United States of America v. Barry Lamar Bonds

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BARRY LAMAR BONDS,
Defendant-Appellant.
No. 11-10669
D.C. No.
3:07-cr-00732-SI-1
OPINION
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted En Banc
September 18, 2014—San Francisco, California
Filed April 22, 2015
Before: Stephen Reinhardt, Alex Kozinski, Diarmuid F.
O’Scannlain, Susan P. Graber, Kim McLane Wardlaw,
William A. Fletcher, Johnnie B. Rawlinson, Consuelo M.
Callahan, N. Randy Smith, Jacqueline H. Nguyen, and
Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Kozinski;
Concurrence by Judge N.R. Smith;
Concurrence by Judge Reinhardt;
Concurrence by Judge W. Fletcher;
Dissent by Judge Rawlinson

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UNITED STATES V. BONDS 2
SUMMARY*
Criminal Law
In a per curiam opinion, the en banc court reversed Barry
Bonds’s conviction for obstruction of justice in a case in
which Bonds gave a rambling, non-responsive answer to a
simple question during a grand jury proceeding.
The en banc court held that because there is insufficient
evidence that Statement C was material, Bonds’s conviction
under 18 U.S.C. § 1503 is not supported by the record. The
en banc court held that whatever section 1503’s scope may
be in other circumstances, Bonds’s conviction here must be
reversed. The en banc court held that because a reversal for
insufficient evidence implicates Bonds’s rights under the
Double Jeopardy Clause, he may not be tried again on that
count.
Concurring, Judge Kozinski, joined by Judges
O’Scannlain, Graber, Callahan, and Nguyen, wrote that
stretched to its limits, section 1503 poses a significant hazard
for everyone involved in our system of justice, because so
much of what the adversary process calls for could be
construed as obstruction; that due process calls for prudential
limitations on the government’s power to prosecute under the
statute; and that on careful review of the record, there is
insufficient evidence to render Statement C material.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. BONDS 3
Concurring, Judge N.R. Smith, joined by Judges
Wardlaw, Callahan, and Friedland, wrote that a single truthful
but evasive or misleading statement cannot satisfy § 1503’s
materiality requirement, given (1) the Government’s duty to
clarify merely misleading or evasive testimony, and (2)
precedent indicating that the Government must show that
truthful but misleading or evasive testimony must amount to
a refusal to testify before it is material.
Judge Reinhardt concurred in the per curiam opinion and
in parts of Judge Kozinski’s and Judge N.R. Smith’s
opinions, while disagreeing with other parts. He wrote that
this case involves nothing more than an irrelevant, rambling
statement made by a witness during the course of a grand jury
investigation, and that Statement C was not material and
could not possibly have interfered with the due administration
of justice.
Concurring in the judgment, Judge W. Fletcher disagreed
with the rationale advanced by the per curiam opinion and by
the principal concurrence. He wrote that the omnibus clause
of § 1503(a) is not an open-ended provision whose
constitutionality can be upheld only by manufacturing a
“prudential” limitation on the government’s power to
prosecute; rather, it is a narrowly targeted provision that had
a specific meaning when enacted and whose text has
remained substantially unchanged for over 180 years; and that
the key to a proper understanding of the statute is the
meaning of the word “corruptly.”
Dissenting, Judge Rawlinson wrote that the per curiam
and concurring opinions second-guess the jury’s verdict
rather than defer to it, disregard precedent that supports

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UNITED STATES V. BONDS 4
upholding the jury’s verdict, and rely on precedent more
applicable to perjury than to obstruction of justice.
COUNSEL
Dennis P. Riordan (argued) and Donald M. Horgan, Riordan
& Horgan, San Francisco, California; Ted Sampsell Jones,
William Mitchell College of Law, St. Paul, Minnesota, for
Defendant-Appellant.
Merry Jean Chan (argued), Assistant United States Attorney,
Melinda Haag, United States Attorney, Barbara J. Valliere,
Assistant United States Attorney, Chief, Appellate Division,
United States Attorneys’ Office, San Francisco, California,
for Plaintiff-Appellee.
OPINION
PER CURIAM:
During a grand jury proceeding, defendant gave a
rambling, non-responsive answer to a simple question.
Because there is insufficient evidence that Statement C was
material, defendant’s conviction for obstruction of justice in
violation of 18 U.S.C. § 1503 is not supported by the record.
Whatever section 1503’s scope may be in other
circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates
defendant’s right under the Double Jeopardy Clause. See
United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014)
(en banc) (citing Burks v. United States, 437 U.S. 1, 11

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UNITED STATES V. BONDS 5
(1978)). His conviction and sentence must therefore be
vacated, and he may not be tried again on that count.
REVERSED.
KOZINSKI, Circuit Judge, with whom Circuit Judges
O’SCANNLAIN, GRABER, CALLAHAN and NGUYEN
join, concurring:
Can a single non-responsive answer by a grand jury
witness support a conviction for obstruction of justice under
18 U.S.C. § 1503?
I
Defendant, who was then a professional baseball player,
was summoned before a grand jury and questioned for nearly
three hours about his suspected use of steroids. He was
subsequently charged with four counts of making false
statements and one count of obstruction of justice, all based
on his grand jury testimony. The jury convicted him on the
obstruction count and was otherwise unable to reach a
verdict.
The jury instructions identified seven of defendant’s
statements that the government alleged obstructed justice.
The jury, however, found only one statement obstructive.
That statement was referred to as Statement C at trial and is
underlined in the passage below:

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UNITED STATES V. BONDS 6
Q: Did Greg[, your trainer,] ever give you
anything that required a syringe to inject
yourself with?
A: I’ve only had one doctor touch me. And
that’s my only personal doctor. Greg, like
I said, we don’t get into each others’
personal lives. We’re friends, but I
don’t—we don’t sit around and talk
baseball, because he knows I don’t
want— don’t come to my house talking
baseball. If you want to come to my
house and talk about fishing, some other
stuff, we’ll be good friends. You come
around talking about baseball, you go on.
I don’t talk about his business. You know
what I mean?
Q: Right.
A: That’s what keeps our friendship. You
know, I am sorry, but that—you know,
that—I was a celebrity child, not just in
baseball by my own instincts. I became a
celebrity child with a famous father. I just
don’t get into other people’s business
because of my father’s situation, you see.
Defendant was again asked about injectable steroids
immediately following this exchange and a few other times
during his testimony. He provided direct responses to the
follow-up questions. For example, he was asked whether he

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UNITED STATES V. BONDS 7
ever “injected [him]self with anything that Greg . . . gave
[him].” He responded “I’m not that talented, no.” The
government believed that those answers were false but, as
noted, the jury failed to convict defendant on the false
statement counts.
The district court rejected defendant’s post-verdict motion
for acquittal on the obstruction count and a three-judge panel
affirmed. United States v. Bonds, 730 F.3d 890 (9th Cir.
2013). We granted en banc rehearing. United States v.
Bonds, 757 F.3d 994 (9th Cir. 2014).
II
A. Title 18 U.S.C. § 1503(a), which defendant was
convicted of violating, provides in relevant part as follows:
“Whoever . . . corruptly or by threats or force, or by any
threatening letter or communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the
due administration of justice, shall be punished as provided
in subsection (b).” Known as the omnibus clause, this
language “was designed to proscribe all manner of corrupt
methods of obstructing justice.” United States v. Rasheed,
663 F.2d 843, 852 (9th Cir. 1981). We have held that a
defendant “corruptly” obstructs justice if he acts “with the
purpose of obstructing justice.” Id.
As should be apparent, section 1503’s coverage is vast.
By its literal terms, it applies to all stages of the criminal and
civil justice process, not just to conduct in the courtroom but
also to trial preparation, discovery and pretrial motions.
Indeed, it arguably covers conduct taken in anticipation that
a civil or criminal case might be filed, such as tax planning,
hiding assets or talking to police. And the text of the

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UNITED STATES V. BONDS 8
omnibus clause, in concert with our definition of corruptly,
encompasses any act that a jury might infer was intended to
“influence, obstruct, or impede . . . the due administration of
justice.” That’s true even if no actual obstruction occurs,
because the clause’s use of “endeavors” makes “success . . .
irrelevant.” See United States v. Richardson, 676 F.3d 491,
503 (5th Cir. 2012) (internal quotation marks omitted).
Stretched to its limits, section 1503 poses a significant
hazard for everyone involved in our system of justice,
because so much of what the adversary process calls for could
be construed as obstruction. Did a tort plaintiff file a
complaint seeking damages far in excess of what the jury
ultimately awards? That could be viewed as corruptly
endeavoring to “influence . . . the due administration of
justice” by seeking to recover more than the claim deserves.
So could any of the following behaviors that make up the
bread and butter of litigation: filing an answer that denies
liability for conduct that is ultimately adjudged wrongful or
malicious; unsuccessfully filing (or opposing) a motion to
dismiss or for summary judgment; seeking a continuance in
order to inflict delay on the opposing party; frivolously taking
an appeal or petitioning for certiorari—the list is endless.
Witnesses would be particularly vulnerable because, as the
Supreme Court has noted, “[u]nder the pressures and tensions
of interrogation, it is not uncommon for the most earnest
witnesses to give answers that are not entirely responsive.”
Bronston v. United States, 409 U.S. 352, 358 (1973).
Lawyers face the most pervasive threat under such a
regime. Zealous advocacy sometimes calls for pushing back
against an adversary’s just case and casting a despicable
client in a favorable light, yet such conduct could be
described as “endeavor[ing] to . . . impede . . . the due

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UNITED STATES V. BONDS 9
administration of justice.” Even routine advocacy provides
ample occasion for stumbling into the heartland of the
omnibus clause’s sweeping coverage. Oral arguments
provide a ready example. One need not spend much time in
one of our courtrooms to hear lawyers dancing around
questions from the bench rather than giving pithy, direct
answers. There is, for instance, the ever popular “but that is
not this case” retort to a hypothetical, which could be
construed as an effort to divert the court and thereby
“influence . . . the due administration of justice.”
It is true that any such maneuver would violate section
1503 only if it were done “corruptly.” But it is equally true
that we have given “corruptly” such a broad construction that
it does not meaningfully cabin the kind of conduct that is
subject to prosecution. As noted, we have held that a
defendant acts “corruptly,” as that term is used in section
1503, if he does so “with the purpose of obstructing justice.”
Rasheed, 663 F.2d at 852. In the examples above, a
prosecutor could argue that a complaint was filed corruptly
because it was designed to extort a nuisance settlement, or an
answer was filed corruptly because its principal purpose was
to pressure a needy plaintiff into an unjust settlement, or that
the lawyer who parried a judicial hypothetical with “but that
is not this case” was endeavoring to distract the court so it
would reach a wrong result. That a jury or a judge might not
buy such an argument is neither here nor there; a criminal
prosecution, even one that results in an acquittal, is a
life-wrenching event. Nor does an acquittal wipe clean the
suspicion that a guilty defendant got off on a technicality.
We have no doubt that United States Attorneys and their
Assistants would use the power to prosecute for such crimes
judiciously, but that is not the point. Making everyone who

