Saturday, December 16, 2006
The Balco (Bay Area Laboratory Co-Operative) steroids investigation has entered what U.S. Attorney Kevin Ryan called the "third stage" with the indictment of Tammy Thomas, a former cyclist banned from competition for steroid use. Thomas testified under a grant of immunity in 2003 before the same grand jury that heard from a number of prominent athletes, including famed San Francisco Giants slugger Barry Bonds and Olympic gold medalist Marion Jones. According to the indictment (here), Thomas committed perjury by denying she received the designer steroid THG, known as the "the clear," from Balco chemist Patrick Arnold, who entered a guilty plea earlier in 2006 to conspiracy and money laundering charges. The indictment quotes the relevant testimony for count one:
Q: Did you ever – besides this one instance of getting the 1-AD from Mr. Arnold, did you ever get any other services from Mr. Arnold or products?
(a) A: No, no other products.
* * * * *
Q: Did you ever, in addition to anything I’ve said, get any kind of what you knew to be banned or illegal performance-enhancing drugs from Mr. Arnold?
(b) A: No.
In another exchange quoted in the indictment, she denied ever taking steroids or taking anything that Arnold gave her. Thomas tested positive for steroids in 2002,leading to her ban from competition. The key witness appears to be Arnold, which means that the case could come down to a credibility battle between Thomas and an admitted felon.
U.S. Attorney Ryan hinted in a press release (here) that more perjury indictments may be coming. He said, "“In the early stages of the investigation, the individuals who distributed steroids to some of the nation’s top-flight athletes were indicted and convicted. In the second stage, we developed the evidence to indict and convict the creator of the undetectable steroid THG distributed through Balco. A third stage has begun as we bring charges against individuals who lied to investigators or committed perjury while testifying under oath to a federal grand jury. Our investigation into each of these stages will continue as the evidence develops." In addition to Thomas, the grand jury earlier indicted Trevor Graham, Jones' former coach.
Bonds has already been the subject of serious speculation about a possible perjury and tax evasion indictment, the latter based on unreported income from memorabilia sales. When the earlier Balco grand jury expired in July 2006, many thought its last act would be to indict Bonds, but right before its expiration, the Giants released his medical records, so White's office announced that nothing would be done at that time. Bonds' former personal trainer, Greg Anderson, remains in jail on a civil contempt because of his refusal to testify about Bonds' use of steroids; Anderson was affiliated with Balco and entered a guilty plea to a drug charge related to steroid distribution. A San Jose Mercury News article (here) quotes Bonds' attorney stating, "If this is phase three, why not indict Barry?' The simple answer -- they need the testimony of Greg Anderson.''
It's not clear how important Anderson is to the case, but he could certainly help the government by identifying Balco documents that apparently indicate a schedule of steroid use by Bonds. If the perjury case rides on Anderson, the government will not be in a very strong position unless it has powerful documentary evidence to support its position. Anderson is unlikely to be a very convincing witness, or perhaps not a very trustworthy one.
In addition to Anderson, two San Francisco Chronicle reporters are fighting a contempt citation in the Ninth Circuit for refusing to testify before the grand jury about the leak of transcripts of Bonds and other major league players. The perjury stage of the investigation has generated a significant amount of litigation already, and the U.S. Attorney's Office for the Northern District of California has not been shy about pursuing perjury and contempt cases, so look for more to come. Whether higher-profile athletes like Bonds, Jones, or perhaps others are charged could play out over the next few months. (ph)
Saturday, November 18, 2006
A jury in New York acquitted Osama Awadallah of two counts of perjury the government charged took place during testimony before a grand jury in October 2001 investigating the September 11 terrorist attacks. Awadallah was a student in San Diego in 2000 when he became acquainted with one of the hijackers who was on the plane that flew into the Pentagon, and he was arrested as a material witness shortly after the attacks. In grand jury testimony given while he was handcuffed and had been held in solitary confinement for weeks, he admitted knowing Nawaf al-Hazmi but denied knowing the name of al Hazmi's companion, Khalid al-Mihdhar, or that it was his handwriting in a notebook with their first names in it. In a subsequent grand jury appearance, he testified that he was mistaken about knowing Khalid, whom he met a few times, and in not recognizing his handwriting, but he was charged anyway with perjury. The first trial ended in a hung jury with a single juror holding out for an acquittal, while the second case ended with a unanimous verdict in his favor. According to an AP story (here), the jury forewoman stated that Awadallah's testimony appeared to be immaterial to the government's investigation because it already knew the identity of the two hijackers, so he could add little to the inquiry. (ph)
Wednesday, November 15, 2006
"Scooter" Libby is arguing that there was no underlying crime, no motive to lie, and thus the jury should be allowed to hear evidence that he had no reason to lie. From a legal perspective this is a tough argument as perjury (actually false declarations here) does not require a motive and a lack of a motive does not negate the elements of the offense. From a practical perspective, however, this may be a hook for a jury, if it is so inclined, to find that he did not have the mens rea to commit the offense.
