Friday, December 3, 2004

BALCO Keeps Getting Bigger: Grand Jury Leaks and Potential Perjury

The leaks of grand jury transcripts got even bigger when the San Francisco Chronicle published an article (Dec. 3) for the second day in a row containing excerpts from previously secret grand jury testimony transcripts in the BALCO case.  This time, the newspaper recounted the testimony of Barry Bonds, the reigning National League MVP (four times in a row and seven overall) and likely holder of the all-time home run record in a couple seasons.  Bonds testified that he used two items provided by his personal trainer, Greg Anderson, that contained steroids, but asserted that he did not know what was in them.  Anderson is one of the four defendants in the BALCO prosecution.  Yesterday's story concerned Jason Giambi, who admitted to the grand jury that he took steroids and human growth hormones provided by BALCO.  The Chronicle appears to be parceling out information a little at a time, and there may be more revelations from the grand jury's investigation.

Grand Jury Secrecy Violation

While the revelation of steroid use by baseball players is hardly a shock, the leak of secret grand jury transcripts is troubling.  U.S. Attorney Keven Ryan announced yesterday that he had requested an investigation by the Department of Justice into the leaks (S.F. Chronicle article here).   The source of the leak is unclear, and it is unlikely that it will ever be revealed.  Government attorneys and agents are subject to the proscription of Federal Rule of Criminal Procedure 6(e) regarding maintaining the secrecy of grand jury information, and a violation is subject to a criminal contempt proceeding under Rule 6(f).  If the transcripts were given to the defendants as part of the discovery in the case (Brady or Jencks Act disclosure), they would most likely be subject to a protective order by the court regarding disclosure, and violation of that order would be subject to a civil or criminal contempt.  Either way, whichever side leaked the information violated the law, but these types of leaks are almost never prosecuted because discovery of the identity of the violator is so difficult when the press is not required to disclose the source of information.  There has been increased government pressure on the press to reveal the source of secret information--notably Judith Miller of the New York Times for refusing to disclose who provided information about the identity of a CIA agent--but this is probably not the type of case in which the U.S. Attorney will push hard on the S.F. Chronicle.

Potential Perjury by Bonds

There has been some speculation in the media (ESPN) whether the government might seek to prosecute Barry Bonds for perjury because he did not admit to using steroids despite evidence seized from his trainer Anderson detailing what appears to be extensive steroid use.  In the grand jury, Bonds denied ever seeing any documents created by Anderson, and denied using anything more than the two products (an oral substance and a cream) that he said he did not know contained steroids.  Bonds was examined about documents seized from Anderson's condominium which detail the alleged use of various steroids and human growth hormones by Bonds. Anderson created the documents, and Bonds denied ever seeing anything in writing by Anderson. 

The problem with bringing a perjury case against Bonds is that the key witness would appear to be Anderson, so he would have to cooperate with the government as part of a plea deal for a perjury case to even be considered.  Even then, Anderson is not likely to be the most credible witness, and the government would need some independent corroboration of Bonds using steroids or other illegal substances from a more reliable source.  That said, it is not impossible that the government will bring a case based on Anderson's testimony and evidence alone.  NBA star Chris Webber was indicted in 2002 on perjury charges based on the testimony of Ed Martin, who admitted to secretly paying Webber over $200,000 while Webber was student at the University of Michigan and pled guilty to money laundering.  Martin died before the trial, and Webber eventually pled guilty to contempt of court and has not been sentenced as part of a plea arrangement.  Can the government charge Bonds with perjury?  There is no way to know at this point, but high-profile perjury, obstruction, and false statement cases are more the norm these days (Martha Stewart, Frank Quattrone), so it is within the realm of possibility, especially if Anderson (and perhaps others) agrees to cooperate. (ph)

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