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UNITED STATES V. BONDS 10
participates in our justice system a potential criminal
defendant for conduct that is nothing more than the ordinary
tug and pull of litigation risks chilling zealous advocacy. It
also gives prosecutors the immense and unreviewable power
to reward friends and punish enemies by prosecuting the
latter and giving the former a pass. The perception that
prosecutors have such a potent weapon in their arsenal, even
if never used, may well dampen the fervor with which
lawyers, particularly those representing criminal defendants,
will discharge their duties. The amorphous nature of the
statute is also at odds with the constitutional requirement that
individuals have fair notice as to what conduct may be
criminal. See United States v. JDT, 762 F.3d 984, 996 (9th
Cir. 2014) (citing Skilling v. United States, 561 U.S. 358,
402–03 (2010)).
B. Because the statute sweeps so broadly, due process
calls for prudential limitations on the government’s power to
prosecute under it. Such a limitation already exists in our
case law interpreting section 1503: the requirement of
materiality. See United States v. Thomas, 612 F.3d 1107,
1128–29 (9th Cir. 2010). Materiality screens out many of the
statute’s troubling applications by limiting convictions to
those situations where an act “has a natural tendency to
influence, or was capable of influencing, the decision of the
decisionmaking body.” See Kungys v. United States,
485 U.S. 759, 770 (1988) (internal quotation marks omitted);
Thomas, 612 F.3d at 1124. Put another way, the government
must prove beyond a reasonable doubt that the charged
conduct was capable of influencing a decisionmaking person
or entity—for example, by causing it to cease its
investigation, pursue different avenues of inquiry or reach a
different outcome. See United States v. McKenna, 327 F.3d
830, 840 (9th Cir. 2003) (finding statement material because

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UNITED STATES V. BONDS 11
it could have affected the “decision-making process”);
Weinstock v. United States, 231 F.2d 699, 703 (D.C. Cir.
1956) (noting that, to be material, a statement “must have
some weight in the process of reaching a decision”).
In weighing materiality, we consider “the intrinsic
capabilities of the . . . statement itself,” rather than the
statement’s actual effect on the decisionmaker, see United
States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998)
(internal quotation marks omitted), and we evaluate the
statement in “the context in which [it was] made,” United
States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007); see also
United States v. McBane, 433 F.3d 344, 352 (3d Cir. 2005);
Weinstock, 231 F.2d at 703 (noting that in context, a
statement was “rob[bed] . . . of any materiality—any possible
influence upon the [decisionmaker] in reaching its decision”).
We start with the self-evident proposition that Statement
C, standing alone, did not have the capacity to divert the
government from its investigation or influence the grand
jury’s decision whether to indict anyone. Here it is again:
That’s what keeps our friendship. You know,
I am sorry, but that— you know, that—I was
a celebrity child, not just in baseball by my
own instincts. I became a celebrity child with
a famous father. I just don’t get into other
people’s business because of my father’s
situation, you see.
The statement says absolutely nothing pertinent to the subject
of the grand jury’s investigation. Even when paired with the
question that prompted it,

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UNITED STATES V. BONDS 12
Did Greg ever give you anything that required
a syringe to inject yourself with?
Statement C communicates nothing of value or detriment to
the investigation. Had the answer been “I’m afraid of
needles,” it would have been plausible to infer an unspoken
denial, with the actual words serving as an explanation or
elaboration. But, as given, the answer did not enlighten,
obfuscate, confirm or deny anything within the scope of the
question posed.
The most one can say about this statement is that it was
non-responsive and thereby impeded the investigation to a
small degree by wasting the grand jury’s time and trying the
prosecutors’ patience. But real-life witness examinations,
unlike those in movies and on television, invariably are
littered with non-responsive and irrelevant answers. This
happens when the speaker doesn’t understand the question,
begins to talk before thinking (lawyers do this with surprising
frequency), wants to avoid giving a direct answer (ditto), or
is temporizing. Courtrooms are pressure-laden environments
and a certain number of non-responsive or irrelevant
statements can be expected as part of the give-and-take of
courtroom discourse. Because some non-responsive answers
are among the road hazards of witness examination, any one
such statement is not, standing alone, “capable of influencing
. . . the decision of [a] decisionmaking body.” See Thomas,
612 F.3d at 1124.
This is true even if, as the government now argues,
Statement C is literally false. An irrelevant or wholly
non-responsive answer says nothing germane to the subject
of the investigation, whether it’s true or false. For example,
if a witness is asked, “Do you own a gun?” it makes no

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UNITED STATES V. BONDS 13
difference whether he answers “The sky is blue” or “The sky
is green.” That the second statement is false makes it no
more likely to impede the investigation than the first.
Statement C does not, however, stand alone. It was a
small portion of a much longer examination, and we must
look at the record as a whole to determine whether a rational
trier of fact could have found the statement capable of
influencing the grand jury’s investigation, in light of
defendant’s entire grand jury testimony. If, for example, a
witness engages in a pattern of irrelevant statements, or
launches into lengthy disquisitions that are clearly designed
to waste time and preclude the questioner from continuing his
examination, the jury could find that the witness’s behavior
was capable of having some sway.
On careful review of the record, we find insufficient
evidence to render Statement C material. In conducting this
review, we are mindful that we must give the jury the benefit
of the doubt and draw all reasonable inferences in favor of its
verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
At the same time, we must conduct our review with some
rigor for the prudential reasons discussed above. See pp.
7–10 supra.
The government charged a total of seven statements, only
one of which the jury found to be obstructive. Two of these
statements (including Statement C) appear to be wholly
irrelevant—verbal detours with no bearing on the
proceedings. One statement is “I don’t know,” followed by
a brief explanation for the lack of knowledge. The rest are
direct answers that the government claimed were false, all
concerning whether defendant’s trainer had provided or
injected him with steroids. In the context of three hours of

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UNITED STATES V. BONDS 14
grand jury testimony, these six additional statements are
insufficient to render the otherwise innocuous Statement C
material. If this were enough to establish materiality, few
witnesses or lawyers would be safe from prosecution.
N.R. SMITH, Circuit Judge, with whom Circuit Judges
WARDLAW, CALLAHAN, and FRIEDLAND join,
concurring:
I agree that no reasonable juror could have found Bonds
guilty of violating 18 U.S.C. § 1503.
Bonds was convicted of obstructing justice by offering a
“misleading or evasive” statement—Statement C—to the
grand jury. The Government expressly declined to seek a
conviction on the grounds that Statement C was false.1 When
evaluating whether the evidence was sufficient to show that
Statement C violated § 1503, we must determine “whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard
of review requires us to determine whether the jury could
“draw reasonable inferences from basic facts to ultimate
1 The Government asserts that, despite the position it argued to the jury,
the evidence was sufficient to conclude that Statement C was literally
false. The Government will not be allowed to change its position on
appeal. See McCormick v. United States, 500 U.S. 257, 270 n.8 (1991)
(“Appellate courts are not permitted to affirm convictions on any theory
they please simply because the facts necessary to support the theory were
presented to the jury.”).

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UNITED STATES V. BONDS 15
facts.” Id. In this particular case, we must determine whether
a single truthful but evasive or misleading answer could
constitute evidence of obstruction of justice under § 1503. It
cannot.
Section 1503(a) punishes those who “corruptly . . .
influence, obstruct[], or impede[], or endeavor[] to influence,
obstruct, or impede, the due administration of justice.”2 The
Supreme Court has imposed a materiality requirement on the
broad reach of § 1503, requiring that “the endeavor must have
the natural and probable effect of interfering with the due
administration of justice.” United States v. Aguilar, 515 U.S.
593, 599 (1995) (internal quotation marks omitted). The
Government is required to prove materiality to the jury.
United States v. Gaudin, 515 U.S. 506, 511–12 (1995). The
Supreme Court further instructs us, when dealing with the
2 We need not accept Bonds’s invitation to reassess the reach of § 1503.
Doing so would require us to overturn the weight of Ninth Circuit
precedent applying § 1503 to in-court testimony. See United States v.
Thomas, 612 F.3d 1107 (9th Cir. 2010) (applying § 1503 to false
statements made before a grand jury); United States v. Gonzalez-Mares,
752 F.2d 1485 (9th Cir. 1985) (applying § 1503 to false statement made
before a magistrate judge); United States v. Rasheed, 663 F.2d 843 (9th
Cir. 1981) (applying § 1503 to concealment of documents from grand
jury). This approach would also bring us into conflict with other circuits
that have applied § 1503 in the same manner. See United States v.
Petzold, 788 F.2d 1478 (11th Cir. 1986) (applying § 1503 to grand jury
testimony); United States v. Griffin, 589 F.2d 200 (5th Cir. 1979) (same);
United States v. Cohn, 452 F.2d 881 (2d Cir. 1971) (same). Further, even
if we were to consider Bonds’s arguments that the legislative history of
§ 1503 limits the application of the statute, we would run up against the
Supreme Court’s decision in Aguilar, which implied that false testimony
offered directly to a grand jury could support a conviction under § 1503.
United States v. Aguilar, 515 U.S. 593, 601 (1995). Given our conclusion
that Bonds’s conviction cannot stand even if § 1503 reaches in-court
testimony, we need not confront this issue.

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UNITED STATES V. BONDS 16
sweeping language of § 1503, to “exercise[] restraint in
assessing the reach of a federal criminal statute . . . out of
concern that a fair warning should be given to the world in
language that the common world will understand, of what the
law intends to do if a certain line is passed.” Aguilar,
515 U.S. at 600 (internal quotation marks omitted).
1.
Congress could not have intended § 1503 to be so broadly
applied as to reach a single truthful but evasive statement
such as Statement C. Our conclusion that Statement C could
not have “the natural and probable effect” of impeding the
grand jury’s investigative function stems from two sources:
(1) the Government’s duty to clarify merely misleading or
evasive testimony and (2) relevant precedent indicating that
the Government must show that truthful but misleading or
evasive testimony must amount to a refusal to testify before
it is material. Taken together, these two sources lead to the
conclusion that a single truthful but evasive or misleading
statement cannot satisfy § 1503’s materiality requirement.3
3 In coming to this conclusion, I do not mean to suggest that the
materiality of Statement C turns on whether it was truthful. Because
Statement C was obviously non-responsive, it could not have constituted
obstruction even if it had been false. A witness who is asked about the
location of key documents and responds “I am surprised it is raining” is
not liable for obstruction regardless of whether it is raining. But if the
same witness knows where the documents are and yet claims never to
have heard of them, that potentially could be material and so could amount
to obstruction. See United States v. Williams, 874 F.2d 968, 982 (5th Cir.
1989) (affirming obstruction of justice conviction based on repeated false
denials of knowledge before a grand jury regarding material matters). The
Aguilar standard applies to all conduct under § 1503. The truthfulness or
falsity of a statement alone is not dispositive: the relevant inquiry will be
whether the statement was material, applying the Aguilar standard.

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UNITED STATES V. BONDS 17
The Supreme Court’s decision in Bronston v. United
States, 409 U.S. 352 (1973), requires the conclusion that
Statement C does not violate § 1503. Although Bronston
dealt with a conviction for perjury, the Supreme Court’s
language regarding the government’s duty to conduct
competent and thorough questioning is illuminating. In short,
“[t]he burden is on the questioner to pin the witness down to
the specific object of the questioner’s inquiry.” Id. at 360.
Extending § 1503’s reach to transient evasive or misleading
statements would obviate the prosecutor’s duty to thoroughly
examine the witness. Id. at 358 (noting that competent cross-
examination should be conducted “by counsel alert–as every
examiner ought to be–to the incongruity of [the witness’s]
unresponsive answer”). It would be contrary to the statute’s
purpose to allow the government to permit an evasive or
misleading statement to go unchallenged, in the hopes of
obtaining an obstruction of justice conviction later. The
government is obligated to do all it can to obtain a direct
statement in response to its questioning. The truth-seeking
function of the grand jury may be impaired by lax questioning
as much, if not more than, an inarticulate or wandering
answer.
Bronston counsels that, to convict a defendant for
violating § 1503, the jury must find more than that the
witness uttered an evasive or misleading statement at some
point during his testimony—the “natural and probable effect”
of a single truthful but evasive or misleading statement is
merely to prompt follow-up questions. Given this burden,
Statement C did not have the natural or probable effect of
interfering with the due administration of justice, because the
Government had a duty to clarify any single misleading or
evasive statement Bonds made.