The basic elements of this charge are that the accused acted "1) under oath; 2) before or ancillary to any court or grand jury of the United States; 3) made a false; 4) material statement; 5) with knowledge of its falsity." See Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed. (Thomson/West 2004).
Wednesday, September 6, 2006
Former NBA all-star Ralph Sampson has tentatively agreed to plead guilty to a perjury charge and will serve two months in jail. Sampson tussled with federal prosecutors in Northern Virginia in 2005 when he was charged with failing to pay over $250,000 in child support for two of his children. After entering a guilty plea to that charge, he was then indicted on perjury, false statement, and mail fraud charges related to his financial filings in that case made in connection with a request for court-appointed counsel (see earlier post here). According to an AP story (here), Sampson will plead guilty to the perjury charge to avoid a trial scheduled to begin on Sept. 7. He has not been sentenced yet for the earlier child support conviction, and it's not clear whether the agreement in this prosecution will cover both cases. (ph)
San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada have avoided being sent to jail for civil contempt, at least for a little while. The two reporters were subpoenaed to testify before a grand jury investigating the leak of the testimony of major league baseball players, most prominently San Francisco Giants slugger Barry Bonds, who testified in 2003 during the Balco (Bay Area Laboratory Co-operative) steroids investigation. The reporters quoted extensively from Bonds' testimony in which he denied knowingly using steroids provided by his personal trainer, Greg Anderson. The current investigation includes possible perjury by Bonds and the potential violation of Federal Rule of Criminal Procedure 6(e) related to the improper disclosure of grand jury materials. While a federal district court judge ordered the two reporters to testify or be subject to civil contempt sanctions (see earlier post here), they worked out an agreement with prosecutors that they do not have to go to jail while they appeal the district court's order to the Ninth Circuit. They are in a better position than Anderson, Bonds' former trainer, who is in jail for a second time because he refused to answer questions before the grand jury about his knowledge of Bonds' use of steroids. Given the recent spate of cases enforcing subpoenas to reporters, it seems unlikely that Williams and Fainaru-Wada will avoid jail if they carry through with their assertion that they will not testify. The grand jury has over 15 more months in its term, so they could face a substantial period of incarceration for civil contempt. An AP story (here) discusses the agreement with federal prosecutors. (ph)
Wednesday, July 26, 2006
Greg Anderson, the former personal trainer for San Francisco Giants slugger Barry Bonds, will be called back to testify before the new grand jury being scheduled to be empaneled on July 27 to take up the perjury investigation where the prior panel left off. The earlier grand jury's term expired on July 20, at which time Anderson was released from his civil contempt for refusing to testify about possible steroid use by Bonds. With a fresh panel in place, Anderson could be held for up to eighteen months if he refuses to testify again, as he has asserted he plans to do. While he is likely to land back in jail, the issue will be whether the civil contempt has any possibility of driving him to testify. If it appears that he will simply continue to refuse to answer questions, at some point the court will have to let him go, although federal district judges have fairly broad discretion in determining when the coercive effect of the civil contempt has become fruitless. An AP story (here) discusses the next step in Anderson's merry-go-round life with the grand jury and the local federal lockup. (ph)
Friday, July 21, 2006
[Note: The following is a corrected post in light of updated media reports] The investigation of San Francisco Giants slugger Barry Bonds will shift to a new grand jury so that prosecutors can continue to determine whether to indict him on perjury and tax evasion charges. The grand jury panel that had been hearing evidence against Bonds related to his 2003 grand jury testimony as part of the investigation of steroids distribution by Balco (Bay Area Laboratory Cooperative) expired on July 20 at the end of its 18-month term of service. By empaneling a new grand jury, prosecutors will not have to race any deadlines in deciding whether to seek charges. I suspect prosecutors decided to hold off for now rather than risk running afoul of the adage "act in haste, repent in leisure." Bonds is unlikely to even consider a plea offer, and the statute of limitations is not a concern, so it is better to wait until the case is clear -- one way or the other -- than to rush something through a grand jury on its last day and then have to clear up the mess later. That is especially the case with tax counts, which require approval from the Tax Division in Washington, D.C.
