witness] intended
to mislead his examiner. A jury should not be permitted to engage in
conjecture whether an unresponsive answer, true and complete on its
face, was intended to mislead or divert the examiner; the state of mind
of the witness is relevant only to the extent that it bears on whether “he
does not believe (his answer) to be true.” To hold otherwise would be
to inject a new and confusing element into the adversary testimonial
system we know. Witnesses would be unsure of the extent of their
responsibility for the misunderstandings and inadequacies of examiners,
and might well fear having that responsibility tested by a jury under the
vague rubric of “intent to mislead” or “perjury by implication.” The
seminal modern treatment of the history of the offense concludes that
one consideration of policy overshadowed all others during the years
13
when perjury first emerged as a common-law offense: “that the measures
taken against the offense must not be so severe as to discourage
witnesses from appearing or testifying.”
Id. at 359 (citation omitted). Simply put, “any special problems arising from the
literally true but unresponsive answer are to be remedied through the ‘questioner’s
acuity’ and not by a federal perjury prosecution.” Id. at 362.
The government and the principal concurrence brush Bronston aside. That
is not so easily done, for the Court’s reasoning is as applicable to this case as to
Bronston’s. In either case, “[a] jury should not be permitted to engage in
conjecture whether an unresponsive answer, true and complete on its face, was
intended to mislead or divert the examiner.” Id. at 358. “To hold otherwise would
be to inject a new and confusing element into the adversary testimonial system we
know.” Id. Further, and perhaps more important, if the concurrence is right about
the meaning of “corruptly” in § 1503(a), the Court’s careful parsing of the perjury
statute in Bronston was wasted effort. If the concurrence is right, a prosecutor
seeking to convict someone who may or may not have testified truthfully will
never need to pursue a perjury conviction. The prosecutor can get an obstruction
of justice conviction, carrying twice the penalty, for half the effort.
II. United States v. Aguilar
Supreme Court dictum describing § 1503(a) does not change my conclusion.
14
In United States v. Aguilar, 515 U.S. 593 (1995), the Court reversed a conviction
of U.S. District Judge Robert Aguilar for obstruction of justice in violation of the
omnibus clause of § 1503(a). A grand jury had been investigating a conspiracy to
influence another district judge. One of the suspected conspirators, Abe Chapman,
was a distant relation of Aguilar. When Aguilar learned that Chapman had been
named in a federal wiretap authorization, Aguilar warned him. During a
subsequent grand jury investigation, FBI agents questioned Aguilar about his
knowledge of the wiretap and the underlying conspiracy. Aguilar falsely stated
that he did not know about either. His false statements provided the basis for his
conviction under the omnibus clause.
The Supreme Court reversed the conviction because “[t]he action taken by
the accused must be with an intent to influence judicial or grand jury proceedings;
it is not enough that there be an intent to influence some ancillary proceeding, such
as an investigation independent of the court’s or grand jury’s authority.” Id. at
599. “In other words, the endeavor must have the natural and probable effect of
interfering with the due administration of justice.” Id. (quotation marks omitted).
In dictum, the Court distinguished false statements made to an FBI agent
from statements made directly to a grand jury. The Court assumed that such
statements made to the grand jury would be covered by the omnibus clause. It
15
wrote that Aguilar’s conduct “falls on the other side of the statutory line from that
of one who delivers false documents or testimony to the grand jury itself. Conduct
of the latter sort all but assures that the grand jury will consider the material in its
deliberations.” Id. at 601.
If I were compelled to treat the Court’s dictum as a controlling statement of
law, I would not be able to argue, consistent with the view of the Supreme Court,
that the word “corruptly” in § 1503(a) means “by bribery.” But I do not believe I
am so compelled. “We do not treat considered dicta from the Supreme Court
lightly,” because “it serves as a prophecy of what that Court might hold.” McCalla
v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 2004) (quotation
marks and citations omitted). But the Court has instructed that while “dictum ‘may
be followed if sufficiently persuasive,’ it ‘ought not to control the judgment in a
subsequent suit.’” United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17
(9th Cir. 2000) (en banc) (quoting Humphrey’s Executor v. United States, 295 U.S.
602, 627 (1935)).