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UNITED STATES V. BONDS 18
2.
The Supreme Court’s materiality standard reinforces
Bronston’s core holding: we should not find liability for a
single statement that is merely misleading or evasive. The
judicially-created materiality requirement is a primary
objective limitation on § 1503’s expansive reach. See United
States v. Thomas, 612 F.3d 1107, 1128–29 (9th Cir. 2010).
This materiality standard necessarily takes into account the
context of the charged conduct, evaluating whether the
misleading or evasive statement could have “the natural and
probable effect of interfering with the due administrative of
justice” given the entirety of a witness’s examination.
Aguilar, 515 US. at 599 (internal quotation marks omitted).
The Government may not isolate a single statement, prove it
misleading or evasive, and argue that the statement is
material based solely on that fact.
Evasive or misleading statements are different from false
statements. Instead of providing the tribunal with bad
information, information that can be evaluated for its
capability to influence, a misleading or evasive statement is
meant to divert or slow the truth-seeking function in the first
instance; it does not so much influence an investigation as
divert it by depriving the question of its force. In this sense,
offering evasive or misleading testimony is closely analogous
to the destruction of evidence. See United States v. Rasheed,
663 F.2d 843, 852 (9th Cir. 1981) (“the destruction or
concealment of documents can fall within the prohibition of
the statute” by “suppress[ing] evidence”). We should
evaluate the materiality of evasive or misleading testimony
the same way: for its capability to impede the investigative
function of the grand jury.

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UNITED STATES V. BONDS 19
The Fifth Circuit’s explanation of the materiality standard
in United States v. Griffin is particularly persuasive
precedent. A false, misleading, or evasive statement may be
material, taken in the context of the entire examination, when
it amounts to “a flat refusal to testify.” United States v.
Griffin, 589 F.2d 200, 204 (5th Cir. 1979). Evasive or
misleading testimony, in this light, can only obstruct the due
administration of justice when it completely thwarts the
investigative nature of the tribunal—when it derails the grand
jury “as effectively as if [the witness] refused to answer the
question at all.” Id. The proper question is not whether a
statement had the intrinsic capability to influence the grand
jury, but whether the statement, viewed in the context of the
witness’s testimony as a whole, “closed off entirely the
avenue of inquiry being pursued by” the grand jury. United
States v. Brown, 459 F.3d 509, 531 (5th Cir. 2006) (internal
quotation marks omitted); see also United States v. Cohn,
452 F.2d 881, 884 (2d Cir. 1971) (“The blatantly evasive
witness achieves th[e] effect [of impeding the gathering of
relevant evidence] as surely by erecting a screen of feigned
forgetfulness as one who burns files or induces a potential
witness to absent himself.”).
Applying the materiality standard a single truthful but
evasive or misleading statement can never be material. Our
examination of Statement C—a single evasive or misleading
statement—reveals why. No rational juror could have found
that Statement C amounted to a refusal to testify, such that
Bonds’s testimony thwarted the grand jury’s investigative
function.
In summary, the “natural and probable effect” of a single
true but evasive response to the government’s questioning is
not to impede the grand jury but, rather, to prompt follow-up

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UNITED STATES V. BONDS 20
questioning. A statement that “goes off into the cosmos”
merely triggers the prosecutor’s duty to pin the witness down
and elicit a clear response. Indeed, that is exactly what
happened in this case. Faced with a rambling response, the
prosecutor restated the same question and elicited a direct,
unambiguous answer from Bonds: “No.” No rational juror
could conclude that Bonds refused to answer the question; it
is plain in the record that Bonds gave his testimony to the
grand jury. Further, this is thus not a situation in which a
witness testified evasively for so long and with such
persistence that the grand jury’s investigation would likely
have been thwarted, as would be required for the testimony
to be material. Statement C was therefore not material, and
Bonds’s conviction must be reversed.
REINHARDT, Circuit Judge, concurring:
Because I concur not only with the per curiam opinion but
also with parts of Judge Kozinski’s and Judge N.R. Smith’s
opinions (while disagreeing with other parts), I offer my
separate views regarding what is in a fact a very simple case,
as well as my thoughts concerning the proper construction of
18 U.S.C. § 1503, the obstruction of justice statute.
I.
My answer to the question with which Judge Kozinski
begins his opinion, “Can a single non-responsive answer by
a grand jury witness support a conviction for obstruction of
justice under 18 U.S.C. § 1503?” is simple: No. My response
would be the same regardless of the context in which the
answer was given.

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UNITED STATES V. BONDS 21
I reach the conclusion that Bonds’s Statement C was not
material and thus could not (and did not) obstruct justice on
different and narrower grounds than does Judge Kozinksi. I
do not agree, for example, with his opinion’s sweeping
statements regarding the scope of the statute or with its
intimations that non-responsive answers that are not later
cured by way of direct replies might constitute obstruction of
justice. Similarly, I would not suggest that there may be a
category of non-responsive or irrelevant answers that could
be characterized as evasive or misleading and thus subject to
differing treatment from other kinds of non-responsive
answers.
In my opinion, Statement C “cannot be said to have the
‘natural and probable effect’ of interfering with the due
administration of justice.’” United States v. Aguilar, 515 U.S.
593, 601 (1995).1 As Judge Kozinski himself puts it, “[it] says
absolutely nothing pertinent to the subject of the grand jury’s
investigation.” Kozinski Op. at 11. At most, Statement C was
non-responsive, and in no respect could it (or did it)
constitute a criminal act.
I concur with Judge Kozinski’s opinion as well as Judge
N.R. Smith’s insofar as they state that Statement C could not
have been material even if it had been false. A non-
responsive answer that is false is “no more likely to impede
the investigation than” a non-responsive answer that is true.
Kozinski Op. at 13; see also N.R. Smith Op. at 16 n.3.
Indeed, even “perjured relevant testimony . . . need not
necessarily . . . obstruct or halt the judicial process.” In re
Michael, 326 U.S.224, 227–28 (1945) (emphasis added)
(explaining that contempt for “obstruct[ing] the
1 See infra p.22 and note 2.

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UNITED STATES V. BONDS 22
administration of justice,” under predecessor statute to 18
U.S.C. § 401, required more than a false statement). I also
agree heartily with Judge Kozinski’s statements that “a
certain number of non-responsive or irrelevant statements can
be expected as part of the give-and-take of courtroom
discourse,” and that we must consider the practicalities of
“real-life witness examinations” when interpreting the statute.
Kozinski Op. at 12–12. Moreover, in my view the appropriate
course in the event of material false testimony is a perjury
prosecution, not a prosecution for obstruction of justice. In
fact, the prosecutors tried to convict Bonds of perjury on
several counts in this very proceeding, but had no better luck
with the jury in that effort than they have had with this court
on today’s appeal.
Unlike Judge Kozinski, I concur with the part of Judge
N.R. Smith’s opinion that would hold that the “natural and
probable effect” test articulated in United States v. Aguilar
constitutes the proper standard for materiality with respect to
§ 1503.2 I also concur with the part of Judge N.R. Smith’s
opinion that would hold that under Bronston v. United States,
409 U.S. 352 (1973), the natural and probable effect of
Statement C is merely that counsel will have to ask follow-up
questions. Faced with a statement that is “unresponsive on
[its] face,” id. at 361, “[i]t is the responsibility of the lawyer
to probe; testimonial interrogation . . . is a probing, prying,
pressing form of inquiry. If a witness evades, it is the
lawyer’s responsibility to recognize the evasion and to bring
the witness back to the mark, to flush out the whole truth with
the tools of adversary examination.” Id. at 358–59. In the
2 Cf. Kozinski Op. at 10 (describing materiality standard as whether
conduct “has a natural tendency to influence, or was capable of
influencing, the decision of the decisionmaking body” ).

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UNITED STATES V. BONDS 23
instant case, the prosecutors did exactly that: they continued
to press Bonds until he gave a direct answer.
The breadth of Judge Kozinski’s opinion, its unwarranted
speculation regarding context, and its use of United States v.
Thomas, 612 F.3d 1107, 1124 (9th Cir. 2010), rather than
Aguilar, 515 U.S. at 601, to define the materiality
requirement prevent me from joining more of that opinion
than I have. As to Judge N.R. Smith’s opinion, I find it in
several respects more persuasive than Judge Kozinski’s,
especially in its use of the Aguilar standard for materiality
and its discussion of Bronston. However, in the end, I cannot
join that opinion either, for several reasons. One, I disagree
that a flat refusal to testify may be prosecuted under § 1503.
Two, I do not agree that non-responsive answers are in any
respect “closely analogous to the destruction of evidence.”
N.R. Smith Op. at 18. In my view, had Bonds refused to
testify or continued to answer evasively, the appropriate
course would have been a contempt proceeding, not an
obstruction of justice prosecution. See In re Grand Jury
Proceedings, Ortloff, 708 F.2d 1455, 1457–58 (9th Cir.
1983). Three, I do not agree with the unnecessary and, in my
view, incorrect discussion of misleading or evasive testimony
or with his implicit endorsement of United States v. Griffin,
589 F.2d 200 (5th Cir. 1979), as the proper rule for this
circuit. See N.R. Smith Op. at 19.
Many fundamental questions persist regarding the
meaning and scope of § 1503, notwithstanding our court’s
broad construction of the statute in the past, see generally
United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981), and
the Supreme Court’s indication of a similar view in dictum in
Aguilar, see generally 515 U.S. 593. Both Judge Kozinski’s
and Judge N.R. Smith’s opinions have much to commend

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UNITED STATES V. BONDS 24
them. However, neither succeeds in its efforts to answer the
critical questions regarding the purpose and role of the
statute, in Judge N.R. Smith’s case at least, partly because of
currently conflicting circuit law that he may, understandably,
be reluctant to overrule in light of the Supreme Court dictum
in Aguilar. See N.R. Smith Op. at 15 n.2. Rather than
attempting to resolve those problems in this case, however, I
would simply hold that Bonds’s answer in no way constitutes
a violation of § 1503 because it is non-responsive and thus
non-material, and that his prosecution for the charged offense
was therefore wholly unwarranted under the law. I would
leave the rest of the speculation and the unnecessary, if not
erroneous, analysis in my colleagues’ opinions to another
time, preferably after the Supreme Court has spoken.
II.
My own view is that § 1503 should not be construed as
covering testimony of witnesses at court proceedings. I
explain my reading of the statute only briefly in light of what
appears to me to be the Supreme Court’s current view of the
law—a view that also causes me to refrain from suggesting at
this time that we overrule Ninth Circuit cases that construe
§ 1503 overly broadly, see Rasheed, 663 F.2d at 851–52, or
that apply it to in-court testimony. See Thomas, 612 F.3d at
1125–29. Although our court has previously affirmed a
§ 1503 conviction based on in-court testimony, see id., the
Supreme Court has never done so and has indicated its view
only in dictum contained in Aguilar. See 515 U.S. at 600–01.
Given the history and circumstances of § 1503, I would hope

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UNITED STATES V. BONDS 25
that the Court would not follow the Aguilar dictum when it
confronts the issue directly.3
The history underlying § 1503 strongly supports the
conclusion that in-court testimony is not a subject of criminal
sanctions under that statute. The predecessor to § 1503 was
originally enacted in 1831 in response to abuse of the
contempt power by a federal district judge who had
imprisoned a man for publishing a criticism of one of his
opinions. Nye v. United States, 313 U.S. 33, 41 (1941). In
establishing the crime of obstruction of justice, Congress
created, as Nye put it, a “geographical” divide between the
conduct constituting that crime and conduct subject to
contempt: “misbehavior of any person or persons in the
presence of said courts, or so near thereto as to obstruct the
administration of justice” constituted contempt under section
1 of the Act of March 2, 1831, whereas persons outside of
court who “corruptly, or by threats of force, obstruct, or
impede, or endeavor to obstruct or impede, the due
administration of justice” committed the crime of obstruction
of justice under section 2. Id. at 46–49 (emphasis added).
Section 1 survives today as 18 U.S.C. § 401, the contempt
statute, while section 2 became the clause of § 1503 at issue
in this case. Thus, the original understanding of the crime of
obstruction of justice was that it applied to conduct outside
the presence of a court. Such was and is the intent of
Congress, and “[w]e cannot by process of interpretation
3 In this respect my approach is somewhat less bold than Judge W.
Fletcher’s. I do not believe that we need confront the Aguilar dictum in
order to reverse, so, as a prudential matter, I would not rely on the far
broader ground discussed in this section of my concurrence. Nevertheless,
should it become necessary in a future case to address the Aguilar dictum,
I reserve the right to consider further the question of its binding nature.

