Saturday, June 12, 2010

Case o' The Week: Barry Bonds Safe, and Wins in the Ninth - FRE 807 and Agency, US v. Bonds

Ever wonder how much litigation effort, investigation, research, oral argument, and how many opinions have been devoted to issues arising arising from urine in the federal courts of the Ninth Circuit?

Lots. And, turns out, even more this week. United Stat
es v. Bonds, __ F.3d __, No. 09-10079, 2010 WL 2331456 (9th Cir. June 11, 2010), decision available here.

Players: Big win for SF appellate guru Dennis Riordan. Written by Judge Schroeder, joined by Judge Reinhardt, affirming ND Cal DJ Illston. Lengthy dissent by Judge Bea.

Facts: This case is another regrettable chapter in the ND Cal steroid prosecutions. See, e.g., Comprehensive Drug Testing, blog available here.

Barry Bonds testified before the federal grand jury and denied using performance enhancing drugs. Id. at *1. BALCO Lab blood and urine samples, purportedly from Bonds, tested positive for these drugs. Id. Bonds was thus indicted for making false statements to the grand jury. Id. at *3.

Anderson - Bonds’ trainer - could have linked these samples to Bonds, but refused to testify and was jailed for contempt. Id. at *1. The Feds’ “Plan B” was a BALCO employee who would testify that Anderson told him the dirty samples were from Bonds. Id.

Northern District Judge Susan Illston held this testimony to be inadmissible hearsay. Id. Specifically (as relevant to this appeal) the court rejected this testimony under the FRE 807 “residual exception,” and rejected agency theories that these were “authorized statements.” Id. at *4.

The government took interlocutory appeals. Id.

Issue(s): FRE 807: “The government argues that the district court adopted an improperly narrow view of FRE 807 by not taking into account that Anderson’s statements ‘almost’ fell within several other hearsay exceptions. It also asserts the court did not give enough weight to Anderson’s unavailability.” Id. at *5.

Held: FRE 807: “[E]ven though this was a ‘near miss’ [on admissibility under other hearsay exceptions] it was nevertheless a ‘miss’ that may have permitted, but did not alone compel the trial court to admit Anderson’s statements under FRE 807.” Id. at *5.

“[T]his situation [is] unexceptional because it involves statements of an unavailable witness like those FRE 804 excludes, with limited exceptions here not applicable.” Id.

“The district court finding properly focused on the record of untrustworthiness of the out of court declarant, Anderson, as required under the rule.” Id.

Of Note: While the FRE 807 holding leads the majority opinion, the bulk of the decision and the very lengthy dissent wrestle with the admissibility of Anderson’s statements under various agency theories. Id. at *12 (Bea, J., dissenting). Judge Bea questions the notion that when Bonds provided the samples he was just accommodating the wishes of his friend, Anderson. Id. at *30. As the dissenter quips, “Perhaps I spend my time in the wrong social circles, but in my experience ‘accommodating the wishes of a friend’ has never quite included giving friends my blood or urine: a screwdriver or a ride if his car breaks down, sure, but not vials of my bodily fluids.” Id. at *30.

How to Use: FRE 807 – the “residual exception” to the hearsay rule – is by-and-large no friend of the defense. Bonds, therefore, is a useful opinion for affirming the limitations on 807. Two limitations in particular bear emphasis: that the statement itself bears indicators of trustworthiness, and the requirement that the circumstances surrounding the statement were “exceptional.” Id. at *4. It isn’t enough that the government is frustrated with an unavailable witness – unavailable witnesses aren’t exceptional at all, and are in fact explicitly covered in FRE 804. Id. at *5. Bonds will be the lead case on an obscure corner of agency law, but its greater value is in fighting back the government’s attempt to dodge hearsay limitations by relying on the FRE 807 “residual exception.”

For Further Reading: While Bonds gets the press, Comprehensive Drug Testing is the much bigger decision. Where stands the Super En Banc? (Or, as one commentator has observed, “the banc too big to fail”). Time is not our friend: as the Ninth slowly ponders, two circuits have rejected CDT. A SCOTUS-worthy split is not what this great decision needs.

For an interesting discussion on CDT and plain view, see Leonard Deutchman, “To Avoid ‘Plain View,’ Investigators Need Blinders, article available here.

Urine vial image from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Friday, June 25, 2010 8:32:00 AM  

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