I do not believe the Court’s dictum in Aguilar was “considered” in the
requisite sense. The question whether false statements made directly to the grand
jury violate the omnibus clause was not before the Court. In his opposition to
certiorari, Aguilar had conceded that, “as the government notes, the courts have
16
routinely applied Section 1503 to false testimony to the grand jury.” Brief in
Opposition at 18–19, Aguilar, 515 U.S. 593 (No. 94-270). The government
highlighted that concession in its merits brief. Brief of Petitioner at 20, Aguilar,
515 U.S. 593 (No. 94-270) (“as respondent has conceded, ‘the courts have
routinely applied Section 1503 to false testimony to the grand jury.’”). In the
context of his suit, Aguilar’s concession makes sense, for it enabled him to focus
his argument more narrowly, and to argue that even if the omnibus clause covered
false statements made to a grand jury, his false statements to an FBI agent were not
covered. The Court accepted without challenge the strategic concession that false
statements to the grand jury were covered, and held that, even so, Aguilar’s
conduct fell outside the omnibus clause. The Court was thus not asked to consider
the question whether false statements were covered by the omnibus clause because
that question had been taken off the table. The question presented in the case now
before us — whether truthful but evasive statements are covered by the omnibus
clause — was so remote from the contemplation of the parties that there had been
no need even to take it off the table.
No argument was made to the Court in Aguilar about the meaning of
“corruptly” in 1831, when the obstruction of justice statute was enacted. Nor was
any argument made to the Court about the disparity in sentencing between the
17
perjury statute and the obstruction of justice statute. Had the government sought a
conviction under the omnibus clause based on a true but evasive or misleading
statement to a grand jury, and had these arguments been presented to the Court, it
is not at all clear that the Court would have read the statute as broadly as its dictum
suggests.
It is possible that I am wrong and that I am required to regard the Court’s
dictum in Aguilar as controlling. I do not believe that this is so, but if it is I
encourage the Court to revisit, either in this case or another, the question of the
scope of the omnibus clause of § 1503(a). If the Court does revisit the question, I
think it likely — perhaps very likely — that it will conclude, as I do, that the word
“corruptly,” as used in § 1503(a), means “by bribery.”
18
FILED
U.S. v. Bonds, No. 11-10669 APR 22 2015
Rawlinson, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
There is no joy in this dissenting judge. The per curiam and concurring
opinions have struck out.1
Strike One - The per curiam and concurring opinions second-guess the
jury’s verdict rather than deferring to it.
I join the principal concurring opinion in its view that context matters in
determining whether sufficient evidence supports the conviction in this case. See
Kozinski Concurring Opinion, p. 9. A vital part of that context is the evidence
before the jury. After all, it is that evidence we examine to determine whether any
reasonable juror could have convicted the defendant. In doing so, we view the
evidence in the light most favorable to the prosecution. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); see also United States v. Whittemore, 776 F.3d 1074,
1078 (9th Cir. 2015).
Barry Bonds was convicted of one count of obstruction of justice in
violation of 18 U.S.C. § 1503. That statute provides for the punishment of
“[w]hoever, corruptly . . . influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede the due administration of justice . . .”
1
Apologies to Ernest Lawrence Thayer, Casey at the Bat (1888) (“But there
is no joy in Mudville–Mighty Casey has struck out.”).
1
At the trial of this matter, the jurors were informed that the charges against
Bonds stemmed from his appearance before a grand jury investigating steroid use
by athletes. The obstruction of justice count alleged that Bonds gave “material
Grand Jury testimony that was intentionally evasive, false, and misleading.” Prior
to his grand jury testimony, Bonds was granted immunity from prosecution if he
complied with the immunity order. Special Agent Novitzky read the immunity
order to the jury. The order provided in pertinent part:
Barry Bonds may be called to testify before the
grand jury; and
In the judgment of the United States Attorney, the
testimony and other information to be obtained from
Barry Bonds is necessary to the public interest; and
...
It is therefore ordered that Barry Bonds, soon as he
may be called, shall testify under oath and provide other
information, including documents, in this case and in any
further ancillary proceedings.
It is further ordered that the testimony and other
information compelled from Barry Bonds pursuant to this
order . . . may not be used against him in any criminal
case, except a prosecution for perjury, false declaration,
or otherwise failing to comply with this order.
The purpose of immunizing a witness in exchange for his testimony is to
ensure that the witness, freed from the specter of prosecution, will provide
2
complete and truthful testimony. See United States v. Thomas, 612 F.3d 1107,
1126 (9th Cir. 2010) (observing that “[t]he purpose of the immunity order in [the
BALCO] case was to compel the witness to testify truthfully and in good faith
before the grand jury to assist it in its investigation”) (emphasis in the original).
Giving evasive testimony is inconsistent with the obligation to provide complete
and truthful testimony. See United States v. Griffin, 589 F.2d 200, 204 (5th Cir.
1979) (“[A]n obstruction of justice results when attempts to gather relevant
evidence . . . are frustrated by the use of corrupt or false means. The blatantly
evasive witness achieves this effect as surely by erecting a screen of feigned
forgetfulness as one who burns files or induces a potential witness to absent
himself.”) (citation and internal quotation marks omitted). Hence, charges were
brought against Bonds for obstruction of justice.
