Diamond Justice: December 10, 2007

Roids, Revenge and Reasonable Doubt – United States v. Barry Lamar Bonds – Part II

Sam Abady

This week, the Baseball Library continues our series about the Barry Bonds case with our resident legal eagle, Sam Abady. Our editor-in-chief, Richard Lally, resumes the role of interrogator to pose questions to Mr. Abady concerning the primary and ancillary issues of the case. It is our hope to separate the substance from the speculation, the genuine analysis from the wishful thinking. Here is Part 2:

Richard Lally: In our first installment, you explained the delay in indicting Bonds did not signal the government had new smoking gun evidence, but instead, possibly newly available witnesses. I have two questions. Why did the government charge Bonds only with perjury and obstruction of justice, but not the more serious crimes of drug conspiracy and possession of illegal drugs? And why did it charge him last?

Sam Abady: Bonds is the biggest fish in the BALCO pond. The government charged Bonds with perjury and obstruction because it lacked the evidence to prove a narcotics case against him for possession of steroids in violation of the federal Controlled Substances Act. The federal government often resorts to lesser charges of perjury and obstruction, or tax evasion, when it is unable to nail an important defendant with more powerful charges. The best known historical example is Al Capone. Due to widespread official corruption and intimidation of witnesses, the government was unable to amass evidence against Capone for bootlegging in violation of the Volstead Act and murder. So instead, it put him in prison eleven years for tax evasion.

The government charged BALCO owner; Victor Conte, BALCO vice president, James Valente; track and field coach, Remi Korchemny, and Bond’s childhood friend and personal trainer, Greg Anderson, in a 42-count indictment with a steroid distribution conspiracy and money laundering. In a separate indictment, it leveled the same charges against Patrick Arnold, the Illinois chemist who supplied BALCO with designer steroids. The defendants faced a maximum of thirty years in prison. For reasons not now entirely clear, the case collapsed, and the government dropped nearly all the charges. Hence, Conte and Anderson pled to only two charges, the other three to only one charge, and all received very light sentences.

Bonds was not charged with violating the federal Controlled Substances Act or money laundering. Instead, a second grand jury indicted him for allegedly having committed perjury four times in his December 4, 2003, appearance before the BALCO grand jury. Specifically, he is charged with lying about: (i) whether Anderson ever gave him steroids, including testosterone; (ii) whether Anderson ever gave him “anything that required a syringe to inject yourself with” or that Anderson said must be injected, and if anyone other than a physician ever injected him with steroids; (iii) whether Anderson ever gave him human growth hormone; and (iv) whether he received “tubes” of what Bonds said he thought were “flaxseed oil” before the 2003 baseball season. The obstruction charge is based on the predicate perjury charges, i.e., that Bonds obstructed the grand jury by giving false or misleading testimony.

Bonds was indicted last for two reasons: (i) at the outset, the government hoped to secure cooperation deals with the four BALCO defendants to testify against him for illegal drug possession; or (ii) if that failed – and it did – then to subpoena these defendants to a separate grand jury investigating Bonds for giving false testimony to the BALCO grand jury.

The second point requires some explanation. As a practical matter, the government cannot subpoena a target of indictment, or an indicted defendant, to testify before a grand jury in a pending case because that person invariably will invoke his Fifth Amendment right against self-incrimination. Hence, the subpoena is a useless exercise.

However, once the case against Conte, Anderson, Valente and Korchemny was over, the government is able to subpoena them and they cannot refuse to testify because they are immune from further punishment under the Fifth Amendment’s double jeopardy clause. Indeed, on April 25, 2006, Bay Area newspapers reported that Anderson and Valente had been subpoenaed to testify before the grand jury which eventually indicted Bonds for perjury. Anderson refused to cooperate and went to prison for contempt of court rather than testify against Bonds. I don’t believe Valente was required to actually appear after he was subpoenaed. Conte, Valente and Anderson all have announced they will not cooperate with the government to prosecute Bonds.

Key Witnesses in A Largely Circumstantial Case: The Tough Investigator, the Jilted Lover, the Estranged Friend and Manager

Besides expert witnesses, the key prosecution witnesses will be Jeff Novitsky, the primary BALCO investigator; Kimberly Bell, Bond’s ex-girlfriend; and Steve Hoskins, his former business manager.

