bonds is one of the most of complex celebrated and controversial athletes ever to play professional sports in the united states but that is not the reason it is case is so important it's a great significance has nothing to do with baseball and really has nothing to do any longer with mr bonds what it has to do with is that this is the first time that the united states government has asked for the power to convict the citizen for obstruction of  based on a statement with a grand jury not responsive to the subject of the damages question that his conduct with which mr bonds was never chart and which does not constitute the crime of structure more specifically the government asserts that it made indict convict and imprison any witness whose testimony before either a pedant or grand jury wanders off for as little as fifteen or twenty seconds and the government further claims that here yes but it is not a case about perjury it is a case about whether unresponsible or even invasive even consciously a vase of state is can be a  is asking a court to stretch a statute that case the perjury is that you in order to criminalize a base of our own response remarks and of course as with obstruction there's nothing in the t congress but we perceive no reason why congress would intend to dress that sanction of a perjury prosecution secure a testimonial mishap that could readily have been reached with a single additional question by counsel alert as yeah your honor we're going to be working with both as you said you are but let's look at bronson on the first one let's frame the question here as a matter of lot as a matter of war can any jury convict  congress constituted obstruction because the witness intended to mislead the grand jury the united states supreme court has said no you may not convict on that basis and the reason why and so of clickable here is they said that that then you are having with number one they said witnesses are all the time we all know that the judges lawyers all the time around responses in testimony  but but your honor the conclusion of bronson is it may well be that petitioners answers were not guileless but were rudely calculated to a vague nevertheless we are constrained to agree that case that's really turns from a different stance with different language well it's not but there is nothing in branston when he discusses the basis of questions forget about truth because there is everybody agrees the statement there was true but what the supreme court said is look the person the purpose of the perjury statute since the existence of common law was to not provide a penalty you are having interpret it in a way that would discourage witnesses from testifying and we are not going to have witnesses various witnesses fear prosecution because of the bumbling of an examiner and therefore we are not going to allow if you're prosecution for few hard benchmarks so given that you've got a statute like perjury that's really requires for some hard benchmarks testimony false with all that it doesn't map very well to a statute that is three which relies entirely on a false least an assertion of a false statement or even an accurate statement in response to a grand jury inquiry well i think that we have t convicted of four sixteen twenty three violations perjury violations those were incorporated in the obstruction statute common to make sense of fifteen zero three and to bring in perjury within it this court in the thomas case recognized that you then have to import the concept of materiality which to reality it was recognized is not in the statute why didn't we put it in there because you people's business those fifty two words but function and this gets us back to people only being able to be convicted on a theory that was tried to the jury the government had one theory and one theory alone want to discuss that statement see as to why it was right and therefore why it was material  said he he drifted off into statement c because he refused to answer the question there only theory of materiality was that he refused to answer the question we know he answered the question four times so there's no way that you can convict mr bines on the only theory offered to the jury which is he refused to answer the question or wandered off because because he couldn't answer these self injection question white water couldn't jury see that first answer as i'm not tempt and this is where i think it was just a wince question about machine comes into play because so she goes right to the question of whether something this is corrupt well again we're talking about attempting to wrest  be something that has a natural and probable tendency to obstruct a grand jury how can that happen when someone at the when the prosecutor says i'm satisfied that you're for the answer and i'm satisfied well i think it's possible to speak short in the context because there are limitations within that structure is actually that require a jury to look at the context you have to find that there was specifically corrupt intent and so you can't really determine that without looking beyond the statement and looking yes not if there is intent to obstruct at the time that it is given but if there isn't that intent it can be cured in the sense that if you go right give the actual correct answer afterwards it goes how it was true this is that's one of my two theories the first theory is that under yeager and powell you have to consider that evidence the second one is that it's a faces towards the larger inquiry in this case it's a linchpin statement your honor is what he's trying to say there is to give a cover for why he doesn't provide any responses or he might he doesn't have any information