At trial, Special Agent Novitsky described the BALCO Laboratories
investigation primarily involving the distribution of anabolic steroids. One of the
principal targets of the criminal investigation was Greg Anderson, Bonds’ fitness
trainer. According to Agent Novitsky, execution of search warrants at BALCO
Laboratories produced a “treasure [trove] of drugs and documents indicating usage
and distribution [of anabolic steroids] to elite professional athletes.” Authorities
also found “physical evidence in terms of drugs that pertained to . . . steroid
3
distribution” following a search of Anderson’s residence. Specifically, samples
from Anderson’s residence were revealed to be a “designer anabolic steroid.”
Authorities also recovered $60,000 from a safe in Anderson’s residence and a bag
of syringes in his vehicle.
It was against this backdrop that Bonds was immunized and brought before
the grand jury to testify, with the grand jury process considered a continuation of
the investigation. Bonds was not a target of the grand jury. Rather, he and other
athletes were expected to testify candidly and truthfully to further the investigation
into those who were the targets of the grand jury.
Agent Novitsky testified that the inconsistencies between Bonds’ testimony
and other evidence before the grand jury regarding the relationship between the
athletes and the steroid distributors, including the evasions, required the
investigators to conduct additional inquiries that would not have been necessary
had Bonds given non-evasive testimony. We cannot say with certainty that no
reasonable juror could conclude otherwise. Indeed, drawing all inferences in favor
of the government, a reasonable juror could reasonably conclude that Bonds’
evasive testimony diverted the investigation, thereby impeding the administration
of justice. See id.
From the inception of this nation’s system of justice, the jury has played an
4
integral role in the administration of justice. See City of Morgantown, W.Va. v.
Royal Ins. Co., Ltd., 337 U.S. 254, 258 (1949) (articulating that “[t]rial by jury is a
vital and cherished right, integral in our judicial system”). We defer to the wisdom
of twelve ordinary citizens, selected by the parties, who hear the evidence and
follow the instructions given by the judge to reach a verdict. See Long v. Johnson,
736 F.3d 891, 896 (9th Cir. 2013) (“Although the evidence presented at trial could
yield an alternative inference, we must respect the exclusive province of the jury to
determine the credibility of witnesses, resolve evidentiary conflicts, and draw
reasonable inferences from proven facts. . . .”) (citation, alteration, and internal
quotation marks omitted). Overturning a jury verdict, particularly on a sufficiency
of evidence challenge, is rare, as it should be. See United States v. Nevils, 598 F.3d
1158, 1164 (9th Cir. 2010) (en banc). This “reviewing court may not ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt, only whether any rational trier of fact could have made that
finding.” Id. (citations and internal quotation marks omitted) (first emphasis
added). Regrettably, little consideration is given in the per curiam and concurring
opinions to the entirety of the evidence introduced during Bonds’ trial. Indeed, the
principal concurring opinion focuses on “the instrinsic capabilities of the statement
itself,” as determined on appeal. Kozinski Concurring Opinion, p. 7 (emphasis in
5
the original). However, as discussed below, this analysis applies to false
statements rather than to evasive statements. Importing an inapplicable analysis to
overturn the jury’s considered verdict appears to be a means of “reach[ing] the
conclusion that seems best” to my concurring colleagues. Blue Cross & Blue
Shield v. Rubin, 490 F.3d 718, 724 (9th Cir. 2007) (citation omitted). We know
that the jury deliberated carefully because it convicted Bonds on only one of four
charged counts. See United States v. Plunk, 153 F.3d 1011, 1027 (9th Cir. 1998),
overruled on other grounds by United States v. Hankey, 203 F.3d 1160, 1169 n.7
(9th Cir. 2000) (observing that “the fact that the jury rendered a mixed verdict . . .
suggests that it reviewed the evidence rationally and independently”) (citation,
alterations, and internal quotation marks omitted). Sufficient evidence supports the
jury’s considered verdict, and the verdict warrants deference rather than second-
guessing. See Long, 736 F.3d at 896.
When Bonds was asked before the grand jury if Anderson had ever given
him anything that required a syringe to inject himself with (a yes or no question),
Bonds launched into the following rambling soliloquy:
I’ve only had one doctor touch me. And that’s my only
personal doctor. Greg, like I said, we don’t get into each
others’ personal lives. We’re friends, but I don’t–we
don’t sit around and talk baseball, because he knows I
don’t want–don’t come to my house talking baseball. If
6
you want to come to my house and talk about fishing,
some other stuff, we’ll be good friends. You come
around talking about baseball, you go on. I don’t talk
about his business, You know what I mean?
...