The downside to shifting to a new grand jury is that evidence heard by the prior panel must be presented again to the new set of grand juros, which includes reading transcripts to them, a process that can be deadly dull. A new grand jury allows prosecutors to subpoena Bonds' former personal trainer, Greg Anderson, to appear once again. In June, Anderson refused to testify and the district court ordered him to jail on July 6 for civil contempt, but he only served the two weeks until the prior grand jury's term expired. His time on the outside may be fairly short, however, depending on when prosecutors subpoena him to testify, which most likely will trigger another refusal to testify and another trip to jail.
While Bonds has dodged an indictment at this time, and probably for the next few months, the U.S. Attorney's Office stated that its investigation has not ended. Pulling out a well-worn aphorism, an AP story (here) quotes Michael Rains, an attorney for Bonds, as saying, ""They don't even have enough to indict a ham sandwich, much less Barry Bonds." I'm not sure what a ham sandwich could do that would trigger federal charges, but it's probably not perjury or tax evasion. (ph)
Saturday, July 15, 2006
The personal attorney for San Francisco Giants slugger Barry Bonds, Laura Enos, expects her client will be indicted in the next week on perjury and tax evasion charges. An AP story (here) quotes Enos as stating, "We are very prepared . . . We have excellent tax records and we are very comfortable that he has not shortchanged the government at all." The federal grand jury in San Francisco investigating Bonds is set to expire in the near future, perhaps as early as Thursday, July 20, so any indictment must be returned by then barring a six-month extension of its term. Bonds' former personal trainer, Greg Anderson, remains in jail for civil contempt for refusing to testify before the grand jury, and the Ninth Circuit denied his motion for bail while he appeals the contempt or, more likely, waits for the clock to wind down -- a witness is released from civil contempt once the grand jury's term expires. A lot of people will be watching for signs of an indictment on July 20, when the Giants will be home playing the division-leading San Diego Padres. (ph)
Wednesday, July 12, 2006
Media reports (see here) indicate that federal prosecutors may seek a grand jury indictment of San Francisco Giants slugger Barry Bonds, probably this month, on perjury and tax evasion charges. The perjury relates to his testimony before a grand jury in 2003 regarding his use of steroids received from Balco (Bay Area Laboratory Cooperative) in which he is reported to have denied knowing that two substances provided by his personal trainer, Greg Anderson, contained steroids. Anderson, Balco founder Victor Conte, and two others entered guilty pleas in 2005 to drug charges related to the creation and distribution of so-called designer steroids -- which had nicknames like "the clear" and "the cream" -- that were undetectable until the recent development of new drug tests.
A U.S. District Court judge recently sent Anderson to jail for civil contempt because he refused to testify before the grand jury investigating Bonds. He has filed a motion with the Ninth Circuit for bail while he appeals the contempt citation, but the grand jury is ending soon, perhaps at the end of the month, and it's unlikely he will be released before it expires or Bonds is indicted (see AP story here). From earlier reports about the appearance of witnesses, it appears that this is a "Thursday Grand Jury" that meets once each week, so any indictment is likely to come on that day.