Most of the government’s case will be based on circumstantial evidence, i.e., documents and drugs seized during a September 3, 2003, raid on BALCO, and subsequently, from Anderson’s apartment, and not eye witnesses who saw Bonds taking steroids or to whom he admitted taking steroids.

Historically, circumstantial evidence was deemed inferior to direct evidence. Under modern American law, however, and specifically, a Supreme Court case entitled Holland v. U.S., circumstantial evidence is deemed equal to direct evidence. The classic example used to distinguish between the two types of evidence is rain. If we go outside and get wet from water droplets falling from the sky, that is direct evidence it is raining. If we see a man come in from outside with a wet raincoat and umbrella, that is circumstantial evidence from which we infer it is raining.

But not necessarily raining at that time. And the timing of key events about which Bonds’s testified will be crucial at his perjury trial. For example, the prosecution leaked to the press that it has a 2000 blood test labeled “Barry B” that was positive for steroids. By itself, the document is hearsay, and the government may have a hard time getting it into evidence. It depends on its source. For example, there is an exception to the hearsay rule for documents kept in the ordinary course of business. If the document came from an outside laboratory, then an employee can testify it was generated in that lab’s ordinary course of business. If it came from BALCO – which is more likely, as commercial laboratories typically require complete identifying information on test samples – and all BALCO employees refuse to testify, it likely will not be adissible in evidence.

However, even if the document is admitted in evidence, by itself, it does not prove the fourth perjury count, i.e., whether Anderson ever gave Bonds steroids before the 2003 baseball season. The government still must show that: (i) “Barry B” is Barry Bonds among the thousands of BALCO clients; and (ii) these steroids came from Anderson. If they came from someone else, there is no perjury in denying that Anderson did not give Bonds steroids before the 2003 season.

The government also claims it seized a recording in which Anderson describes giving Bonds with an undetectable steroid in order to evade drug testing by Major League Baseball. Through his lawyer, Anderson disputed the recording says what the government claims. Moreover, without his testimony, it may not be easy for the government to authenticate the recording, another requirement for it to be admitted in evidence.

Kimberly Bell and Steve Hoskins both testified before the grand jury which indicted Bonds, and both have announced they witnessed Bonds taking steroids and spoke with him about it. However, their testimony is subject to serious attack on cross-examination. Bell is Bonds’s jilted ex-girlfriend and now Playboy bunny depicted in panties emblazoned with Bonds’s number 25. Bonds’s defense counsel undoubtedly will seek to discredit Bell as a jilted gold digger intent on capitalizing on the trial for craven purposes.

Steve Hoskins was Bonds’s boyhood friend, best man at his 1998 wedding, and his business manager for a decade. Hoskins set up Kent Collectibles to market balls, bats and jerseys autographed by Bonds, and lithographs depicting Bonds in action. However, in 2003, the two had a terrible falling out after Bonds says he discovered Hoskins pocketing money from sales of phony memorabilia embossed with Bond’s forged autograph. Bonds tried to have Hoskins indicted for fraud, but the feds cleared him. Bonds’s lawyer will seek to discredit Hoskins as a vengeful former friend with a motive to lie, and discredit the feds who cleared Hoskins of fraud in order to keep him in their pocket for use against Bonds at trial.

A summary of events leading to the BALCO investigation and its aftermath is critical to understanding the perjury case against Bonds. Because the information is complex and extensive, it is broken down in two parts. The first part appears below, and describes events leading up to the September 3, 2003, raid on BALCO. The second part will appear tomorrow and describes events up to the perjury indictment on November 15, 2007.

BALCO’s Beginnings – Arnold’s Concoctions & Conte’s Connections

In 1989, rocker Victor Conte, known as "Walkin' Fish” when he was the bass player for Tower of Power, formed BALCO and its sister company, Scientific Nutrition for Advanced Conditioning, Inc. (SNAC). Conte boasted he could propel top-level athletes to peak performance through an unconventional mix of blood analysis and nutritional supplements. BALCO did “elemental analysis of blood and urine” using an ICP (Inductively Coupled Plasma) spectrometer, and SNAC then supplied athletes with vitamins and supplements.
Over the next twelve years, Conte’s main product was ZMA, zinc monomethionine aspartate, a combination of zinc, magnesium, and vitamin B6 pyridoxine.

