The headline is wrong. I know you took it from the article, but Bonds didn't file his appeal. He filed his appeal brief. Two separate and distinct documents.

End pedantry.

This just in: federal prosecutors have secured a second felony conviction of Barry Bonds, for implying he filed an appeal when he really just filed an appeal brief. In response, Bill Madden and Pedro Gomez spontaneously consummated their forbidden love.

I confess to not knowing how the 9th Circuit runs the show. No chance of Kozinski getting in on this panel, correct?

60 pages? Appeal denied.

60 pages? Appeal denied.

“I have yet to put down a brief and say, ‘I wish that had been longer’” - Chief Justice John Roberts

A legal brief is anything but.

Chief Justice John Roberts doesn't need briefs to be more than fifty words long. He just asks the Chamber of Commerce or the Federalist Society how to decide any case.

Chief Justice John Roberts doesn't need briefs to be more than fifty words long. He just asks the Chamber of Commerce or the Federalist Society how to decide any case.

Witty!

I confess to not knowing how the 9th Circuit runs the show. No chance of Kozinski getting in on this panel, correct?

Certainly there is. He could even get Reinhardt or Pregerson, if he's lucky. I'm actually not sure about the strategy of appealing here. Nobody wants to be a convicted felon, but it's like he's waving a red flag at prosecutors to get himself retried on all counts.

Nobody wants to be a convicted felon, but it's like he's waving a red flag at prosecutors to get himself retried on all counts.

Ignorant layperson whose law knowledge comes from "Law and Order" episodes question;

Wouldn't double jeopardy apply to the other counts? Does an appeal on one count effectively invalidate (probably not the right word) the verdicts on other counts?

but it's like he's waving a red flag at prosecutors to get himself retried on all counts.

Wouldn't that be Double Jeopardy? Or is having a conviction overturned considered equivalent to a mistrial rather than a dismissal?

[edit] What kind of soft drink do you want, Jose?

The Double Jeopardy provision has been interpreted to mean that a hung jury, and the subsequent mistrial created thereby, does not invoke double jeopardy, and the defendant can be re-tried. Although some legal theorists disagree with this interpretation, it has been the rule for a very long time.

Basically, a mistrial is an exception to the operation of the double jeopardy rules, so long as it not caused by prosecutorial misconduct. If it is, double jeopardy can arise -- which was one of the issues that came up when the first Clemens trial got derailed by the prosecution using excluded evidence. However, the mistake must generally be deliberate; in essence the prosecution must be seen to be seeking to cause a mistrial. A mere screw-up is normally not sufficient, which was the result with Clemens.

To elaborate on Srul's answer to Jose/SOL:

1) No, an appeal on one count does not affect the verdict on other counts. But remember that Bonds was not acquitted on any of the counts. The jury hung on four of them and convicted on one. Therefore, there is no "verdict" to be affected. As Srul said, one can be retried after a mistrial caused by a hung jury.

2) In rare cases, an appellate court can actually direct a verdict of acquittal. But the vast majority of the time, it does not. It simply vacates the conviction and returns it for further proceedings, which would permit a retrial.

Do I correctly recall that the AUSA dismissed the remaining charges after the hung jury? If so, I assume the calculus changes at least a little. Are we still, for example, within the statute of limitations?

In rare cases, an appellate court can actually direct a verdict of acquittal. But the vast majority of the time, it does not. It simply vacates the conviction and returns it for further proceedings, which would permit a retrial.

Since Bonds is appealling the denial of the directed verdict / JNOV, it seems that the only possible pro-Bonds result would be directed verdict or remand with explicit instructions. This doesn't seem like a case where a slightly different jury charge or different ruling on evidence admissibility would rectify the purported error.

No, an appeal on one count does not affect the verdict on other counts. But remember that Bonds was not acquitted on any of the counts. The jury hung on four of them and convicted on one.

Thanks, that's the part I didn't remember. I had it in my head that it was Not Guilty across the board save the one.

Since Bonds is appealling the denial of the directed verdict / JNOV, it seems that the only possible pro-Bonds result would be directed verdict or remand with explicit instructions. This doesn't seem like a case where a slightly different jury charge or different ruling on evidence admissibility would rectify the purported error.

You could be right; I haven't actually read the appeal papers yet, so I have no idea what is arguments are (other than that he's not guilty).

Certainly there is. He could even get Reinhardt or Pregerson, if he's lucky.

I only ask because I'd really enjoy reading a Kozinski opinion about Barry Bonds. I can't say I actually care about the substantive outcome -- I'm in it for the prose!

According to this, Bonds cannot be retried on the perjury counts.

According to this, Bonds cannot be retried on the perjury counts.

In reading what the author of your link wrote, his conclusion does not follow from his premise.

He writes:

The government officially decided to dismiss the three counts without prejudice under Federal Rule of Criminal Procedure 48(a), which means they will not be able to re-try Bonds on the specific counts.

This is incorrect. Dismissing the counts "without prejudice" means that the government will be able to re-try Bonds on those counts.

(Of course, the government would need to obtain a new indictment if it intends to re-try Bonds on those counts, and this exposes the government to dismissal on statute of limitations grounds, but they technically can re-prosecute him on those counts if they clear the necessary hurdles.)