That’s what keeps our friendship. You know, I am sorry,
but that–you know, that–I was a celebrity child, not just
in baseball by my own instincts. I became a celebrity
child with a famous father. I just don’t get into other
people’s business because of my father’s situation, you
see.
This rambling, non-response answered the following unasked questions:
[Question: How many doctors have touched (treated?) you?]
Answer: I’ve only had one doctor touch me. And that’s my only
personal doctor.
[Question: Do you and Greg (Anderson) get into each others’
personal lives?]
Answer: Greg, like I said, we don’t get into each others’ personal
lives.
[Question: Do you and Anderson get into each others’ professional
lives?]
Answer: We’re friends, but I don’t–we don’t sit around and talk
baseball, because he knows I don’t want–don’t come to my house
talking baseball. If you want to come to my house and talk about
fishing, some other stuff, we’ll be good friends. You come around
talking about baseball, you go on. I don’t talk about his business.
[Question: What keeps your friendship with Anderson?]
7
Answer: That’s [not getting into each other’s personal or professional
lives] what keeps our friendship.
[Question: Were you a celebrity child?]
Answer: You know, I am sorry, but that–you know, that–I was a
celebrity child, not just in baseball by my own instincts. I became a
celebrity child with a famous father. I just don’t get into other
people’s business because of my father’s situation, you see.
Despite these extended responses to unasked questions, Bonds studiously
avoided answering the question that was actually asked: “Did [Anderson] ever
give you anything that required a syringe to inject yourself with?”
The jury pondered Bonds’ response in conjunction with Agent Novitsky’s
testimony that Bonds’ response required the investigators to search for other
evidence that Anderson provided steroids to Bonds. That evidence included
testimony from other athletes who acknowledged receiving steroid injections, and
from Steve Hoskins, Bonds’ childhood best friend and personal assistant, who had
discussions with Bonds about steroid injections and who heard Bonds complain
about pain associated with the injections. Hoskins also witnessed Anderson and
Bonds enter a bedroom “a couple of times” at Bonds’ Arizona residence, with
Anderson holding a needle that Hoskins believed was for steroid injections.
Hoskins also recounted an incident when Anderson refused to inject Bonds and
Bonds stated that he would “give it to himself.” Hoskins testified that Bonds’ shoe
8
size increased, his glove size changed, and his body got bigger, heavier and “a lot
more muscular.” During Hoskins’ testimony, an audiotape was played that
Hoskins made of Anderson discussing providing steroids to Bonds. Hoskins was
growing increasingly concerned about Bonds’ steroid use and wanted Bonds’
father to intervene. Because Anderson and Bonds denied the use of steroids,
Hoskins hoped to use the tape to convince Bonds’ father that Hoskins’ concern was
justified. The tape was ultimately provided to investigating agents.
A former girlfriend of Bonds testified that Bonds revealed to her that a lump
on Bonds’ elbow was caused by steroid use. She also observed Anderson and
Bonds regularly enter a bedroom in Bonds’ Arizona residence with a satchel,
locking the door after them and remaining inside for approximately twenty
minutes. At the same time, the former girlfriend noted significant physical changes
in Bonds, including a dramatic increase in size, acne on his upper shoulders and
back, rapid hair loss, testicular atrophy, and decreased sexual performance. In
addition, Bonds became “increasingly aggressive, irritable, agitated, very
impatient, almost violent.” The jury was informed by the Chief Science Officer of
the United States Anti-Doping Agency that these are typical side effects of
anabolic steroid use.
Finally, Kathy Hoskins, sister to Steve Hoskins, testified that she actually
9
witnessed Anderson administer a shot into Bonds’ “bellybutton” with a syringe,
“like the Doctor with a syringe in the bellybutton.” According to Kathy Hoskins,
Bonds commented that the injection was “a little some some, when I go on the
road, you know we can’t detect it, you can’t catch it.”
After hearing this evidence, the jury was instructed that to convict Bonds of
obstructing justice, the government was required to prove beyond a reasonable
doubt:
1. The defendant corruptly, that is, for the purpose of
obstructing justice,
2. obstructed, influenced, or impeded, or endeavored to
obstruct, influence, or impede the grand jury proceeding in which
defendant testified,
3. by knowingly giving material testimony that was
intentionally evasive, false or misleading.
The instruction on materiality informed the jury that:
A statement was material if it had a natural tendency to
influence or was capable of influencing a decision of the grand jury.
The government alleges that the underlined portion of the
following statements constitute material testimony that was
intentionally evasive, false or misleading. In order for the defendant
to be found guilty of count 5, you must all agree that one or more of
the following statements was material and intentionally evasive, false
or misleading, with all of you unanimously agreeing as to which
statement or statements so qualify[.]