In 1998, Bonds began weight training with Anderson at a gym around the corner from BALCO. At some point probably two years later, Anderson took Bonds to see Conte and Bonds began a year-round training and supplement regimen under Conte’s guidance. Bonds told Muscle & Fitness magazine he visited BALCO every few months to have his blood tested for mineral deficiencies, and described the long list of supplements he took at different points of the day, including three capsules of ZMA before bedtime.
In 2000, Bonds and Oakland Raiders linebacker, Bill Romanowski, gave ZMA a high profile, public endorsement. Romanowski was the pied piper who led dozens of football players and other athletes to BALCO’s doorstep. That same year, Bay Area born and bred sprinter, Kelli White, was introduced to Conte by her longtime coach, Remi Korchemmy, and started taking ZMA and other BALCO supplements.

On October 1, 2000, the U.S. Anti-Doping Agency (USADA) began operations, taking over drug testing done by domestic sports federations. On August 31, 2002, Olympic cyclist, Tammy Thomas, was banned from cycling after a USADA urine test revealed she had taken norbolethone, a steroid developed thirty years earlier but never marketed. The drug had been concocted by BALCO’s Illinois chemist, Patrick Arnold.

Arnold was considered a world expert in male hormone enhancement and muscle development. He was labeled the “father of prohormones,” precursor substances in the body’s creation of steroids and other hormones. Arnold obtained patents for Androdial (4-androstenediol) and Norandrodiol (19-nor-4-androstenediol) and other prohormones, and promoted steroids on the website “Mesomorphosis.” He was named among the “100 Most Powerful People in Sports” by Sporting News in 1998.

Most significantly, Arnold created the prohormone, androstenedione, a/k/a “andro,” an intermediate step in the biochemical pathway that produces the androgen, testosterone, and estrogens, estrone and estradiol. The drug gained notoriety after Cardinals slugger, Mark McGuire, admitted using it to fuel his 1998 record of seventy single-season home runs, beating Roger Maris’s 1961 record of sixty-one.

Why the Feds Targeted BALCO

In June 2003, the USADA received an anonymous telephone call from a “high profile track and field coach” later identified as Trevor Graham, sprint coach for Tim Montgomery who held the world 100 meter dash record, his girlfriend, Marion Jones, and Justin Gatlin. Graham sent the testing agency a used syringe he said he got from BALCO.

Dr. Don Catlin, who runs the Olympic drug-testing laboratory at UCLA, tested the syringe and discovered it contained a new, designer anabolic steroid he named tetrahydrogestrinone or THG, the substance Conte called “the clear.” THG is closely related to the steroids gestrinone and trenbolone, but altered slightly to avoid detection. Catlin then created a new test to detect the drug.
Conte had obtained the THG from Arnold. At around the same time, BALCO medical director, Brian Goldman, M.D., a psychiatrist, became embroiled in a minor doping scandal involving White who had won the International Association of Athletics Federation world title in the 100 and 200 meter sprints. She had tested positive for modafinil, a mild stimulant. The drug was not banned by the IAAF at the time, but the agency charged her with using a “related substance” to proscribed drugs, despite statements from independent physicians disputing that it enhances athletic performance. Goldman said he had prescribed the modafinil to treat White’s narcolepsy and for jet lag.

The Feds Raid BALCO: Drugs and Documents - The Crucial Novitsky Memorandum

These events put Arnold, Conte and BALCO squarely in the government’s crosshairs. Hence, on September 3, 2003, officials from the Criminal Investigation Division of the IRS and FDA, together with the San Mateo Narcotics Task Force and USADA raided BALCO to seize THG, norbolethone and other steroid-related evidence.

During the raid, Conte was cornered by Special Agent, Jeff Novitsky, who later wrote down what he claimed were Conte’s statements in a now-famous memorandum dated the same day. According to Novitsky, Conte confessed to steroid possession and distribution and implicated others.

However, Novitsky never presented the memorandum for Conte to sign, nor was the interrogation audio taped or videotaped. This is crucial because, in the absence of such proof, what Conte said or did not say ends in a swearing contest between him and Novitsky.

In the memo, Novitsky claims that Conte did the following: