Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case
Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year. Then in 1998 St. Louis Cardinals first baseman Mark McGuire eclipsed Roger Maris’ record of 61 home runs in a season by pumping out 70 home runs. The following year Bonds showed up for spring training with the San Francisco Giants with a “bulked up” upper body. In 102 games that year, he still managed to hit 39 home runs. In 2000, Bonds appeared in 143 games and the new “Giant slugger” hammered out 49 home runs. The following year Bonds’ “ballooned up” upper body looked awkward in what appeared to be match-stick legs but it was enough for him to easily breezed by McGuire’s record with 73 home runs. During his last seven full playing seasons (not including 2005 in which he played only 14 games and hit a meager 5 home runs), Bonds averaged 44 home runs.
Most home run kings hit more home runs during the early years of their careers than in the final years. For example, major league home run king Hank Aaron averaged 31 home runs a season during his first seven years in the majors while averaging 28 a season during his final seven years; and Willie Mays averaged 35 home runs during his first seven years while averaging only 18 during his final seven years.
With home run power displays becoming a fixture in major league baseball, beginning in 1998 with the Mark McGuire and Sammy Sosa’s chase to break the Babe Ruth/Roger Maris 60-61 home run records and culminating with Bonds’ 73 home run performance in 2001, rumors began to swirl inside and outside of Major League Baseball that rampant performance enhancing drug use was corrupting the cherished sport.
In 2003 the federal government was investigating what became known as the “Balco steroids ring” – the Bay Area Laboratory Co-Operative in San Francisco which was owned and operated by Victor Conte. In September of that year federal agents conducted a raid on Conte’s lab and seized documents that, according to the San Francisco Chronicle, included the “doping calendars,” “drug regime,” and “payment records” for performance enhancement drugs used by Barry Bonds. The documents also included “positive” tests results for steroid use against Bonds in 2000, the year before he hit his record-breaking 73 home runs.
In December 2003 Bonds appeared before a San Francisco federal grand jury investigating the “Balco” steroids case. Before and after his grand jury appearance, Bonds denied that he had ever knowingly used steroids. Grand jurors apparently did not believe the home run king’s testimony that all he had ever taken was what he believed to be “flaxseed oil” and arthritis balm given to him by his personal trainer Greg Anderson who has steadfastly refused to cooperate with the federal investigation against Bonds. On November 19, 2007 the grand jury indicted Bonds on five counts of perjury and obstruction of justice. The indictment charged that he lied 19 times when he denied using steroids, testosterone, human growth harmone, and “clear” (an undetectable designer steroid).
On December 7, 2007 Bonds appeared in a federal district court, represented by an impressive five-member defense team, and entered a plea of “not guilty” to all counts. Federal prosecutors have indicated to the media that it has a “mountain of evidence” against Bonds, including testimony from former girlfriend Kimberly Bell, former business associate Steve Hoskins, and other major league baseball players.
The San Francisco Chronicle has reported that Bell and other people associated with Bonds said the home run slugger became extremely jealous of the media attention McGuire received in 1998 for his 70 home run season. Bonds reportedly believed that McGuire was an “inferior player” and a “steroid user,” according to the Chronicle.
According to federal investigators and the Chronicle, Bonds’ boyhood friend and personal trainer Anderson began supplying the home run king with steroids in 1999. Through reported steroid use and an enhanced weight training regime, Bonds became the most feared home run threat in baseball. Then following the 2000 season Anderson introduced Bonds to Balco owner Conte who, at the time, was supplying the undetectable “clear” steroid to Olympic athletes including world class sprinter Marion Jones. At that juncture Bonds also reportedly began taking “clear” supplied by Balco to Anderson. The decision to begin taking “clear” in 2003 was motiviated by Major League baseball’s new policy of testing players for steroid use. Anderson pled guilty to one conspiracy count in the “Balco” case and served three months in jail. He later served one year in prison on contempt of court charges for refusing to testify before the grand jury against Bonds before a federal judge ordered his release.
The “Balco” investigation was led by a dogged IRS agent named Jeff Novitsky was in charge of not only the September 2003 raid on the Balco but a simultaneous raid Greg Anderson’s home. These two raids reportedly produced documents linking a long list of “elite athletes” to steroid use. A total of 30 major league baseball players, including admitted steroid user Jason Giambi and Gary Sheffield who, according to the Chronicle, testified that Anderson, at Bonds’ direction, supplied him [Sheffield] with “clear” but told him it was not a steroid.
In November 2007 the San Francisco Chronicle reported that Bonds joined a “lost list of celebrities and historic figures” who have been charged with perjury. The Chronicle said:
“Former U.S. State Department official Alger Hiss spent 44 months in prison for lying in a Cold War-era probe of a Communist spy ring. In his 1999 impeachment trial, then-President Bill Clinton was acquitted of perjury in the Monica Lewinsky affair. In March, Lewis “Scooter” Libby, top aide to Vice President Dick Cheney, was convicted of lying to a grand jury in connection with the leak of an undercover CIA operative’s name to news reporters.
“But the perjury case that many experts liken to the Bonds case is that of former NBA star Chris Webber, indicted in 2002 after denying under oath that during his college basketball career that he had received money and gifts from a University of Michigan booster. Webber pleaded guilty to criminal contempt, paid a $100,000 fine and was ordered to perform community service rather than be imprisoned.
“Steve Fishman, the Detroit lawyer who represented him, said Webber was able to settle the case because the prosecution’s evidence was weak and Webber was a sympathetic defendant.
