United States v. Bonds

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10079

Plaintiff-Appellant,

v.  D.C. No.

3:07-cr-00732-SI-1

BARRY LAMAR BONDS,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

September 17, 2009—San Francisco, California

Filed June 11, 2010

Before: Mary M. Schroeder, Stephen Reinhardt and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Schroeder;

Dissent by Judge Bea

8553

UNITED STATES v. BONDS 8557

COUNSEL

Barbara Valliere, San Francisco, California, for the plaintiff-

appellant.

Dennis Riordan, San Francisco, California, for the defendant-

appellee.

8558 UNITED STATES v. BONDS

OPINION

SCHROEDER, Circuit Judge:

In 2001, Barry Bonds hit 73 home runs for the San Fran-

cisco 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 he had not taken performance enhancing

drugs, so the government is now prosecuting him for perjury.

But to succeed it must prove the tested samples BALCO

recorded actually came from Barry Bonds. Hence, this appeal.

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. Anderson refused to testify, however, and has

been jailed for contempt of court.

The government then went to Plan B, which was to offer

the testimony of the BALCO employee, James Valente, to

whom Anderson gave the samples. Valente would testify

Anderson brought the samples to the lab and said they came

from Barry Bonds. But the district court ruled this was hear-

say that could not be admitted to establish the truth of what

James Valente was told. See Fed. R. Evid. 802. Accordingly

we have this interlocutory appeal by the United States seeking

to establish that the Anderson statements fall within some

exception to the hearsay rule.

The district court also ruled that because Anderson’s state-

ments were inadmissible, log sheets on which BALCO

recorded the results of the testing under Bonds’ name, were

also inadmissible to prove the samples were Bonds’. The gov-

ernment challenges that ruling as well.

UNITED STATES v. BONDS 8559

We have jurisdiction pursuant to 18 U.S.C. § 3731 which

authorizes government interlocutory appeals of adverse evi-

dentiary rulings. We review for abuse of discretion and

affirm.

I. Background

BALCO Laboratories, Inc. was a California corporation

that engaged in blood and urine analysis, and was located in

San Francisco. In 2003, the IRS began to investigate BALCO,

suspecting the company of first, distributing illegal perfor-

mance enhancing drugs to athletes, and then, laundering the

proceeds. In September 2003, the government raided BALCO

and discovered evidence which it contends linked both trainer

Greg Anderson (“Anderson”) and BALCO to numerous pro-

fessional athletes. One of these athletes was professional

baseball player and Defendant Barry Bonds (“Bonds”). The

government also found blood and urine test records which, it

asserts, established that Bonds tested positive for steroids.

On multiple occasions Anderson took blood and urine sam-

ples to BALCO Director of Operations James Valente

(“Valente”) and identified them as having come from Bonds.

According to Valente, when he received a urine sample from

Bonds, he would assign the sample a code number in a log

book, and then send the sample to Quest Diagnostics

(“Quest”) for analysis. Quest would send the result back to

BALCO. BALCO would then record the result next to the

code number in the log book. Also, according to Valente,

BALCO would send Bonds’ blood samples to LabOne & Spe-

cialty Lab (“LabOne”) for analysis. The government seized

the log sheets from BALCO, along with the lab test results.

Before the grand jury in the probe of BALCO, the ques-

tioning by the government focused extensively on the nature

of Bonds’ relationship with Anderson. Bonds testified that he

had known Anderson since grade school, although the two

had lost touch between high school and 1998. In 1998, Ander-

8560 UNITED STATES v. BONDS

son started working out with Bonds and aiding him with his

weight training. Anderson also provided Bonds with sub-

stances including “vitamins and protein shakes,” “flax seed

oil,” and a “cream.” According to the government, some or all

of these items contained steroids. Anderson provided all of

these items at no cost to Bonds. Bonds testified he took what-

ever supplements and creams Anderson gave him without

question because he trusted Anderson as his friend. (“I would

trust that he wouldn’t do anything to hurt me.”). Bonds stated

that he did not believe anything Anderson provided him con-

tained steroids. He specifically denied Anderson ever told him

the cream was actually a steroid cream.

With respect to blood sample testing, Bonds testified before

the grand jury that Anderson asked Bonds to provide blood

samples on five or six occasions, telling Bonds he would take

the blood to BALCO to determine any nutritional deficiencies

in his body. Bonds said that he would only allow his own

“personal doctor” to take the blood for the samples.

Bonds also testified he provided around four urine samples

to Anderson and he believed the urine samples were also

going to be used to analyze his nutrition. Anderson also deliv-

ered these samples to Valente at BALCO for analysis. (“Greg

went [to BALCO] and dealt with it.”). Bonds did not question

Anderson about this process because they “were friends.”

The government showed Bonds numerous results of blood

and urine tests but Bonds denied ever having seen them

before. Rather Bonds contended that Anderson verbally and

informally relayed the results of any tests to him. Bonds

stated that Anderson told him that he tested negative for ste-

roids. (“Greg just said: “You’re — you’re negative.”). Bonds

trusted what Anderson told him. (“He told me everything’s

okay. I didn’t think anything about it.”).

With respect to the relationship between Bonds and Ander-

son, Bonds admitted to paying Anderson $15,000 a year for

UNITED STATES v. BONDS 8561

training. Bonds stated that this payment was not formally

agreed to. Rather, Bonds contended that he “felt guilty” and

“at least [wanted to give Anderson] something.” (“Greg has

never asked me for a penny.”). Bonds had several trainers and

considered some of the trainers employees, but considered

Anderson a friend whom he paid for his help. (“Greg is my

friend. . . . Friend, but I’m paying you.”). Bonds made his

payments to Anderson in lump sums. In 2001, the year he set

the Major League Baseball single season home run record,

Bonds also provided Anderson, along with other friends and

associates, a “gift” of $20,000. Bonds spent considerable time

with Anderson in San Francisco but Bonds noted that Ander-

son only visited during weekends during spring training.

On February 12, 2004, a grand jury indicted Anderson and

other BALCO figures for their illegal steroid distribution.

Anderson pled guilty to these charges and admitted to distrib-

uting performance enhancing drugs to professional athletes.

The government also commenced an investigation into

whether Bonds committed perjury by denying steroid use dur-

ing his grand jury testimony. Anderson, since that time, has

continuously refused to testify against Bonds or in any way

aid the government in this investigation and has spent time

imprisoned for contempt.

II. Procedural History of this Appeal

On December 4, 2008, the government indicted Bonds on

ten counts of making false statements during his grand jury

testimony and one count of obstruction of justice. They

included charges that Bonds lied when he 1) denied taking

steroids and other performance enhancing drugs, 2) denied

receiving steroids from Anderson, 3) misstated the time frame

of when he received supplements from Anderson.

The next month, in January 2009, Bonds filed a motion in

limine to exclude numerous pieces of evidence the govern-

ment contends link Bonds to steroids. As relevant to this

8562 UNITED STATES v. BONDS

appeal Bonds moved to exclude two principal categories of

evidence: the laboratory blood and urine test results, and the

BALCO log sheets of test results.

When the government sought to introduce as business

records the lab test results from Quest (urine) and LabOne

(blood) seized from BALCO, Anderson’s refusal to testify

created an obstacle. The essence of the government’s identifi-

cation proof was Anderson’s identification of the samples to

Valente as Bonds’. The government wanted to introduce

Valente’s testimony that Anderson told him for each sample

that “This blood/urine comes from Barry Bonds,” in order to

provide the link to Bonds. Because the government was

attempting to use Anderson’s out of court statements to prove

the truth of what they contained, Bonds argued that Ander-

son’s statements were inadmissible hearsay and that the lab

results could not be authenticated as Bonds’ in that manner.

See Fed. R. Evid. (“FRE”) 802 (“Hearsay is not admissible

except as provided by these rules or by other rules prescribed

by the Supreme Court pursuant to statutory authority or by

Act of Congress.”).

The government sought to fit the statements within a hear-

say exception. In its response to the defense motion in limine

the government countered that Anderson’s statements were

admissible as statements against Anderson’s penal interest

(FRE 804(b)(3)), as statements of a co-conspirator (FRE

801(d)(2)(E)), and, alternatively, as admissible under the

residual exception (FRE 807). At oral argument and in sup-

plemental briefing before the district court, the government

advanced two additional rationales as to how the court could

admit the blood and urine samples: as statements authorized

by a party (Anderson’s statements authorized by Bonds)

under FRE 801(d)(2)(C), or as statements of an agent (Ander-

son as Bonds’ agent) under FRE 801(d)(2)(D). The court held

that the government, as the proponent of hearsay, had failed

to prove by a preponderance of the evidence that any of the

exceptions or exemptions applied. See Bourjaily v. U.S., 483

UNITED STATES v. BONDS 8563

U.S. 171, 175 (1987) (holding that proponent of hearsay must

prove exception or exemption by preponderance of the evi-

dence).

The government also sought to introduce the log sheets

from BALCO containing the Quest lab test results showing

Bonds’ urine testing positive for steroids, arguing that the log

sheets were admissible as non-hearsay business records, or as

statements of a conspirator, as statements against penal inter-

est, or admissible under the residual exception to hearsay. The

district court ruled the log sheets were also inadmissible to

establish the samples tested were Bonds’. This appeal fol-

lowed. On appeal, the government argues only that FRE 807,

the residual exception, or FRE 801’s exceptions for autho-

rized statements (d)(2)(C) or for statements by an agent

(d)(2)(D) apply.

III. Discussion

A. Admissibility of Anderson’s Statements Under the

Residual Exception to the Hearsay Rule

The district court held that FRE 807, the residual exception,

did not apply. The court observed that it was designed for

“exceptional circumstances.” See Fong v. American Airlines,

626 F.2d 759, 763 (9th Cir. 1980). FRE 807, previously FRE

803(24), provides:

A statement specifically not covered by Rule 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 gen-

eral purposes of these rules and the interests of jus-

8564 UNITED STATES v. BONDS

tice will be served admission of the statement into

evidence.

The court did not find Anderson’s refusal to testify an

exceptional circumstance because the effect was to make him

an unavailable declarant, and FRE 804 already defines an

“unavailable” declarant and lists exceptions to inadmissability

that the government does not contend are applicable in this

case.

[1] FRE 807 involves discretion. It exists to provide judges

a “fair degree of latitude” and “flexibility” to admit state-

ments that would otherwise be hearsay. See U.S. v. Valdez-

Soto, 31 F.3d 1467, 1471 (9th Cir. 1994).

[2] Our sister circuits have also given district courts wide

discretion in the application of FRE 807, whether it be to

admit or exclude evidence. See, e.g., U.S. v. Hughes, 535 F.3d

880, 882-83 (8th Cir. 2008) (upholding district court decision

not to admit evidence under FRE 807); FTC v. Figgie Intern.

Inc., 994 F.2d 595, 608-09 (9th Cir. 1993) (upholding admis-

sion under residual exception even where trial court failed

adequately to explain reasoning). Our research has disclosed

only one instance where a circuit court reversed a district

court to require admission of a statement under FRE 807. See

U.S. v. Sanchez-Lima, 161 F.3d 545, 547-48 (9th Cir. 1998).

However, the hearsay statements in that case were videotaped

and under oath, and thus had indicators of trustworthiness that

Anderson’s statements do not. See id. More important, the cir-

cumstances were “exceptional” because the government had

deported the witnesses, so the statements remained the only

way the defendants could present their defense. Therefore, the

government is asking this Court to take an unprecedented step

in using 807 to admit the statements of a declarant who has

chosen not to testify and whose statements lack significant

indicators of trustworthiness.

The government argues that the district court adopted an

improperly narrow view of FRE 807 by not taking into

UNITED STATES v. BONDS 8565

account that Anderson’s statements “almost” fell within sev-

eral other hearsay exceptions. It also asserts the court did not

give enough weight to Anderson’s unavailability.

[3] The government contends that Anderson’s statements

“almost” met several other hearsay exceptions, and for that

reason the district court erred in not admitting them under

FRE 807. Specifically the government points out that Ander-

son’s statements came close to qualifying as statements

against his penal interest and statements of a coconspirator.

