## Facts

- A federal grand jury investigated distribution of anabolic steroids and other performance-enhancing drugs connected to BALCO and Barry Bonds’s trainer, Greg Anderson.
- Barry Bonds testified before the grand jury in 2003 about whether Anderson supplied him steroids or other substances.
- A second superseding indictment charged Bonds with multiple counts of perjury (18 U.S.C. § 1623) and obstruction of justice (18 U.S.C. § 1503) based on that testimony.
- Bonds moved to dismiss several counts, arguing that some perjury counts rested on questions that were too vague to support prosecution and that some counts were structurally defective (e.g., duplicity/multiplicity and unanimity concerns).
- For Count Two, the government relied on an exchange in which Bonds was asked whether, in the “weeks and months leading up to November 2000,” he was taking “steroids or anything like that,” after being shown a document suggesting positive steroid test results.
- For Count Fourteen, the government relied on questioning about whether Bonds received “flaxseed oil stuff” or similar substances in or around January 2002; Bonds answered in terms of imperfect recollection and uncertainty (e.g., that he did not recall and “could be wrong”), and referenced a broader “2002 time and 2003 season.”

## Issues

1. Whether the grand-jury questions underlying certain perjury counts were “fundamentally ambiguous” such that they could not, as a matter of law, support perjury charges under 18 U.S.C. § 1623.
2. Whether portions of the indictment were duplicitous or multiplicitous in a way that risked jury nonunanimity or otherwise made counts defective.
3. Whether the indictment sufficiently alleged falsity and materiality where the challenged answers were tentative, qualified, or framed as lack of memory.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court dismissed Count Two because the question “steroids or anything like that,” coupled with an imprecise timeframe and lack of clarifying follow-up, was too ambiguous to serve as a perjury predicate.
- The court dismissed Count Fourteen because the questioned testimony was too indefinite—focused on uncertain recollection and a confused time frame—to treat as a concrete false declaration supporting perjury.
- The court allowed other counts to proceed where the questions were sufficiently clear and the answers sufficiently definite, leaving ordinary disputes about meaning and intent for the jury.
- The court addressed duplicity and multiplicity challenges on a count-by-count basis, narrowing problematic counts while permitting prosecution on counts centered on a coherent alleged false proposition.

## Legal Principles

- A perjury charge under 18 U.S.C. § 1623 requires questioning sufficiently clear that a factfinder can determine falsity rather than reasonable misunderstanding or mistake.
- “Fundamental ambiguity” is a narrow doctrine: if a question is so vague or contextually unclear that a truthful answer cannot be determined, dismissal is required as a matter of law.
- Ordinary or arguable ambiguity typically presents a factual question for the jury, tested through context and cross-examination rather than resolved by pretrial dismissal.
- Qualified, tentative answers grounded in lack of recollection—especially about dates—may be insufficient predicates for perjury when they do not amount to a definite factual assertion.
- Indictments charging perjury must be structured to permit a unanimous verdict as to the specific false statement; courts may dismiss or narrow counts that combine distinct alleged falsehoods in a single count or otherwise impair unanimity.

## Conclusion

The court narrowed the prosecution by dismissing perjury counts that depended on fundamentally ambiguous questioning or indefinite, memory-qualified answers, while permitting trial to proceed on counts grounded in clearer questions and more definite responses, with meaning and intent largely left for the jury.


United States v. Bonds, 580 F. Supp. 2d 925 (N.D. Cal. 2008)