SAN FRANCISCO -- A divided federal appeals court dealt the federal government a significant setback in its prosecution of Barry Bonds on perjury charges.
The 9th U.S. Circuit Court of Appeals ruled Friday that prosecutors may not present positive urine samples and other vital evidence that the government says shows that the slugger knowingly used steroids.
The appeals court ruling upholds a lower court decision barring federal prosecutors from showing the jury any evidence collected by Bonds' personal trainer Greg Anderson.
Anderson last year told the trial court judge that he would rather go to jail on contempt of court charges than testify against Bonds.
The court says evidence tied directly to Anderson is inadmissible "hearsay" evidence unless the trainer testifies to the items' authenticity.
Prosecutors argued that Anderson had told BALCO vice president James Valente that the samples belonged to Bonds and that they would call Valente to the witness stand. But the appeals court said that because Anderson wasn't directly employed by Bonds -- the judges considered him an independent contractor -- the trainer would need to testify because Bonds didn't control the samples.
The court noted it was Anderson's idea to collect the urine samples and deliver them 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 delivered, or what tests were performed on them," Judge Mary Schroeder wrote for the majority court.
Judge Carlos Bea dissented, writing that he would have allowed Valente to testify about the samples.
Despite the setback, a source familiar with the government's case told ESPN's T.J. Quinn that the U.S. Attorney's office is unlikely to appeal the decision and will proceed to trial, possibly as early as this fall.
Quinn's source said that even without the evidence, the government is comfortable proceeding with the case based on the testimony of its witnesses.
However, Mark Geragos, the attorney for Anderson, viewed the decision as a clear victory for Bonds and indirectly for his client.
"Obviously, I am pleased by it on Greg's behalf,'' Geragos told ESPN's Mike Fish. "I think it [hurts] the prosecution against Bonds and indirectly eliminates any jeopardy for Greg.
"I think it guts the case. I don't think they have a case."
Geragos reaffirmed that Anderson, Bonds' former personal trainer and friend, has no plans to cooperate with federal prosecutors.
"He is never going to cooperate or talk,'' Geragos said. "He doesn't trust them.''
Asked why, he said, "Because they have broken their promises repeatedly to him.''
The U.S. Attorney's office had hoped that the lengthy wait for a decision on its motion meant that the 9th Circuit was going to give it at least a partial victory. While the decision was a disappointment, the source said, it wasn't a shock, and that it was unlikely the government would fare any better in a review by the full bank of judges.
Although the ruling eliminates what prosecutors said were three positive steroid tests, they still have a fourth test showing Bonds used steroids. In 2003, Major League Baseball tested all of its players for steroid use. The results of those tests were to remain confidential and were to be used only to determine if MLB had a drug problem that needed to be addressed.
The lab that MLB hired to conduct its testing found that Bonds tested negative for steroid use. But in 2004, federal agents seized Bonds' urine sample and had it retested for the designer steroid THG, which they said turned up positive.
The judge also permitted prosecutors to play parts of a recording Bonds' former personal assistant Steve Hoskins secretly made of a conversation he had with Anderson in front of the slugger's locker in San Francisco in March 2003.
In that conversation, Anderson discusses how he is helping Bonds avoid infections by injecting him in different parts of his buttocks rather than in one spot.
Bonds testified before the grand jury that no one but his doctor ever injected him.
In all, prosecutors will be banned from introducing samples allegedly belonging to Bonds that were tested for performance-enhancing drugs, BALCO log sheets recording the results of those tests and "doping calendars" seized from Anderson's apartment.
Bonds has pleaded not guilty to charges that he lied to a grand jury in December 2003 when he testified that he never knowingly used performance-enhancing drugs. A federal grand jury indicted him in 2007. His trial was scheduled to begin March 2, 2009, but the trial was delayed by the government's appeal.
The source, who spoke on the condition of anonymity, told ESPN's Quinn that rather than request an en banc hearing before the appeals court, the government is likely to let the case return to the jurisdiction of U.S. District Court in San Francisco next month. The two sides could meet before Judge Susan Illston as early as next month to set a trial date. Barring any motions to delay by either side and depending on Illston's schedule, a trial could begin sometime in the fall, almost seven years after Bonds appeared before the BALCO grand jury and denied knowingly using steroids.
T.J. Quinn is a reporter for ESPN's enterprise/investigative unit. Mike Fish is an investigative reporter for ESPN.com. Information from The Associated Press was used in this report.