Unsealed Bonds evidence cuts both ways

SAN FRANCISCO – The knock-down, drag-out known as USA v. Barry Bonds just went through the ropes.

In court filings Wednesday, prosecutors made public previously sealed documents that they argue should be admitted as evidence at trial, including alleged positive steroid tests and doping calendars linked to the home-run king.

The ledger and the drug test results found at BALCO that corresponded to the numbers entered under the defendant's name on the ledger indicated that Bonds' urine tested positive for anabolic steroids on three separate occasions in 2000 and 2001. On each occasion, the prosecution contends that Bonds tested positive for the injectable steroid methenelone. On two of these three occasions, Bonds also tested positive for the injectable steroid nandrolone.

The government also said it plans to call current and former major league baseball players Gary Sheffield, Jason Giambi, Benito Santiago, Jeremy Giambi and Bobby Estalella during Bonds' trial on perjury charges scheduled to begin March 2 in federal court.

Unsealed evidence

Documents made public in the Barry Bonds perjury case:

Defense attorneys countered in a 28-page filing that much of the government's evidence should not be admissible because the person alleged to have provided Bonds with steroids, administered the tests and kept the calendars – personal trainer Greg Anderson – is not expected to testify.

"If Anderson does not testify for the government, the truth of any statement he may (or may not) have made out of court cannot be so tested," attorneys Dennis Riordan and Donald Horgan wrote. "Mr. Bonds will be stripped of the opportunity to confront and cross-examine the most prejudicial but least reliable evidence against him."

The defense also said blood and urine tests should be inadmissible because "there is no foundation that the specimens tested came from Barry Bonds." That would include the retest of a urine sample the prosecution says Bonds provided as part of the supposedly anonymous testing Major League Baseball implemented in 2003.

The prosecution asked Judge Susan Illston to allow anti-doping expert Dr. Donald Catlin to testify about the test his lab performed on a Bonds urine sample collected by Major League Baseball in 2003. After Bonds testified negative for steroids in the league’s survey testing, his sample was sent to Catlin’s UCLA Olympic Analytical Laboratory to be tested for the Tetrahydrogestrinone (THG), the performance-enhancing substance in the Clear.

However, the defense argued that even if the re-test is admitted as evidence it is meaningless because Yahoo! Sports revealed that THG was not classified as a steroid under federal law until 2005. Therefore, the defense contends, Bonds wouldn't have been lying when he said he didn't knowingly take steroids, at least as it pertains to THG and the re-test.

Catlin also will testify that the test was positive for Clomid, an anti-estrogen drug typically used by steroid users, and positive for foreign testosterone, itself an anabolic steroid and controlled substance under federal law.

In this latest legal skirmish, the government has clearly won the right to publicize huge amounts of previously cloistered BALCO evidence. The filings offer a preview of a pivotal courtroom battle scheduled to take place Thursday. Illston will listen to arguments on both sides and determine what evidence will be admissible in Courtroom 10.

Last week in a pointed, hand-delivered letter to Illston, prosecutors declared that "Department of Justice Guidelines" required it to publicly file every alleged piece of evidence or testimony that it believes suggests Bonds may have taken steroids. Illston initially disagreed but changed her mind after protests from the Associated Press, San Francisco Chronicle and San Jose Mercury News. On Tuesday, Illston said that the release of the documents will not "impair" Bonds' right to a fair trial.

Bonds is charged with 10 counts of perjury and one count of obstruction of justice. Prosecutors contend he lied to a federal grand jury in 2003 when he testified that he did not "knowingly take steroids."

A key element of the government's evidence is a taped conversation in the San Francisco Giants clubhouse between Anderson and a boyhood friend of Bonds' named Steve Hoskins, who had a falling-out with the slugger over memorabilia Hoskins was selling. The government will try to establish that Anderson talked about Bonds' drug use on the tape, but in its filing the defense said, "The portions of the conversation attributable to Hoskins are obviously inadmissible hearsay, and there simply is no portion of what Anderson states in reply to Hoskins' questioning that unambiguously refers to Mr. Bonds."

The prosecution, however, will try to enter as evidence the conversation, which included an exchange between Hoskins and Anderson potentially damaging to Bonds. Hoskins described how a doctor said a basketball player experienced problems taking injections in the same location,then said, "That's why he has to, he had to switch off of one cheek to the other. Isn't that why Barry didn't do it in one spot, and you didn't just let him do it one time?"

Replied Anderson, "Oh no. I never. I never just go there. I move it all over the place."

The abrupt public access to documents that had been sealed for more than five years comes on the heels of 20 FBI and Internal Revenue Service agents raiding the home of Anderson's mother-in-law last week. Bonds' lawyers interpreted the raid as a sign that prosecutors need Anderson's testimony in order to convict Bonds. The government "fears Anderson will refuse to testify against Mr. Bonds, or at least will refuse to testify in the manner that the government desires," Bonds' lawyers wrote in the filing.

Beginning with the alleged BALCO steroid tests, Bonds' lawyers say the government intends to attempt to link Bonds to "the [test] sample in question only through purported hearsay statements of Anderson," adding that calendars, handwritten notes, the interview of lead investigator Jeff Novitzky and Hoskins' tape recording also are hearsay.

Dennis Riordan and Donald Horgan, the Bonds lawyers who wrote the filing, argued that blood and urine test results should not be admitted under a legal exemption as business records because there is no proof the "specimens tested came from Barry Bonds."