The perjury case against Bonds looks to be based on the testimony of a former business partner involved in selling memorabilia autographed by Bonds and a former girlfriend who claims, among other things, that Bonds gave her $80,000 in cash. The tax charges likely relate to memorabilia sales that may not have been reported as income. If there is an indictment, I suspect any tax count is part of a "Liar, Liar" approach in which the government will try to show that Bonds was deceptive in other areas of his life to bolster the theory that he was not truthful in the grand jury about his use of steroids. The amount of income involved is unlikely to be significant for someone with Bonds' salary and ability to generate additional income through appearances and autograph sessions, so any tax charge looks to me to be part of a broader strategy to call into question his truthfulness. Moreover, if there is a basis for tax evasion charges, that would make it more difficult for Bonds to take the witness stand to explain his earlier testimony. If that is the case, the defense will focus on trying to undermine the credibility of the government's witnesses.
Mark you calendars for Thursdays during July, because something more than hot pennant races may be of interest. (ph -- sorry for the headline, I couldn't resist)
Thursday, July 6, 2006
Greg Anderson, the former personal trainer for San Francisco Giants slugger Barry Bonds, will be spending at least a few weeks in jail for refusing to testify before a federal grand jury in San Francisco investigating whether Bonds committed perjury in the Balco (Bay Area Laboratory Cooperative) steroids investigation. Anderson first refused to testify a week earlier because he believed that his plea agreement did not require him to do so and the government was acting improperly. U.S. District Judge William Alsup held Anderson in civil contempt and ordered him sent to jail, rejecting a request by Anderson's attorney, Mark Geragos, for bail while he appeals the contempt.
An AP story (here) notes that the grand jury is set to expire in a few weeks, and a civil contempt only lasts as long as the grand jury is authorized, which is usually eighteen months. Geragos noted -- or perhaps boasted -- that there were things in refrigerators with a longer shelf-life than the grand jury investigating Bonds. That may be, although under Federal Rule of Criminal Procedure 6(g) a grand jury "may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury's service. An extension may be granted for no more than 6 months, except as otherwise provided by statute." Therefore, if the particular grand jury hearing evidence of possible perjury by Bonds has not been extended once, the court could push its service out another six months and Anderson could be held during the extended term. Similarly, there is nothing that would prevent prosecutors from transferring the case to a new grand jury once the current one's term expires and resubpoenaing Anderson to testify, leading perhaps to another civil contempt, although if the judge believes jailing him is futile then Anderson would have to be released.
Given the grand jury's short remaining term, assuming no extension or transfer, then we are likely to learn in the next few weeks whether Bonds will be indicted on perjury charges, and perhaps other violations identified during the investigation. Just in time for the dog days of August when the pennant races tighten considerably. (ph)
Friday, June 30, 2006
Greg Anderson, the former personal trainer for San Francisco Giants slugger Barry Bonds, refused to testify before a federal grand jury in San Francisco investigating whether Bonds committed perjury in 2003 when he testified about his lack of knowledge in taking steroids. Anderson was connected to Victor Conte's drug lab, Balco (Bay Area Laboratory Cooperative), and provided Bonds with a then-undetectable steroid called "the clear." Bonds testified during the Balco investigation that he did not know the substance Anderson gave him contained steroids. Anderson plead guilty to drug charges and served a three-month prison term, and prosecutors subpoenaed him to testify about Bonds' steroid use.
Anderson did not assert the Fifth Amendment, which may not have been available because of his guilty plea or, in the alternative, prosecutors may have been willing to grant him immunity. Instead, the basis for his refusal was that prosecutors wanted to examine him about a tape-recording in which he discusses Bonds using the clear in 2003 to avoid major league baseball's drug-testing program. Anderson's attorney, Mark Geragos (from the Scott Peterson murder case), argued that the tape was made illegally, but an AP story (here) notes that a federal district court judge decided that the government was not involved in the taping so prosecutors could use it to examine Anderson. By refusing to testify, Anderson faces a civil contempt proceeding and may be sent to jail if he continues to refuse to testify, at least for the term of the grand jury. If the court holds him in contempt, he could then appeal to the Ninth Circuit, although it is hard to see how he can avoid testifying about other matters unless her asserts the Fifth Amendment.
