9th Circuit, Barry Bonds, Baseball, Department of Justice, White-Collar Crime

Barry Bonds And The Lengths DOJ Will Go To Protect AUSAs

It's apparently really important to protect AUSAs from having to do the same basic work that the rest of the legal community does routinely.

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Barry Bonds was convicted of obstruction of justice for giving non-responsive answers to questions in a grand jury. As Judge Fletcher told the government in the oral argument in the 9th Circuit en banc challenge to his conviction, “I find your reading of the [obstruction of justice] statute absolutely alarming.” And for good reason — Judge Fletcher thinks that the government’s interpretation of obstruction of justice would mean that most civil lawyers are felons.

There are a lot of ways to violate federal laws that are related to obstruction of justice. You can lie to a federal agent who is coming to your house to interview you and violate 18 U.S.C. § 1001. You can commit perjury under 18 U.S.C. § 1621. And there are a host of other false statement statutes specific to other regulatory schemes (like false statements in connection with a tax filing, or a health care request for payment, etc.).

All of those laws, though, require that the person who is being prosecuted make a false statement.

Obstruction of justice is different. Instead of having concrete elements like “making a false statement”, obstruction of justice criminalizes willfully “obstruct[ing], imped[ing], or interfer[ing] with” whatever is being allegedly obstructed.

Here, Barry Bonds didn’t make a false statement. Instead, he gave an answer that was non-responsive. The government’s theory was that Barry Bonds didn’t give a responsive answer to a question in order to throw the government off (because, apparently, having the temerity to force an AUSA to listen to questions in a grand jury and ask a follow-up question is the kind of thing that ought to brand you a felon).

And that was “obstructing” the federal law enforcement apparatus.

There are a lot of things wrong with this prosecution. The one I want to focus on is the lengths the federal government will go to in order to protect AUSAs from having to do the same basic work that the rest of the legal community does routinely.

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The point of the obstruction statute should be to outlaw people who are doing stuff that thwarts the federal government in its effort to do its work. It should not be to crush any momentary lack of enthusiasm to jump on Team USA in its quest to incarcerate a large portion of the free world.

Here’s the exchange that landed him a conviction (apparently it took about 30 seconds):

Q. Did [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 — 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. So, I don’t know — I don’t know — I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just — I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t — there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.

A bit later, the prosecutor asked Barry Bonds again if the trainer gave him a syringe to inject himself. Barry Bonds directly answered the question: he said “No.”

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That was the basis for the prosecution — that for around a minute and a half Team USA didn’t have it’s question immediately and unequivocally answered.

Let us compare Bonds’s answer with some other great celebrity non-answers. Lil Wayne (“I don’t know, but I know I did perform at this bad ass b*tch birthday party recently”). Lady Gaga (“Not that people who do that don’t deserve their hourly pay, but I’m just pointing out that I deserve everything I’ve worked for. I deserve every dollar of it.”). Justin Beiber (“don’t ask me about her again”).

Non-responsive answers are simply the way celebrities respond to questions. It’s just what they do.

As Judge Fletcher noted, if the DOJ interpretation of this statute is right, half of the civil litigators in the bar are criminals based on how they handle interrogatory responses. (the discussion is around 39:00 in this video. It’s amazing. Especially when Judge Kozinski lays out that the prosecutors in the case obstructed justice in this case if the government’s theory is right)

Of course non-responsiveness is not a crime. Why isn’t it a crime? Because we trust lawyers to follow-up on non-responsive answers.

But DOJ, by contrast, doesn’t have that level of trust in its line prosecutors. Instead, the lesson of the Bonds prosecution is that asking an AUSA to do what any lawyer in a deposition has to do just about all the time (e.g., what happened in this (dramatized) deposition) can result in criminal charges.

No wonder being an AUSA is said to be a great job.

Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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