10
So instructed, the jury reasonably found that Bonds’ rambling statement was
evasive. Under the sufficiency of evidence standard, we draw all inferences in
favor of the government when determining whether any rational juror could have
found that Bonds’ evasive testimony materially impeded the grand jury’s
performance of its investigatory function. See Griffin, 589 F.2d at 204; see also
United States v. Browning, 630 F.2d 694, 699, 701 (10th Cir. 1980) (“The ultimate
question . . . is not whether the defendant told the truth but whether the defendant
obstructed or interfered with the process of truthfinding in an investigation . . . ”).
Evidence may be sufficient to sustain a conviction under § 1503 even if “it
does not exclude every reasonable hypothesis of innocence or is not wholly
inconsistent with every conclusion of guilt [because] [a] jury is free to choose
among reasonable constructions of the evidence.” United States v. Perkins, 748
F.2d 1519, 1521 (11th Cir. 1984) (citation, alterations and internal quotation marks
omitted).
The principal concurring opinion acknowledges that the sufficiency of
evidence standard of review is a demanding one, but nevertheless elects to apply
the standard with “some rigor.” Kozinski Concurring Opinion, p. 10. Without
citation to any precedent supporting the addition of “rigor” to the governing
standard of review, that language sounds suspiciously close to a euphemism for
11
second-guessing the jury and “reach[ing] the conclusion that seems best” to those
joining the principal concurrence. Rubin, 490 F.3d at 724 (citation omitted).
As the principal concurring opinion acknowledges, § 1503 sweeps broadly.
See Kozinski Concurring Opinion, p. 3. Applying that broad statute to the facts of
this case, we must determine whether there was sufficient evidence before the jury
that Bonds sought to corruptly impede the work of the grand jury. See id. We are
not called upon to determine how far § 1503 can be prudentially applied. Nor need
we decide whether attorneys at oral argument could be prosecuted for giving
evasive answers to questions from members of the oral argument panel. Such a
discussion is more akin to resolving a claim that a statute is overbroad, an issue
that is not before us in this appeal. In any event, a hypothetical overreach of the
statute cannot affect Bonds’ conviction for conduct that falls squarely within the
statute. See United States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985) (concluding
that 18 U.S.C. § 1503 was not vague or overbroad because “[t]he reach of the
statute is clearly limited to such constitutionally unprotected and purportedly illicit
activity as that undertaken by [the defendant] . . .”).
The jury necessarily found that Bonds’ evasive testimony was material
because it was instructed that it had to make that finding before Bonds could be
convicted of violating § 1503. Nevertheless, the principal concurring opinion
12
relies upon the “self-evident” proposition that Bonds’ evasive statement “did not
have the capacity to divert the government from its investigation . . .” Kozinski
Concurring Opinion, p. 8. But this conclusion ignores Agent Novitzky’s
testimony and the jury’s finding of fact. At a minimum, the jury’s finding is
supported by Agent Novitsky’s testimony that Bonds’ evasive responses diverted
and impeded the investigation by requiring the investigators to determine whether
Bonds was being injected with steroids unknowingly, and whether Bonds’
inconsistent testimony compromised the testimony of the other witnesses. See
Perkins, 748 F.2d at 1528 (noting that “marginal” evidence is sufficient to support
a conviction for obstruction of justice). The jury chose “among reasonable
constructions of the evidence,” and we must respect that choice rather than second-
guess it as the concurring opinions do. Id. at 1526 (citation omitted).
Strike Two - The per curiam and concurring opinions disregard
precedent that supports upholding the jury’s verdict.
This is not the first time we have considered whether evasive testimony may
serve as the basis for an obstruction of justice charge. It may be the first time we
have considered the statute as applied to a famous athlete. But that should not be
the deciding factor, and there is no other reason to interpret the statute differently
in this case.
