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Say it ain’t so, Joe — the first time they ask – or you’ll be a federal felon!

Barry Bonds lost his appeal the other day.  A three-judge panel of the Ninth Circuit Court of Appeal affirmed his conviction for obstruction of justice.  United States v. Bonds, 2013 U.S. App. LEXIS 19007 (9th Cir. Cal. Sept. 13, 2013). Bonds is a federal felon because of the italicized portion of this grand jury testimony:

Question:  Did Greg ever give you anything that required a syringe to inject yourself with?

Answer:  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?

Question:  Right.

Answer:  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 government did not prove that this statement was false.  Indeed, it did not even argue to the Jury that the statement was false.  See Bonds’ Appellate Brief, p. 16 & n. 2.  The conviction was based, instead, on the theory that this statement was “misleading or evasive,” and that such testimony violates the federal obstruction-of-justice statute, 18 U.S.C. § 1503, even though neither of those words appears in the statute.

It is worth noting that Bonds’ questioner got a straight answer a few moments later:

Question:  And, again, I guess we’ve covered this, but — did [Anderson] ever give you anything that he told you had to be taken with a needle or syringe?

Answer: Greg wouldn’t do that. He knows I’m against that stuff. So, he would never come up to me — he would never jeopardize our friendship like that.

Question: Okay. So, just so I’m clear, the answer is no to that, he never gave you anything like that?

Answer: Right.

The bottom line, then, is that it is a federal felony to give “evasive or misleading” testimony, even though those words don’t appear in the statute, even when the testimony is true, and even when a straight answer is given a few moments later.   Well now we know!