The government relies on Valdez-Soto. In upholding the

admission of out of court statements under the 807 exception

in Valdez-Soto, we said that where a statement “almost fit[s]”

into other hearsay exceptions, the circumstance cuts in favor

of admissibility under the residual exception. See 31 F.3d at

1471. We did not, however, hold the factor was determina-

tive, only that it supported the district court’s application of

FRE 807 in that case to admit the evidence. In this case, even

though this was a “near miss” it was nevertheless a “miss”

that may have permitted, but did not alone compel the trial

court to admit Anderson’s statements under FRE 807.

The government next suggests that Anderson’s unavaila-

bility is “exactly the type of scenario” FRE 807 was intended

to remedy, but cites no authority supporting the proposition.

It argues the district court misunderstood the rule and applied

it too narrowly. The district court, however, correctly noted

that courts use FRE 807 only in exceptional circumstances

and found this situation unexceptional because it involves

statements of an unavailable witness like those FRE 804

excludes, with limited exceptions here not applicable.

[4] In addition, FRE 807 requires that the admissible state-

ments have trustworthiness. The district court concluded

Anderson’s statements were untrustworthy, in major part

because Valente admitted that he once mislabeled a sample

when Anderson asked him to do so. To the extent the govern-

ment contends that the district court improperly focused on

8566 UNITED STATES v. BONDS

Valente’s trustworthiness instead of on the trustworthiness of

Anderson’s statements, the government misinterprets the dis-

trict court’s opinion. The district court finding properly

focused on the record of untrustworthiness of the out of court

declarant, Anderson, as required under the rule. There was

support for its conclusion that Anderson’s statements about

the source of samples were not trustworthy.

B. Admissibility of Anderson’s Statements Under

801(d)(2)(C) and (D).

[5] FRE 801(d)(2)(C) provides that a statement is a non-

hearsay party admission if it “is offered against a party and is

. . . a statement by a person authorized by the [defendant] to

make a statement concerning the subject.” FRE 801(d)(2)(D)

provides that a statement is not hearsay if it “is offered against

a party and is . . . a statement by the party’s agent or servant

concerning a matter within the scope of the agency or

employment, made during the existence of the relationship.”

Subsection (C) thus requires the declarant to have specific

authority from a party to make a statement concerning a par-

ticular subject. Subsection (D) authorizes admission of any

statement against a party, but only provided it is made within

the scope of an employment or agency relationship.

As a threshold matter, Bonds contends that the government

did not preserve its arguments under either subsection,

because the government failed to timely raise the issues in its

response to the defense motion in limine to exclude the state-

ments; the government raised them for the first time in oral

argument on the motion in the district court, and then filed a

supplemental brief. Bonds cites U.S. v. Chang, 207 F.3d 1169

(9th Cir. 2000), but Chang does not support Bonds’ position.

Chang states that if “a party fails to state the specific grounds

upon which evidence is admissible, the issue is not preserved

for review, and the court will review only for plain error.” 207

F.3d at 1176 (citation omitted). Chang would bar a party from

arguing for admissibility an appeal when it gave no justifica-

UNITED STATES v. BONDS 8567

tion under the rules to support admissibility in the district

court. Chang further suggests a party can not contend on

appeal that admissibility would have been proper under a dif-

ferent rule from that advocated in the district court. In this

case, however, the government argued the points and the dis-

trict court allowed the government and Bonds to file supple-

mental briefs to address the new contentions. They are not

raised for the first time on appeal. Although the government’s

brief contained little factual information explaining the extent

and nature of Bonds’ relationship with Anderson, and that

doubtless contributed to the district court’s adverse ruling on

the merits, the government preserved the right to appeal the

district court’s ruling that Subsections C and D did not apply.

We turn first to the government’s challenge to the district

court ruling that the statements should not be admitted under

Subsection (C) because Bonds did not specifically authorize

Anderson to make the statements. Both parties agree that if

the samples were Bonds’, he could have authorized Anderson

to make the statements. The question is whether the district

court was within its discretion in ruling the record failed to

establish sufficiently that he did.

[6] The government acknowledges it cannot establish that

Bonds explicitly authorized Anderson to identify the samples

as his. Bonds was never asked the question during his grand

jury testimony and Anderson, of course, is unavailable. The

government’s position is, in essence, that by authorizing

Anderson to act as one of his trainers, Bonds implicitly autho-

rized Anderson to speak to the lab on his behalf. The conclu-

sion does not follow from the premise.

[7] The district court correctly observed that certain rela-

tionships do imply an authority to speak on certain occasions.

See e.g., Hanson v. Waller, 888 F.2d 806, 814 (11th Cir.

1989) (stating that lawyers have implied authority to speak

outside of court on matters related to the litigation). Athletic

trainers, however, as the district court went on to observe, do

8568 UNITED STATES v. BONDS

not traditionally have such any such implicit authorization to

speak. The government suggests that by allowing Anderson to

have the samples tested, Bonds impliedly authorized Ander-

son to identify them to BALCO, citing United States v. Iaco-

netti, 540 F.2d 574, 576-77 (2d Cir. 1976). In Iaconetti, the

defendant demanded a bribe from the president of a company.

Id. The court held that by demanding the bribe, the defendant

had provided implicit authorization for the president to dis-

cuss the bribe with his business partner. Id. Here, Bonds pro-

vided the samples after Anderson asked for them and thus

Iaconetti does not apply. There is no evidence of discussions

about how Anderson was to deal with the samples. The dis-

trict court could have quite reasonably concluded that Bonds

was accommodating the wishes of a friend rather than provid-

ing Anderson with “the authority to speak” on his behalf.

We cannot agree with the dissent’s assertion that the nature

of the task of testing blood and urine samples implies that the

person who makes the necessary arrangements for the testing

and delivers the samples is authorized to identify the samples’

origin. Even assuming that Bonds allowed Anderson to have

his blood and urine tested in order to obtain medical informa-

tion rather than to accommodate Anderson’s wishes, it was

not necessary for Anderson to reveal Bonds’ identity to

accomplish that purpose. The samples could easily have been

identified by a number or a code word. Indeed, there are many

legitimate reasons to perform medical testing anonymously.

The dissent’s conclusion that Anderson was impliedly autho-

rized to identify Bonds depends on the assumption that identi-

fying Bonds by name was the only way to ensure accurate test

results. Because we disagree with that assumption, we do not

find the dissent’s reasoning persuasive.

The district court also expressly found that the government

had failed to carry its burden of showing that Bonds had pro-

vided Anderson the authority to identify the samples on each

particular occasion, because Bonds could not remember how

many samples he had provided. (“[Bonds’] equivocal answers

UNITED STATES v. BONDS 8569

about the number of samples he gave Anderson are not suffi-

ciently certain to establish that Anderson had authority to

speak with regard to the particular samples at issue here.”).

The district court thus concluded Bonds’ lack of memory

about the number of samples militated against his having con-

ferred on Anderson authority to speak for each disputed sam-

ple in the case. Contrary to the government’s theory, the court

was not suggesting Bonds should have had a perfect memory.

[8] The government also focuses on a district court remark

suggesting that to be admissible under Subsection C, the state-

ments had to have been against Anderson’s penal interest. The

government is correct that had they been against Anderson’s

penal interest they may have been admissible under a differ-

ent subsection of 801, but such a requirement does not appear

in Subsection C. The district court may have misstated Sub-

section C’s provision i.e., that the statement be “offered

against a party,” which these statements were, and incorrectly

suggested the statements had to qualify as admissions against

the penal interest of Anderson, which these statements were

not. Any such misstatement had no bearing on the court’s rul-

ing, however, because the court clearly ruled that the govern-

ment failed to show the statements were authorized by Bonds.

It thus applied the correct standard. A tangential misstatement

does not transform the ruling into error. There was no abuse

of discretion in the court’s refusing to admit the statements,

under FRE 801(d)(2)(C), as statements authorized by Bonds.

[9] We now turn to whether the statements, though not

specifically authorized, came within the scope of an agency

or employment relationship that permitted their admission

under FRE 801(d)(2)(D). That provision makes admissible “a

statement by the party’s agent or servant concerning a matter

within the scope of the agency or employment, made during

the existence of the relationship.” The district court rejected

the government’s contention that Anderson’s statements to

Valente are admissible under this provision. Again, we may

8570 UNITED STATES v. BONDS

reverse only for abuse of discretion. U.S. v. 4.5 Acres of Land,

546 F.3d 613, 617 (9th Cir. 2008).

[10] To determine whether Anderson’s statements are

admissible under Rule 801(d)(2)(D), we must “undertake a

fact-based inquiry applying common law principles of agen-

cy.” NLRB v. Friendly Cab Co., Inc., 512 F.3d 1090, 1096

(9th Cir. 2008). For Anderson’s statements to fall under this

exception, he would have to have been Bonds’ employee or

agent.

The government provides two arguments in favor of admis-

sibility of Anderson’s statements under Rule 801(d)(2)(D).

First, it argues that the district court erred in finding that, as

a general matter, Anderson’s work as a trainer was not that of

an employee or agent. Next, it contends that even if Anderson

did not generally act as an employee or agent, he assumed the

status of an agent for the purpose of delivering Bonds’ blood

and urine to BALCO. We cannot accept either argument.

[11] The record supports the district court’s conclusion

that Anderson was an independent contractor, rather than an

employee. The parties briefed this issue under the Second

Restatement of Agency, which sets forth ten factors that a

court should consider: 1) the control exerted by the employer,

2) whether the one employed is engaged in a distinct occupa-

tion, 3) whether the work is normally done under the supervi-

sion of an employer, 4) the skill required, 5) whether the

employer supplies tools and instrumentalities, 6) the length of

time employed, 7) whether payment is by time or by the job,

8) whether the work is in the regular business of the

employer, 9) the subjective intent of the parties, and 10)

whether the employer is or is not in business. Restatement

(Second) Agency § 220(2) (1958). Although the parties pre-

sented this issue primarily under the Second Restatement, we

have independently reviewed the Third Restatement, which

abandons the term independent contractor. See Restatement

(Third) Agency § 1.01 cmt. c. We find nothing in the later

UNITED STATES v. BONDS 8571

Restatement’s provisions that would materially change our

analysis or cause us to reach a different result than the district

court.

[12] In applying the Second Restatement factors, a court

will look to the totality of the circumstances, but the “essen-

tial ingredient . . . is the extent of control exercised by the

employer.” Friendly Cab, 512 F.3d at 1096 (internal quota-

tion marks and citation omitted). Virtually none of the Second

Restatement factors favor the existence of an employment

relationship in this case. Most important, there is no evidence

that Bonds directed or controlled any of Anderson’s activities.

To the contrary, the facts on record regarding the Bonds-

Anderson relationship evidence a lack of control exercised by

Bonds. For example, Anderson seemingly had free reign to

provide Bonds whatever muscle creams and supplements he

felt appropriate. Bonds took these items without question on

the basis of his friendship with Anderson. Rather than exer-

cise control over Anderson’s training program, Bonds testi-

fied that he had a “Dude, whatever” attitude to Anderson’s

actions. These facts make it clear that Anderson was, as the

district court found, not an employee.

Other elements of the Second Restatement test also point to

Anderson’s acting as an independent contractor, not an

employee. For example, Anderson provided his own “instru-

mentalities” and “tools” for his work with Bonds. See Restate-

ment (Second) Agency § 220(2)(e). All of the aforementioned

creams and supplements came from Anderson, not Bonds.

There is no evidence that Bonds supplied any type of equip-

ment or material related to Anderson’s training regimen. As

a trainer, Anderson was engaged in a “distinct occupation.”

See id. § 220(2)(b). He had many different clients and offered

his services to others during the same period. Moreover, it is

important in this context that Bonds testified that he consid-

ered Anderson a friend and not an employee. See id.

§ 220(2)(i) (noting subjective intent of parties relevant to

determining whether one is an independent contractor).

8572 UNITED STATES v. BONDS

[13] The government is correct that certain, but limited,

aspects of the Bonds-Anderson relationship may suggest an

employer/employee relationship. For example, Bonds con-

ceded that he paid Anderson annually, and not “by the job.”

See id. § 220(2)(g). Yet Bonds paid gratuitously, and not on

the basis of any regular employment relationship. There is,

thus, sufficient basis in the record to support the district

court’s conclusion that Anderson acted as an independent

contractor rather than an employee.

