Ninth Circuit Court of Appeals Rules on Admissibility of Hearsay Evidence in U.S. v. Bonds
In a decision dated June 11, 2010, a two (2) judge majority from the Ninth Circuit Court of Appeals affirmed the District Court's evidentiary rulings excluding hearsay statements and documents in a well-publicized criminal action against former Major League Baseball star Barry Bonds, and remanded the case to the Northern District of California for further proceedings. United States of America v. Bonds, No. 09-10079 (9th Cir. June 11, 2010).
In 2003, the federal government began investigating the Bay Area Laboratory Corporation ("BALCO"), a corporation engaged in blood and urine analysis, for suspected distribution of illegal performance enhancing drugs to athletes and laundering the proceeds. During a government raid, evidence was discovered purportedly linking BALCO and Bonds' trainer, Greg Anderson, to numerous professional athletes, including Bonds. The government also found blood and urine test results which, it claims, established that Bonds tested positive for steroids. Later that year, Bonds swore under oath that he had not knowingly taken performance enhancing drugs. On December 4, 2008, a grand jury returned an indictment charging Bonds with ten (10) counts of making false declarations before a grand jury and one (1) count of obstruction of justice. Bonds moved to exclude numerous pieces of evidence argued by the government to link Bonds to steroid use, including the laboratory blood and urine test results and the BALCO log sheets of test results. Because Anderson refused to testify against Bonds (resulting in incarceration for contempt of court), the government sought to introduce statements Anderson made to the BALCO employee, James Valente, to whom Anderson gave the samples purportedly taken from Bonds, identifying the samples as coming from Bonds. The District Court ruled that these statements (along with log sheets on which BALCO recorded the results of the testing under Bonds' name) were inadmissible hearsay under the Federal Rules of Evidence, and interlocutory appeal of the District Court's ruling followed.
The Federal Rules of Evidence ("FRE") defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FRE further provides that hearsay is not admissible unless it falls into an exception set forth in the Rules. The government asserted that the statements fit within any one of a number of hearsay exceptions and argued, inter alia, that Anderson's statements were admissible as statements authorized by a party (FRE 801(d)(2)(C)) or as statements of an agent (FRE 801(d)(2)(D)). The government also argued that the statements were admissible under the residual "catch-all" exception contained in FRE 807, and that the log sheets were non-hearsay business records.
On appeal, the Ninth Circuit affirmed the District Court's evidentiary rulings, holding that the District Court had not abused its discretion in refusing to admit the evidence. The Court first found that FRE 807, the residual exception designed for "exceptional circumstances", did not apply to the matter at hand. The Court found that the District Court had properly determined that Anderson's statements lacked sufficient indicators of trustworthiness as required under the rule to admit the statements.
The Court next considered whether Bonds had expressly or impliedly authorized Anderson to make the statements to Valente concerning the samples, as well as whether an agency or employment relationship existed between Bonds and Anderson, which would make Anderson's statements to Valente admissible under FRE 801(d)(2)(C) or 801(d)(2)(D). In considering Anderson's authority to make the statements, the Court first noted that the government had acknowledged that it could not establish that Bonds had authorized Anderson to identify the samples as his. Notwithstanding, the government argued that Bonds had implicitly authorized Anderson to speak to the lab on his behalf because he had provided blood and urine samples to Anderson for analysis by BALCO. The majority rejected this argument, finding that even if Bonds had allowed Anderson to have his blood and urine tested to obtain medical information, it was not necessary to reveal Bonds' identity to accomplish that purpose and, accordingly, the government had failed to carry its burden of showing that Bonds had granted Anderson authority to identify the samples as belonging to Bonds.
The Court similarly rejected the government's theory that Anderson's statements were made during the scope of an agency or employment relationship with Bonds. The Court first concluded that the record, which evidenced a lack of control exercised by Bonds over Anderson, supported the District Court's determination that Anderson was an independent contractor, not an employee. The Court then noted that unlike an employer-employee relationship, a relationship with an independent contractor is insufficient in itself to establish an agency relationship for the purposes of FRE 801(d)(2)(D), although an agency relationship could nonetheless exist if both the principal and agent manifested assent to the principal's right to control the agent. Upon consideration of Anderson's relationship with Bonds, the Court concluded that Anderson did not generally act subject to Bonds' control, nor did he or Bonds manifest assent that Bonds had the right to control Anderson's actions. The Court concluded that because its standard of review was deferential and they were not left with "a definite and firm conviction" that the District Court had made a "clear error in judgment" in ruling that FRE 801(d)(2)(D) did not apply, there was no abuse of discretion in denying admission of the evidence.
Finally, the Court concluded that the District Court had properly denied admission of the BALCO log sheets. Although the log sheets were business records which reflected that BALCO recorded test results in the name of Barry Bonds, the Court found that the records created an additional level of hearsay in that the data was not authenticated as relating to Bonds.
Circuit Judge Bea wrote a lengthy dissent, finding that the District Court had erred in finding that Anderson's statements did not fall within the hearsay exceptions contained in FRE 801(d)(2)(c) (authorized admissions) and/or FRE 801(d)(2)(D) (statements of an agent related to the subject of his agency).
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