For this report, you are to brief the USA v. Bonds decision from the U.S. Court of Appeals for the Ninth Circuit. A copy of that decision may be found here; http://cdn.ca9.uscourts.gov/data

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

BARRY LAMAR BONDS, Defendant-Appellant.

No. 11-10669

D.C. No. 3:07-cr-00732-SI-1

OPINION

Appeal from the United States District Court for the Northern District of California

Susan Illston, Senior District Judge, Presiding

Argued and Submitted En Banc September 18, 2014—San Francisco, California

Filed April 22, 2015

Before: Stephen Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain, Susan P. Graber, Kim McLane Wardlaw,

William A. Fletcher, Johnnie B. Rawlinson, Consuelo M. Callahan, N. Randy Smith, Jacqueline H. Nguyen, and

Michelle T. Friedland, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Kozinski;

Concurrence by Judge N.R. Smith; Concurrence by Judge Reinhardt;

Concurrence by Judge W. Fletcher; Dissent by Judge Rawlinson

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SUMMARY*

Criminal Law

In a per curiam opinion, the en banc court reversed Barry Bonds’s conviction for obstruction of justice in a case in which Bonds gave a rambling, non-responsive answer to a simple question during a grand jury proceeding.

The en banc court held that because there is insufficient evidence that Statement C was material, Bonds’s conviction under 18 U.S.C. § 1503 is not supported by the record. The en banc court held that whatever section 1503’s scope may be in other circumstances, Bonds’s conviction here must be reversed. The en banc court held that because a reversal for insufficient evidence implicates Bonds’s rights under the Double Jeopardy Clause, he may not be tried again on that count.

Concurring, Judge Kozinski, joined by Judges O’Scannlain, Graber, Callahan, and Nguyen, wrote that 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; that due process calls for prudential limitations on the government’s power to prosecute under the statute; and that on careful review of the record, there is insufficient evidence to render Statement C material.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Concurring, Judge N.R. Smith, joined by Judges Wardlaw, Callahan, and Friedland, wrote that a single truthful but evasive or misleading statement cannot satisfy § 1503’s materiality requirement, given (1) the Government’s duty to clarify merely misleading or evasive testimony, and (2) 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.

Judge Reinhardt concurred in the per curiam opinion and in parts of Judge Kozinski’s and Judge N.R. Smith’s opinions, while disagreeing with other parts. He wrote that this case involves nothing more than an irrelevant, rambling statement made by a witness during the course of a grand jury investigation, and that Statement C was not material and could not possibly have interfered with the due administration of justice.

Concurring in the judgment, Judge W. Fletcher disagreed with the rationale advanced by the per curiam opinion and by the principal concurrence. He wrote that the omnibus clause of § 1503(a) is not an open-ended provision whose constitutionality can be upheld 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; and that the key to a proper understanding of the statute is the meaning of the word “corruptly.”

Dissenting, Judge Rawlinson wrote that the per curiam and concurring opinions second-guess the jury’s verdict rather than defer to it, disregard precedent that supports

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upholding the jury’s verdict, and rely on precedent more applicable to perjury than to obstruction of justice.

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 Defendant-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 Plaintiff-Appellee.

OPINION

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 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

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(1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.

REVERSED.

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:

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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— 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

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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

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

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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 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 casting a despicable client in a favorable light, yet such conduct could be described as “endeavor[ing] to . . . impede . . . the due

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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 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

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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)).

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

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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 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,

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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 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 asked, “Do you own a gun?” it makes no

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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. 7–10 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) 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

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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.

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

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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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 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 dealing with the

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.

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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 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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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 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.

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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 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.

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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. 19

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