[14] Unlike employees, independent contractors are not

ordinarily agents. See Dearborn v. Mar Ship Operations, Inc.,

113 F.3d 995, 998 n.3 (9th Cir. 1997) (recognizing that “an

independent contractor . . . may be an agent” in limited cir-

cumstances in which he acts “subject to the principal’s overall

control and direction”). The district court was therefore cor-

rect to conclude that “independent contractors do not qualify

as agents for the purposes of Rule 801(d)(2)(D)” in the sense

that evidence of an independent contractor relationship is

insufficient in itself to establish an agency relationship for the

purposes of the rule. See Merrick v. Farmers Ins. Group, 892

F.2d 1434, 1440 (9th Cir. 1990) (holding that statements of

independent contractors were not admissible under Rule

801(d)(2)(D) when there was no showing that the contractors

were also agents). However, a finding that a speaker is an

independent contractor does not preclude a finding that the

speaker is also an agent for some purposes.

The dissent thus incorrectly suggests the district court’s rul-

ing was the result of an incorrect application of a legal stan-

dard. We have of course observed many times that a district

court abuses its discretion when it makes an error of law. See,

e.g., Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087,

1091 (9th Cir. 2010) (citing cases); U.S. v. Hinkson, 585 F.3d

1247, 1261-62 (9th Cir. 2009) (en banc). In this case, how-

ever, the district court did not base its ruling on a legal deter-

mination that independent contractors can never be agents.

Rather the district court held that the government had not

UNITED STATES v. BONDS 8573

shown that the task of identifying Bonds’ samples was within

the scope of any agency relationship.

Accordingly, we must now address the government’s argu-

ment that even if Anderson was an independent contractor, he

acted as an agent in delivering Bonds’ blood and urine to

BALCO. An agent is one who “act[s] on the principal’s

behalf and subject to the principal’s control.” Restatement

(Third) Agency § 1.01. To form an agency relationship, both

the principal and the agent must manifest assent to the princi-

pal’s right to control the agent. Id.

[15] As is clear from the above description of Anderson’s

and Bonds’ relationship, Anderson did not generally act sub-

ject to Bonds’ control in his capacity as a some-time trainer,

nor did he or Bonds manifest assent that Bonds had the right

to control Anderson’s actions as a trainer. There is no basis

in the record to differentiate between Anderson’s actions in

his capacity as a trainer and his conduct in delivering the sam-

ples to BALCO. There is little or no indication that Bonds

actually exercised any control over Anderson in determining

when the samples were obtained, to whom they were deliv-

ered, or what tests were performed on them. Nor, contrary to

the dissent’s assertion, is there any indication that either

Bonds or Anderson manifested assent that Bonds would have

the right to instruct Anderson in these respects. It was Ander-

son who proposed to Bonds that he have his blood and urine

tested. Bonds provided samples to Anderson when requested

by the latter, and according to Bonds’ testimony, “didn’t think

anything about it” after doing so. It was, further, Anderson

who selected BALCO as the location for testing. In short, it

was Anderson who defined the scope of the testing. Bonds

provided Anderson no guidance or direction in terms of what

specific tests BALCO would run on the samples. Bonds did

not even inquire into the results of the tests. Rather, Anderson

would, apparently on his own initiative, inform Bonds of

results. The dissent says that Bonds instructed Anderson to

deliver the samples to BALCO within 30 minutes of extrac-

8574 UNITED STATES v. BONDS

tion, but this is not correct. The record shows that it was

Anderson who told Bonds about the 30-minute time con-

straint. Moreover, the samples were taken at Bonds’ house not

because Bonds so ordered, but because his house was close to

BALCO and taking the samples there made it possible for

them to be delivered in time. Bonds quite understandably

would allow only his own doctor to take the samples, but this

does not show that he also had reserved the right to instruct

Anderson as to what to do with the samples. See Restatement

(Third) of Agency § 1.01 cmt. f (stating that the fact that a ser-

vice recipient imposes some constraints on the provision of

services does not itself mean that the recipient has a general

right to instruct and control the provider).

[16] While the dissent focuses on whether, as a practical

matter, Bonds had the “capacity” to assess Anderson’s perfor-

mance and give Anderson instructions as to how to have the

testing performed, it ignores the key question: whether Bonds

and Anderson ever agreed that Bonds could do so. These are

very different inquiries. Any time one person does something

for another, the latter is in all likelihood capable of evaluating

and instructing the first. The Restatement provision on which

the dissent relies makes it clear, however, that not all service

providers and recipients stand in agency relationships.

Restatement (Third) of Agency § 1.01 cmt f. Rather, as we

have seen, an agency relationship exists only if both the pro-

vider and the recipient have manifested assent that the pro-

vider will act subject to the recipient’s control and instruction.

Id. The question whether Bonds had the ability, in a practical

sense, to prevent Anderson from having the testing carried out

similarly fails to resolve the question whether Anderson was

Bonds’ agent. Obviously Bonds could have put an end to the

testing by refusing to provide Anderson with samples of his

blood and urine, but that does not establish an agency rela-

tionship. There is nothing in the record that requires 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 Bonds’ instructions if Bonds

UNITED STATES v. BONDS 8575

chose to provide them. Contrary to the dissent’s contention,

we do not maintain there needs to be an explicit agreement,

but there must be at least some manifestation of assent to the

principal’s right to control. Here, the testing was performed

on Anderson’s own initiative and not at the request of Bonds.

The dissent incorrectly assumes otherwise. Thus, the district

court did not abuse its discretion in finding that Anderson was

not an agent for the limited purpose of the drug testing.

The dissent incorrectly suggests our holding somehow con-

flicts with Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999)

and U.S. v. Jones, 766 F.2d 412 (9th Cir. 1985). Itzhaki was

a Fair Housing Act case in which we held that the jury, as

trier of fact, should decide whether discriminatory statements

were made by an agent of the defendant. Id. at 1054. That

case has no relevance to the finding of a district court on a

motion in limine. Our discussion is also fully consistent with

Jones. There we found the district court did not abuse its dis-

cretion in admitting statements of ‘bag men’ in an extortion

scheme. Jones, 766 F.2d at 415. Jones has no application to

this case. The fact that this court deferred to a district court’s

decision to admit evidence in Jones does not compel us to

refuse to defer to a district court’s decision here and to admit

Anderson’s statements. Moreover, in this case the government

was required to demonstrate that Anderson was an agent by

a preponderance of the evidence. See Bourjaily, 483 U.S. at

175. The applicable burden of proof was lower at the time the

court decided Jones. See 766 F.2d at 415 (“Evidence of

agency must be substantial, although proof by a preponder-

ance is not necessary.”).

To the extent that the dissent looks beyond the relevant

time period to rely on a claim that on May 28, 2003, Bonds

“asked Anderson to have Bonds tested for steroids to protect

himself against false test results,” the claim is both irrelevant

and misleading. The government’s arguments on appeal per-

tain to lab results from 2001 and 2002. What Bonds asked

Anderson to do in 2003, is not relevant. The statement is mis-

8576 UNITED STATES v. BONDS

leading because the record only shows that, on that date, after

being required to submit to a steroids test by Major League

Baseball, Bonds told Anderson that he was suspicious of the

test and that he “want[ed] to know what baseball’s doing

behind our backs.” The dissent infers from this that Bonds

must have asked Anderson to verify the test results by having

BALCO independently test Bonds for steroids, but this is not

the only possible interpretation of Bonds’ testimony. In any

event, it sheds no light on the nature of Bonds’ and Ander-

son’s relationship with respect to the tests performed in 2001

and 2002.

Although the district court might, in the exercise of its dis-

cretion, have reached a different decision, our standard of

review is deferential, and we cannot say here that we are left

with a “definite and firm conviction” that it made a “clear

error in judgment” in ruling that Rule 801(d)(2)(D) did not

apply. 4.5 Acres of Land, 546 F.3d at 617. There was no

abuse of discretion.

C. The Log Sheets

The district court excluded BALCO log sheets purportedly

showing Bonds testing positive for steroids “because even if

[the log sheets] qualify as business records, they are not rele-

vant because the government cannot link the samples to

[Bonds] without Anderson’s testimony.” The parties spar

about whether this statement by the district court meant rele-

vance in the literal sense that they did not on their face pertain

to Bonds, or whether the district court meant they could not

in fact relate to Bonds unless the data was authenticated as

relating to Bonds. The district court meant the latter.

[17] The log sheets were business records reflecting that

BALCO recorded test results in the name of Barry Bonds.

The records themselves, however, go no further toward show-

ing the actual samples came from Barry Bonds than Valente’s

testimony about what Anderson told him. If anything the logs,

UNITED STATES v. BONDS 8577

when offered for the truth of the identification of the sample

donor, created an additional level of hearsay rather than

removing one. The district court did not abuse its discretion

in refusing to admit the log sheets as evidence that the sam-

ples listed were Bonds’.

IV. Conclusion

The district court’s evidentiary rulings are AFFIRMED

and the case is remanded for further proceedings consistent

with this opinion.

BEA, Circuit Judge, dissenting:

I dissent.

At a pretrial hearing, the district court granted defendant

Barry Bonds’s motion in limine to exclude statements of

James Valente. Valente was an employee of BALCO, a labo-

ratory that tested Bonds’s blood and urine for steroids. He tes-

tified that Greg Anderson delivered samples of blood and

urine to BALCO, and while doing so, Anderson identified the

samples as being Bonds’s blood and urine.

Without doubt, Anderson’s statements to Valente were out-

of-court statements, offered to prove the matter asserted—that

the samples came from Bonds—and were neither made under

oath nor subject to cross-examination by Bonds. Although the

statements appear to be hearsay, they are defined as not hear-

say by Federal Rule of Evidence 801(d) because they are, in

law, statements or “admissions” of a party-opponent.1 The

statements are not hearsay for two reasons that were incor-

rectly disdained, first by the district court, and then by the

majority.

1

Federal Rule of Evidence 801(d) begins: “A statement is not hearsay

if—”.

8578 UNITED STATES v. BONDS

First, Anderson was an agent of Bonds; his statements to

Valente concerned a matter within the scope of his agency;

and, his statements were made during the existence of his

agency. Rule 801(d)(2)(D).2 Anderson acted as Bonds’s agent

for the collection of samples from Bonds, and in the delivery

of those samples to BALCO for the purposes of their testing.

Further, Anderson acted as Bonds’s agent when he dealt with

BALCO to procure the tests and the test results, and when he

reported the results back to Bonds. Bonds’s sole role was to

give Anderson the samples. Everything else was up to Ander-

son and BALCO. Because the task Bonds entrusted to Ander-

son was to accomplish testing Bonds’s blood and urine, from

start to finish, Anderson’s mid-task statements to Valente

about whose samples were being tested concerned a matter

within the scope of his authority as Bonds’s agent. The state-

ments were admissible in evidence as statements of Bonds—

a party opponent to the United States—under Rule

801(d)(2)(D).

Second, a less frequently used rule: Anderson was autho-

rized by Bonds to identify the samples as coming from Bonds

under Rule 801(d)(2)(C). As it was normal and necessary to

make sure accurate test results were procured, Anderson was

impliedly authorized to identify the samples as coming from

Bonds. Because Anderson made these statements for the pur-

pose of insuring accuracy of the test results, they are imputed

to party-opponent Bonds as authorized admissions, and were

admissible in evidence against him under Rule 801(d)(2)(C).

The district court made several errors of law in granting

Bonds’s motion in limine, the most egregious of which was

to hold that independent contractors are not agents as a matter

of law. The majority compounds these errors by acknowledg-

ing the district court indeed erred, but then improperly

reviewing that court’s legal conclusion under a deferential

2

All references to “Rules” or a “Rule” in this dissent refer to the Federal

Rules of Evidence.

UNITED STATES v. BONDS 8579

standard of review. The correct approach to this case, under

our standard of review as expressed in United States v. Hink-

son, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc), is first

to identify whether the district court erred in identifying the

correct legal standard or in applying the correct legal standard

to the facts of a case. If the district court has so erred, then

we do not defer to how the district court decided the case; we

reverse—unless the error was harmless. Of course, no one

claims an error in barring this evidence from admission is

harmless.

Perhaps less egregious, but equally prejudicial in result,

was the failure of the district court to identify and apply the

correct rule of law to determine whether Anderson was autho-

rized by Bonds to identify his samples to BALCO. Rather

than consider the totality of the task entrusted by Bonds to

Anderson—procure tests and their results—the district court

characterized Anderson as solely a trainer and delivery cou-

rier. Failure properly to consider the task entrusted to Ander-

son by Bonds resulted in legal error under Rule 801(d)(2)(C).