While Anderson is unlikely to be a particularly strong witness in any prosecution of Bonds, the tape recording could be important contemporaneous evidence used to link him to knowing steroid use near the time of his grand jury testimony. It certainly appears that, as the pennant races heat up, so is the investigation of Bonds. (ph)
Monday, June 12, 2006
An AP story (here) reports that San Francisco Giants slugger Barry Bonds is willing to speak with former Senator George Mitchell in his investigation of steroid use in baseball, conditioned on one very big "if." The if is that Bonds must be assured the information will not be given to the Department of Justice for use in the grand jury investigation of whether Bonds committed perjury in 2003 when he testified about steroids supplied by Balco (Bay Area Laboratory Cooperative). The grand jury has already heard from a number of witnesses, and the recent search of the home of former major league player Jason Grimsley has also been linked to the Bonds investigation.
Can Bonds get the assurances his attorney says he needs, or is this all a smokescreen to make it appear that Bonds is willing to cooperate but that his hands are tied because of those mean federal investigators? The parties could agree to a type of civil protective order, although whether that would be enforceable in the absence of a judicial officer's endorsement is an open question. More importantly, under Ninth Circuit precedent (the case is being investigated by the U.S. Attorney's Office for the Northern District of California), In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d 1222 (9th Cir. 1995), grand jury subpoenas trump such protective orders even when issued by a federal judge in civil litigation. Any agreement between Bonds and Mitchell would have no effect on the grand jury's power to obtain the evidence, which would not be subject to any privilege claim or the like.
Would the Department of Justice join such an agreement not to used Bonds' statements to Mitchell's investigators? That sounds like a type of quasi-immunity, something prosecutors are unlikely to grant without first hearing from Bonds or his attorney about the content of his statements -- that whole "buying a pig in a poke" problem. It is not clear what upside, if any, prosecutors would see in agreeing not to use any statements Bonds might make about steroid use. If he simply reiterates his grand jury testimony, there is nothing gained. If he were to contradict that testimony and be indicted for perjury, not only could the statements not be used, but Bonds could argue for a type of "use fruits" protection on the ground that disclosure of his statements would be an impermissible use that has tainted the government's investigation. One of the scariest phrases to federal prosecutors is "Kastigar hearing," which is a hearing to determine whether the government has used immunized testimony in any way in a subsequent prosecution. That was the ground on which Oliver North's convictions were overturned, and the mere mention of a Kastigar hearing sends chills down the spine of prosecutors because it means they have to show an independent basis for all their evidence, a difficult standard to meet. Any hint of immunity for Bonds, even informal immunity, creates this possibility, and the San Francisco U.S. Attorney's Office is unlikely to see the Mitchell investigation as worth creating that kind of risk to a perjury prosecution.
Bonds' attorney surely is aware of all these considerations, and how unlikely it is that the government will grant such protection to statements by Bonds. I suspect that spin has already begun, with Bonds trying to show how "cooperative" he is and that federal prosecutors are unwilling to hear his side of the story. The grand jury investigation promises to get warmer as the summer moves on and the pennant races heat up. (ph)
Friday, June 9, 2006
The recent search of (now-former) major league pitcher Jason Grimsley's home for steroids and human growth hormones has been linked to the on-going grand jury investigation of San Francisco Giants slugger Barry Bonds for perjury. An AP story (here) states that Grimsley's lawyer said that federal agents asked Grimsley to secretly record conversations about Bonds' alleged steroid use, a proposition he refused. Grimsley spent most of his career in the American League while Bonds has been in the National League since coming to the majors with the Pittsburgh Pirates in 1986, so it is unlikely Grimsley would have been able to obtain much direct evidence against Bonds. The government's search warrant affidavit alleges that Grimsley named other players who used steroids and HGH, so it may be that investigators were using Grimsley to get evidence on those closer to Bonds who could then testify against him.