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UNITED STATES V. BONDS 26
obliterate the distinctions which Congress drew.” Nye,
313 U.S. at 50.
When one considers the other criminal statutes available
to punish in-court misbehavior by a witness—that is,
misconduct during testimony—this “geographical”
delineation, id. at 48, whereby only out-of-court conduct
constitutes obstruction of justice under § 1503, makes sense.
A false statement made during in-court testimony constitutes
perjury. See 18 U.S.C. §§ 1621, 1623. A failure to answer a
question or a material evasion that the witness refuses to
correct during in-court testimony constitutes contempt. I
seriously doubt that the obstruction of justice statute was
intended to duplicate these crimes. Something more than a
witness merely lying or being non-responsive during
testimony is required in order to violate § 1503. Otherwise,
the crime of obstruction of justice would be to that extent
wholly superfluous.
More important, the argument for coverage of such
actions under § 1503 hinges entirely on the single word
“corruptly.” The other specified means of obstructing justice
enumerated in that section—“by threats or force, or by any
threatening letter or communication”—when viewed in
context dictate the opposite conclusion: “corruptly” does not
describe the in-court conduct of a witness, but rather, like
those enumerated means, describes the conduct of a third
party who seeks to obstruct the proceedings. The specified
means necessarily describe the attempts of a third party to
affect the judicial proceedings by corrupt means. As Judge
W. Fletcher explains, the interpretative canon noscitur a
sociis—literally “[i]t is known from its associates”—tells us
that “the meaning of questionable or doubtful words or
phrases in a statute may be ascertained by reference to the

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UNITED STATES V. BONDS 27
meaning of other words or phrases associated with it.”
Black’s Law Dictionary 1060 (6th ed. 1990). Because
obstructing proceedings by “threats or force” plainly refers to
the conduct of persons outside of court who seek to obstruct
the proceedings and not to the witness who is testifying in
court in the proceedings, “corruptly” must similarly be
understood as referring to the means used by third parties to
influence, obstruct, or impede proceedings, and not to in-
court testimony by a witness who may well be the object but
not the subject of the corrupt tactics.
Even if § 1503 covered in-court conduct, “corruptly”
would, under the noscitur a sociis canon, as well as under any
other reasonable means of statutory construction, require a
greater magnitude of misconduct than simply giving a false
or non-responsive answer to a question. Clearly, a mere lie or
evasive answer is not akin to using threats or force to cause
another to lie. Indeed, the Supreme Court has on occasion
recognized that lies and evasive answers are part and parcel
of the process of uncovering the truth through adversarial
witness examination. See Bronston, 409 U.S. at 358; Michael,
326 U.S. at 227–28. The use of threats or force to impede a
proceeding, by contrast, is not a customary incident of that
process and constitutes a far more serious offense.
“Corruptly” in the obstruction of justice statute covers
conduct at the same level of obstruction as the use of threats
or force and may not properly be interpreted so as to bring a
mere lie or evasive answer by a witness within the scope of
the statute. Although I am not certain that “corruptly” is
limited to bribery as Judge W. Fletcher contends, I am wholly
confident that it does describe conduct of that magnitude and
not a simple lie or evasive answer by a witness during in-
court testimony.

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UNITED STATES V. BONDS 28
For the reasons discussed above, I would hope that the
Supreme Court would revisit its dictum in Aguilar and would
conclude that § 1503 does not cover a witness’s in-court
testimony. After all, Congress has enacted criminal statutes
other than § 1503 that sufficiently address a witness’s in-
court conduct. The problems created by the misuse of § 1503
by overeager prosecutors to punish witnesses for what they
say in court are all too evident from the facts of this case. It
is time for them to cease using that section as a substitute for
vigorous cross-examination or for the criminal statutes that
properly apply to in-court testimony.
* * *
In short, this case involves nothing more than an
irrelevant, rambling statement made by a witness during the
course of a grand jury investigation. Statement C was not
material and could not possibly have interfered with the due
administration of justice. I therefore concur in the per curiam
opinion (and the parts of Judge Kozinski’s and Judge N.R.
Smith’s opinions that I have identified above). Bonds’s
conviction for obstruction of justice cannot stand and he may
not be retried on the same charge.
W. FLETCHER, Circuit Judge, concurring in the judgment:
I strongly but respectfully disagree with the rationale
advanced by the per curiam opinion and by the principal
concurrence. I concur only in the judgment.

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UNITED STATES V. BONDS 29
The issue before us is the meaning of the federal
obstruction of justice statute, 18 U.S.C. § 1503(a). Section
1503(a) provides, in relevant part:
Whoever corruptly, or by threats or force, or
by any threatening letter or communication,
endeavors to influence, intimidate, or impede
any grand or petit juror, or officer in or of any
court of the United States . . . or corruptly or
by threats or force, or by any threatening
letter or communication, influences, obstructs,
or impedes, or endeavors to influence,
obstruct, or impede, the due administration of
justice, shall be punished as provided in
subsection (b).
(Emphasis added.) Section 1503(a) applies to obstruction of
justice, as defined by the statute, in both criminal and civil
proceedings. Section 1503(b) provides punishments of
varying severities, depending on the nature of the act. The
most lenient punishment is “imprisonment for not more than
10 years, a fine under this title, or both.” Id. § 1503(b)(3).
Bonds was prosecuted under the second, or “omnibus,”
clause of § 1503(a), the emphasized portion above. The
government and the principal concurrence read the word
“corruptly” at the beginning of the clause to refer to a state of
mind, meaning “with intent to influence, intimidate, or
impede the due administration of justice.” They read the
clause as criminalizing even entirely truthful statements, so
long as those statements are made with such intent.
In the government’s view, any truthful answer given in
the course of civil or criminal litigation, if intended to

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UNITED STATES V. BONDS 30
influence, obstruct, or impede the administration of justice,
violates the omnibus clause. At oral argument, the
government made terrifyingly clear the result of its reading of
the statute. The government contended that the obstruction
statute criminalizes a truthful but intentionally evasive or
misleading answer to an interrogatory in civil litigation. The
government also contended that the statute criminalizes a
truthful but intentionally evasive or misleading answer during
appellate oral argument:
Q: I think it’s a common experience among
all of us on the appellate court to ask of
the lawyer in front of us in a criminal case
that’s come up on appeal: “Counsel, could
you please explain to me what happened
at trial?” and for the lawyer arguing from
the U.S. Attorney’s Office to say, “Your
Honor, I was not the trial attorney.” Now,
sometimes that’s an evasive answer. They
may well know the answer, but it’s true
that they weren’t the trial attorney. . . .
Has the lawyer just committed a crime?
. . . [T]he answer that I just hypothesized
was designed to put me off the track. . . .
A truthful but evasive answer.
. . .
A: I think that would be obstructive, Your
Honor.
When asked how many San Francisco lawyers it planned to
throw in jail, the government declined to specify.

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UNITED STATES V. BONDS 31
The principal concurrence agrees with the government’s
reading of the statute. But it seeks to limit the scope of its
operation, writing, “Because the statute sweeps so broadly,
due process calls for prudential limitations on the
government’s power to prosecute under it.” Concurrence at
10. According to the concurrence, “due process” and
“prudence” dictate that a truthful but intentionally evasive or
misleading statement can be prosecuted under the statute only
if it was “material.” Id. at 11. The concurrence defines
“material” as “capable of influencing a decisionmaking
person or entity.” Id. at 10.
Applying its prudence-based definition of materiality, the
principal concurrence tells us that Bonds’s wandering and
non-responsive answer was not material and therefore not
criminal, even if given with intent to influence, obstruct, or
impede. It concludes, “Statement C, standing alone, did not
have the capacity to divert the government from its
investigation or influence the grand jury’s decision whether
to indict anyone.” Id. at 11. The concurrence contrasts
Bonds’s answer with an answer that would have been
criminal. Bonds was asked, “Did Greg ever give you
anything that required a syringe to inject yourself with?” If
Bonds had answered “I’m afraid of needles,” the concurrence
tells us that he could have been successfully prosecuted. Id.
at 12. If Bonds had given that answer, “it would have been
plausible to infer an unspoken denial, with the actual words
serving as an explanation or elaboration.” Id.
The principal concurrence’s “prudential” narrowing of
“the government’s power to prosecute” is hardly reassuring.
An attorney who provides a truthful but evasive answer to an
interrogatory in civil litigation often does so in the hope that
his answer will “influence the decisionmaking person” who

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UNITED STATES V. BONDS 32
receives it. If there is a reasonable chance that the hope will
be realized, the attorney is a criminal. An appellate attorney
who answers during oral argument, “I was not the trial
attorney,” sometimes knows what happened at trial but gives
that answer in the hope that the judge will not pursue the
matter. This attorney, too, may be a criminal.
I disagree. The omnibus clause of § 1503(a) is not an
open-ended provision whose constitutionality we can uphold
only by manufacturing a “prudential” limitation on the
government’s power to prosecute. Rather, it is a narrowly
targeted provision that had a specific meaning when enacted
and whose text has remained substantially unchanged for over
180 years. The key to a proper understanding of the statute
is the meaning of the word “corruptly.”
I. Meaning of “Corruptly”
As used in § 1503(a), “corruptly” does not describe a state
of mind. Rather, it describes a forbidden means of
influencing, obstructing, or impeding the due administration
of justice. As used in § 1503(a), “corruptly” most likely
means “by bribery.” There are two arguments supporting this
reading: first, the text of the statute; second, a comparison
with 18 U.S.C. § 1621, the federal perjury statute.
A. Text of the Statute
The predecessor to § 1503(a) was enacted in 1831, in
reaction to perceived overreaching by a federal judge who
had held a lawyer in contempt for an out-of-court writing.
See Walter Nelles & Carol Weiss King, Contempt by
Publication in the United States: To the Federal Contempt
Statute, 28 Colum. L. Rev. 401, 423–31 (1928). The 1831

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UNITED STATES V. BONDS 33
statute had two parts. The first described, and set limits on,
the contempt power of federal judges. The second, at issue
in this case, criminalized out-of-court conduct that
improperly sought to influence judicial proceedings. Section
1503(a) is the successor to the second part.
The 1831 statute read, in relevant part:
And be it further enacted, That if any person
or persons shall, corruptly, or by threats or
force, endeavor to influence, intimidate, or
impede any juror, witness, or officer, in any
court of the United States, in the discharge of
his duty, or shall corruptly, or by threats or
force, obstruct or impede, or endeavor to
obstruct or impede, the due administration of
justice therein, every person or persons, so
offending, shall be liable to prosecution
therefor . . . .
Act of Mar. 2, 1831, ch. 99, 4 Stat. 487, 488 (emphasis
added). For convenience, I quote again the corresponding
provisions of the modern § 1503(a):
Whoever corruptly, or by threats or force, or
by any threatening letter or communication,
endeavors to influence, intimidate, or impede
any grand or petit juror, or officer in or of any
court of the United States, . . . in the discharge
of his duty . . . or corruptly or by threats or
force, or by any threatening letter or
communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct,
or impede, the due administration of justice,

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UNITED STATES V. BONDS 34
shall be punished as provided in subsection
(b).
18 U.S.C. § 1503(a) (emphasis added). The omnibus clause,
highlighted above, is at issue here.
There are three differences between the omnibus clause
as originally enacted in 1831 and as it appears today. First,
in 1872, Congress enacted a provision that prohibited
obstruction “by threatening letters, or any threatening
communications,” in addition to the 1831 prohibitions on
obstruction “corruptly” and “by threats or force.” Act of June
10, 1872, ch. 420, 17 Stat. 378, 378. As part of the general
revision and codification of the federal criminal code in 1909,
Congress simplified the statute by replacing “any threatening
letters, or any threatening communications,” with “any
threatening letter or communication.” Act of Mar. 4, 1909,
ch. 321, 35 Stat. 1088, 1113. Second, the 1831 law
prohibited obstructing or impeding the administration of
justice. The 1872 statute added a prohibition against
influencing its administration. Act of June 10, 1872, ch. 420,
17 Stat. 378, 378. Third, as part of the 1909 revision, the
comma after “corruptly” was dropped, almost certainly
inadvertently. Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088,
1113. There had been a comma after the word “corruptly” in
both the first and omnibus clauses in the 1831 and 1872
statutes, and a comma was retained after “corruptly” in the
first clause of the obstruction statute. See Act of Mar. 2,
1831, ch. 99, 4 Stat. 487, 488; Act of June 10, 1872, ch. 420,
17 Stat. 378, 378; Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088,
1113. No reason was given in 1909 for dropping the comma
after the word “corruptly” in the second, omnibus clause.