I. Background

A. Procedural Background

Barry Bonds began playing professional baseball in 1985.

He joined the San Francisco Giants in 1993, and in 2001 he

set Major League Baseball’s single-season home run record,

hitting 73 home runs.

In 2003, the federal government began investigating the

Bay Area Laboratory Corporation (“BALCO”) and several

individuals, including Bonds’s trainer, Greg Anderson, for

conspiracy to distribute steroids to professional athletes. The

government executed a search warrant on BALCO’s offices

and seized laboratory reports and handwritten notes related to

blood and urine tests of several individuals, including reports

purporting to show Bonds tested positive for steroids.

8580 UNITED STATES v. BONDS

On December 4, 2003, Bonds testified before a grand jury

regarding Anderson and BALCO. Bonds denied he had taken

steroids, at least knowingly. On December 4, 2008, a grand

jury returned a second superseding indictment charging

Bonds with ten counts of making false declarations before a

grand jury and one count of obstruction of justice.

Bonds moved to suppress laboratory reports and other doc-

uments the government seized during a search of BALCO and

other laboratories. The government contends these documents

prove Bonds tested positive for steroids in 2001 and 2002.

The admissibility of the BALCO reports against Bonds

depends on whether the government can prove the blood and

urine tested were Bonds’s. For this necessary proof, the gov-

ernment sought to introduce testimony from James Valente, a

BALCO employee, that Anderson, Bonds’s trainer and the

man who brought blood and urine samples to BALCO, stated

to Valente the blood and urine samples were Bonds’s. The

district court ordered excluded the BALCO reports before

trial on the grounds the documents contained hearsay. From

that order, this appeal followed.

B. Bonds and Anderson’s Relationship

The following facts are drawn from Bonds’s grand jury tes-

timony: Anderson and Bonds have known each other since

they met in grade school. They lost touch after high school,

but reconnected in 1998. At that time, Bonds played for the

San Francisco Giants; he began weight training with

Anderson—a professional weight lifting trainer—as his

coach. When Bonds testified to the grand jury in 2003, Bonds

said he continued to work out daily under Anderson’s coach-

ing.

At some time in 2000 or 2001, Anderson suggested Bonds

provide Anderson with samples of Bonds’s blood and urine so

Anderson could take the samples to be tested at BALCO and

UNITED STATES v. BONDS 8581

then report the results to Bonds. Bonds testified the purpose

of the tests was to show whether he was deficient in certain

nutrients, such as zinc or magnesium. The information pro-

vided by these tests would help Bonds alter his diet to regu-

late his nutrient levels. Bonds testified that before 2003 he

had no idea BALCO may have sent his samples to be tested

for steroids.

Bonds provided Anderson with blood samples five or six

times, between approximately 2000 and 2003. He provided

urine samples approximately four times. Each time, Anderson

procured and provided the vials into which Bonds’s samples

were to be placed. Bonds had his personal doctor, Dr. Teng,

draw his blood and collect his urine at Bonds’s home and put

the fluids in the vials brought there by Anderson. Dr. Teng

then gave the samples to Anderson, at Bonds’s home. Ander-

son had to deliver the blood and urine samples to BALCO

within 30 minutes; otherwise, the samples would not yield

valid test results. Bonds knew Anderson would drive the sam-

ples directly from Bonds’s house to the BALCO labs. Bonds

testified he did not instruct Anderson to put Bonds’s samples

under Anderson’s name or otherwise preserve Bonds’s ano-

nymity.

Later, Anderson told Bonds the tests came back and “ev-

erything is fine.” Anderson did not give Bonds any written

reports explaining the test results and Bonds did not request

additional details. Anderson did, however, tell him how much

food to consume and what vitamins to take.

At some point after Bonds began to provide samples to

Anderson, Bonds visited BALCO’s offices with Anderson.

The BALCO offices were very close to the gym where they

exercised together. While at the BALCO laboratory, Bonds

met Victor Conte, the CEO of BALCO. Conte, Bonds, and

Anderson discussed how testing Bonds’s blood and urine

would help Bonds regulate his nutrient levels. Bonds testified

8582 UNITED STATES v. BONDS

they did not discuss any lotions or liquids that Anderson pro-

vided to Bonds.

During the 2003 season, Bonds was tested for steroids in

two unannounced tests conducted by Major League Baseball.

The government seized a document titled “NSIC Drug Test-

ing Custody and Control Form,” dated May 28, 2003, from

Quest Diagnostic. Bonds testified the document was “one of

my filled-out sheets from Major League Baseball.”

The same day he was tested by Major League Baseball,

Bonds specifically asked Anderson to have Bonds tested for

steroids to protect himself against possible false test results.

Bonds testified “I may have given [the Major League’s docu-

ment] to Greg [Anderson]. Because when I took the sample—

when I took the test I wanted to make sure, like I said earlier,

because I don’t trust baseball, to make sure that they don’t

come back to me and try to say: ‘X, Y, Z,’ that I protect

myself.” In giving Anderson Major League Baseball’s form,

Bonds specifically directed Anderson to have BALCO verify

or refute the results of Major League Baseball’s steroids test.

After the BALCO test results came back, Anderson told

Bonds that Bonds had tested negative for steroids.

In May or June 2003, Bonds posed for photographs with

Conte and sat for an interview as part of an advertisement for

BALCO in Muscle & Fitness magazine. In the advertisement,

Bonds discussed the “drawing of blood” and “being able to

analyze your levels of your body.” Bonds appeared in the

advertisement for free. No one testified before a grand jury

that BALCO charged Anderson or Bonds for the blood and

urine testing.

In 2002 or 2003, Anderson began providing Bonds with a

liquid Bonds testified was flax seed oil, and with a cream.

Bonds testified Anderson administered the cream to Bonds

directly, and did not give Bonds the cream for Bonds to use

on himself. Bonds testified he never knew what the cream or

UNITED STATES v. BONDS 8583

the liquid contained; Anderson never told him and Bonds

never asked.

Bonds testified he never paid for the blood or urine testing,

the cream, the flax seed oil, or any other product from Ander-

son or BALCO. Bonds did, however, pay Anderson $15,000

annually for Anderson’s weight training services.3 Bonds paid

Anderson in cash, either in a single lump sum or sometimes

“split up.” Despite paying Anderson for several years, Bonds

did not sign a contract with Anderson for his weight training

services. After Bonds broke the single-season home run

record, he gave Anderson, and several other people, such as

his publicist, strength coach, and stretching coach, a $20,000

bonus each. After the 2002 season, Bonds gave Anderson, and

several other people, a World Series ring, worth approxi-

mately $ 3,000. Bonds did not deduct any of these payments

to Anderson from his taxable income.

II. Standard of Review

We review a district court’s ruling excluding evidence for

abuse of discretion. United States v. Alarcon-Simi, 300 F.3d

1172, 1175 (9th Cir. 2002). A district court must decide pre-

liminary questions of evidence under Rule 104(b).4 In crimi-

nal trials, the court must find a condition of fact, which

constitutes such a preliminary question, by a preponderance

of the evidence. Bourjaily v. United States, 483 U.S. 171, 176

(1987).

3

Bonds also paid his two other trainers similar amounts. Unlike Ander-

son, Bonds testified he paid his other trainers as employees, but the simi-

lar, annual amount he paid Anderson was a “gift” because Anderson was

Bonds’s friend.

4

Rule 104(b) states: “When the relevancy of evidence depends upon the

fulfillment of a condition of fact, the court shall admit it upon, or subject

to, the introduction of evidence sufficient to support a finding of the ful-

fillment of the condition.”

8584 UNITED STATES v. BONDS

[T]he first step of our abuse of discretion test is to

determine de novo whether the trial court identified

the correct legal rule to apply to the relief requested.

If the trial court failed to do so, we much conclude

it abused its discretion. . . . [T]he second step of our

abuse of discretion test is to determine whether the

trial court’s application of the correct legal standard

was (1) illogical, (2) implausible, or (3) without sup-

port in inferences that may be drawn from the facts

in the record. If any of these three apply, only then

are we able to have a definite and firm conviction

that the district court reached a conclusion that was

a mistake or was not among its permissible options,

and thus that it abused its discretion by making a

clearly erroneous finding of fact.

Hinkson, 585 F.3d at 1261-62 (internal citations and quotation

marks omitted).

If the trial court did not apply the correct legal standard, or

its application of the correct legal standard to the facts was

illogical, implausible, or without support in inferences that

may be drawn from the facts in the record, then the trial court

abused its discretion. Id. If the error was not harmless, then

we must reverse. Id.

III. Analysis

A. Anderson’s Statements Are Admissible Under

Rules 801(d)(2)(D) (statements of an agent related

to a matter within the scope of his authority) and

801(d)(2)(C) (authorized admissions).

The district court, and then the majority, err in holding

Anderson’s statements were hearsay. Statements made by a

party’s agent that are related to a matter within the scope of

his agency or by a person’s authorized speaker are not hearsay

under Federal Rules of Evidence 801(d)(2)(D) and

UNITED STATES v. BONDS 8585

801(d)(2)(C). Instead, such statements are considered admis-

sions of a party litigant. The errors were not harmless and

likely affected the outcome of the district court’s decision

whether to exclude the evidence. This is not a situation where

overwhelming evidence supports the district court’s holding,

such that we should affirm despite the presence of one or two

isolated errors in the district court’s opinion. To the contrary,

the evidence here strongly supports a finding that Anderson’s

statements were admissible in evidence because they (1) were

statements about a matter related to a matter within the scope

of Anderson’s agency for Bonds, for the purposes of Rule

801(d)(2)(D); and (2) were impliedly authorized by Bonds as

a necessary component to Anderson’s task, for the purposes

of Rule 801(d)(2)(C).

B. Anderson’s Task

The district court and the majority’s error, in holding that

Anderson’s statements are inadmissible under Rules

801(d)(2)(D) and (C), seems a consequence of their focus on

Anderson’s role as Bonds’s trainer—a red herring—and their

overly narrow characterization of the task the evidence proves

Bonds entrusted Anderson to perform. It is not necessary for

the government to rely on some professional label, such as

trainer or coach, for Anderson’s statements to be admissible.

As I will discuss below, it is enough that Bonds authorized

Anderson to be his agent for the purpose of the specific task

of setting up tests and procuring accurate test results from

BALCO, or, that Bonds authorized Anderson to make state-

ments that would be usual and ordinary in accomplishing that

task. For the sake of clarity, I set forth at the outset of this

analysis a complete description of what I see as Anderson’s

task (the “Task”).

Bonds assented that Anderson perform the following

actions on Bonds’s behalf: (1) procure the vials which were

to contain the blood and urine samples, and furnish such vials

to Bonds and Bonds’s doctor; (2) once the vials were filled

8586 UNITED STATES v. BONDS

with Bonds’s samples, collect such samples from Bonds at

Bonds’s home; (3) deliver the samples to BALCO within 30

minutes of collection of the bodily fluids; (4) deal with

BALCO to procure testing of the samples; (5) learn the test

results from BALCO; and (6) report the test results to Bonds.

For Anderson to accomplish this Task successfully, it was

necessary for him to identify the samples in a manner that

would later allow BALCO accurately to report test results to

Anderson and for Anderson to know the results were truly of

Bonds’s samples, so he could accurately report to Bonds his

BALCO results. Anderson’s Task included each and all of the

above-enumerated actions.

C. Anderson’s Statements Are Admissible Under Rule

801(d)(2)(D) (statements of an agent concerning a

matter within the scope of the agency or employment).5

“A statement by the party’s agent or servant concerning a

matter within the scope of the agency or employment, made

during the existence of the relationship” is not hearsay. Rule

801(d)(2)(D). The district court made two errors of law and

one error of fact in deciding Anderson’s statements were not

admissible into evidence under Rule 801(d)(2)(D). First, the

district court erred—and the majority here agrees—as to a

matter of law in holding independent contractors could not be

agents under Rule 801(d)(2)(D). Second, the district court

erred as to a matter of law in holding Anderson’s statements

were inadmissible because making them was not within the

scope of Anderson’s agency, when the correct legal standard

is whether an agent’s [Anderson] statements were related to

a matter within the scope of his agency. Finally, the district

court erred as to a matter of fact in holding the government

did not cite to any evidence of Bonds’s relationship with

Anderson and that there was no evidence that Bonds paid

5

I begin with Rule 801(d)(2)(D) because it is more broad than Rule

801(d)(2)(C) and our courts have more fully developed what statements

are admissible under this rule.