13
In United States v. Rasheed, 663 F.2d 843, 851 (9th Cir. 1981), we reiterated
that the “obstruction of justice statute was designed to proscribe all manner of
corrupt methods of obstructing justice. . . .” (citing Catrino v. United States, 176
F.2d 884, 887 (9th Cir. 1949)). In Rasheed, the defendant had destroyed or
concealed subpoenaed documents, and we concluded that the suppression of
documentary evidence violated the obstruction of justice statute as much as the
suppression of testimonial evidence. See id. at 852. The defendant argued that
when she appeared before the grand jury, she acknowledged that she had not
produced all the subpoenaed documents. See id. at 853. She asserted that the
government excused her from any further obligation of production, resulting in a
lack of sufficient evidence to support a conviction for obstruction of justice. See
id. We disagreed, holding that the obstruction of justice was complete when
defendant directed destruction or concealment of the documents. See id. We
clarified that the actions of the prosecutor “in no way negate[d] the commission of
the crime. At best, [the prosecutor’s] relieving [the defendant] of further
production indicates that justice was not, in fact, obstructed. This is not a
defense. . . .” Id. (emphasis added). We explained that once it was established that
the defendant acted with “the intent to obstruct justice and endeavored to do so[,]
[t]his is sufficient for guilt under section 1503. . . .” Id. The same analysis is
14
applicable to Bonds’ evasive testimony. Once Bonds acted with the intent to evade
giving the testimony that was compelled by the immunity order, the obstruction of
justice offense was complete. See id. Even if Bonds eventually ceased his evasive
efforts, his prior intent to obstruct was not negated. See id. Bonds’ evasive
testimony could and did interfere with the continued BALCO investigation as
reflected in the testimony of Agent Novitsky. See id.; see also Griffin, 589 F.2d at
204 (observing that justice is obstructed “when attempts to gather relevant
evidence . . . are frustrated by [a] blatantly evasive witness”) (citation and internal
quotation marks omitted).
Other circuits agree. See United States v. Cohn, 452 F.2d 881, 884 (2d Cir.
1972) (holding that “concealing data recorded in one’s memory” through blatant
evasion constitutes obstruction of justice); see also United States v. Langella, 776
F.2d 1078, 1081 (2d Cir. 1985) (describing “obviously evasive” answers as
“concealment of evidence” within the scope of § 1503). In Perkins, 748 F.2d at
1528, the Eleventh Circuit similarly characterized the defendant’s conduct as
obstructive when he gave evasive answers before the grand jury. The Eleventh
Circuit described the facts of the case as reflecting that the defendant knew there
were irregularities in a certain bank account, that the account was held under a
fictitious name, and that the grand jury was seeking to learn the true identity of the
15
account holder. Although the court acknowledged that the government could have
questioned the defendant more effectively, it nonetheless held that a reasonable
jury could have found that the defendant’s evasive answers were intended to
obstruct the grand jury’s investigation. See id.
Ignoring these cases, in my view, creates an unwarranted circuit split and
disregards our own precedent without justification.
Strike Three - The concurring opinions rely on precedent more
applicable to perjury than to obstruction of justice.
The principal concurring opinion cites this language from Bronston v.
United States, 409 U.S. 352, 358 (1973): “Under the pressures and tensions of
interrogation, it is not uncommon for the most earnest witnesses to give answers
that are not entirely responsive.” Kozinski Concurring Opinion, p. 4. However, the
cited language does not support a conclusion that there was insufficient evidence to
support Bonds’ conviction. In Bronston, the United States Supreme Court
addressed the perjury statute, 18 U.S.C. § 1621 (not the obstruction of justice
statute, 18 U.S.C. § 1503), and decided the issue of whether a witness may be
convicted of perjury for giving an answer that is literally true, but non-responsive
to the question asked. See id. at 352-53. There was absolutely no discussion of
evasive testimony or obstruction of justice.
16
The defendant in Bronston answered several questions posed during
adversarial bankruptcy proceedings concerning whether he or his company had
Swiss bank accounts. See id. at 354. Although the defendant denied having Swiss
bank accounts, there was evidence that the defendant had a personal bank account
in a Swiss bank for a prior period of five years. See id. It was undisputed that the
defendant’s answers were literally truthful because the defendant did not have a
Swiss bank account “at the time of questioning . . .” Id. In the context of a
prosecution for perjury, the Supreme Court observed that “[t]he cases support
petitioner’s position that the perjury statute is not to be loosely construed, nor the
statute invoked simply because a wily witness succeeds in derailing the
questioner—so long as the witness speaks the literal truth. The burden is on the
questioner to pin the witness down to the specific object of the questioner’s
inquiry.” Id. at 360 (citations omitted) (emphasis added).
There is a notable statutory distinction between the perjury at issue in
Bronston and the obstruction of justice at issue in this case. In Bronston, the
Supreme Court expressed its unwillingness to expand the perjury statute’s reach to
encompass literally truthful answers beyond the limits established by Congress.
See id. at 358. In its current form, the perjury statute, 18 U.S.C. § 1621, provides:
Whoever– (1) having taken an oath before a competent tribunal,
17
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material matter which he
does not believe to be true; or (2) in any declaration, certificate,
verification, or statement under penalty of perjury as permitted under
section 1746 of title 28, United States Code, willfully subscribes as
true any material matter which he does not believe to be true; is guilty
of perjury . . .
18 U.S.C. § 1621 (emphases added). Importantly, the perjury statute specifically
requires that the defendant have knowledge that the statement itself was not true.
See id. The perjury statute is much more forgiving in its knowledge requirement
than the elements delineated in 18 U.S.C. § 1503 for obstruction of justice.