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UNITED STATES V. BONDS 35
As written in 1831, the omnibus clause provided two
methods, separated by commas, by which a person could
improperly “obstruct or impede” the “due administration of
justice.” A person could do it “corruptly,” or he could do it
“by threats or force.” As written in 1872, the clause provided
three such methods, again separated by commas, by which a
person could improperly “influence, obstruct, or impede” the
“due administration of justice.” A person could do it
“corruptly,” “by threats or force,” or “by threatening letters,
or any threatening communications.” Finally, as revised and
codified in 1909, the clause continued to provide three means,
now partially separated by commas, by which a person could
“influence, obstruct, or impede”: a person could do it
“corruptly,” “by threats or force,” or “by threatening letter or
communication.” The omnibus clause has remained
essentially unchanged since the 1909 general revision and
codification.
A “commonsensical interpretive principle” is that “words
mean what they conveyed to reasonable people at the time
they were written.” Antonin Scalia & Bryan Garner, Reading
Law: The Interpretation of Legal Text 15–16 (2012). The
1828 American Dictionary of the English Language,
published three years before the enactment of the original
version of § 1503(a), gave two definitions for corruptly:
1. In a corrupt manner; with corruption;
viciously; wickedly; without integrity. We
have dealt very corruptly against thee.
Nehemiah 1.
2. By bribery. A judgment was obtained
corruptly.

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UNITED STATES V. BONDS 36
A contemporaneous document, as well as an interpretive
canon, show that when it wrote the word “corruptly,”
Congress was likely using the narrow and specific second
definition.
The National Intelligencer, publisher of the Register of
Debates and the predecessor to what later became the
Congressional Record, reported an action of the House of
Representatives on the Senate Bill that became the 1831
statute. It reported that on Wednesday, March 2, 1831, the
House amended and then agreed to the Senate Bill punishing
“attempts to corrupt or intimidate jurors”:
The Senate’s amendments to the Act
declaratory of the powers of the Courts of the
United States on the subject of Contempts;
adding a second section for punishing all
attempts to corrupt or intimidate jurors, &c.
was amended on the suggestion of Mr.
BUCHANAN, and then agreed to.
Twenty-First Congress, Second Session, Daily National
Intelligencer, Mar. 3, 1831 (emphasis added). The reference
is to the first clause rather than the omnibus clause of the
statute, but there is no reason to believe that “corruptly” had
different meanings in the two parallel clauses. The National
Intelligencer’s use of the infinitive, “to corrupt,” in
connection with the direct object, “jurors,” indicates that the
prohibition against acting “corruptly” was a prohibition
against a specific act — corrupting, or attempting to corrupt,
jurors, and thereby obstructing or impeding justice. That is,
the prohibition against acting “corruptly” was a narrow and
specific prohibition against bribing jurors, using the second
definition. It was not a broad general prohibition against

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UNITED STATES V. BONDS 37
acting “wickedly” or “viciously” in obstructing or impeding
justice.
The text following the word “corruptly” in the omnibus
clause of § 1503(a) reinforces the conclusion that it means
“by bribery.” In the current version, there are three specific
forbidden methods of “influencing, obstructing, or impeding
the due administration of justice”: (1) “corruptly,” (2) “by
threats or force,” or (3) “by any threatening letter or
communication.” In the 1831 version, there were two
specific forbidden methods: (1) “corruptly,” or (2) “by threats
or force.” Where statutory terms “are susceptible of multiple
and wide-ranging meanings . . . those meanings are narrowed
by the commonsense canon of noscitur a sociis — which
counsels that a word is given more precise content by the
neighboring words with which it is associated.” United States
v. Williams, 553 U.S. 285, 294 (2008). “The maxim noscitur
a sociis, . . . while not an inescapable rule, is often wisely
applied where a word is capable of many meanings in order
to avoid the giving of unintended breadth to the Acts of
Congress.” Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307
(1961); see also United States v. Kimsey, 668 F.3d 691, 701
(9th Cir. 2012) (even when an interpretation is conceivable
“based on etymology alone,” that definition is “severely
undermined” when it is illogical in light of the neighboring
statutory terms).
The text of the omnibus clause of § 1503(a) is precisely
the kind of text to which the canon applies. Several methods
of obstructing the administration of justice are listed
immediately following the word “corruptly”: “by threats,” by
“force,” “by threatening letter,” and by threatening
“communication.” These are not states of mind. They are
specific methods of obstructing justice. We can read

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UNITED STATES V. BONDS 38
“corruptly” as describing a state of mind. Or we can read it
as describing another specific method of “influencing,
obstructing, or impeding” the “due administration of justice.”
The canon of noscitur a sociis, as well as common sense,
instruct us to choose the latter.
Read in light of a contemporaneous dictionary meaning
of “corruptly,” in light of the contemporaneous report on the
bill that became the predecessor to § 1503(a), and in light of
the noscitur a sociis canon, I conclude that § 1503(a) forbids
individuals from obstructing the administration of justice
(1) by bribery, (2) by threats or force, or (3) by any
threatening letter or communication.
B. Comparison to Perjury
A comparison of the federal obstruction of justice statute
with the federal perjury statute reinforces the conclusion that
“corruptly” means “by bribery.” The obstruction of justice
statute prescribes different ranges of punishment depending
on the act. The most lenient is “imprisonment for not more
than 10 years, a fine under this title, or both.” 18 U.S.C.
§ 1503(b)(3). The federal perjury statute, by contrast,
prescribes only one range of punishment. It provides that
someone found guilty of perjury “shall . . . be fined under this
title or imprisoned not more than five years, or both.”
18 U.S.C. § 1621.
If we accept the principal concurrence’s reading of the
word “corruptly,” a person who makes a material truthful
statement with the intent to “influence, obstruct, or impede
the due administration of justice” may be punished by a term
of imprisonment of up to ten years. A person who makes a
material untruthful statement with the same intent may be

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UNITED STATES V. BONDS 39
punished by a term of imprisonment of up to only half that.
It makes no sense for Congress to punish a truthful statement
more severely than a lie. If, on the other hand, we accept that
“corruptly” means “by bribery” in § 1503(a), the disparity in
punishment makes perfect sense.
In Bronston v. United States, 409 U.S. 352 (1973), the
Court explained the difference between truthful but
misleading statements, on the one hand, and perjurious
statements, on the other. The Court faced a question related
to the question now before us: “whether a witness may be
convicted of perjury for an answer, under oath, that is literally
true but not responsive to the question asked and arguably
misleading by negative implication.” Id. at 352–53.
The government had charged Bronston with violating
§ 1621, the federal perjury statute, based on statements he had
made at a hearing before a bankruptcy referee. When asked
whether he had ever had any bank accounts in Swiss banks,
Bronston replied that his “company had an account there for
about six months, in Zurich.” Id. at 354. Bronston did not
mention that he had previously had a personal bank account
in Geneva. Id. Bronston’s answer was true. His company
had indeed had an account in Zurich. However, his answer,
while true, was designed to mislead the questioner. The
United States successfully prosecuted Bronston for perjury on
the theory that he had testified under oath “with literal
truthfulness but unresponsively.” Id. at 355. The Court
reversed Bronston’s conviction because “the federal perjury
statute cannot be construed to sustain a conviction based on
[his] answer.” Id. at 357.
The Court explained, “[W]e perceive no reason why
Congress would intend the drastic sanction of a perjury

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UNITED STATES V. BONDS 40
prosecution to cure a testimonial mishap that could readily
have been reached with a single additional question by
counsel alert — as every examiner ought to be — to the
incongruity of [Bronston]’s unresponsive answer.” Id. at 358.
“If a witness evades, it is the lawyer’s responsibility to
recognize the evasion and to bring the witness back to the
mark, to flush out the whole truth with the tools of adversary
examination.” Id. at 358–59. This is so even when a
witness’s answers were “not guileless but were shrewdly
calculated to evade.” Id. at 362.
The Court rejected the very argument that the government
makes in the case now before us:
It is no answer to say that here the jury found
that [the witness] intended to mislead his
examiner. A jury should not be permitted to
engage in conjecture whether an unresponsive
answer, true and complete on its face, was
intended to mislead or divert the examiner;
the state of mind of the witness is relevant
only to the extent that it bears on whether “he
does not believe (his answer) to be true.” To
hold otherwise would be to inject a new and
confusing element into the adversary
testimonial system we know. Witnesses
would be unsure of the extent of their
responsibility for the misunderstandings and
inadequacies of examiners, and might well
fear having that responsibility tested by a jury
under the vague rubric of “intent to mislead”
or “perjury by implication.” The seminal
modern treatment of the history of the offense
concludes that one consideration of policy

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UNITED STATES V. BONDS 41
overshadowed all others during the years
when perjury first emerged as a common-law
offense: “that the measures taken against the
offense must not be so severe as to discourage
witnesses from appearing or testifying.”
Id. at 359 (citation omitted). Simply put, “any special
problems arising from the literally true but unresponsive
answer are to be remedied through the ‘questioner’s acuity’
and not by a federal perjury prosecution.” Id. at 362.
The government and the principal concurrence brush
Bronston aside. That is not so easily done, for the Court’s
reasoning is as applicable to this case as to Bronston’s. In
either case, “[a] jury should not be permitted to engage in
conjecture whether an unresponsive answer, true and
complete on its face, was intended to mislead or divert the
examiner.” Id. at 358. “To hold otherwise would be to inject
a new and confusing element into the adversary testimonial
system we know.” Id. Further, and perhaps more important,
if the concurrence is right about the meaning of “corruptly”
in § 1503(a), the Court’s careful parsing of the perjury statute
in Bronston was wasted effort. If the concurrence is right, a
prosecutor seeking to convict someone who may or may not
have testified truthfully will never need to pursue a perjury
conviction. The prosecutor can get an obstruction of justice
conviction, carrying twice the penalty, for half the effort.
II. United States v. Aguilar
Supreme Court dictum describing § 1503(a) does not
change my conclusion. In United States v. Aguilar, 515 U.S.
593 (1995), the Court reversed a conviction of U.S. District
Judge Robert Aguilar for obstruction of justice in violation of