On a related front, the lawyer for Kimberly Bell, a purported former mistress of Bonds, has informed former Senator George Mitchell that federal investigators told his client not to cooperate in baseball's steroids investigation because of her involvement in ongoing grand jury proceedings. Bell testified before the grand jury in San Francisco that has also heard from the Giants' team trainer and Bonds' personal physician in connection with Bonds' possible steroid use, which would be at odds with his earlier grand jury testimony. Investigators are following the old adage about not creating discovery material or Jancks statements that would have to be disclosed before a trial and could be used to impeach a witness' s credibility if there are any inconsistencies.
The government clearly is putting a great deal of effort into the Bonds investigation, and taking approaches, such as searches and wires, usually not seen in such cases. Whether there is enough there to make out a case remains to be seen. Now that the request to Grimsley to tape conversations has been revealed, all baseball players, especially Bonds, will be wary of any discussion of steroid or HGH use. (ph)
Friday, June 2, 2006
A New York Times article (here) discusses a motion to quash grand jury subpoenas issued to the two San Francisco Chronicle journalists who broke the story about the grand jury testimony of San Francisco Giants slugger Barry Bonds in the Balco (Bay Area Laboratory Cooperative) steroids investigation. The journalists are co-authors of the book Game of Shadows that contains a number of detailsdescribing alleged steroid use by Bonds. The Times article discusses the affidavit submitted by Mark Corallo, former Department of Justice spokesman for Attorney General Ashcroft, blasting the issuance to subpoenas to journalists for information about confidential sources absent a significant need related to national security or a threat of harm to innocent third-parties.
While most of the attention has been on the issue of the propriety of journalist subpoenas, the fact that federal prosecutors have taken such a dramatic step may indicate that the Bonds investigation is in its final stages. Subpoenaing journalists to track down confidential sources who may be eyewitnesses to possible steroid use by Bonds seems to show that, to this point, the government does not have enough independent evidence to make a perjury case. Bonds denied having knowingly used steroids before the grand jury in 2003, and prosecutors would have to prove the falsity of those statements and not merely that they were not completely truthful. The grand jury has heard from Bonds' personal physician and a Giants team trainer, but it is unlikely that they would have direct evidence of any steroids use. Bonds' personal trainer, Greg Anderson, may have testified about what Bonds put into his body, but having pled guilty in the Balco case, Anderson's testimony may not be sufficiently credible to warrant a perjury prosecution. Similarly, a former supposed girlfriend of Bonds would have similar issues if she were a government witness.
Issuing subpoenas to journalists looks like a last -- and possibly desperate -- step to build the perjury case. Whether the government can obtain what it wants remains to be seen. (ph)
Friday, May 5, 2006
Former NBA star Ralph Sampson seems to be attracting federal indictments these days as prosecutors added two more charges against him arising out of an earlier prosecution for failure to pay child support. As discussed in an earlier post (here), Sampson was indicted in January 2006 on perjury and false claim charges for filing a false affidavit seeking appointment of counsel due to indigency in the child support prosecution. Sampson plead guilty to the child support charges, and the two additional charges were set to go to trial on May 16. Prosecutors have now secured a superseding indictment adding new mail fraud and false statement charges. According to an AP story (here), Sampson did not disclose in his application for the appointment of counsel that he had a $5,000 per month consulting contract and the use of a $200,000 house in exchange for certain promotional activities, claiming instead that he had no income. In addition, he denied ownership of an SUV valued at $43,000, and is alleged to have mailed false documents to a finance company to hide his ownership of the vehicle. The hole keeps getting deeper for Sampson. (ph)
Tuesday, May 2, 2006
The documents related to the plea agreement of Howard Vogel, who admitted to receiving over $2 million in secret kickbacks from plaintiff securities class action firm Milberg Weiss for serving as the representative plaintiff, are available below. Two interesting items to note in the documents. First, Vogel pled guilty to violating 18 U.S.C. Sec. 1623, the false declaration/perjury provision, based on certifying to the federal courts considering the settlements of the securities class actions that he did not receive any payments other than what was approved by the court. This strikes me as a much stronger case than asserting mail or wire fraud for the payments because the law is clear that such payments are prohibited without judicial approval and the documents will show the scope of the disclosure ( or lack thereof). Second, the payments to Vogel and his family were from 1992 to 2005, including a $1.1 million payment in December 2003 from Milberg Weiss arising from the Oxford Health Plans securities class action, so it is a continuing course of conduct. The Statement of Facts contains a chart listing the specific cases and payment amounts, which will provide a roadmap to the types of charges that may be filed against current or former members of the law firm and, perhaps, even the firm itself. Very interesting reading, and possibly a precursor to coming indictments. (ph -- thanks to a faithful reader for sending along the case documents)
Wednesday, April 26, 2006
The number of witnesses keeps growing in the San Francisco federal grand jury investigation of whether Giants slugger Barry Bonds committed perjury in 2003 in his testimony before the grand jury investigating steroid distribution through Balco (Bay Area Laboratory Cooperative). In addition to previously disclosed subpoenas to Bonds' personal physician and the Giants team trainer, media reports are that a former Balco executive, James Valente, and Bonds' personal trainer, Greg Anderson, have been subpoenaed to testify. Valente and Anderson entered guilty pleas in 2005 to charges related to the distribution of steroids through Balco. Bonds admitted in his testimony that Anderson gave him substances that turned out to contain steroids, but he denied knowing that at the time he used them.