Notably, 18 U.S.C. § 1503 does not contain any comparable requirement of known
falsity. Rather, the obstruction of justice statute merely requires that the defendant
“endeavor [ ] to influence, intimidate, or impede any grand or petit juror . . .” 18
U.S.C. § 1503(a) (emphasis added). As the Supreme Court has articulated, “the
term ‘endeavor’ . . . makes conduct punishable where the defendant acts with an
intent to obstruct justice, and in a manner that is likely to obstruct justice, but is
foiled in some way. . . .” United States v. Aguilar, 515 U.S. 593, 601-02 (1995).
The obstruction of justice statute does not make a distinction between obstructive
statements that are false and those that are evasive and not literally false. The
18
statute requires only that the defendant intend his statement to obstruct justice.
It is questionable whether the “literal truth” underpinnings of Bronston apply
outside the confines of adversarial proceedings where opposing counsel are
expected to continuously hone their questions to require definitive answers, and a
judge is present to control uncooperative witnesses. In contrast, the grand jury is a
non-adversarial, investigatory proceeding with no judge presiding. Moreover,
Bonds was given immunity from prosecution in exchange for his testimony. See
United States v. Boskic, 545 F.3d 69, 92 (1st Cir. 2008) (questioning “whether the
literal truth defense as articulated in Bronston is appropriately invoked outside the
context of adversary questioning. . . .”).
In Bronston, the defendant’s responses were literally truthful based on the
specific questions posed. In other words, the questions in Bronston permitted the
defendant to exploit the vagaries of the questions while still providing literally
truthful answers. In contrast, the government in this case directly and
unambiguously inquired of Bonds, “Did Greg ever give you anything that required
a syringe to inject yourself with?” Bonds’ answer that he was a celebrity child was
literally truthful in only the most attenuated and superficial manner, as it had
19
nothing to do with the question asked.2 Unlike in Bronston, there were no nuances
to exploit in the direct question posed to Bonds. In United States v. Camper, 384
F.3d 1073, 1076 (9th Cir. 2004), we recognized this limitation with respect to
Bronston. (“Bronston’s rule is limited to cases in which the statement is
indisputably true, though misleading because it was unresponsive to the question
asked. . . .”). Unlike in Bronston, and considering his evasive and misleading
answer, the jury could have reasonably concluded that Bonds endeavored to
impede the grand jury’s investigation. See United States v. Reilly, 33 F.3d 1396,
1416 (3d Cir. 1994) (“Normally, it is for the petit jury to decide which construction
the defendant placed on the question. . . .”) (citation omitted); see also Griffin, 589
F.2d at 204 (“[A]n obstruction of justice results when attempts to gather relevant
evidence by a judicial body, which is charged by law with the task of investigating
2
Bonds’ answer to the government’s question as to whether Anderson “ever
gave [him] anything that required a syringe to inject [himself] with” was not
limited to Bonds’ answer that he was a celebrity child. Although it may be literally
true that Bonds was a celebrity child, his answer was also coupled with the
statement that he “just didn’t get into other people’s business because of [his]
father’s situation . . .” To the extent the answer even addressed the government’s
direct question, it implied that, because he was a celebrity child, Bonds did not
interject himself “into other people’s business” and did not receive anything related
to steroids from Anderson. The jury could have reasonably concluded that the last
part of Bonds’ answer was an attempt to impede the grand jury’s investigation by
deflecting the question and evasively implying that, contrary to the evidence
presented at trial, he did not know about Anderson’s steroid operation because he
did not get involved in the business of his friends.
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and punishing crime, are frustrated by the use of corrupt or false means. The
blatantly evasive witness achieves this effect as surely by erecting a screen of
feigned forgetfulness as one who burns files or induces a potential witness to
absent himself”) (citation and internal quotation marks omitted); United States v.
Browning, 630 F.2d 694, 699 (10th Cir. 1980) (holding that Bronston’s literal truth
defense was inapplicable to an obstruction of justice offense because “Bronston
involved a perjury prosecution in which the question was whether the defendant
had told the truth. The ultimate question in the case at bar is not whether the
defendant told the truth but whether the defendant obstructed or interfered with the
process of truthfinding in an investigation in the process of enforcing the law”).
“The function of the grand jury is to inquire into all information that might
possibly bear on its investigation until it has identified an offense or has satisfied
itself that none has occurred. As a necessary consequence of its investigatory
function, the grand jury paints with a broad brush. . . .” United States v. R. Enter.,
Inc., 498 U.S. 292, 297 (1991) (citation omitted). Given the importance of the
grand jury’s investigative role, there is no reason to permit an immunized grand
jury witness to obstruct the administration of justice by endeavoring to influence or
impede the grand jury’s investigation. It would appear that if there was ever a
moment for a witness not to engage in obstructive testimony, it would be before a
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grand jury.