UNITED STATES v. BONDS 8587

Anderson. The record is replete with evidence of Bonds’s

relationship with Anderson and that Bonds paid Anderson,

regularly and significantly. These errors are not harmless and

should compel us to reverse.

The district court erred as to a matter of law in holding: “In

the Ninth Circuit, independent contractors do not qualify as

agents for the purposes of Rule 801(d)(2)(D).” United States

v. Bonds, No. 07-00732, 2009 WL 416445, at *5 (N.D. Cal.

Feb. 19, 2009) (citing Merrick v. Farmers Ins. Group, 892

F.2d 1434 (9th Cir. 1990)). And there the district court

stopped its analysis of Rule 801(d)(2)(D). We review de novo

the legal issue whether independent contractors may qualify

as agents for the purposes of Rule 801(d)(2)(D). See Hinkson,

585 F.3d at 1262. The majority correctly holds that finding an

independent contractor relationship is not sufficient to show

agency, but the majority also recognizes that such a finding

does not preclude the existence of an agency relationship.

Majority Op. at 8572. The majority is incorrect, therefore, in

stating the district court identified the correct legal standard.

See Majority Op. at 8571-72. On the contrary, based on the

law and even on the majority’s view of the law, the district

court was wrong as a matter of law when it held independent

contractors were categorically non-agents.

The one benefit of the majority’s opinion on the indepen-

dent contractor issue, is that it explains away the somewhat

careless language in Merrick and clarifies that independent

contractors may indeed be agents for the purposes of Rule

801(d)(2)(D). Majority Op. at 8571-72. Nevertheless, the

majority still begins its analysis of that rule by citing NLRB

v. Friendly Cab Co., Inc., 512 F.3d 1090, 1096 (9th Cir.

2008), a decision that is entirely about distinguishing indepen-

dent contractors from employees in the collective bargaining

context and has nothing to do with those aspects of agency

law that provide for the imputation of an agent’s statement to

his principal, here a defendant in a criminal case. The claim

that independent contractors may not be agents for the pur-

8588 UNITED STATES v. BONDS

pose of Rule 801(d)(2)(D) is a legal error; cases that distin-

guish between independent contractors and employees are not

relevant to the definition of an agent.6

Because the district court erred as to a matter of law, we

should review the record to determine whether its error was

harmless; it was not. The evidence is sufficient to support a

contrary finding: that Anderson was Bonds’s agent. More

than that, the evidence is compelling that Anderson’s state-

ments meet the requirements under Rule 801(d)(2)(D):

Bonds’s testimony shows that (1) Anderson was Bonds’s

agent for the Task; (2) Anderson’s statements to Valente iden-

tifying the samples concerned a matter within the scope of the

Task, hence Anderson’s agency; and (3) Anderson made his

statements during the existence of the agency relationship.

Rather than categorically to have eliminated the possibility

that Anderson could have been Bonds’s agent because Ander-

son was an independent contractor, the district court should

have applied the correct legal standards (see below) to the

abundant evidence of Anderson’s agency.

(1) Anderson was Bonds’s agent for the Task. Agency is

the fiduciary relationship that arises when one person, the

principal, manifests assent to the agent for the agent to act on

the principal’s behalf and subject to the principal’s control,

and the agent agrees or otherwise consents. Batzel v. Smith,

333 F.3d 1018, 1035 (9th Cir. 2003); accord Restatement

(Third) of Agency § 1.01 (2006). In short, agency requires (a)

the principal’s assent; (b) the principal’s right to control; (c)

the agent acting on the principal’s behalf or benefit; and (d)

the agent’s consent.

6

“The common law of agency . . . additionally encompasses the employ-

ment relation . . . . The common term ‘independent contractor’ is equivo-

cal in meaning and confusing in usage because some termed independent

contractors are agents while others are nonagent service providers . . . .

This Restatement does not use the term ‘independent contractor.” Restate-

ment (Third) of Agency § 1.01 cmt. c (2006).

UNITED STATES v. BONDS 8589

(a) Bonds assented to Anderson’s performance of the Task.

Bonds testified that he agreed to have Anderson take his

blood and urine samples to BALCO. Moreover, Bonds mani-

fested such assent not only to Anderson, but to BALCO, for

Bonds testified he met with Conte, CEO of BALCO, and

Anderson at BALCO’s facilities. There, Conte, Bonds, and

Anderson discussed testing Bonds’s bodily fluids and the con-

sequent results as to his nutrient levels. Bonds did not object

to Anderson’s dealing with BALCO to procure the testing and

results discussed. Bonds also asked Anderson to have him

tested to check Major League Baseball’s tests for errors.

(b) Bonds had the right to control Anderson’s performance

of the Task. “The principal’s right of control presupposes that

the principal retains the capacity throughout the relationship

to assess the agent’s performance, provide instructions to the

agent, and terminate the agency relationship by revoking the

agent’s authority.” Restatement (Third) of Agency § 1.01 cmt.

f (2006). This is a key point of dispute between my analysis

and that of the majority; I think the evidence shows Bonds

had the capacity to control Anderson’s performance of the

Task and the panel does not. Admittedly, Bonds testified he

did not exercise much supervisory authority over Anderson.

But our inquiry is not whether Bonds exercised his authority,

but only whether Bonds had the authority to exercise in the

first place. Id. cmt. c (“A principal’s failure to exercise the

right of control does not eliminate it.”). For example, just

because a movie actor does not exercise his right to reject a

screen role through his agent does not mean that he no longer

has an agent, or that he can no longer reject roles through the

agent.

Here, Bonds had the capacity to assess Anderson’s perfor-

mance. For example, Bonds could have called BALCO to ver-

ify Anderson was procuring testing and successfully

delivering the samples within 30 minutes of collection. Or,

Bonds could have reviewed the test results documents.

Bonds’s own testimony creates an inference that Bonds could

8590 UNITED STATES v. BONDS

have done so: “So, I never saw the documents. I should have.

Now that I think of it with the situation that is now, I should

have.” The fact that Bonds did not assess and modify or ter-

minate Anderson’s performance of the Task does not mean,

as a matter of law, that Bonds lacked the right to do so.

Bonds also had the right to instruct Anderson. Not only did

Bonds have that right, but he exercised it by instructing

Anderson when and where Anderson was to collect Bonds’s

samples and when and where Anderson was to deliver the

samples. The majority is correct that Bonds did not instruct

Anderson regarding the 30-minute limit, but that limit did

provide one measure by which Bonds could evaluate Ander-

son’s actions. The point, however, is that Bonds did instruct

Anderson when and where to collect his samples—at his

home in San Francisco. The majority seems to argue that the

fact that Bonds’s house was also a suitable location under the

30-minute requirement is incompatible with Bonds’s instruct-

ing Anderson, Majority Op. 8573-74, but that is illogical.

There were many places they could meet that were within 30

minutes of BALCO; Bonds instructed Anderson to come to

Bonds’s house and not to another location, most likely

because it was a private place where Bonds’s personal doctor

would be comfortable drawing his blood and collecting his

urine. Further, Bonds controlled when he could be tested

because Anderson could not complete his task without

Bonds’s samples.7

Moreover, the majority completely omits the fact that

Bonds met with BALCO’s CEO Conte to discuss, in Ander-

son’s presence, the procedure for testing his blood and urine.

7

The majority contends that Anderson’s flexibility in administering

creams to Bonds shows that Bonds did not exercise control over Anderson

as his trainer. Majority Op. at 8571. Again, the Government does not need

to rely on Anderson’s relationship to Bonds as his trainer to show Ander-

son was Bonds’s agent for the purposes of the Task. Moreover, Bonds had

the right to exercise such control merely by telling Anderson not to rub

cream on him.

UNITED STATES v. BONDS 8591

This fact strongly supports the conclusion that Bonds was

intimately familiar with BALCO’s testing procedures, and

therefore able to assess and instruct Anderson, even if he

“didn’t think anything about it” after doing so.

Most importantly, Bonds had the right and ability to termi-

nate the agency relationship—a factor essentially ignored by

the majority. Were Bonds to decide to terminate the relation-

ship, he could simply have stopped giving samples of his

blood and urine to Anderson. Without Bonds’s samples,

Anderson could not perform the Task. It would be implausible

to find Anderson had access to some reserve of Bonds’s blood

or urine that he could have tested despite Bonds’s terminating

his agency relationship with Anderson. Besides, any such

reserves could not meet the 30-minutes-from-draining “shelf

life” requirement. The majority simply asserts, without expla-

nation, that Bonds’s right to terminate Anderson’s role in

dealing with BALCO was not enough to prove Bonds had

control over Anderson’s actions.

The majority also asserts Bonds and Anderson never mani-

fested an agreement as to control. Majority Op. at 8573-74. I

can only interpret this point to be based on the majority’s con-

fusion between the requirement that the principal and agent

respectively manifest assent and consent to the agency rela-

tionship and the requirement that the principal has the right to

control the agent’s actions. The majority suggests there must

be an explicit agreement between a principal and agent that

the principal may control the agent’s actions. There is no sup-

port for that claim in the Restatement or the law generally.

The majority points to the Restatement (Third) of Agency’s

distinction between agents and service providers. § 1.01 cmt.

f. Nothing in the comment to the Restatement section cited

states how the principal and agent must manifest assent and

consent to the right of control; to the contrary “[a] principal’s

power to give instructions” is “created by the agency relation-

ship.” Id. Further, none of the illustrations provided in

Restatement (Third) of Agency § 1.01, comment f, mention

8592 UNITED STATES v. BONDS

anything about an agreement as to control. Instead, the illus-

trations contemplate that an agent has a right to resign as the

principal’s agent if the agent does not wish to follow an

instruction. Id. The reference to “service providers,” relied on

by the majority, is explained by turning to § 1.01, comment

c, which distinguishes service providers on the basis that

agents deal with third parties while service providers do not.

Id. cmt. c. Here, Anderson dealt with a third party, BALCO;

that is an attribute of an agent, not of a service provider.

By demanding affirmative evidence of a manifestation of

assent and consent to the right to control, the majority puts the

cart before the horse. As the Restatement explains:

If the principal requests another to act on the princi-

pal’s behalf, indicating that the action should be

taken without further communication and the other

consents so to act, an agency relationship exists. If

the putative agent does the requested act, it is appro-

priate to infer that the action was taken as agent for

the person who requested the action unless the puta-

tive agent manifests an intention to the contrary or

the circumstances so indicate.

Id. cmt. c. Bonds requested Anderson act on his behalf by tak-

ing his samples to BALCO and having them tested.8 Anderson

did so. There is no evidence Anderson manifested an intention

to refuse the Task, nor are there circumstances that indicate

he did not consent. Therefore, the evidence gives rise to a

compelling inference that Anderson acted as Bonds’s agent,

subject to Bonds’s control.

The majority’s application of the law of agency to the facts

8

Bonds requested Anderson perform this act even though Anderson ini-

tiated the idea for testing Bonds. It does not matter who came up with the

idea. Once Bonds decided he should be tested, he requested Anderson to

perform the Task.

UNITED STATES v. BONDS 8593

in this case imposes unwarranted obstacles to the govern-

ment’s showing that Anderson was Bonds’s agent. The hold-

ing in this case is flatly inconsistent with how this court has

handled similar cases in the past.

In United States v. Jones, 766 F.2d 412 (9th Cir. 1985),

Jones appealed his conviction for interference with commerce

by threats of violence under 18 U.S.C. § 1951. 766 F.2d at

413. Jones called Kelsay, an accounts representative at a sav-

ings and loan, and told her to pay him $65,000 or else he

would kill her daughter. Id. Jones arranged to pick up the

extortion money from Kelsay. Id. At the arranged time and

place, two other men arrived and attempted to collect the

extortion money. Id. Kelsay testified the two men made out-

of-court statements that showed they were paid by a third man

to collect a bag. Id. The prosecution introduced evidence that

Jones was observed meeting with the two men shortly before

they met with Kelsay. Id. at 415.

On those facts, we affirmed the district court’s holding that

the two men were Jones’s agents and that their statements that

they had been paid by a third man to collect a bag were

admissible in evidence under Rule 801(d)(2)(D) to prove the

truth of the matter the two men had asserted in their out-of-

court statements. Id. There was no evidence the two men were

employed or paid regularly by Jones. The court did not ana-

lyze whether the two men were independent contractors, and

from the facts recited in the opinion, it is unlikely the two

men would be employees. It was enough the two men were

performing a task for their principal, defendant-Jones, and

were talking about matters related to the scope of their task.

In Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999), Harris,

an African-American woman, sued her putative landlords, the

Itzhakis, for racial discrimination in letting an apartment,

under the Fair Housing Act. 183 F.3d at 1049. Harris over-

heard Ms. Waldman, an elderly tenant who performed several

tasks for the landlords, say to a repairman/gardener: “The

8594 UNITED STATES v. BONDS

owners don’t want to rent to Blacks.” Id. at 1048. Harris com-

plained to her local housing council based on Ms. Waldman’s

statement. In response, the housing council tested the

Itzhakis’ apartments for racial discrimination through the use

of black and white fair housing testers. Id. The testers

reported that the black tester was treated in a discriminatory

manner based on her race. Id. The district court granted sum-

mary judgment against Harris on the ground that Harris failed

to produce admissible evidence of racial discrimination. Id. at

1049.

We reversed, holding there was sufficient evidence from

which a jury could reasonably find Ms. Waldman was an

agent of the Itzhakis and that her statement that the Itzhakis

did not want to rent to Blacks was admissible in evidence

under Rule 801(d)(2)(D). Id. at 1054 (“[T]he question of

agency should be submitted to the jury unless the facts are

clearly insufficient to establish agency or there is no dispute

as to the underlying facts.”). Ms. Waldman assisted the

Itzhakis by collecting rent checks and showing vacant units to

prospective tenants; this evidence supported the finding of

agency. Id. The court noted that Ms. Waldman received no

payment or discount on rent for her services, but did not hold

the lack of remuneration disqualified Ms. Waldman as an agent.9

Id.

In Jones and Itzhaki, the evidence supporting a finding of

agency was much weaker than it is in Bonds’s case. In Jones,

the defendant never testified he sent the two men to collect

the swag from Kelsay; here, the entrustment of BALCO test-

ing and reporting to Anderson is drawn directly from Bonds’s

own testimony.10 In Itzhaki, the agent acted gratuitously,

doing small favors for her landlords that did not even require

9

In Itzhaki, the court afforded deference to the definition of agency pro-

vided by HUD regulations. See 24 C.F.R. § 100.20. That regulation

defines agency in a manner that is consistent with the federal law of

agency. Itzhaki, 183 F.3d at 1054.

10

I acknowledge the applicable burden of proof on the government was

lower in Jones. But, the case provides a clear example of an agency rela-

tionship in circumstances with much less evidence than in this case. Jones

does not compel the majority to reverse, but it does show the majority’s

notion of agency is too narrow.

UNITED STATES v. BONDS 8595

her to leave her apartment complex; here, Anderson’s Task

was much more significant—it required him to drive between

Bonds’s home in San Francisco and BALCO’s offices in Bur-

lingame at specific times, negotiate the testing of Bonds’s

samples with BALCO, and then return to Bonds to report the

results.11 And, of course, Anderson did not act gratuitously; he

was paid a yearly stipend, plus a bonus and a valuable ring for

helping in Bonds’s fitness program.

I need not quarrel with the majority’s analysis of whether

Anderson was an employee; he was clearly an agent, which

is enough to allow admission into evidence of his statements

and have the issue of agency submitted to a jury. But even as

to the employment issue, the majority misapplies the correct

standard of review. Specifically, the majority admits that the

fact Bonds paid Anderson annually supports finding an

employment relationship, Majority Op. at 8572, but omits the

fact that the district court never considered that fact and worse

—the district court found Bonds had not paid Anderson. The

district court based its holding on its finding that it was not

evident Bonds ever paid Anderson or that if he did, Bonds

only gave Anderson a ring worth $3,000. Bonds, 2009 WL

416445, at *5.

This finding of fact is clearly erroneous. Bonds’s testimony

shows he did pay Anderson $15,000 annually for the six years

beginning in 1998 and ending in 2003. Bonds also paid

Anderson $20,000 as a bonus when Bonds broke the single

season home run record in 2001. In response to a question

11

The majority writes Itzhaki has no relevance here because it involved

an objection to evidence at trial and not a motion in limine. Majority Op.

8575. The majority provides no authority for this distinction and there is

none. The issue whether there is sufficient foundational evidence of the

existence of an agency relationship to admit into evidence statements by

the alleged agent is the same at trial and in a motion in limine. See Advi-

sory Committee Notes, 2000 Amendment, Fed. R. Evid. 103 (equating

“rulings on evidence whether they occur at or before trial, including so-

called ‘in limine’ rulings”).

8596 UNITED STATES v. BONDS

from a grand juror, Bonds testified he paid his other trainers,

whom he considered to be employees, similar amounts. The

majority asserts “Bonds paid gratuitously,” Majority Op. at

8572, which suggests Bonds did not receive any return value

from Anderson, but that claim is implausible: Bonds received,

at a minimum, weight training coaching from Anderson,

creams, and a liquid; and, performance of the sample testing

Task. Of course, had the district court considered the evidence

of Bonds’s payments, it may also have found the payments

were in part for Anderson to obtain the test results that helped

Anderson monitor Bonds’s nutritional requirements, and later

to verify that Bonds had not taken steroids in case the tests

run by Major League Baseball came back positive for ste-

roids. Instead of acknowledging the district court’s clear error

and then deciding whether that error was prejudicial to the

government, the majority ignores the error and reviews the

district court’s legal conclusion deferentially. Majority Op. at

8572 (searching only for a “sufficient basis” for the district

court’s holding).

In summary then, the district court abused its discretion

because, by holding that statements by independent contrac-

tors are inadmissible under Rule 801(d)(2)(D), the court failed

to identify the correct legal standard: independent contractors

can be agents for purposes of imputation of statements to a

principal. See Hinkson, 585 F.3d at 1262. This is reversible

error because it prejudiced the government’s rights; in other

words, the district court may have ruled in the government’s

favor had the district court applied the correct standard of law

to these facts. The majority itself admits: “the district court

might, in the exercise of its discretion, have reached a differ-

ent decision.” Majority Op. at 8576. The error more likely

than not prejudiced the rights of the government. See Hink-

son, 585 F.3d at 1282. At the very least, we should remand

to the district court to decide, for the first time, whether

Anderson qualified as an agent irrespective of whether he was

an independent contractor.

UNITED STATES v. BONDS 8597

(c) Anderson acted on Bonds’s behalf, or for his benefit.

Anderson performed his Task so that Bonds would better be

able to manage his nutrition and diet. The parties do not dis-

pute that Anderson acted on Bonds’s behalf.

(d) Anderson consented to perform the Task. Bonds testi-

fied that Anderson took Bonds’s samples and reported back

with the results, and Valente testified that Anderson arrived

at BALCO with blood and urine samples that Anderson iden-

tified as Bonds’s. Anderson’s performance is sufficient to

show his consent. Restatement (Third) of Agency § 1.01 cmt.

c.

Therefore, Anderson was Bonds’s agent for the purpose of

the Task. This conclusion is obvious if one considers similar

facts in a slightly different legal context. Imagine that Ander-

son were not quite so loyal. Had Anderson sold documents

showing Bonds tested positive for steroids to a celebrity gos-

sip publication, would Bonds have a cause of action against

Anderson for breach of Anderson’s duty of confidentiality?

Yes: “An agent’s relationship with a principal may result in

the agent learning information about the principal’s health,

life history, and personal preferences that the agent should

reasonably understand the principal expects the agent to keep

confidential. An agent’s duty of confidentiality extends to all

such information concerning a principal even when it is not

otherwise connected with the subject matter of the agency

relationship.” Restatement (Third) of Agency § 8.05 cmt. c.

Bonds could assert a cause of action only if Anderson were

his agent, but I have no doubt a court evaluating Bonds’s rela-

tionship with Anderson in that context would hold Anderson

was Bonds’s agent for the purpose of the Task. It would not

even be necessary for Bonds to adduce facts supporting the

claim that Anderson was his friend or trainer.

(2) Anderson’s statements to Valente concerned, or were

related to, a matter within the scope of Anderson’s authority.

The district court erred on an issue of law in holding the gov-

8598 UNITED STATES v. BONDS

ernment failed to show the task of identifying Bonds’s sam-

ples was within the scope of the Task he gave Anderson. See

Bonds, 2009 WL 416445, at *5 (“The government has not

established by a preponderance of the evidence that Anderson

was defendant’s agent or that the task of identifying defen-

dant’s samples was within the scope of Anderson’s agency”

(emphasis added)). Under Rule 801(d)(2)(D), the proffering

party must show the statement is related to a matter within

the agent’s scope of authority, not that making the statement

is itself within the scope of authority. Hoptowit v. Ray, 682

F.2d 1237, 1262 (9th Cir. 1982) (holding Rule 801(d)(2)(D)

“does not require a showing that the statement is within the

scope of the declarant’s agency. Rather, it need only be shown

that the statement be related to a matter within the scope of

the agency.” (emphasis added)). Anderson’s statements are

related to the scope of his agency because it was pertinent for

Anderson to tell BALCO from whom the samples were taken

to have BALCO accurately label the test results, so Anderson

could accurately report to Bonds the results of the tests on the

samples.

The district court’s error is not harmless because it may

have admitted into evidence Anderson’s statements if it had

considered whether they were related to a matter within the

scope of his agency and did not take an incorrectly restrictive

view of what types of statements were admissible into evi-

dence under Rule 801(d)(2)(D).

(3) It is undisputed the statements were made during the

existence of the agency relationship between Bonds and

Anderson.

Therefore, as Anderson’s statements meet the three require-

ments under Rule 801(d)(2)(D) for admitting in evidence

Anderson’s statements to Valente identifying the samples as

Bonds’s, the district court’s decision to exclude such testi-

mony should be reversed. The district court erred as to a mat-

ter of law by holding independent contractors could not be

UNITED STATES v. BONDS 8599

agents and by holding that statements admissible under Rule

801(d)(2)(D) must be made within the scope of the agency

relationship. The district court also clearly erred when it

found there was no evidence that Bonds paid Anderson, with

the exception of a ring worth $3,000.

Because the district court erred as to a matter of law, the

majority is wrong to apply a deferential standard of review.

Moreover, the majority fails in its attempt to distinguish Jones

or Itzhaki, two cases where the agency relationship at issue

was far more attenuated than is the case here. Reviewing the

record below to determine only if the district court’s mis-

statements of law caused the government prejudice, the

ineluctable conclusion is that the district court’s error did

prejudice the government and its decision should be reversed.

D. The evidence is also admissible under Rule

801(d)(2)(C) (authorized admissions) because

Bonds authorized Anderson to tell BALCO the

samples were Bonds’s.

“A statement by a person authorized by the party to make

a statement concerning the subject” is not hearsay. Rule

801(d)(2)(C). Anderson’s statements to Valente identifying

blood and urine samples are not hearsay under Rule

801(d)(2)(C) because Bonds impliedly authorized Anderson

to make those statements. Bonds’s testimony shows he

impliedly authorized Anderson to have Bonds’s bodily fluids

tested by BALCO and to report the results to Bonds so Bonds

could know the test results. Anderson’s statements identifying

Bonds’s samples concerned the subject of his Task.

To qualify a statement under this rule, the proffering party

must show the declarant had “authority to speak on a particu-

lar subject on behalf of someone else.” Precision Piping &

Instr., Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613,

619 (4th Cir. 1991).12 In practice, courts determine whether

12

There is a dearth of Circuit case law explaining Rule 801(d)(2)(C).

Because there are few pertinent cases, I turn to out-of-circuit authority to

examine the dimensions of this rule.

8600 UNITED STATES v. BONDS

the declarant was authorized to speak based on the nature of

the relationship between the party and the declarant, or based

on the nature of the task the declarant was to perform. See

Christopher B. Mueller and Laird C. Kirkpatrick, Federal

Evidence § 8:50 (2008). The majority errs in stating the appli-

cable law by importing, without citation, the requirement the

authority to speak on behalf of the principal be “specific” or

done “specifically,” whatever that might mean.13 Majority Op.

at 8567-69.

