And then there were five…

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Yesterday, the U.S. Attorney for the Northern District of California filed a third superseding indictment inUnited States v. Barry Lamar Bonds, reducing the number of felony charges to five (click the image to download a pdf copy). These are essentially the same charges comprised in Bonds’ original indictment, back in November 2007, however, about six months later, prosecutors bumped it up to 15 counts. The allegations in those additional 10 charges were purportedly based on evidence the FBI obtained from documents and records seized at the home of Bonds’s personal trainer, and longtime childhood friend, Greg Anderson. That evidence—regardless of whether it’s overwhelmingly persuasive of Bonds’s guilt—is inadmissible unless someone with personal knowledge gives court testimony to authenticate it.

Several professional athletes, including former American League MVP Jason Giambi, have testified—and will testify at trial—that Anderson supplied them with steroids. Nevertheless, Anderson’s attorney, Mark Geragos told the court that his client will not testify, even if that means going back to prison. Anderson has already spent more than a year in federal lockup after the court held him in contempt for refusing to testify against

Bonds (2 weeks in July 2006; Aug. 28–Oct. 5, 2006; and Nov. 20, 2006–Nov.15, 2007). And this was in addition to the time Anderson served after he pleaded guilty to distributing steroids in 2005. U.S. District Judge Susan Illston ordered Anderson to appear March 1st, and if he still refuses to testify at the March 21st trial, the judge says she’ll send him back to prison for the duration of the trial, which is expected to last a month. But given the amount of time that Anderson’s already spent in prison on Bonds’s behalf, the threat of going back to prison for a month isn’t likely to change his mind.

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As an aside, who is supposed to be paying Geragos’s bill? Anderson’s career went south shortly after the BALCO scandal was tied to Major League Baseball, in 2003. But isn’t paying Geragos’s bill the least Bonds can do for his friend under these circumstances?

So what impact will the new indictment have on Bonds’s case? Probably very little. Bonds in still charged with four counts of making False Declarations Before a Grand Jury (a/k/a perjury), and one count Obstruction of Justice. The latter charge carries a maximum prison term of 10 years, though, based on the Federal Sentencing Guidelines it would be unprecedented for Bonds to get a sentence even close to that. Legal experts, including sentencing guidelines guru Doug Berman, are speculating that if convicted Bonds would more likely face 24–30 months in prison. ESPN’s Roger Cossack estimated 6 months. With all due respect to Mr. Cossack, I disagree.

Jason Giambi

The Federal Sentencing Guidelines are ridiculously complex (there are people who make a living studying and teaching their subject matter). The guidelines work by setting a base level sentence for each specific offense, and then provide circumstances for deviating, up or down, from that base level. The range is also adjusted based on the convict’s prior criminal history (not a factor here, because Bonds has none). In a nutshell, the base level sentence for Obstruction of Justice is 15–21 months. To complicate matters, however, if the jury finds that the obstruction “resulted in substantial interference with the administration of justice,” the base sentence jumps to 24–30 months, as this California newspaper estimated. Unless the U.S. Attorney’s Office files a motion to have the sentence reduced, I don’t see anything in the guidelines that would do so. In sum, I’m not sure how Mr. Cossack arrived at six months.

Barry Bonds

Not to sound like a weatherman, but the statutory range of Bonds’s sentence is more likely 15–30 months. This assumes, however, that all of his sentences run concurrent, rather than consecutive, which is probable. The longest prison sentence related to the BALCO scandal was six months, to Marion Jones. Anderson served three months, and Victor Conte served four. But all three were sentenced pursuant to plea deals with the U.S. Attorney. Bonds is putting the government through a lengthy and costly trial, and he’s not exactly a sympathetic figure. If I had to bet, I’d guess that Bonds’s sentence would be the minimum, but within the guidelines. In any case, longer than six months. The key factor will be whether the jury finds that Bonds substantially interfered with the administration of justice, which, at the low end of the guidelines, would nearly double his sentence.

Having said that, a conviction is by no means a certainty. To convict, the government must prove that Bonds intentionally lied about material facts. This is fairly tough to do, which is why perjury trials aren’t very common. Convictions do happen, though. For example, in 2009, a jury convicted Olympic track coach Trevor Graham of lying to federal agents about steroid distribution, the judge sentenced him to house arrest. And in 2007, a jury convicted Scooter Libby of charges substantially similar to Bonds’s.