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UNITED STATES V. BONDS 42
the omnibus clause of § 1503(a). A grand jury had been
investigating a conspiracy to influence another district judge.
One of the suspected conspirators, Abe Chapman, was a
distant relation of Aguilar. When Aguilar learned that
Chapman had been named in a federal wiretap authorization,
Aguilar warned him. During a subsequent grand jury
investigation, FBI agents questioned Aguilar about his
knowledge of the wiretap and the underlying conspiracy.
Aguilar falsely stated that he did not know about either. His
false statements provided the basis for his conviction under
the omnibus clause.
The Supreme Court reversed the conviction because
“[t]he action taken by the accused must be with an intent to
influence judicial or grand jury proceedings; it is not enough
that there be an intent to influence some ancillary proceeding,
such as an investigation independent of the court’s or grand
jury’s authority.” Id. at 599. “In other words, the endeavor
must have the natural and probable effect of interfering with
the due administration of justice.” Id. (quotation marks
omitted).
In dictum, the Court distinguished false statements made
to an FBI agent from statements made directly to a grand
jury. The Court assumed that such statements made to the
grand jury would be covered by the omnibus clause. It wrote
that Aguilar’s conduct “falls on the other side of the statutory
line from that of one who delivers false documents or
testimony to the grand jury itself. Conduct of the latter sort
all but assures that the grand jury will consider the material
in its deliberations.” Id. at 601.
If I were compelled to treat the Court’s dictum as a
controlling statement of law, I would not be able to argue,

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UNITED STATES V. BONDS 43
consistent with the view of the Supreme Court, that the word
“corruptly” in § 1503(a) means “by bribery.” But I do not
believe I am so compelled. “We do not treat considered dicta
from the Supreme Court lightly,” because “it serves as a
prophecy of what that Court might hold.” McCalla v. Royal
MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir.
2004) (quotation marks and citations omitted). But the Court
has instructed that while “dictum ‘may be followed if
sufficiently persuasive,’ it ‘ought not to control the judgment
in a subsequent suit.’” United States v. Montero-Camargo,
208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (quoting
Humphrey’s Executor v. United States, 295 U.S. 602, 627
(1935)).
I do not believe the Court’s dictum in Aguilar was
“considered” in the requisite sense. The question whether
false statements made directly to the grand jury violate the
omnibus clause was not before the Court. In his opposition
to certiorari, Aguilar had conceded that, “as the government
notes, the courts have routinely applied Section 1503 to false
testimony to the grand jury.” Brief in Opposition at 18–19,
Aguilar, 515 U.S. 593 (No. 94-270). The government
highlighted that concession in its merits brief. Brief of
Petitioner at 20, Aguilar, 515 U.S. 593 (No. 94-270) (“as
respondent has conceded, ‘the courts have routinely applied
Section 1503 to false testimony to the grand jury.’”). In the
context of his suit, Aguilar’s concession makes sense, for it
enabled him to focus his argument more narrowly, and to
argue that even if the omnibus clause covered false
statements made to a grand jury, his false statements to an
FBI agent were not covered. The Court accepted without
challenge the strategic concession that false statements to the
grand jury were covered, and held that, even so, Aguilar’s
conduct fell outside the omnibus clause. The Court was thus

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UNITED STATES V. BONDS 44
not asked to consider the question whether false statements
were covered by the omnibus clause because that question
had been taken off the table. The question presented in the
case now before us — whether truthful but evasive statements
are covered by the omnibus clause — was so remote from the
contemplation of the parties that there had been no need even
to take it off the table.
No argument was made to the Court in Aguilar about the
meaning of “corruptly” in 1831, when the obstruction of
justice statute was enacted. Nor was any argument made to
the Court about the disparity in sentencing between the
perjury statute and the obstruction of justice statute. Had the
government sought a conviction under the omnibus clause
based on a true but evasive or misleading statement to a grand
jury, and had these arguments been presented to the Court, it
is not at all clear that the Court would have read the statute as
broadly as its dictum suggests.
It is possible that I am wrong and that I am required to
regard the Court’s dictum in Aguilar as controlling. I do not
believe that this is so, but if it is I encourage the Court to
revisit, either in this case or another, the question of the scope
of the omnibus clause of § 1503(a). If the Court does revisit
the question, I think it likely — perhaps very likely — that it
will conclude, as I do, that the word “corruptly,” as used in
§ 1503(a), means “by bribery.”

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UNITED STATES V. BONDS 45
RAWLINSON, Circuit Judge, dissenting:
There is no joy in this dissenting judge. The per curiam
and concurring opinions have struck out.1
Strike One - The per curiam and concurring opinions
second-guess the jury’s verdict rather than deferring to it.
I join the principal concurring opinion in its view that
context matters in determining whether sufficient evidence
supports the conviction in this case. See Kozinski Concurring
Opinion, p. 11. A vital part of that context is the evidence
before the jury. After all, it is that evidence we examine to
determine whether any reasonable juror could have convicted
the defendant. In doing so, we view the evidence in the light
most favorable to the prosecution. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); see also United States v.
Whittemore, 776 F.3d 1074, 1078 (9th Cir. 2015).
Barry Bonds was convicted of one count of obstruction of
justice in violation of 18 U.S.C. § 1503. That statute provides
for the punishment of “[w]hoever, corruptly . . . influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede the due administration of justice . . .”
At the trial of this matter, the jurors were informed that
the charges against Bonds stemmed from his appearance
before a grand jury investigating steroid use by athletes. The
obstruction of justice count alleged that Bonds gave “material
Grand Jury testimony that was intentionally evasive, false,
and misleading.” Prior to his grand jury testimony, Bonds
1 Apologies to Ernest Lawrence Thayer, Casey at the Bat (1888) (“But
there is no joy in Mudville–Mighty Casey has struck out.”).

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UNITED STATES V. BONDS 46
was granted immunity from prosecution if he complied with
the immunity order. Special Agent Novitzky read the
immunity order to the jury. The order provided in pertinent
part:
Barry Bonds may be called to testify
before the grand jury; and
In the judgment of the United States
Attorney, the testimony and other information
to be obtained from Barry Bonds is necessary
to the public interest; and
. . .
It is therefore ordered that Barry Bonds,
soon as he may be called, shall testify under
oath and provide other information, including
documents, in this case and in any further
ancillary proceedings.
It is further ordered that the testimony and
other information compelled from Barry
Bonds pursuant to this order . . . may not be
used against him in any criminal case, except
a prosecution for perjury, false declaration, or
otherwise failing to comply with this order.
The purpose of immunizing a witness in exchange for his
testimony is to ensure that the witness, freed from the specter
of prosecution, will provide complete and truthful testimony.
See United States v. Thomas, 612 F.3d 1107, 1126 (9th Cir.
2010) (observing that “[t]he purpose of the immunity order in
[the BALCO] case was to compel the witness to testify

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UNITED STATES V. BONDS 47
truthfully and in good faith before the grand jury to assist it
in its investigation”) (emphasis in the original). Giving
evasive testimony is inconsistent with the obligation to
provide complete and truthful testimony. See United States
v. Griffin, 589 F.2d 200, 204 (5th Cir. 1979) (“[A]n
obstruction of justice results when attempts to gather relevant
evidence . . . are frustrated by the use of corrupt or false
means. The blatantly evasive witness achieves this effect as
surely by erecting a screen of feigned forgetfulness as one
who burns files or induces a potential witness to absent
himself.”) (citation and internal quotation marks omitted).
Hence, charges were brought against Bonds for obstruction of
justice.
At trial, Special Agent Novitsky described the BALCO
Laboratories investigation primarily involving the distribution
of anabolic steroids. One of the principal targets of the
criminal investigation was Greg Anderson, Bonds’ fitness
trainer. According to Agent Novitsky, execution of search
warrants at BALCO Laboratories produced a “treasure [trove]
of drugs and documents indicating usage and distribution [of
anabolic steroids] to elite professional athletes.” Authorities
also found “physical evidence in terms of drugs that pertained
to . . . steroid distribution” following a search of Anderson’s
residence. Specifically, samples from Anderson’s residence
were revealed to be a “designer anabolic steroid.” Authorities
also recovered $60,000 from a safe in Anderson’s residence
and a bag of syringes in his vehicle.
It was against this backdrop that Bonds was immunized
and brought before the grand jury to testify, with the grand
jury process considered a continuation of the investigation.
Bonds was not a target of the grand jury. Rather, he and
other athletes were expected to testify candidly and truthfully

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UNITED STATES V. BONDS 48
to further the investigation into those who were the targets of
the grand jury.
Agent Novitsky testified that the inconsistencies between
Bonds’ testimony and other evidence before the grand jury
regarding the relationship between the athletes and the steroid
distributors, including the evasions, required the investigators
to conduct additional inquiries that would not have been
necessary had Bonds given non-evasive testimony. We
cannot say with certainty that no reasonable juror could
conclude otherwise. Indeed, drawing all inferences in favor
of the government, a reasonable juror could reasonably
conclude that Bonds’ evasive testimony diverted the
investigation, thereby impeding the administration of justice.
See id.
From the inception of this nation’s system of justice, the
jury has played an integral role in the administration of
justice. See City of Morgantown, W.Va. v. Royal Ins. Co.,
Ltd., 337 U.S. 254, 258 (1949) (articulating that “[t]rial by
jury is a vital and cherished right, integral in our judicial
system”). We defer to the wisdom of twelve ordinary
citizens, selected by the parties, who hear the evidence and
follow the instructions given by the judge to reach a verdict.
See Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013)
(“Although the evidence presented at trial could yield an
alternative inference, we must respect the exclusive province
of the jury to determine the credibility of witnesses, resolve
evidentiary conflicts, and draw reasonable inferences from
proven facts. . . .”) (citation, alteration, and internal quotation
marks omitted). Overturning a jury verdict, particularly on a
sufficiency of evidence challenge, is rare, as it should be. See
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)
(en banc). This “reviewing court may not ask itself whether

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UNITED STATES V. BONDS 49
it believes that the evidence at the trial established guilt
beyond a reasonable doubt, only whether any rational trier of
fact could have made that finding.” Id. (citations and internal
quotation marks omitted) (first emphasis added).
Regrettably, little consideration is given in the per curiam and
concurring opinions to the entirety of the evidence introduced
during Bonds’ trial. Indeed, the principal concurring opinion
focuses on “the instrinsic capabilities of the statement itself,”
as determined on appeal. Kozinski Concurring Opinion, p. 11
(emphasis in the original). However, as discussed below, this
analysis applies to false statements rather than to evasive
statements. Importing an inapplicable analysis to overturn
the jury’s considered verdict appears to be a means of
“reach[ing] the conclusion that seems best” to my concurring
colleagues. Blue Cross & Blue Shield v. Rubin, 490 F.3d 718,
724 (9th Cir. 2007) (citation omitted). We know that the jury
deliberated carefully because it convicted Bonds on only one
of four charged counts. See United States v. Plunk, 153 F.3d
1011, 1027 (9th Cir. 1998), overruled on other grounds by
United States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir.
2000) (observing that “the fact that the jury rendered a mixed
verdict . . . suggests that it reviewed the evidence rationally
and independently”) (citation, alterations, and internal
quotation marks omitted). Sufficient evidence supports the
jury’s considered verdict, and the verdict warrants deference
rather than second-guessing. See Long, 736 F.3d at 896.
When Bonds was asked before the grand jury if Anderson
had ever given him anything that required a syringe to inject
himself with (a yes or no question), Bonds launched into the
following rambling soliloquy:
I’ve only had one doctor touch me. And
that’s my only personal doctor. Greg, like I

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UNITED STATES V. BONDS 50
said, we don’t get into each others’ personal
lives. We’re friends, but I don’t–we don’t sit
around and talk baseball, because he knows I
don’t want–don’t come to my house talking
baseball. If you want to come to my house
and talk about fishing, some other stuff, we’ll
be good friends. You come around talking
about baseball, you go on. I don’t talk about
his business, You know what I mean?
. . .
That’s what keeps our friendship. You know,
I am sorry, but that–you know, that–I was a
celebrity child, not just in baseball by my own
instincts. I became a celebrity child with a
famous father. I just don’t get into other
people’s business because of my father’s
situation, you see.
This rambling, non-response answered the following
unasked questions:
[Question: How many doctors have touched
(treated?) you?]
Answer: I’ve only had one doctor touch me.
And that’s my only personal doctor.
[Question: Do you and Greg (Anderson) get
into each others’ personal lives?]
Answer: Greg, like I said, we don’t get into
each others’ personal lives.

