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United States v. Bonds - 608 F.3d 495 (9th Cir. 2010)

Rule:

Fed. R. Evid. 807, (previously Fed. R. Evid. 803(24)), provides: A statement specifically not covered by Fed. R. Evid. 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be served admission of the statement into evidence.

Facts:

In 2001, Barry Bonds, a baseball player, hit 73 home runs for the San Francisco Giants. Also in 2001, as well as in prior and succeeding years, BALCO Laboratories, Inc. in San Francisco recorded, under the name "Barry Bonds," positive results of urine and blood tests for performance enhancing drugs. In 2003, Bonds swore under oath that he had not taken performance-enhancing drugs, so the government was now prosecuting him for perjury. The government tried to prove the source of the samples with the indisputably admissible testimony of a trainer, Greg Anderson, that Barry Bonds identified the samples as his own before giving them to Anderson, who took them to BALCO for testing. However, Anderson refused to testify. The government then offered the testimony of BALCO employee, James Valente, to whom Anderson gave the samples. Valente testified that Anderson brought the samples to the lab and said they came from Barry Bonds. The district court ruled the testimony as hearsay that could not be admitted to establish the truth of what James Valente was told. Government appealed the evidentiary rulings.

Issue:

Was James Valente’s testimony hearsay, thereby, inadmissible as evidence in the current perjury action against Barry Bonds?

Answer:

Yes.

Conclusion:

The appellate court found that the district court properly focused on the record of untrustworthiness of the out of court declarant, Anderson, as required under Fed. R. Evid. 807. The statements were not admissible under Fed. R. Evid. 801(d)(2)(C) or (D) because there was nothing in the record that required a finding that Bonds actually controlled Anderson with respect to the testing or that Bonds and Anderson had agreed that Anderson would be obligated to follow Anderson’s instructions if Bond chose to provide them.

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