Courts have admitted in evidence statements made by

declarants authorized to perform a particular task, when the

nature of the task implies the authority to speak. E.g. United

States v. Iaconetti, 540 F.2d 574, 577 (2d Cir. 1976); see also

Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d

1292, 1306 (9th Cir. 1982). In these cases, the scope of

authority was much narrower than in the cases where the role

of the declarant—i.e., the nature of the relationship—was to

speak for the party against whom the statement was offered.

Yet in each case, the nature of the task entrusted to the declar-

ant impliedly carried with it the authority to speak for the

party who had authorized the task. The extent of the authority

to speak is implied from the nature of the task and not exclu-

sively by the occupation of the declarant, nor the nature of the

relationship between the declarant and the person who

impliedly authorized him to speak.

In Iaconetti, a government inspector was convicted of hav-

ing solicited and received a bribe. 540 F.2d at 575. Defendant

13

It is not clear whether the “specific” requirement is meant in the sense

of “expressly” authorized (as opposed to “impliedly” authorized), or in the

sense of “particularly” authorized (as opposed to “generally” authorized).

For purposes of determining what was authorized there is no rule of

agency law of which I know that determines an agent is unauthorized

unless he is given “specific” authority to do a task. When a clerk is asked

to mail a letter, is he not authorized to place a stamp on it unless he is

“specifically” told to use a stamp?

UNITED STATES v. BONDS 8601

Iaconetti was assigned to conduct a survey of a company to

determine whether it was capable of performing a contract

upon which it had successfully bid. Id. at 576. Iaconetti met

with Lioi, President of the company, and intimated he would

assure a favorable report on the company if the company paid

Iaconetti one percent of the contract price. Id. Lioi told two

of his business partners, Babiuk and Goldman, and his lawyer

Stern, about Iaconetti’s solicitation of a bribe. Id. Lioi then

told the FBI, who had him audio-record his meeting with

Iaconetti where Lioi gave Iaconetti the bribe money. Id. The

FBI arrested Iaconetti after he received the money from Lioi.

Id.

The government’s chief witness at trial was Lioi. Id.

Defense counsel sought to impeach Lioi by suggesting on

cross-examination that Lioi, rather than defendant Iaconetti,

had initiated the scheme to pay the bribe. Id. To rebut this

defense assertion and to corroborate Lioi’s testimony, the

government put on Goldman and Stern, who testified that Lioi

had told them Iaconetti had asked for the bribe. Id. The dis-

trict court denied Iaconetti’s post-conviction motion for a new

trial made on the grounds that Goldman’s testimony was inad-

missible hearsay. Id. at 576-77.

The Second Circuit affirmed, holding Goldman’s testimony

was admissible under Rule 801(d)(2)(C) because “by

demanding the bribe Iaconetti necessarily authorized the per-

sons who ran the business to discuss his demand among them-

selves.” Id. at 577.14 Attorney Stern’s testimony, that Lioi had

told him of Iaconetti’s bribe request, however, was inadmissi-

ble under Rule 801(d)(2)(C) because it was not necessary for

Lioi to consult with his personal attorney as to whether to pay

14

Note that the Second Circuit held Iaconetti “necessarily authorized”

Lioi, not “specifically” authorized, nor “expressly authorized.” Id. at 577.

In determining what, under the circumstances, was impliedly authorized,

one considers what was necessary or normal. One does not insert require-

ments of “specificity,” from sources unidentified, as a consideration.

8602 UNITED STATES v. BONDS

Iaconetti the bribe. On the other hand, it was necessary for

Lioi to relay the bribe request to his business associates

because their assent was necessary to get the money to pay

the bribe. Id. at 577-78.

Similarly, by asking Anderson to deliver blood samples to

BALCO for testing and to report the results back to Bonds,

Bonds necessarily authorized Anderson to identify the source

of the blood; otherwise, Bonds could not be assured of the

accuracy of the results, which was the whole purpose of the

Task entrusted by Bonds to Anderson. Without identification

of who had supplied the samples, Anderson’s Task would

have been a fool’s errand.

Our most extensive discussion of Rule 801(d)(2)(C) is

found in Reid Bros. Reid Brothers Logging Co. sued two pulp

companies for violations of the Sherman Act. 699 F.2d at

1295. The district court found the pulp company defendants

had conspired to dominate all segments of the southeast

Alaska timber industry. Id. On appeal, the defendants chal-

lenged on hearsay grounds the district court’s admission of a

report that was material to show defendants engaged in preda-

tory pricing. Id. at 1306 (“[T]he report . . . provided the sole

support for the district court’s finding that the defendants pur-

posefully set log prices at levels below market value.”). We

held the report was admissible under Rule 801(d)(2)(C). Id.

The report had been prepared by an employee of the Oji Paper

Company of Japan. Id. Oji Paper Company was a shareholder

of defendant-ALP’s parent company. Id. The report was pre-

pared at the request of ALP’s chairman. Id. The Oji Paper

Company employee who prepared the report was given access

to ALP’s books and records and accompanied ALP employ-

ees to logging camps. Id. He presented the report to a meeting

of the ALP Log Committee and the report was circulated to

ALP officers and managers. Id. Based on those facts, we held

“there can be little question that [the employee] was ‘autho-

rized’ by ALP to make statements regarding the entire scope

of ALP’s woods operations.” Id.

UNITED STATES v. BONDS 8603

In Reid Brothers, ALP authorized declarant—the Oji Paper

Company employee—to produce a report of ALP’s woods

operations, including the price structure for the purchase of

logs, to further ALP’s knowledge of how best to conduct its

business. Similarly, Bonds authorized Anderson to deal with

BALCO to produce test results of Bonds, to further Bonds’s

knowledge of how best to modify his nutritional intake. Oji

Paper Company employee’s statements regarding the price

structure of ALP’s purchase of logs were necessary to make

his report accurate. Anderson’s statements regarding Bonds’s

name were necessary to make his report of Bonds’s test

results accurate. In Reid Brothers, it was not necessary for the

plaintiffs who offered into evidence the Oji Paper Company

employee’s statements to show ALP specifically authorized

Oji Paper Company employee’s statements regarding the

price structure of log purchases; it was sufficient that ALP

authorized a survey of its own log operations from which said

price information came. Here, Bonds authorized a review of

his nutritional levels and Anderson’s statements in further-

ance of accurately assessing his nutritional levels were

thereby impliedly authorized.

With these cases in mind, I turn to the district court’s analy-

sis of whether Anderson’s statements are admissible under

Rule 801(d)(2)(C).

I begin with the district court’s most serious error, which

pervades its analysis of the admissibility into evidence of

Anderson’s statements—that it focused solely on whether the

nature of Anderson’s role as a trainer authorized him to speak

on Bonds’s behalf. In doing so, the district court overlooked

the undisputed evidence as to the full nature of Anderson’s

Task with BALCO. So does the majority. See Majority Op. at

8567-68. Anderson’s formal label as a trainer should not

trump the actual function he performed for Bonds. For Ander-

son to accomplish his Task successfully, it was necessary for

Anderson to identify the samples in a manner that would later

allow BALCO accurately to report test results back to Ander-

8604 UNITED STATES v. BONDS

son and for Anderson to know the results were of Bonds’s

samples, so he could accurately report to Bonds his BALCO

results.

But the district court did not look to the full Task; it stated:

“[t]he rationale for Rule 801(d)(2)(C) simply does not apply

here. If a party authorizes a declarant to speak on his behalf

and the declarant makes an admission, Rule 801(d)(2)(C) pro-

vides a mechanism for that admission to be used against the

party. Trainers, unlike lawyers, brokers, sales personnel, and

those with supervisory responsibilities, are not generally

authorized to speak for principals.” 2009 WL 416445, at *5.

The district court’s standard—that trainers are not generally

authorized to speak for their trainees—is correct, but only if

read in isolation. The district court does not explain how that

general standard applies to this particular case. We are left to

guess why the district court reached the conclusion that

Anderson was not authorized based on this general standard.

One possible interpretation of the district court’s opinion is

that the district court simply ignored the word “generally” in

its statement of the law. If the district court proceeded with its

analysis on the grounds that “trainers . . . are not [ ] authorized

to speak for principals,” that is a ruling on a question of law;

we then review that ruling de novo. See Hinkson, 585 F.3d at

1262. The holding that trainers are not authorized to speak for

trainees is incorrect because no rule of law prohibits a trainee

from authorizing his trainer to speak for the trainee. It is true

only that the duties of a trainer do not usually include making

statements to third parties. Furthermore, this holding is incor-

rect because a person may be authorized to speak on behalf

of a principal independently from that person’s role as a

trainer. The fact that Anderson was also Bonds’s trainer

should not preclude the district court from holding that Bonds

authorized his friend Anderson to perform the Task. For

instance, if Bonds had told a John Smith to speak on his

behalf at a press conference, and John Smith happened to be

the batboy for the San Francisco Giants, John Smith’s profes-

UNITED STATES v. BONDS 8605

sion as batboy would not undercut Bonds’s authorization of

Smith to speak on his behalf, although batboys as a group and

profession are not usually thought of as ballplayers’ spokes-

men.

The other possible interpretation of the district court’s opin-

ion is that the district court applied the correct standard of

law, but found the facts on this record were inadequate to fit

Anderson’s statements into an exception to the general stan-

dard that trainers are not generally authorized to speak on

behalf of their trainees. This is an application of the law to the

facts, which we review for clear error under Hinkson, 585

F.3d at 1262. The district court clearly erred because its appli-

cation was illogical; all reasonable inferences that may be

drawn from facts in the record show that Anderson was autho-

rized to speak, not as Bonds’s trainer, but as the person Bonds

entrusted to complete the Task. It was clear error for the dis-

trict court to limit its consideration to Anderson’s role as a

trainer, without considering what facts established his implied

authority to speak for Bonds: the nature of the Task entrusted

to Anderson by Bonds.

Earlier in the district court’s opinion, it described the nature

of the task Anderson was required to perform as “the delivery

of defendant’s samples to BALCO.” 2009 WL 416445, at *5.

This is a finding of fact, as to what constituted Anderson’s

task, which we review for clear error. Hinkson, 585 F.3d at

1263. But, the district court did clearly err in finding Ander-

son’s task was mere delivery of samples to BALCO because

the record shows Anderson’s Task included far more—from

procuring the vials to reporting the results to Bonds—as dis-

cussed earlier in this dissent. See discussion supra p. 8585-86.

The district court committed another error of law in holding

Anderson was not authorized to identify Bonds by name

because Bonds provided Anderson with blood and urine sam-

ples in response to requests from Anderson, rather than had

the request originated from Bonds. The district court stated:

8606 UNITED STATES v. BONDS

“[Bonds’s] testimony establishes that he provided the samples

in response to a request from Anderson, not that defendant

hired Anderson to perform this task.” Bonds, 2009 WL

416445, at *5. Although the district court’s statement is

phrased as a finding of fact, the district court implicitly holds

that, as a matter of law, admission into evidence of statements

under Rule 801(d)(2)(C) requires that (1) the person authoriz-

ing the speaker must not be acting in response to a request

from the speaker himself and (2) that authorization is synony-

mous with hiring a speaker to perform a task. These are legal

issues that we review de novo. There is no support for a

requirement that an impliedly authorized declarant cannot

suggest the task in the first place. In Reid Bros., we did state

that the report admitted under Rule 801(d)(2)(C) was con-

ducted at the request of the company’s CEO, but I see no rea-

son why our analysis would have been different if Oji Paper

Company of Japan had approached ALP first and offered to

draft the report, so long as the principal assented to the declar-

ant’s performance of the task. See 699 F.2d at 1306. The ref-

erence in Reid Bros. to the company’s request shows only that

party-ALP actually authorized the report and that the consul-

tant did not write it spontaneously on his own. Here, Bonds’s

own testimony shows he authorized Anderson to procure

BALCO testing of Bonds’s bodily fluids; Bonds impliedly

authorized Anderson to identify the samples to insure the

accuracy of the test results as to his bodily fluids. The only

determinative factor is whether Bonds agreed to Anderson’s

suggestion, which he did.15

15

The fact that Anderson suggested the task might be relevant if there

were some dispute over the scope of the task. In that case the issue of who

initially suggested the task might be probative of whether there was a

meeting of the minds as to the scope of Anderson’s authority. Here, how-

ever, we consider the scope of the task solely from Bonds’s own testimony

and it is Bonds who claims he entrusted Anderson with the Task. There-

fore, there is no dispute over the scope of the task and we may properly

decide solely from Bonds’s testimony to the grand jury what statements

were impliedly authorized as part of that Task.