Application of Bronston’s literal truth analysis guts the obstruction of justice
provision prohibiting any attempt to “corruptly . . . endeavor to influence . . . or
impede any grand or petit juror . . .” 18 U.S.C. § 1503(a). Equating obstruction of
justice with perjury actually superimposes the heightened knowledge requirement
contained in the perjury statute upon the “endeavor to influence or impede”
provisions of the obstruction statute. 18 U.S.C. § 1503(a); cf. 18 U.S.C. § 1621(1).
Specifically, Bronston’s requirement that an attorney must ask clarifying questions
in order to cure potentially perjurious testimony should not be extended to a
witness afforded immunity who attempts to obstruct a grand jury investigation
through misleading and evasive answers. Bonds was liable for obstruction of
justice at the moment he endeavored to influence or impede the grand jury’s
investigation with his misleading and evasive answer to the government’s direct
and unambiguous question. See Aguilar, 515 U.S. at 601 (holding that a defendant
may be convicted of obstruction of justice “where the defendant acts with an intent
to obstruct justice, but is foiled in some way”). In Aguilar, the Supreme Court
delineated the dichotomy between perjury and the intent to obstruct justice:
Were a defendant with the requisite intent to lie to a subpoenaed
witness who is ultimately not called to testify, or who testifies but
does not transmit the defendant’s version of the story, the defendant
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has endeavored to obstruct, but has not actually obstructed, justice.
Under our approach, a jury could find such defendant guilty.
Id. As the Supreme Court emphasized, “[t]his is not to say that the defendant’s
actions need to be successful; an endeavor suffices . . .” Id. at 599 (citation
omitted). Despite the jury’s inability to unanimously find that Bonds committed
perjury, the government presented sufficient evidence that Bonds’ evasive answer
interfered with the administration of justice. See id.
Once Bonds corruptly endeavored to impede the investigatory function of
the grand jury, his crime was complete. See Rasheed, 663 F.2d at 853. Contrary to
the views expressed in the concurring opinions, the obstruction cannot be undone
by blaming the prosecutor for failing to prevent the obstruction. See id. (“[The
prosecutor’s] actions in no way negate the commission of the crime. At best, his
relieving [the defendant] of further production indicates that justice was not, in
fact, obstructed. This is not a defense. . . .”); see also Perkins, 748 F.2d at 1528
(observing that although the prosecutor could have questioned the witness more
effectively, a reasonable jury could have nevertheless found the testimony to be
evasive in an effort to obstruct justice).
None of the cases cited in the principal concurring opinion support the
notion that there is insufficient evidence to sustain an obstruction of justice
23
conviction in this case, where the jury was instructed on materiality and
specifically found that Bonds’ statement obstructed justice. See Thomas, 612 F.3d
at 1129 (upholding a conviction for obstruction of justice where the jury found
materiality and obstructive statements); cf. Kungys v. United States, 485 U.S. 759,
769-70 (1988) (discussing generally concealment of a material fact in the
denaturalization context); United States v. McKenna, 327 F.3d 830, 840 (9th Cir.
2003) (discussing materiality generally in the perjury context); Weinstock v. United
States, 231 F.2d 699, 701 (D.C. Cir. 1956) (discussing materiality in the false
statement context); United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir.
1998) (same); United States v. McBane, 433 F.3d 344, 350-51 (3d Cir. 2005)
(same); United States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007) (discussing
materiality generally in the bank fraud context). To the extent that the principal
concurring opinion cites these cases for the proposition that the grand jury function
must be subject to influence for the obstruction conviction to stand, I disagree.
See, e.g. Aguilar, 515 U.S. at 601 (explaining that a defendant may be convicted of
obstruction of justice even if his attempt to obstruct is foiled). Moreover, the jury
in this case was instructed on materiality and found Bonds’ statement obstructive
pursuant to that instruction. Absent a complete superimposition of the “literally
true” Bronston analysis, the cases cited in the principal concurring opinion simply
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do not provide a basis for reversing Bonds’ conviction.
Final Pitch
Barry Bonds received a grant of immunity in exchange for his truthful and
candid testimony before the grand jury. Rather than aiding the grand jury in its
investigatory quest, Bonds elected to obstruct the grand jury process by giving
evasive testimony. There is sufficient evidence to support his conviction because
the jury was instructed that it must find his evasive testimony to be material before
rendering a guilty verdict. In my view, the per curiam and concurring opinions
impermissibly second-guess the jury verdict, disregard our precedent, create an
unwarranted circuit split and import inapplicable principles from Bronston into the
obstruction of justice analysis. I cry foul.
25