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Another Curve Ball For FCPA Defendants

In a post earlier this month on the White Collar Crime Prof Blog, Lawrence Goldman talked about the Barry Bonds case. 

Judge Susan Illston in August upheld Bonds’ only conviction, for obstruction of justice before the grand jury. (He was acquitted of perjury.)

That ruling should concern anyone facing a grand jury, including targets of FCPA-related investigations.

According to Goldman, “Bonds gave a long, rambling answer to a prosecutor’s question whether his trainer Greg Anderson had ever given him anything requiring a syringe to inject himself with. His answer included a seemingly irrelevant and arguably evasive discussion of his being a ‘celebrity child with a famous father.’ That response provided the basis for the obstruction charge.”

Bonds’ lawyers said he directly answered the same question in a later grand jury session, so his earlier evasive answer wasn’t ultimately material.

But the judge said viewing the evidence in the light most favorable to the government means the “defendant endeavored to obstruct the grand jury by not answering it when it was first asked.”

Here’s how Goldman — a Harvard-trained criminal defense lawyer in New York City — summed up the impact:

Witnesses before the grand jury, and at trials, hearings and depositions – whether ordinary citizens, arguably culpable celebrities, or federal agents – often hem and haw at first when asked difficult questions (even when they, unlike grand jury witnesses, have counsel present). Often these initial responses require “clarifying question after clarifying question.” That’s called cross-examination. To determine whether a witness committed obstruction of justice in the grand jury by the amount of questioning by the prosecutor makes the crime dependent on the skill of the examiner. The less skilled the examiner, the more likely he or she will need to ask many “clarifying” questions, and thus the more likely the responses will be deemed criminal.

If this conviction is upheld, prosecutors (especially those frustrated by their inability to prove the suspected substantive crimes) might be emboldened to seek more indictments for obstruction of justice against uncooperative witnesses who do not initially give direct, responsive answers, even if upon further examination in the grand jury session they eventually do. That is a troubling possibility.

The case is United States v. Bonds (N.D. Cal., CR 07-00732).

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