UNITED STATES v. BONDS 8607

The majority attempts to distinguish Iaconetti on the same

grounds. Majority Op. at 8567-68. Whereas defendant-

Iaconetti demanded a bribe, it was Anderson who raised the

possibility of testing Bonds’s blood. But, the majority misses

the point of Iaconetti. Iaconetti gave Lioi, the company presi-

dent, the task of getting the bribe money from the company.

To accomplish that task, Iaconetti impliedly authorized Lioi

to pass his demand for money to the people who controlled

the company’s money, including witness-Goldman. Here,

Bonds gave Anderson the task of testing Bonds’s bodily flu-

ids and reporting the results. Just as it was necessary for Lioi

to pass on Iaconetti’s demands to the people in the company

who could pay the money, it was necessary for Anderson to

identify the source of the bodily fluids to the laboratory that

would test the samples. Otherwise, Anderson could not

achieve an accurate completion of the Task of testing and

reporting.

Moreover, the majority simply has its facts wrong when it

writes the steroid testing was all Anderson’s idea, Majority

Op. at 8567-68: Bonds testified it was his idea to have his

blood tested for steroids at BALCO after Major League Base-

ball collected his blood on May 29, 2003. Bonds wanted to

keep Major League Baseball honest. The majority contends

this fact, and presumably anything that occurred after 2002,

is not relevant, but does not explain why. Evidence that Bonds

expected Anderson to be able to test his blood for steroids,

and that he would initiate a request for such testing, is proba-

tive of his entire relationship with Anderson, where there is

not a scintilla of evidence the relationship between Anderson

and Bonds changed after 2002. To the contrary, it was in

2003, after the World Series of 2002, and when Bonds hit 73

home runs, that Bonds bestowed a World Series ring and a

$20,000 bonus on Anderson.

There is likewise no support for the district court’s implicit

holding that a party must have hired a speaker for the speak-

er’s statements to be authorized. “To hire” suggests payment.

8608 UNITED STATES v. BONDS

See Webster’s Third New International Dictionary 1072

(1965) (Hire: “To engage the personal services of for a fixed

sum: employ for wages”). But payment is not a requirement

under Rule 801(d)(2)(C). Iaconetti, 540 F.2d at 575-76 (find-

ing statements were authorized even though Iaconetti did not

pay Lioi to relay his bribe money demand to Lioi’s business

associates).

Next, the district court clearly erred when it found Bonds’s

“equivocal answers about the number of samples [Bonds]

gave Anderson [were] not sufficiently certain to establish

Anderson had authority to speak with regard to the particular

samples at issue here.” Bonds, 2009 WL 416445, at *5. The

majority adopts and repeats this error. Majority Op. at

8568-69. Without further analysis, this is simply a non-

sequitur. Neither the district court nor the majority explain

why Bonds’s uncertain memory as to the number of samples

given cuts against a finding that he authorized Anderson. As

such, the district court clearly erred by misapplying the law

to these facts because it is illogical to hold Anderson’s state-

ments are not admissible into evidence based on a non-

sequitur.

I can imagine one situation where the number of times

Bonds authorized Anderson to perform the Task would mat-

ter. If Bonds testified he gave Anderson samples on only

three occasions, and Anderson submitted to BALCO samples

on four occasions—samples that he claimed were Bonds’s—

then there would be some reason to suspect Anderson was not

authorized to make identifying statements on one occasion. In

that situation, the district court might not be able to identify

and rule out which test was unauthorized, and therefore it

might be reasonable to exclude all of Anderson’s identifying

statements.

But that situation is not relevant here. Not only was a “three

of four” situation not discussed by Bonds before the district

court or this court, but the record does not provide any basis

UNITED STATES v. BONDS 8609

for a claim that Anderson delivered more samples than Bonds

authorized to be tested. Remember, the record is clear and

undisputed that each sample was gathered from Bonds’s doc-

tor at Bonds’s home contemporaneously, in Bonds’s presence,

with Bonds donating the sample. As Bonds testified regarding

the collection of his blood and urine samples: “[W]e just gave

it to Greg [Anderson].” The factual record is without dispute:

Each and every sample was collected with Bonds’s coopera-

tion and consent. There is not a word in the record that Ander-

son handled anybody else’s samples, or what possible

motivation he could have had to frame Bonds with another’s

blood. Just the opposite. Anderson has been willing to stay in

jail for an extended period for contempt of court to avoid tes-

tifying against Bonds.

The district court also erred—and here the majority agrees

—on an issue of law in holding Anderson’s statements were

not an “admission” because the statement was not against

Anderson’s interest. Rule 801(d)(2)(C) does not require the

statement to be against the declarant’s interest. There is no

requirement an authorized statement must be against the inter-

est of either the speaker or the principal. See, e.g., Reid Bros.,

699 F.2d at 1306. I concede this error would not alone compel

us to reverse the decision below, but it is cumulative with the

numerous errors of law and fact in the district’s court deci-

sion.

The majority adds a whole new erroneous contention to the

district court’s errors: it relies on the notion that Bonds was

just “accommodating the wishes of a friend.” Majority Op. at

8568. Perhaps I spend my time in the wrong social circles, but

in my experience “accommodating the wishes of a friend” has

never quite included giving friends my blood or urine; a

screwdriver or a ride if his car breaks down, sure, but not vials

of my bodily fluids. But, even if giving away blood and urine

is something now done among friends, I do not see how “ac-

commodating the wishes of a friend” is necessarily exclusive

of “providing Anderson with the authority to speak.” Id.

8610 UNITED STATES v. BONDS

(internal quotation marks omitted). The majority suggests

Bonds had nothing to gain from Anderson’s Task. That is flat

wrong: Bonds testified he gave Anderson his blood and urine

samples for the ostensible reason that he expected the test

results to help him improve his nutrition. Bonds testified: “I

was just baffled like, you know, should have been doing this

a long time ago, you know, drawing blood, finding out what

you’re lacking and stuff, you know, keep your energy up if

you’re this or that.” Later, Bonds expected the test results to

keep Major League Baseball honest when it performed its

unannounced steroid test.

Finally, the majority contends Anderson was not impliedly

authorized to identify Bonds’s samples because Anderson

could have provided BALCO the samples anonymously. The

majority does not rely on any authority for its contention,

which is inconsistent with Iaconetti and Reid Bros.; in neither

of those cases did the court rule out all hypotheses as to how

the statements could have been made, but were not. In Iaco-

netti, for example, the speaker, Lioi, told his business partners

that he needed to collect company money to pay Iaconetti’s

bribe. Although the Second Circuit found those statements

were necessarily authorized, the majority’s analysis here

would compel a different result. Lioi could have lied to his

business partners about the need for the money. He could

have said it was needed for an unexpected emergency—e.g.,

that a valued employee needed uncovered medical treatment.

This type of second-guessing whether a statement is strictly

necessary would eliminate the admissibility of all statements

impliedly authorized, because whenever the party authorizing

a statement does not draft the exact words of a statement,

another formulation of the statement is possible. Instead,

Iaconetti and Reid Bros. hold that statements may be

impliedly authorized so long as they are made to complete a

task in the ordinary and usual manner.

The assertion that Anderson could provide Bonds’s sam-

ples anonymously is also unsupported on the record. It is not

UNITED STATES v. BONDS 8611

evident that BALCO would have tested random samples pro-

vided by Anderson, without the cachet of Bonds’s name.

Moreover, Bonds testified that he did not request or expect

Anderson to keep his identity confidential. To the contrary,

Bonds revealed his identity when he met with the CEO of

BALCO to discuss his testing and when he publicly spoke

about it in an advertisement for BALCO.

If Anderson’s sole task were to deliver the samples to

BALCO, I would agree with the district court’s determination

as to lack of authorization of Anderson to speak for Bonds to

identify the donor of the samples: couriers and postal workers

are not impliedly authorized to make statements as to the par-

cel’s provenance on behalf of the people from whom they

take parcels and make deliveries. See Restatement (Third) of

Agency § 1.01 cmt. h (2006). It is not necessary for a courier

to identify the source of a letter or package. Indeed, in most

cases the courier has no personal knowledge who delivered

the goods to the office for the final delivery. But, as the ele-

ments of Anderson’s Task reveal—when that Task is at last

fully described—Anderson was much more than a courier. He

was responsible for dealing with BALCO under highly spe-

cific conditions of delivery—conditions set by Bonds (sam-

ples to be picked up at Bonds’s home) and BALCO (samples

to be tested within thirty minutes of extraction), but not set by

Anderson. He was also responsible for reporting back the

results of Bonds’s tests. Bonds testified: “[Greg Anderson]

came in with the vials, my doctor drew the blood, we just

gave it to Greg. Greg went down there and dealt with it”

(emphasis added). The authority to deal with a third party is

a classic element of authorizing a person to act for another.16

16

Admittedly, the distinction between an authorized speaker under Rule

801(d)(2)(C) and an agent under Rule 801(d)(2)(D) appears blurry when

discussing “authorization.” These roles are distinguished, however, by the

fact that an authorized speaker under Rule 801(d)(2)(C) is not necessarily

subject to the other requirements necessary for agency under Rule

801(d)(2)(D).

8612 UNITED STATES v. BONDS

See Restatement (Third) of Agency § 1.01 cmt. c (“Authors,

performers, and athletes often retain specialized agents to rep-

resent their interests in dealing with third parties . . . . [A]

relationship of agency always contemplates three parties—the

principal, the agent, and the third party with whom the agent

is to deal.” (internal quotation marks omitted) (emphasis

added)).

The district court’s errors of law and fact require reversal.

In deciding an interlocutory appeal, we will reverse an evi-

dentiary ruling for abuse of discretion only if such nonconsti-

tutional error more likely than not would affect the outcome

of the case. See Hinkson, 585 F.3d at 1282. A preponderance

of the evidence proves Bonds authorized Anderson to perform

the task, which impliedly authorized Anderson to identify the

origin of the samples he delivered to BALCO. The district

court’s incorrect reading of the law and clear errors of fact

affected and effected its erroneous decision. Therefore, I

would reverse the district court’s decision not to admit Ander-

son’s statements under Rule 801(d)(2)(C).

IV. Conclusion

The district court’s errors in labeling Anderson’s

statements—identifying blood and urine samples handed by

Anderson to Valente at BALCO as Bonds’s—as hearsay con-

travene Rules 801(d)(2)(C) (authorized admissions) and

801(d)(2)(D) (statements of an agent related to the subject of

his agency). As to both Rules, the district court has erred as

to (1) the correct legal standard to be applied, and (2) its find-

ings of fact.

First, upon the more commonly visited hearsay exception,

Anderson’s statements to Valente: (1) were made while

Anderson was Bonds’s agent, in dealing with BALCO for the

production of accurate test results of Bonds’s bodily fluids;

and (2) were related to the scope of his agency—to help

UNITED STATES v. BONDS 8613

Bonds get accurate readings of his nutritional levels. See Rule

801(d)(2)(D).

Second, upon the less common hearsay exception, Ander-

son’s statements to Valente were impliedly authorized by

Bonds as a normal and necessary action for the procurement

of accurate test results of Bonds’s bodily fluids. See Rule

801(d)(2)(C).17

We should reverse the district court’s decision to exclude

Anderson’s foundational statements regarding the provenance

of the blood and urine samples that Anderson brought to

BALCO. Those statements are admissible in evidence under

both Rules 801(d)(2)(C) and 801(d)(2)(D). But, even if I am

wrong to think the evidence is conclusive in the government’s

favor, it is at least strong enough to merit remanding this issue

to the district court to decide whether, under the correct stan-

dard of law, Anderson was Bonds’s agent, or whether Bonds

authorized Anderson to perform his Task.

Although we should reverse as to Anderson’s statements,

that does not mean we should hold the BALCO logs and test

results admissible in evidence at this point. Bonds raised

before the district court several other reasons why that evi-

dence should not be admitted in evidence. The district court

did not reach those issues because it decided that Anderson’s

statements were inadmissible. Thus, if this case were

remanded, the district court would have to decide whether the

evidence proffered by the government is admissible in evi-

dence if Anderson’s statements are admissible in evidence.

17

Finally, like the majority, I do not think the district court erred in

deciding the government’s evidence was not admissible under the business

records exception, Rule 803(6), or the residual exception, Rule 807.