Anderson can be a key witness regarding Bonds' knowledge of what those substances included, and whether he provided Bonds any other of the so-called "designer" steroids developed at Balco to avoid drug testing measures. The problem with Anderson, of course, is that as a convicted felon he may not be a credible witness. Nevertheless, he was likely at the "scene" of any steroid use that may have occurred, so unlike most white collar crime cases, he may be an important eyewitness, regardless of the credibility issues. An AP story (here) discusses the latest grand jury subpoenas. (ph)
Wednesday, April 19, 2006
The federal grand jury investigating possible perjury by San Francisco Giants slugger Barry Bonds has subpoenaed the team's head trainer to testify on April 27, in addition of Bonds' personal physician. Bonds testified before a grand jury in 2003 about whether he used steroids from Balco (Bay Area Laboratory Co-operative), where his personal trainer worked. Bonds denied knowingly taking steroids, and recent publications cast doubt on whether his testimony was truthful. By seeking testimony from the personal physician and team trainer, the government likely is focusing on learning if health care professionals observed if Bonds exhibited any of the outward signs of steroid use, which can cause substantial physical changes. The witnesses may also have spoken with Bonds about whether he was using steroids or human growth hormones. While his physician may be able to raise a privilege claim to conversations, the team's trainer is unlikely to be able to throw up a similar roadblock to testifying.
Whether either witness can provide the type of circumstantial evidence needed to establish that Bonds' testimony was false -- which will be necessary to meet the high standard for a perjury conviction -- is certainly an open question. Both may well by sympathetic to Bonds, and so could provide only equivocal statements regarding his physical condition. To this point, the government's evidence appears to be coming from those convicted in connection with the Balco operation, a jilted former girlfriend, and claims made by anonymous sources as reported in a book and in the media. The government likely needs objective evidence of steroid use and not anecdotal claims if it wants to make a case against Bonds. A San Francisco Chronicle story (here) discusses the grand jury investigation. (ph)
Friday, April 14, 2006
It should not come as a great shock that a federal grand jury in San Francisco is investigating star slugger Barry Bonds for perjury related to his testimony in December 2003 in the Balco (Bay Area Laboratory Co-operative) steroid investigation. CNN.com reports (here) that the grand jury began hearing testimony about one month ago, around the time reports emerged about the book "Game of Shadows" that asserts Bonds began using steroids in 1998, after Mark McGwire broke Babe Ruth's single-season home run record. The San Francisco Chronicle reported in 2004 that Bonds told the grand jury that he used two items that he did not know contained steroids, but that he never knowingly used steroids.
The grand jury has subpoenaed, among others, Bonds' personal physician, according to an AP story (here). The doctor accompanied Bonds to Balco's offices and drew his blood there, according to "Game of Shadows." In March 2005, a reputed former girlfriend of Bonds testified before the Balco grand jury that he took steroids (see earlier post here). The testimony of the physician may corroborate assertions by others about Bonds' use of steroids at the time he testified before the grand jury, contradicting his testimony. As an earlier post (here) noted, however, a perjury prosecution will depend on the specificity of the questions and answers from the 2003 testimony.
