Legal analysis: Bonds could get year in prison
Posted: Friday, November 16, 2007 6:38 AM
When the indictment came down on Barry Bonds, I e-mailed Michael Gilberti of Red Bank, N.J., the chief legal correspondent of Open Mike to get his take. He’s a former assistant D.A. for the U.S. Justice Department in Newark. The last time we heard from him in this space, he was dead on about the federal case against Michael Vick.
He read the indictment this morning, and sent me the following analysis:
“The starting point is that, in most cases, the government will not indict unless it believes it can convict a defendant, especially a high-profile defendant like Bonds. This means they believe they have sufficient evidence to prove, beyond a reasonable doubt, that Bonds did what the indictment says he did. This also usually means that they have something more (and usually a lot more) than Bonds saying, ‘I didn’t do it,’ and someone else saying, ‘He did do it.’
“Several things jump out. First, it is interesting that the IRS-Criminal Investigation Division (in the Treasury Department, charged with investigating tax evasion and to some extent money laundering), rather than the FBI or DEA (both are in the Department of Justice, and they are the two primary drug investigating agencies), conducted this investigation into drug dealing and money laundering. [Paragraph 4] That is probably because of the money laundering aspect: when I was prosecuting, IRS-CID had just become involved in these kinds of investigations, and they did very good work. For the most part, they were accounting geeks who wanted to make sure every i was dotted and every t was crossed. They also did some of the best drug surveillance I ever saw. This also tells me that there may be tax evasion charges still out there as the second shoe dropping. In order to indict someone on tax evasion, a prosecutor must obtain special authorization from the IRS and the Tax Division of the Department of Justice (the liaison between DOJ and IRS) and then they must approve the number of charges, the exact language of the charges and every other facet of the tax prosecution, including any plea offers, oppositions to defense pretrial motions and trial strategies. It usually slows down the process because they take so long to review everything. The delay for this kind of review and approval could explain why there are no tax evasion counts in this indictment. This may also be a negotiating ploy: the government might say, if he pleads to one or more of these charges, we won’t indict him for the tax evasion (they would still go after him civilly for any underreporting, interest and penalties).
“Second, paragraph 6 says that, in September 2003, the government executed a search warrant at BALCO and got its books and records. In the questioning, they confronted Bonds with some of those records and he admitted that they referred to him. This gets the government started down the road to conviction.
“Third, paragraph 9 says they have evidence that he tested positive for steroids. This could come from the testing that Baseball did, it could come from drug test results during other medical treatment or someplace else. The source of this information will be interesting, if not critical. It is the TRUTH (or at least a big part of the truth) against which the rest of the indictment claims that Bonds lied.
“Third, you also must remember that Bonds testified under a grant of “use and fruits” immunity, as opposed to “transactional immunity.” That means nothing he said could be used against him, EXCEPT if he lied, and no investigative leads that the government found as a result of his testimony could be used against him. (Transactional immunity means that you cannot be prosecuted for the events.) The government theory is that, if he had testified truthfully, he would have told the grand jury that he knowingly used steroids. The government could not have used that evidence or any other evidence that they learned because of it, against him. If, at a later date, they indicted him for illegal steroid use, there would most probably have to be a hearing as to the source of the information that the government used to indict and prosecute him. Unless the government could show that the evidence came from a totally independent source, the court would have to dismiss the indictment.
“Fourth, the indictment details four separate exchanges between Bonds and underscores the false statements. Several of them come from incidents involving his personal relationship and interaction with Greg Anthony. Anthony Anderson. Anderson refused to testify against Bonds in the grand jury, even under a grant of immunity and served jail time for contempt, I believe. So it is doubtful that he will testify against Bonds at trial. As a result, there must be evidence from some other sources, like his former girl friend, the team physician or trainer, friends, teammates, the clubhouse boy or other people who saw him do things or to whom he admitted that he knew what he was doing or that establish the factual basis for his relationship with Anthony Anderson and BALCO.
“ Fifth, under the federal rules of criminal procedure, Bonds will not get much pretrial “discovery”: he will get copies of his criminal record, any statements he made to federal agents, copies of the books and records the government intends to use as evidence at trial, including the BALCO records and the drug test evidence, and any expert materials that the government intends to use against him, like identification of experts and reports of independent analysis of the drug tests, handwriting analysis or fingerprint evidence connecting Bonds to the documents or events. The government does not have to identify its witnesses until trial or produce their grand jury testimony or statements to federal agents until shortly before they testify at trial. Bonds’ lawyers will make pretrial requests for all sorts of evidence, but the court most likely will deny most of them because the law is severely stacked in favor of the prosecution and non-disclosure.
Sixth, while the indictment charges four separate, interrelated instances (the obstruction relates to the effect of the four separate instances), they all come out of his testimony in one grand jury session. If he were to go to trial and lose, under the federal sentencing guidelines the court would merge all of the counts and treat them as one incident. If he were to plead guilty to one count of perjury or the obstruction, he would probably be looking at a sentence of 10-16 months in jail, which the court could split and allow him to do a part in jail and a part under house arrest. If he goes to trial and loses, he would forfeit a two-point reduction for “acceptance of responsibility” that usually comes with a guilty plea (because you save the court and the government the time, effort and expense of a trial), and he would be looking at 15-21 months in jail. In the federal system, a defendant does the first year without any reduction and then accrues 53 days a year good time for any additional years. A defendant usually does 85% of his sentence (although for shorter, white collar violations he may be eligible to go to a half-way house with a year left).”