The government's apparent stand-in witness for Anderson will be James Valente, the former BALCO vice president. Valente testified that the testing of the blood or urine of Bonds lacked the standard controls that would prove its authenticity, according to defense lawyers. Wrote Riordan: "For his part, Valente has testified that: '[T]here was no chain of custody on the urine.' "

Riordan quoted from Valente's grand-jury testimony:

Q: So what was your basis for putting down Barry B. and those numbers on the samples? I mean how did you know it was Barry's urine?

A: 'Cause Greg gave it to me and told me.

Another key element of the government's case against Bonds appears to be an attempt to paint the slugger's grand-jury testimony as part of a conspiracy. The alleged conspiracy charge appears central to the government's attempts to convince the court to allow it to "gain admission of documents or statements."

But the defense noted that the original charges against Anderson and Conte in BALCO for conspiracy were dismissed. Conte and Anderson were never brought to trial, and 40 of the 42 counts were dismissed in their plea bargain. Nor was Bonds, they wrote, previously alleged to be a member "of the conspiracy to defraud."

Prosecutors do not allege Bonds conspired in the distribution of illegal steroids, but rather in the arcane, far lesser offense of "a conspiracy to defraud the United States through the illicit distribution of misbranded drugs."

The Cream and the Clear were improperly labeled, charges the government, and the Clear was "a newly manufactured, designer steroid not yet recognized by law enforcement or the testing community." That definition appears to contradict the sworn grand-jury statements of the government's own witnesses.

Bonds' lawyers also questioned the government's belated conspiracy charge, writing, "The government's evidence contains not a hint that Mr. Bonds was aware of much less intended to defraud the United States of its intangible right to approve and control the distribution of performing-enhancing drugs."

The Giambi brothers and other ballplayers testified to the grand jury that Anderson provided them with the Clear, the Cream and other performance-enhancing drugs. Anderson also allegedly kept doping calendars similar to the ones prosecutors say he kept for Bonds. The defense expects that the subpoenaed ballplayers will be asked about those issues. In addition, Sheffield worked out with Bonds for several weeks before the 2002 season, and according to Sheffield's grand jury testimony, Bonds introduced him to BALCO and gave him the Cream.

Bonds' attorneys downplayed the significance of the ballplayers' grand jury testimony and asked Illston to rule it inadmissible. "Their testimony cannot even establish with reliability what their own calendars signify, much less what calendars they have never seen represent," Riordan wrote. "The testimony of Gary Sheffield, Benito Santiago, Bobby Estalella and the Giambi brothers are replete with instances in which they testify, contrary to the prosecution's theory, that entries in their calendars do not represent occasions on which they were given, or ingested, performance enhancing drugs. Since their calendars are not reliable evidence of events they themselves were involved in, those calendars can prove nothing about Mr. Bonds."

Novitzky will testify that the calendars were seized during the September 3, 2003 search of Anderson's residence. The files were organized by athlete. Most of the athlete files, including the one for Bonds, contained doping calendars, notes, other materials associated with the distribution of illegal steroids to the athletes. Novitzky will further testify that Anderson told him that he often did not put his name on the packages of drugs he sent to his athlete clients because he thought it was "not such a good idea."

Lay witnesses will testify to physical and mental changes they observed in Bonds, while expert witnesses will testify those changes are consistent with the use of steroids, the government said.

The central government legal argument is what is called the Residual Exception. Through it, prosecutors hope to clear the hurdle that Anderson, the individual who allegedly transported Bonds' urine or blood or wrote doping calendars, apparently will not testify.

Business records, argues the government, are an established exception to the rule preventing hearsay testimony. But the defense noted that even that exception requires a "foundational witness," the person who created the document, which in the case of the alleged Anderson doping calendars, the government lacks.

The government may face other challenges. The exception rule requires that records must be "made at or near the time" of the events recorded. Sources close to BALCO note that Valente prepared some records days after the events, and also incorrectly logged dates. Wrote Riordan: "There is nothing in the documents about when the specimens were taken, and therefore no basis to determine whether Mr. Valente’s 'record' was near or distant in time from the events."

Authentication will be another government hurdle.

"The records prepared by Valente were not, by his own admission, necessarily accurate. He acknowledged to the Grand Jury at least one instance where he mislabeled a blood sample, supposedly at Anderson’s request," wrote Riordan, because "Barry wanted, you know, some privacy. … How many other samples were mislabeled for one reason or another is an open question."

Bonds' lawyers argued that "a more pervasive fraud permeates the BALCO records," writing that nearly every request for laboratory analysis of specimens attributed to Mr. Bonds was ordered by a Dr. Goldman, a psychiatrist.

"Valente admitted to the Grand Jury that he never saw or heard Dr. Goldman consulting with Mr. Bonds," wrote Riordan, adding, "The 'business records' whose reliability the government touts are fraudulent on their face."

Finally, the defense lawyers argued that the trouble with classifying handwritten doping ledgers and calendars as "business records" is that the central witness who played a key role in their creation – Greg Anderson – "was not operating under any business duty, much less a business duty of 'care and accuracy.' "

The government also claims that the ledgers and Anderson's statements are admissible under the residual exception because, they argued, if the trainer refuses to testify it would be a "significant injustice to permit the defendant to 'dodge' the evidence."

Preventing "injustice" appears to be a central government rationale in applying the residual exception.

"Of course, in the government’s view, since the defendant is guilty," wrote Bonds' attorneys, "anything that will help to produce a finding of guilt constitutes justice."