Mike Rains, Bonds' attorney, may already be setting up the defense to an indictment by arguing that the government set a "perjury trap." According to the CNN.com story, Raines said, ""Look no further than Martha Stewart. The trap is perjury . . . You offer immunity and you get him in there and then you ask them questions and you get them on lying to federal officers. That's the trap. That's exactly what they got Martha for." I think the comparison to Martha Stewart is rather inapt. Even if one accepts that it was unfair to prosecute Stewart for false statements but not the underlying subject of the investigation, she did not receive immunity and her statements were not under oath. Bonds received immunity for the purpose of telling the truth, and the government had no desire to obtain false testimony from him. Indeed, the reason why immunity is granted in most cases is because the person will provide evidence against others and avoids prosecution. The immunity grant states explicitly that false testimony can be used against the person, and this appears to be the exact type of situation in which a perjury prosecution is most appropriate. The witness agrees to tell the truth to assist an investigation, and then gives false testimony -- that strikes me as the paradigmatic scenario for a perjury prosecution. Granting immunity is probably the least likely situation in which a so-called "perjury trap" would be set by prosecutors. (ph)
Wednesday, March 29, 2006
Former Assistant U.S. Attorney Indicted on Conspiracy, Obstruction, and Perjury Charges Related to Trial Conduct
Former Assistant U.S. Attorney Richard Convertino was indicted on conspiracy, obstruction of justice, and perjury charges related to his conduct as lead trial counsel in the so-called "Detroit Terrorism Trial" in which two defendants were convicted on terrorism charges only to have the government request that the verdicts be thrown out because the theory of prosecution was unsupported (indictment below). State Department Agent Harry Smith, who was one of the government's key witnesses, is also charged. The prosecution began shortly after the Sept. 11 terror attacks when a search of a Detroit apartment turned up evidence believed to be related to a terrorist cell. Among the evidence used at trial was a hand-written drawing of what the government asserted was the Queen Alia Military Hospital in Jordan; the notebook in which the drawing was found contained the Arabic writings "Queen Alia" and "Hashemite Kingdom of Jordan." Convertino and Smith viewed the hospital, and Smith attempted to take pictures of the facility. When those pictures did not turn out, he requested that another State Department agent in Jordan take digital pictures of the hospital, which were eventually e-mailed to Convertino before the trial. At trial, however, Smith testified in response to Convertino's questions that no pictures of the hospital were ever taken, and indeed could not be taken because it was a military hospital and a foreign agent taking such pictures would jeopardize the relationship with the Jordanian government. The defense had requested any pictures of the hospital to determine whether the drawing, which was quite crude, in fact matched the building, but Convertino denied that any existed. The photographs eventually came to light, and led the U.S. Attorney's Office to investigate the prosecution and determine that the terror charges were unfounded.
Among the overt acts for the conspiracy charge is the allegation that Convertino "failed to comply with his duty" to disclose the photographs to defense counsel. This may be the first criminal prosecution premised in part on the failure to comply with the prosecution's Brady obligation. Similarly, the obstruction of justice charge is based on "concealing contradictory evidence from the Court, defendants and jurors," which again relies on the due process right of defendants to disclosure of material exculpatory evidence. Convertino has consistently maintained that the prosecution was proper, and that he is being prosecuted because he is a whistle-blower. He has filed a lawsuit against the Department of Justice and various current and former DOJ officials in Washington D.C. related to his being removed from the case and relieved of his duties as a prosecutor.
The prosecution is the end game in a case that was touted by Attorney General Ashcroft as the first significant terror prosecution after Sept. 11 and collapsed after the government, at the urging of the district court judge who presided over the trial, took a second look at the evidence and whether it fulfilled its Brady obligations. Two of the original defendants entered guilty pleas to minor charges, and it is likely that they had nothing to do with terrorist groups. This indictment may help to show how serious the government is in ensuring that trials are conducted fairly. (ph)