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UNITED STATES V. BONDS 51
[Question: Do you and Anderson get into
each others’ professional lives?]
Answer: We’re friends, but I don’t–we don’t
sit around and talk baseball, because he knows
I don’t want–don’t come to my house talking
baseball. If you want to come to my house
and talk about fishing, some other stuff, we’ll
be good friends. You come around talking
about baseball, you go on. I don’t talk about
his business.
[Question: What keeps your friendship with
Anderson?]
Answer: That’s [not getting into each other’s
personal or professional lives] what keeps our
friendship.
[Question: Were you a celebrity child?]
Answer: You know, I am sorry, but that–you
know, that–I was a celebrity child, not just in
baseball by my own instincts. I became a
celebrity child with a famous father. I just
don’t get into other people’s business because
of my father’s situation, you see.
Despite these extended responses to unasked questions,
Bonds studiously avoided answering the question that was
actually asked: “Did [Anderson] ever give you anything that
required a syringe to inject yourself with?”

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UNITED STATES V. BONDS 52
The jury pondered Bonds’ response in conjunction with
Agent Novitsky’s testimony that Bonds’ response required
the investigators to search for other evidence that Anderson
provided steroids to Bonds. That evidence included
testimony from other athletes who acknowledged receiving
steroid injections, and from Steve Hoskins, Bonds’ childhood
best friend and personal assistant, who had discussions with
Bonds about steroid injections and who heard Bonds
complain about pain associated with the injections. Hoskins
also witnessed Anderson and Bonds enter a bedroom “a
couple of times” at Bonds’ Arizona residence, with Anderson
holding a needle that Hoskins believed was for steroid
injections. Hoskins also recounted an incident when
Anderson refused to inject Bonds and Bonds stated that he
would “give it to himself.” Hoskins testified that Bonds’
shoe size increased, his glove size changed, and his body got
bigger, heavier and “a lot more muscular.” During Hoskins’
testimony, an audiotape was played that Hoskins made of
Anderson discussing providing steroids to Bonds. Hoskins
was growing increasingly concerned about Bonds’ steroid use
and wanted Bonds’ father to intervene. Because Anderson
and Bonds denied the use of steroids, Hoskins hoped to use
the tape to convince Bonds’ father that Hoskins’ concern was
justified. The tape was ultimately provided to investigating
agents.
A former girlfriend of Bonds testified that Bonds revealed
to her that a lump on Bonds’ elbow was caused by steroid
use. She also observed Anderson and Bonds regularly enter
a bedroom in Bonds’ Arizona residence with a satchel,
locking the door after them and remaining inside for
approximately twenty minutes. At the same time, the former
girlfriend noted significant physical changes in Bonds,
including a dramatic increase in size, acne on his upper

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UNITED STATES V. BONDS 53
shoulders and back, rapid hair loss, testicular atrophy, and
decreased sexual performance. In addition, Bonds became
“increasingly aggressive, irritable, agitated, very impatient,
almost violent.” The jury was informed by the Chief Science
Officer of the United States Anti-Doping Agency that these
are typical side effects of anabolic steroid use.
Finally, Kathy Hoskins, sister to Steve Hoskins, testified
that she actually witnessed Anderson administer a shot into
Bonds’ “bellybutton” with a syringe, “like the Doctor with a
syringe in the bellybutton.” According to Kathy Hoskins,
Bonds commented that the injection was “a little some some,
when I go on the road, you know we can’t detect it, you can’t
catch it.”
After hearing this evidence, the jury was instructed that to
convict Bonds of obstructing justice, the government was
required to prove beyond a reasonable doubt:
1. The defendant corruptly, that is, for
the purpose of obstructing justice,
2. obstructed, influenced, or impeded, or
endeavored to obstruct, influence, or impede
the grand jury proceeding in which defendant
testified,
3. by knowingly giving material
testimony that was intentionally evasive, false
or misleading.
The instruction on materiality informed the jury that:

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UNITED STATES V. BONDS 54
A statement was material if it had a
natural tendency to influence or was capable
of influencing a decision of the grand jury.
The government alleges that the
underlined portion of the following statements
constitute material testimony that was
intentionally evasive, false or misleading. In
order for the defendant to be found guilty of
count 5, you must all agree that one or more
of the following statements was material and
intentionally evasive, false or misleading,
with all of you unanimously agreeing as to
which statement or statements so qualify[.]
So instructed, the jury reasonably found that Bonds’
rambling statement was evasive. Under the sufficiency of
evidence standard, we draw all inferences in favor of the
government when determining whether any rational juror
could have found that Bonds’ evasive testimony materially
impeded the grand jury’s performance of its investigatory
function. See Griffin, 589 F.2d at 204; see also United States
v. Browning, 630 F.2d 694, 699, 701 (10th Cir. 1980) (“The
ultimate question . . . is not whether the defendant told the
truth but whether the defendant obstructed or interfered with
the process of truthfinding in an investigation . . . ”).
Evidence may be sufficient to sustain a conviction under
§ 1503 even if “it does not exclude every reasonable
hypothesis of innocence or is not wholly inconsistent with
every conclusion of guilt [because] [a] jury is free to choose
among reasonable constructions of the evidence.” United
States v. Perkins, 748 F.2d 1519, 1521 (11th Cir. 1984)
(citation, alterations and internal quotation marks omitted).

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UNITED STATES V. BONDS 55
The principal concurring opinion acknowledges that the
sufficiency of evidence standard of review is a demanding
one, but nevertheless elects to apply the standard with “some
rigor.” Kozinski Concurring Opinion, p. 13. Without citation
to any precedent supporting the addition of “rigor” to the
governing standard of review, that language sounds
suspiciously close to a euphemism for second-guessing the
jury and “reach[ing] the conclusion that seems best” to those
joining the principal concurrence. Rubin, 490 F.3d at 724
(citation omitted).
As the principal concurring opinion acknowledges,
§ 1503 sweeps broadly. See Kozinski Concurring Opinion,
pp. 7–8. Applying that broad statute to the facts of this case,
we must determine whether there was sufficient evidence
before the jury that Bonds sought to corruptly impede the
work of the grand jury. See id. We are not called upon to
determine how far § 1503 can be prudentially applied. Nor
need we decide whether attorneys at oral argument could be
prosecuted for giving evasive answers to questions from
members of the oral argument panel. Such a discussion is
more akin to resolving a claim that a statute is overbroad, an
issue that is not before us in this appeal. In any event, a
hypothetical overreach of the statute cannot affect Bonds’
conviction for conduct that falls squarely within the statute.
See United States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985)
(concluding that 18 U.S.C. § 1503 was not vague or
overbroad because “[t]he reach of the statute is clearly limited
to such constitutionally unprotected and purportedly illicit
activity as that undertaken by [the defendant] . . .”).
The jury necessarily found that Bonds’ evasive testimony
was material because it was instructed that it had to make that
finding before Bonds could be convicted of violating § 1503.

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UNITED STATES V. BONDS 56
Nevertheless, the principal concurring opinion relies upon the
“self-evident proposition” that Bonds’ evasive statement “did
not have the capacity to divert the government from its
investigation . . .” Kozinski Concurring Opinion, p. 11. But
this conclusion ignores Agent Novitzky’s testimony and the
jury’s finding of fact. At a minimum, the jury’s finding is
supported by Agent Novitsky’s testimony that Bonds’ evasive
responses diverted and impeded the investigation by requiring
the investigators to determine whether Bonds was being
injected with steroids unknowingly, and whether Bonds’
inconsistent testimony compromised the testimony of the
other witnesses. See Perkins, 748 F.2d at 1528 (noting that
“marginal” evidence is sufficient to support a conviction for
obstruction of justice). The jury chose “among reasonable
constructions of the evidence,” and we must respect that
choice rather than second-guess it as the concurring opinions
do. Id. at 1526 (citation omitted).
Strike Two - The per curiam and concurring opinions
disregard precedent that supports upholding the jury’s
verdict.
This is not the first time we have considered whether
evasive testimony may serve as the basis for an obstruction of
justice charge. It may be the first time we have considered
the statute as applied to a famous athlete. But that should not
be the deciding factor, and there is no other reason to interpret
the statute differently in this case.
In United States v. Rasheed, 663 F.2d 843, 851 (9th Cir.
1981), we reiterated that the “obstruction of justice statute
was designed to proscribe all manner of corrupt methods of
obstructing justice. . . .” (citing Catrino v. United States,
176 F.2d 884, 887 (9th Cir. 1949)). In Rasheed, the

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UNITED STATES V. BONDS 57
defendant had destroyed or concealed subpoenaed
documents, and we concluded that the suppression of
documentary evidence violated the obstruction of justice
statute as much as the suppression of testimonial evidence.
See id. at 852. The defendant argued that when she appeared
before the grand jury, she acknowledged that she had not
produced all the subpoenaed documents. See id. at 853. She
asserted that the government excused her from any further
obligation of production, resulting in a lack of sufficient
evidence to support a conviction for obstruction of justice.
See id. We disagreed, holding that the obstruction of justice
was complete when defendant directed destruction or
concealment of the documents. See id. We clarified that the
actions of the prosecutor “in no way negate[d] the
commission of the crime. At best, [the prosecutor’s]
relieving [the defendant] of further production indicates that
justice was not, in fact, obstructed. This is not a defense. . . .”
Id. (emphasis added). We explained that once it was
established that the defendant acted with “the intent to
obstruct justice and endeavored to do so[,] [t]his is sufficient
for guilt under section 1503. . . .” Id. The same analysis is
applicable to Bonds’ evasive testimony. Once Bonds acted
with the intent to evade giving the testimony that was
compelled by the immunity order, the obstruction of justice
offense was complete. See id. Even if Bonds eventually
ceased his evasive efforts, his prior intent to obstruct was not
negated. See id. Bonds’ evasive testimony could and did
interfere with the continued BALCO investigation as
reflected in the testimony of Agent Novitsky. See id.; see
also Griffin, 589 F.2d at 204 (observing that justice is
obstructed “when attempts to gather relevant evidence . . . are
frustrated by [a] blatantly evasive witness”) (citation and
internal quotation marks omitted).

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UNITED STATES V. BONDS 58
Other circuits agree. See United States v. Cohn, 452 F.2d
881, 884 (2d Cir. 1972) (holding that “concealing data
recorded in one’s memory” through blatant evasion
constitutes obstruction of justice); see also United States v.
Langella, 776 F.2d 1078, 1081 (2d Cir. 1985) (describing
“obviously evasive” answers as “concealment of evidence”
within the scope of § 1503). In Perkins, 748 F.2d at 1528, the
Eleventh Circuit similarly characterized the defendant’s
conduct as obstructive when he gave evasive answers before
the grand jury. The Eleventh Circuit described the facts of
the case as reflecting that the defendant knew there were
irregularities in a certain bank account, that the account was
held under a fictitious name, and that the grand jury was
seeking to learn the true identity of the account holder.
Although the court acknowledged that the government could
have questioned the defendant more effectively, it
nonetheless held that a reasonable jury could have found that
the defendant’s evasive answers were intended to obstruct the
grand jury’s investigation. See id.
Ignoring these cases, in my view, creates an unwarranted
circuit split and disregards our own precedent without
justification.
Strike Three - The concurring opinions rely on
precedent more applicable to perjury than to obstruction
of justice.
The principal concurring opinion cites this language from
Bronston v. United States, 409 U.S. 352, 358 (1973): “Under
the pressures and tensions of interrogation, it is not
uncommon for the most earnest witnesses to give answers
that are not entirely responsive.” Kozinski Concurring
Opinion, p. 8. However, the cited language does not support

