SAN FRANCISCO -- Attorneys submitted oral arguments Wednesday morning as Barry Bonds' appeal of his 2011 felony conviction on a charge of obstruction of justice took a major step toward being decided by a three-judge panel at the Ninth Circuit Court of Appeals.
Appellate defense attorney Dennis Riordan argued at the hearing that the federal obstruction charge relating to a 52-word segment of Bonds' testimony before a 2003 grand jury should not have been brought against the former baseball star in the first place, and that the conviction is not valid.
"In a simple way, the argument was he wasn't charged with the crime of which he has been convicted, and the crime of which he has been convicted isn't a crime," Riordan said outside the James R. Browning Courthouse in downtown San Francisco after the hearing. "He did not evade the question that he was accused of evading. He answered it simply, directly and flatly three times within minutes of being asked. This is a preposterous charge."
Assistant U.S. Attorney Merry Jean Chan argued that evidence in the trial points to the conclusion that Bonds' testimony about whether he had received performance-enhancing drugs was intentionally false, misleading and evasive, and that his answers were material to the ongoing investigation into the Bay Area Laboratory Co-Operative (BALCO). The conviction, she argued, is based on Bonds' "calculated deception that he didn't have anything relevant to tell the grand jury."
Government attorneys were not immediately available for comment after the hearing, as has been the case throughout the process.
Bonds, the former outfielder for the San Francisco Giants and Pittsburgh Pirates, did not attend the hearing on the advice of his attorneys. Trial attorneys Allen Ruby and Chris Arguedas were in attendance for the defense side, while Assistant U.S. Attorneys Matthew Parrella and Jeffrey Nedrow, the chief prosecutors at trial, were at the government table with Chan. BALCO investigator Jeff Novitzky was seated in the gallery.
The panel deciding the appeal consists of Ninth Circuit Judges Mary M. Schroeder, Michael Daly Hawkins and Mary H. Murguia, who each asked questions of both sides during a hearing that lasted about 35 minutes. Each side had 15 minutes to argue its case orally while submitting full written arguments as well.
A seven-time Most Valuable Player who set the single-season and career home run records during his 22-year Major League career, Bonds was convicted of obstruction in a trial that concluded in April 2011, but the jury could not come to a consensus on any of three counts of making false declarations -- deadlocking on all three, including one vote that was 11-1 for conviction. Bonds was sentenced by U.S. District Court trial judge Susan Illston to two years probation, 30 days of house arrest and 250 hours of community service for the obstruction conviction, but the sentence remains held in abeyance pending the appeal.
The appeals process is unpredictable, so it could be a matter of days, weeks or months before the case is decided. If the panel finds in favor of Bonds, his conviction would be overturned; if it finds in favor of the government, the conviction would stand.
The segment of Bonds' testimony before the BALCO grand jury at issue included rambling comments about being a "celebrity child" and about friendship and fishing. Riordan argued that not only was the specific statement not part of the indictment but also that Bonds eventually answered no three times to the question of whether he'd ever been given any substance with which to inject himself. The government was attempting to inquire whether strength trainer Greg Anderson had provided performance-enhancing drugs to Bonds, and after talking about his father, late baseball star Bobby Bonds, and how he and Anderson kept their friendship by not discussing each other's business, Bonds did answer no to whether he'd ever received substances from Anderson with which to inject himself, the grand jury transcript shows.
The underlined passage of 52 words in jury instructions called Statement C of Count Five against Bonds came after Nedrow asked: "Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?" After some comments about his friendship with Anderson and how they talked about fishing more than baseball, Bonds' 52-word response deemed by the government and the jury to be obstructive was as follows: "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 ..." Bonds later said no to the question three times.
Bonds, whose playing career ended following the 2007 season, made his first appearance on the ballot for induction into the National Baseball Hall of Fame in January. He received 36.2 percent of the vote, well short of the 75 percent required for election.
Riordan made it clear that Bonds had hoped to be present for Wednesday's hearing, but Riordan and the rest of Bonds' legal team advised against it.
"Barry expressly asked if he could attend the oral argument today," Riordan said. "He very much wanted to do so and as a member of the public he's entitled to do so. We just concluded, and he took our advice, that this is a formal, fairly technical proceeding [and] his presence would just be a distraction. He followed the argument on television this morning, but he wanted to make it clear that it certainly wasn't out of lack of interest -- he very much wanted to be in the courtroom today."
Riordan, one of the nation's foremost appellate attorneys, did not offer a prediction on the outcome of Bonds' appeal.
"I've been doing this for a very long time. One predicts what the result will be the day after it is actually issued," Riordan said. "So we'll wait and he will wait along with everyone else [to see] what the panel has to say."
John Schlegel is a national reporter for MLB.com.