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September 19, 2014

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ByPaulElias TheAssociatedPress SAN FRANCISCO Barry Bonds may yet overturn his obstruction of justice con- viction. Several members of an 11-judge panel of the 9th U.S. Circuit Court of Ap- peals expressed skepticism Thursday over the sole count that baseball's ca- reer home run leader was found guilty of following a trial three years ago. Circuit Judge William A. Fletcher called the pros- ecution's definition of ob- struction "alarming" be- cause Bonds ultimately an- swered questions before a grand jury about whether he was given drugs to in- ject himself with, an as- sertion he denied. Fletcher compared it with lawyers who evaded questions in civil litigation with the in- tent to mislead, and asked Assistant U.S. Attorney Merry Jean Chan whether that would be criminal be- havior. Chan said she be- lieved it would. "So how many San Fran- cisco lawyers do you intend to put in jail?" Fletcher said. "That is common behav- ior in civil litigation. Have you just criminalized half the bar here? ... I find your reading of the statute ab- solutely alarming, and half the bar, maybe three-quar- ters, maybe all of the bar is in big trouble." A decision is not ex- pected until next year. During an hour-long hearing, Circuit Judge Su- san P. Graber had similar skepticism for prosecutors' arguments that Bonds in- tended to mislead the grand jury, saying she doesn't see "there is sufficient evi- dence" because Bonds was asked and answered simi- lar questions about drug use later during his 2003 testimony. After a three-week trial in 2011, the jury failed to reach a verdict on three counts charging Bonds with making false state- ments when he denied re- ceiving steroids and hu- man growth hormone from trainer Greg Ander- son and denied receiving injections from Anderson or his associates. Prosecu- tors later dismissed those three charges. Bonds was convicted for giving a rambling answer to a question about whether he received injectable sub- stances. Bonds' appellate lawyer, Dennis Riordan, argued that Bonds' "unresponsive" answer did not constitute obstruction. He was imme- diately met with questions on his logic. "One can mislead with the truth," Chief Judge Alex Kozinski said. "One can mislead with irrelevant statements to lead a grand jury down a blind alley." Chan argued that Bonds had a "corrupt intent" to mislead the grand jury with the rambling answer. A three-judge panel of the 9th Circuit upheld Bonds' obstruction convic- tion in a unanimous vote last year, but a majority of the court's 28 participating judges voted to set aside that decision and have the larger group rehear the ap- peal. Prosecutors asked Bonds during the grand jury ap- pearance whether Ander- son ever gave him "any- thing that required a sy- ringe to inject yourself with?" Bonds referred to his fa- ther, former major leaguer Bobby Bonds, when he re- sponded, "I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a fa- mous father. I just don't get into other people's business because of my father's situ- ation, you see." Bonds answered "no" to similar questions later in his grand jury appearance, which Riordan argued was sufficient to cure any non-responsive answers. Some of the judges ques- tioned whether Bonds had sufficient notice of what he was being charged with, since the third super- seding indictment con- tained a broad obstruc- tion charge and the spe- cific statement was not included until the prose- cution proposed jury in- structions about a month ahead of the trial. The three-judge 9th Cir- cuit panel ruled unani- mously in September 2013 that Bonds' testimony was "evasive" and capable of misleading investigators and hindering their probe into a performance-enhanc- ing drug ring centered at the Bay Area Laboratory Co-Operative. "The statement served to divert the grand jury's at- tention away from the rele- vant inquiry of the investi- gation, which was Anderson and BALCO's distribution of steroids and PEDs," Se- nior Circuit Judge Mary M. Schroeder wrote. "The statement was therefore evasive." Barry Bonds has already served his sentence of 30 days of home confinement and paid a $4,000 fine. He was also placed on two years of probation and or- dered to perform 250 hours of community service in youth-related activities. 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