United States v. Bonds

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 laboratory that tested Bonds’s blood and urine for steroids. He testified 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 hearsay 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 incorrectly disdained, first by the district court, and then by the majority.

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 *509testing. 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 Anderson and BALCO. Because the task Bonds entrusted to Anderson 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 statements 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 authorized 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 purpose 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 acknowledging the district court indeed erred, but then improperly reviewing that court’s legal conclusion under a deferential standard of review. The correct approach to this case, under our standard of review as expressed in United States v. Hinkson, 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 authorized 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 courier. Failure properly to consider the task entrusted to Anderson 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, *510including reports purporting to show Bonds tested positive for steroids.

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 documents 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 government 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 testimony: 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 coaching.

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 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 provided by these tests would help Bonds alter his diet to regulate 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. Anderson 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 samples 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 anonymity.

Later, Anderson told Bonds the tests came back and “everything 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 *511food 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 they did not discuss any lotions or liquids that Anderson provided to Bonds.

During the 2008 season, Bonds was tested for steroids in two unannounced tests conducted by Major League Baseball. The government seized a document titled “NSIC Drug Testing 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 document] 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 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 Anderson 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 approximately $3,000. Bonds did not deduct any of these payments to Anderson from his taxable income.

*512II. 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 preliminary questions of evidence under Rule 104(b).4 In criminal 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, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

[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 support 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 801(d)(2)(C). Instead, such statements are considered admissions 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 *513as 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 statements 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 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 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 *514Cir.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 505. The majority is incorrect, therefore, in stating the district court identified the correct legal standard. See Majority Op. at 505. 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 independent 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 505. 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 independent 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 purpose of Rule 801(d)(2)(D) is a legal error; cases that distinguish 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 statements 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 identifying 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 Anderson 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.

*515(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 manifested 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 consequent 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 performance. For example, Bonds could have called BALCO to verify 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 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 terminate 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 Anderson’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 instructing Anderson, Majority Op. 506-07, 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

*516Moreover, the majority completely omits the fact that Bonds met with BALCO’s CEO Conte to discuss, in Anderson’s presence, the procedure for testing his blood and urine. 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 terminate the agency relationship — a factor essentially ignored by the majority. Were Bonds to decide to terminate the relationship, 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 explanation, 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 manifested an agreement as to control. Majority Op. at 506-07. I can only interpret this point to be based on the majority’s confusion between the requirement that the principal and agent respectively manifest assent and consent to the agency relationship 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 support 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 relationship.” Id. Further, none of the illustrations provided in Restatement (Third) of Agency § 1.01, comment f, mention anything about an agreement as to control. Instead, the illustrations 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 principal’s behalf, indicating that the action should be taken without fur*517ther communication and the other consents so to act, an agency relationship exists. If the putative agent does the requested act, it is appropriate to infer that the action was taken as agent for the person who requested the action unless the putative agent manifests an intention to the contrary or the circumstances so indicate.

Id. cmt. c. Bonds requested Anderson act on his behalf by taking 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 in this case imposes unwarranted obstacles to the government’s showing that Anderson was Bonds’s agent. The holding 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 savings 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 analyze 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 owners don’t want to rent to Blacks.” Id. at 1048. Harris complained 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 summary judgment against Harris on the ground that Harris failed to produce ad*518missible 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 testing 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 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 Burlingame 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 505-06, 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 *519years 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 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 505, 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 steroids. 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 505 (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 contractors 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 different decision.” Majority Op. at 508. The error more likely than not prejudiced the rights of the government. See Hinkson, 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.

(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 dispute that Anderson acted on Bonds’s behalf.

(d) Anderson consented to perform the Task. Bonds testified 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 identified 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 Anderson were not quite so loyal. Had Anderson sold documents showing Bonds tested positive for steroids to a celebrity gossip 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 relation*520ship.” 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 relationship 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 government failed to show the task of identifying Bonds’s samples 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 defendant’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 evidence 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 requirements 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 testimony should be reversed. The district court erred as to a matter of law by holding independent contractors could not be agents and by holding that statements admissible under Rule 801(d)(2)(D) must be made withi