Case3:07-cr-00732-SI Document361 Filed04/08/11 Page1 of 4

1 ALLEN RUBY (SBN 47109)

SKADDEN, ARPS,
2 MEAGHER & FLOM, LLP
525 University Avenue, Ste. 1100
3 Palo Alto, CA 94301
Telephone: (650) 470-4500
4 Facsimile: (650) 470-4570
5 CRISTINA C. ARGUEDAS (SBN 87787)
TED W. CASSMAN (SBN 98932)
6 ARGUEDAS, CASSMAN & HEADLEY, LLP
803 Hearst Avenue
7 Berkeley, CA 94710
Telephone: (510) 845-3000
8 Facsimile: (510) 845-3003
9 DENNIS P. RIORDAN (SBN 69320)
DONALD M. HORGAN (SBN 121547)
10 RIORDAN & HORGAN
523 Octavia Street
11 San Francisco, CA 94102
Telephone: (415) 431-3472
12 Facsimile: (415) 552-2703
13 Attorneys for Defendant
BARRY LAMAR BONDS
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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18 UNITED STATES OF AMERICA, ) Case No. CR 07 0732 SI
)
19 ) DEFENDANT’S REQUEST FOR
Plaintiff, ) INSTRUCTION TO CURE
20 ) PROSECUTORIAL MISCONDUCT
vs. )
21 )
BARRY LAMAR BONDS, )
22 )
Defendant. )
23 )

24 Defendant Barry Lamar Bonds (hereinafter “Bonds”) respectfully requests this Court to
25 recall the jury for the purpose of instructing them to ignore a portion of AUSA Parella’s rebuttal
26 argument that egregiously misstated the evidence. As he neared the end of his rebuttal
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Dft.’s Request for Instruction re Prosecutorial Misconduct
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1 yesterday, at its most dramatic moment, Mr. Parella argued that Bonds “knew the difference
2 between that [the clear] and flaxseed oil.” RT 2093.
3 How do we know that? Stan Conte testified that another one of the
defendant’s trainers named Harvey Shields used flax seed oil all
4 the time with the defendant, rubbed it on his legs and ankles. So
does it make sense that the same stuff that Harvey Shields was
5 rubbing on your legs, Greg Anderson would be coming up with a
little vial and you would be drinking it?
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Id.
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The argument, though extremely powerful, was utterly misleading and completely
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improper. Stan Conte never testified that Harvey Shields rubbed flax seed oil on the defendant’s
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legs and ankles. Quite to the contrary, Stan Conte expressly testified, “I don’t know anything
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about flax seed oil.” RT 1112. He testified that he saw Harvey Shields rub “cream” on Bonds in
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the clubhouse “any place Barry told him to rub it, knees, ankles, or whatever was bothering at
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the time” (RT 1113), which is absolutely consistent with Bonds’ testimony that he would be
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rubbed with cream for his arthritic pain in the clubhouse .
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Furthermore, Mr. Parella had to have known that his assertions were false because AUSA
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Nedrow had accurately noted in the government’s initial argument, just hours earlier, that “Stan
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Conte also said he never saw the defendant using flax seed oil in the clubhouse.” RT 2093.
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In United States v. Azubike, 504 F.3d 30 (1st Cir. 2007), the court reversed the
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defendant’s drug convictions based on prosecutorial misstatement of evidence in closing
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argument. During final argument, the prosecutor misquoted the defendant as having referred to
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the leader of the charged conspiracy during a telephone conversation with a confidential
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informant. The court first characterized such misstatement as misconduct, regardless of whether
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or not it had been deliberate. Id. at 38, citing, inter alia, Berger v. United States, 295 U.S. 78,
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84-85 (1935); and 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice &
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Procedure § 555 (3d ed. 2007) (“It is misconduct for a prosecutor to make an assertion to the
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jury of a fact, either by way of argument or by an assumption in a question, unless there is
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1 evidence of that fact.”).1 The court then found the misstatement sufficiently prejudicial to
2 reverse, relying in part on the fact that it “was made during rebuttal to the closing argument – the
3 last argument before the jury instruction. We have recognized that prejudicial statements made
4 during closing argument militate in favor of reversal because they are the last words spoken to
5 the jury by the trial attorneys.” Id. at 39 (citation and internal quotation marks omitted). Of
6 course, in the instant case, the prosecutor’s misstatement was not only part of the government’s
7 rebuttal argument, it was also almost literally the last words spoken to the jury, coming as it did
8 at the very end of that argument. And, although the deliberate nature of the misconduct is not
9 dispositive of Bonds’ request for a curative instruction, the fact that the misstatement was
10 deliberate – as demonstrated by the other prosecutor’s accurate portrayal of the testimony a mere
11 few hours earlier – should certainly counsel in favor of granting the request.
12 “The effect of improper prosecutorial comments may be cured if the district court [gives]
13 appropriate curative instructions to the jury.” United States v. de Cruz, 82 F.3d 856, 862 (9th
14 Cir. 1996) (citation omitted); see also United States v. Ramirez, 176 F.3d 1179, 1183 (9th Cir.
15 1999) (prosecutor’s misstatement not harmful where judge gave strong and specific curative
16 instruction). Thus, Bonds specifically requests that this Court give the following curative
17 instruction:
18 Ladies and Gentlemen of the jury, at the close of his rebuttal
argument yesterday, Mr. Parella made the following statements:
19
Mr. Bonds knew the difference between the clear
20 and flaxseed oil. How do we know that? Stan
Conte testified that another one of the defendant’s
21 trainers named Harvey Shields used flax seed oil all
the time with the defendant, rubbed it on his legs
22 and ankles. So does it make sense that the same
stuff that Harvey Shields was rubbing on your legs,
23 Greg Anderson would be coming up with a little
24
1
25 See also United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990) ( “When
prosecutorial conduct is called in question, the issue is whether, considered in the context of the
26 entire trial, that conduct appears likely to have affected the jury’s discharge of its duty to judge
the evidence fairly.”).
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1 vial and you would be drinking it?

2 I hereby instruct you that Mr. Parella misstated the evidence in that
regard. Mr. Conte, in point of fact, testified that he did not know
3 anything about flax seed oil. Indeed, Mr. Nedrow correctly stated
that fact in his initial closing argument yesterday. Thus, I instruct
4 you to completely disregard that portion of Mr. Parella’s argument
that I have just quoted to you.
5
Dated: April 8, 2011 Respectfully submitted,
6
RIORDAN & HORGAN
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8 /s/ Dennis P. Riordan
By: Dennis P. Riordan
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Counsel for Defendant
10 BARRY LAMAR BONDS
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