about the inquiry about anderson balco and the performance enhancing drugs that they're alleged to have distributed to say that he didn't have anything seems on one that's right that the theory is that it's a vase that but if you're looking at the context in which it was made you can properly look to see whether the things that surround statements see were truthful or false testimony in this case your honor i think that that made i think that that hopefully isn't really the case that there's so much of an intent to  actually find out that this would be the subject of the particular snippet of of transcript he knew this years your honor before he actually third superseding indictment was presented because it was p nine there had been proposed jury instructions which had listed specific restatements c then it was listed as a statement and as a basis for the prosecution and we never deviated from that the only thing that changed was the number it's our position that it wasn't required to be because he was on notice and what we argued was or what our position is that it's argue sorry it was charged with the whole all the material testimony from that day and that simply at trial there was intent it's not a perjury that's just a knowing mens rea yet you have to have corrupt intent which rush she'd said means a specific purpose to obstruct the grand jury's investigation in the case of a grand jury proceeding and so somebody who goes into the grand jury meeting to tell the truth and telling the truth or maybe sometimes you know rambling that doesn't fall within the scope of the statute and context shows all that hear statements see is part of twenty five instances where the defendant it was a perjury case we understand but doesn't the same principle applies when the court there says the burden is on the questioner pin down the witness to the specific object inquiry that any special problems arising from it literally true but unresponsive answer ought to be remedied through the questioners acuity in other words the prosecutor's ability to not tolerate an unresponsive answer under a number of cases there is no requirement of unanimity on a means and our view is that what was charged here was a course of conduct material testimony there are numerous instances of what we consider to be material testimony the jury did not have to require right of course i would say that an ordinary person who is in the united states and told what the subject matter of the investigation is should tell the truth to answer the questions and not base mark to flesh out the whole truth no abstraction or it means that it goes to the entire analysis of whether the defendant could have understood or mis understood the question and so back goes to the intention it goes to the materiality i think it goes to the more well because bronston specifically requires falsity and that was a very specific case where the statement that he gave on its face was literally true and it was only false potentially by implication by the question so the only have an influence aboard the conference i think that would be obstructed your honor i mean if it meets the four limitations but again the four limitations are difficult to scale to show what is inside somebodies mind is probably the most difficult thing that a prosecutor can with because there's usually no evidence of it so you really have to go to the context in this case you have to stand conti for example where the defendant went to stand conti two months before he went to the grand jury admitted that he knew about steroids eleven count five are identical so it's from this that the second superseding indictment and the third superseding indictment that structural cow didn't change at all the only thing that changed was we took out some of the perjury counts partly based upon the suppression of is we could just say you're charged with obstruction based on the week long testimony that you gave in the proceeding there might be a thousand statements in there in this case mr bond said at one point that that balco gave his father  the protein shakes when he was dying and he related he said that his proudest achievement was not his home run record but making the major leagues and he said he liked as a homey didn't want to be around people after games that he wants to stay with his family each of those statements requires a different that there was talk today and the supreme court and russell said and this is the heart of the notice argument cryptic form of the indictment in cases of this kind with wires the defendant to go to trial the chief issue undefined it enables his conviction to rest at one point and the a problem for the conviction to rest on another it gives the prosecution free hands on appeal to fill in the gaps to buy so my conjecture that is what the government is doing here it had one theory down below they  children this is not a perjury case and they're up here arguing that it's perjury case and one reason they do that is you could say well what sorry if you're limited to what you said about this in the act and they said oh we're not limited because we didn't say anything about this we didn't say anything about say that a witness who talked for twenty seconds that in a relevant topic before directly answering the question the government would have a moral and ethical obligation in every court every witness before a grand jury to say you're troubled you perjure yourself done some good things in this life you can go to jail and so don't feel off the topic for fifteen or twenty seconds every witness with any sense we go out of the movie after every question with a lawyer they would write down a response they would come back and they