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.