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UNITED STATES V. BONDS 59
a conclusion that there was insufficient evidence to support
Bonds’ conviction. In Bronston, the United States Supreme
Court addressed the perjury statute, 18 U.S.C. § 1621 (not the
obstruction of justice statute, 18 U.S.C. § 1503), and decided
the issue of whether a witness may be convicted of perjury
for giving an answer that is literally true, but non-responsive
to the question asked. See Bronston, 409 U.S. at 352–53.
There was absolutely no discussion of evasive testimony or
obstruction of justice.
The defendant in Bronston answered several questions
posed during adversarial bankruptcy proceedings concerning
whether he or his company had Swiss bank accounts. See id.
at 354. Although the defendant denied having Swiss bank
accounts, there was evidence that the defendant had a
personal bank account in a Swiss bank for a prior period of
five years. See id. It was undisputed that the defendant’s
answers were literally truthful because the defendant did not
have a Swiss bank account “at the time of questioning . . .”
Id. In the context of a prosecution for perjury, the Supreme
Court observed that “[t]he cases support petitioner’s position
that the perjury statute is not to be loosely construed, nor the
statute invoked simply because a wily witness succeeds in
derailing the questioner—so long as the witness speaks the
literal truth. The burden is on the questioner to pin the
witness down to the specific object of the questioner’s
inquiry.” Id. at 360 (citations omitted) (emphasis added).
There is a notable statutory distinction between the
perjury at issue in Bronston and the obstruction of justice at
issue in this case. In Bronston, the Supreme Court expressed
its unwillingness to expand the perjury statute’s reach to
encompass literally truthful answers beyond the limits

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UNITED STATES V. BONDS 60
established by Congress. See id. at 358. In its current form,
the perjury statute, 18 U.S.C. § 1621, provides:
Whoever– (1) having taken an oath before a
competent tribunal, officer, or person, in any
case in which a law of the United States
authorizes an oath to be administered, that he
will testify, declare, depose, or certify truly, or
that any written testimony, declaration,
deposition, or certificate by him subscribed, is
true, willfully and contrary to such oath states
or subscribes any material matter which he
does not believe to be true; or (2) in any
declaration, certificate, verification, or
statement under penalty of perjury as
permitted under section 1746 of title 28,
United States Code, willfully subscribes as
true any material matter which he does not
believe to be true; is guilty of perjury . . .
18 U.S.C. § 1621 (emphases added). Importantly, the perjury
statute specifically requires that the defendant have
knowledge that the statement itself was not true. See id. The
perjury statute is much more forgiving in its knowledge
requirement than the elements delineated in 18 U.S.C. § 1503
for obstruction of justice. Notably, 18 U.S.C. § 1503 does not
contain any comparable requirement of known falsity.
Rather, the obstruction of justice statute merely requires that
the defendant “endeavor [ ] to influence, intimidate, or
impede any grand or petit juror . . .” 18 U.S.C. § 1503(a)
(emphasis added). As the Supreme Court has articulated,
“the term ‘endeavor’ . . . makes conduct punishable where the
defendant acts with an intent to obstruct justice, and in a
manner that is likely to obstruct justice, but is foiled in some

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UNITED STATES V. BONDS 61
way. . . .” United States v. Aguilar, 515 U.S. 593, 601–02
(1995). The obstruction of justice statute does not make a
distinction between obstructive statements that are false and
those that are evasive and not literally false. The statute
requires only that the defendant intend his statement to
obstruct justice.
It is questionable whether the “literal truth” underpinnings
of Bronston apply outside the confines of adversarial
proceedings where opposing counsel are expected to
continuously hone their questions to require definitive
answers, and a judge is present to control uncooperative
witnesses. In contrast, the grand jury is a non-adversarial,
investigatory proceeding with no judge presiding. Moreover,
Bonds was given immunity from prosecution in exchange for
his testimony. See United States v. Boskic, 545 F.3d 69, 92
(1st Cir. 2008) (questioning “whether the literal truth defense
as articulated in Bronston is appropriately invoked outside the
context of adversary questioning. . . .”).
In Bronston, the defendant’s responses were literally
truthful based on the specific questions posed. In other
words, the questions in Bronston permitted the defendant to
exploit the vagaries of the questions while still providing
literally truthful answers. In contrast, the government in this
case directly and unambiguously inquired of Bonds, “Did
Greg ever give you anything that required a syringe to inject
yourself with?” Bonds’ answer that he was a celebrity child
was literally truthful in only the most attenuated and
superficial manner, as it had nothing to do with the question

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UNITED STATES V. BONDS 62
asked.2 Unlike in Bronston, there were no nuances to exploit
in the direct question posed to Bonds. In United States v.
Camper, 384 F.3d 1073, 1076 (9th Cir. 2004), we recognized
this limitation with respect to Bronston. (“Bronston’s rule is
limited to cases in which the statement is indisputably true,
though misleading because it was unresponsive to the
question asked. . . .”). Unlike in Bronston, and considering
his evasive and misleading answer, the jury could have
reasonably concluded that Bonds endeavored to impede the
grand jury’s investigation. See United States v. Reilly,
33 F.3d 1396, 1416 (3d Cir. 1994) (“Normally, it is for the
petit jury to decide which construction the defendant placed
on the question. . . .”) (citation omitted); see also Griffin,
589 F.2d at 204 (“[A]n obstruction of justice results when
attempts to gather relevant evidence by a judicial body, which
is charged by law with the task of investigating and punishing
crime, are frustrated by the use of corrupt or false means.
The blatantly evasive witness achieves this effect as surely by
erecting a screen of feigned forgetfulness as one who burns
files or induces a potential witness to absent himself”)
(citation and internal quotation marks omitted); United States
2 Bonds’ answer to the government’s question as to whether Anderson
“ever gave [him] anything that required a syringe to inject [himself] with”
was not limited to Bonds’ answer that he was a celebrity child. Although
it may be literally true that Bonds was a celebrity child, his answer was
also coupled with the statement that he “just didn’t get into other people’s
business because of [his] father’s situation . . .” To the extent the answer
even addressed the government’s direct question, it implied that, because
he was a celebrity child, Bonds did not interject himself “into other
people’s business” and did not receive anything related to steroids from
Anderson. The jury could have reasonably concluded that the last part of
Bonds’ answer was an attempt to impede the grand jury’s investigation by
deflecting the question and evasively implying that, contrary to the
evidence presented at trial, he did not know about Anderson’s steroid
operation because he did not get involved in the business of his friends.

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UNITED STATES V. BONDS 63
v. Browning, 630 F.2d 694, 699 (10th Cir. 1980) (holding that
Bronston’s literal truth defense was inapplicable to an
obstruction of justice offense because “Bronston involved a
perjury prosecution in which the question was whether the
defendant had told the truth. The ultimate question in the
case at bar is not whether the defendant told the truth but
whether the defendant obstructed or interfered with the
process of truthfinding in an investigation in the process of
enforcing the law”).
“The function of the grand jury is to inquire into all
information that might possibly bear on its investigation until
it has identified an offense or has satisfied itself that none has
occurred. As a necessary consequence of its investigatory
function, the grand jury paints with a broad brush. . . .”
United States v. R. Enter., Inc., 498 U.S. 292, 297 (1991)
(citation omitted). Given the importance of the grand jury’s
investigative role, there is no reason to permit an immunized
grand jury witness to obstruct the administration of justice by
endeavoring to influence or impede the grand jury’s
investigation. It would appear that if there was ever a
moment for a witness not to engage in obstructive testimony,
it would be before a grand jury.
Application of Bronston’s literal truth analysis guts the
obstruction of justice provision prohibiting any attempt to
“corruptly . . . endeavor to influence . . . or impede any grand
or petit juror . . .” 18 U.S.C. § 1503(a). Equating obstruction
of justice with perjury actually superimposes the heightened
knowledge requirement contained in the perjury statute upon
the “endeavor to influence or impede” provisions of the
obstruction statute. 18 U.S.C. § 1503(a); cf. 18 U.S.C.
§ 1621(1). Specifically, Bronston’s requirement that an
attorney must ask clarifying questions in order to cure

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UNITED STATES V. BONDS 64
potentially perjurious testimony should not be extended to a
witness afforded immunity who attempts to obstruct a grand
jury investigation through misleading and evasive answers.
Bonds was liable for obstruction of justice at the moment he
endeavored to influence or impede the grand jury’s
investigation with his misleading and evasive answer to the
government’s direct and unambiguous question. See Aguilar,
515 U.S. at 601 (holding that a defendant may be convicted
of obstruction of justice “where the defendant acts with an
intent to obstruct justice, but is foiled in some way”). In
Aguilar, the Supreme Court delineated the dichotomy
between perjury and the intent to obstruct justice:
Were a defendant with the requisite intent to
lie to a subpoenaed witness who is ultimately
not called to testify, or who testifies but does
not transmit the defendant’s version of the
story, the defendant has endeavored to
obstruct, but has not actually obstructed,
justice. Under our approach, a jury could find
such defendant guilty.
Id. at 602. As the Supreme Court emphasized, “[t]his is not
to say that the defendant’s actions need to be successful; an
endeavor suffices . . .” Id. at 599 (citation omitted). Despite
the jury’s inability to unanimously find that Bonds committed
perjury, the government presented sufficient evidence that
Bonds’ evasive answer interfered with the administration of
justice. See id.
Once Bonds corruptly endeavored to impede the
investigatory function of the grand jury, his crime was
complete. See Rasheed, 663 F.2d at 853. Contrary to the
views expressed in the concurring opinions, the obstruction

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UNITED STATES V. BONDS 65
cannot be undone by blaming the prosecutor for failing to
prevent the obstruction. See id. (“[The prosecutor’s] actions
in no way negate the commission of the crime. At best, his
relieving [the defendant] of further production indicates that
justice was not, in fact, obstructed. This is not a
defense. . . .”); see also Perkins, 748 F.2d at 1528 (observing
that although the prosecutor could have questioned the
witness more effectively, a reasonable jury could have
nevertheless found the testimony to be evasive in an effort to
obstruct justice).
None of the cases cited in the principal concurring
opinion support the notion that there is insufficient evidence
to sustain an obstruction of justice conviction in this case,
where the jury was instructed on materiality and specifically
found that Bonds’ statement obstructed justice. See Thomas,
612 F.3d at 1129 (upholding a conviction for obstruction of
justice where the jury found materiality and obstructive
statements); cf. Kungys v. United States, 485 U.S. 759,
769–70 (1988) (discussing generally concealment of a
material fact in the denaturalization context); United States v.
McKenna, 327 F.3d 830, 840 (9th Cir. 2003) (discussing
materiality generally in the perjury context); Weinstock v.
United States, 231 F.2d 699, 701 (D.C. Cir. 1956) (discussing
materiality in the false statement context); United States v.
Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998) (same);
United States v. McBane, 433 F.3d 344, 350–51 (3d Cir.
2005) (same); United States v. Rigas, 490 F.3d 208, 231 (2d
Cir. 2007) (discussing materiality generally in the bank fraud
context). To the extent that the principal concurring opinion
cites these cases for the proposition that the grand jury
function must be subject to influence for the obstruction
conviction to stand, I disagree. See, e.g. Aguilar, 515 U.S. at
601 (explaining that a defendant may be convicted of

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UNITED STATES V. BONDS 66
obstruction of justice even if his attempt to obstruct is foiled).
Moreover, the jury in this case was instructed on materiality
and found Bonds’ statement obstructive pursuant to that
instruction. Absent a complete superimposition of the
“literally true” Bronston analysis, the cases cited in the
principal concurring opinion simply do not provide a basis for
reversing Bonds’ conviction.
Final Pitch
Barry Bonds received a grant of immunity in exchange
for his truthful and candid testimony before the grand jury.
Rather than aiding the grand jury in its investigatory quest,
Bonds elected to obstruct the grand jury process by giving
evasive testimony. There is sufficient evidence to support his
conviction because the jury was instructed that it must find
his evasive testimony to be material before rendering a guilty
verdict. In my view, the per curiam and concurring opinions
impermissibly second-guess the jury verdict, disregard our
precedent, create an unwarranted circuit split and import
inapplicable principles from Bronston into the obstruction of
justice analysis. I cry foul.

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