“’The accusation against Webber was that he was not telling the truth about something that occurred when he was a teenager,’ Fishman said in an interview last year. ‘There are miles of differences between allegations that you received gym shoes when you were playing at the University of Michigan versus you received steroids while you were the National League MVP.’
“If convicted of perjury, Bonds would be lucky to avoid prison, legal experts said. Technically, the maximum sentence on a conviction for a single count of perjury is five years in prison and 10 years for obstruction of justice. But Patrick Mullin, a criminal defense specialist who practices in New York and New Jersey, said federal sentencing guidelines would call for a term of from 24 to 30 months if Bonds is convicted of all the charges.
“’It could go higher,’ Mullin said. ‘This is tough stuff.’”
Last March it briefly seemed that the home run king would escape the wrath of the federal government. U.S. District Court Judge Susan Illston granted a motion by Bonds’ defense team to dismiss the 5-count perjury and obstruction of justice indictment as being too vague and improperly crafted. The judge, however, gave prosecutors the right to prepare and file a new indictment.
On June 6, 2008 federal prosecutors responded with a new indictment. This time prosecutors charged Bonds with 15 counts of perjury and obstruction of justice in connection with the “Balco” probe. The former baseball slugger pled not guilty and a trial date was set for next March. Federal prosecutors appear confident that they will secure a guilty verdict. In addition to the guilty plea Olympic sprinter Marion Jones entered last fall, prosecutors this year have secured guilty verdicts against world class cyclist Tammy Thomas and track coach Trevor Graham for lying to federal agents involved in the Balco investigation.
“Barry Bonds is innocent and looking forward to a March 2 trial,” defense attorney Allen Ruby said following Bonds’ plea. “The right conclusion in this case is an acquittal.”
Baseball team owners are apparently not as convinced of Bonds’ innocence. The home run king has made it clear he wants to continue playing baseball but so far no team has made him an offer – not even the Yankees.
18 U.S.C. § 1621(1) defines “perjury” as follows: “Whoever … having taken an oath before a competent tribunal, 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 … is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.” See also: United States v. Dunnigan, 507 U.S. 87, 94 (1993).
A grand jury investigating the violation of federal law(s) is a “competent tribunal” within the meaning of § 1621(1). See: United States v. Swainson, 548 F.2d 647 (6th Cir. 1977).
A perjury charge can be established through documentary evidence or testimony by other witnesses. It is much more difficult to challenge the credibility of documentary evidence than witness testimony. The jury in all criminal cases is the trier of fact and has unfettered discretion is attaching what, if any, credibility to either documentary evidence or oral testimony. In some cases, it is essential that a defendant take the witness stand in his/her own defense to refute the charges brought by the government. Other cases dictate that the defense attorney advise against the defendant taking the witness stand.
For example, the attorneys for former White House aide Lewis “Scooter” Libby advised him not to testify during his highly-publicized perjury trial in February 2007. After the jury found Libby guilty, some media pundits questioned the defense strategy of not letting Vice President’s Dick Cheney’s former chief of staff take the witness stand and refute the perjury charge.
There could be two basic reasons why the attorneys did not let Libby testify. First, they could have known that he was guilty of the perjury charge, and if he took the witness stand, he would have been forced to commit another perjury to refute the original perjury. A defense attorney cannot put a defendant on the witness stand knowing that he/she is going to lie under oath – and if a defense attorney has information that his client has testified falsely under oath, he has an ethical and public duty to disclose that information. See: Nix v. Whiteside, 475 U.S. 147 (1986); McKissick v. United States, 379 F.3d 754 (5th Cir. 1967). See also: American Bar Association’s Model Rules of Professional Conduct.
Second, U.S. Sentencing Guideline § 3C1.1 provides that the offense level shall be increased two levels “if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the … prosecution … of the instant offense … ‘though the court may not penalize a defendant for denying his guilt as an exercise of his constitutional rights, a sentence may be enhanced if the defendant commits perjury.’” See: United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995) [citing United States v. Landry, 985 F.2d 1293, 1308 (5th Cir. 1993)].
The Sentencing Guidelines are strict. They require that the trial court enhance a defendant’s sentence upon a proper determination that he/she committed perjury at trial. See: United States v. Humphrey, 7 F.3d 1186, 1191 (5th Cir. 1993)[“if the district court finds that {the defendant} did commit perjury, it must impose a two-level enhancement of sentence”]. See also: 988 F.2d 537, 544 (5th Cir. 1993). However, “not every accused who testifies at trial and is convicted will incur an enhanced sentence under §3C1.1 for committing perjury. See: United States v. Dunnigan, supra, 507 U.S. at 95. Courts have recognized that “there are reasons why a defendant may testify falsely without committing perjury.” See: United States v. Cole, 2205 U.S. Dist. LEXIS 5454, p. 3 (N.D. Tex. 2005).
Even if Bonds’ defense team truly believes that their client “believed” he was taking “flaxseed oil” and not performance enhancing drugs, the attorneys will face a tough call about whether to put him on the witness stand. That decision will probably not be made until after the prosecution has presented its entire case – and if the government truly has a “mountain of evidence” as it claims (and the convictions of Marion Jones, Tammy Thomas and Trevor Graham certainly supports that boast), a decision will probably be made, as it was in the Scooter Libby case, not to put Bonds on the witness stand.
If Barry Bonds is found guilty and sentenced to prison (and if Mark McGuire, Roger Clemens, and a score of other prominent white major league baseball players go unprosecuted for lying either to Congress or federal investigators as many believe they have), it will most assuredly raise questions about race neutral application of the law and demands for “Scooter Libby justice” for Barry Bonds.