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Little Fish, Big Fish 

Memo to Ashcroft: Why aren't you pursuing Barry Bonds the way you did Martha Stewart?

Wednesday, Mar 17 2004
Imagine an alternate universe where an entertainment figure is linked to fraud. Federal investigators, aware of the deterrent potential of a high-profile prosecution, target the celebrity's underlings, accomplices, and enablers. They conduct stakeouts, obtain phone records, seize computer disks, and analyze e-mails until they can threaten the peons with prison, making the peons more amenable to testifying against the star. Salacious headlines result. And other cheats in the celebrity's corporate realm are forewarned that, in the recent words of Attorney General John Ashcroft, "it is the honor, the duty, and responsibility of the United States Department of Justice to ensure that no one stands above the law -- regardless of power, position, or privilege. The rule of law -- and the people's trust -- depend on swift, sure justice in the prosecution of crimes that manipulate competition or deceive the public."

Imagine, in other words, that federal prosecutors went after Barry Bonds like they did Martha Stewart. And when you're done imagining, open your eyes and ask yourself: Why do they seem to be protecting him as they prosecute drug-pushing peons instead?

Both George Bush and John Ashcroft have said they're pumped up about confronting performance-enhancing drug use, in my view a type of financial fraud in which drugged athletes, along with team owners, sponsors, and merchandisers, make fortunes on phony, juice-induced achievements. Yet Bonds apparently feels so safe from prosecution that he's telling reporters the current steroid scandal will soon blow over, even though federal prosecutors possess confessions, grand jury testimony, financial and surveillance records, e-mail archives, discarded drug packages, syringes, and other evidence that implicates a small group of professional athletes including an unnamed S.F. Giants player known to hang out with Bonds' lifetime pal and personal trainer, Greg Anderson.

Last month the U.S. Attorney's Office indicted two executives of a Burlingame lab accused of providing steroids, steroid masking agents, and other sports-fraud-related drugs to ballplayers. The indictment also charged Anderson and another trainer, who allegedly served as middlemen between the steroid-pushing lab and a professional athlete whose name the government has chosen to protect. Following the president's recent State of the Union address, which included a condemnation of drugs in sports, Ashcroft touted the case as if it were a Martha Stewart-style warning shot.

"These drugs are bad for sports, bad for the players, and bad for the young people who look to athletes as role models," Ashcroft was quoted as saying in the press release announcing the indictment of officers of Balco Labs, a Burlingame physiology testing and nutrition supplement company alleged to have dealt steroids to top athletes.

But a review of the affidavits, indictments, and commentary surrounding United States of America v. Victor Conte Jr. et al. -- in which the Justice Department throws the book at Balco while concealing the names of, and apparently granting immunity to, athlete-users -- suggests the government may instead be offering a friendly pat on drug cheats' butts.

Bonds is among a handful of athletes who have reportedly testified before the federal grand jury in exchange for immunity from prosecution. Athletes' names have been excised from all public documents associated with the case, although the indictment and search warrant affidavit make repeated references to the drug-related actions of specific athletes, testimony said to name specific drug-using athletes, and correspondence involving specific drug-using athletes.

A spokeswoman for the U.S. Attorney's Office told me the athletes' names have not been released because the players have not been indicted. U.S. Attorney Kevin Ryan, who is supervising the Balco prosecution, won't comment on whether the government will charge the athletes, the spokeswoman said.

If this were a recreational-drug case, such an approach might make sense. Pushers of those drugs seduce hapless users, then profit mightily. But in pro sports, athletes are the drug kingpins. Performance-enhancing drugs create fortunes for ballplayers, team owners, sponsors, and merchandisers, with pushers forming only a small part of the economic food chain.

Yet federal prosecutors appear to be letting prominent, wealthy athletes off the hook to provide evidence against teensy Balco Labs. It's as if they gave the late Colombian drug lord Pablo Escobar immunity in order to convict one of his mules.

"In this case, the government's message from the beginning was, 'We want to send a message; that's part of our effort to clean the sport up,'" says Troy Ellerman, a Sacramento lawyer representing Balco Vice President James Valente. "But it's inconsistent to go after four guys from Burlingame. That's a message that's not going to be sent very far."

Ellerman says he has received no overtures from federal prosecutors seeking to trade leniency for help in going after the sports stars implicated in the case.

"They know my phone number," Ellerman says.

News reports say prosecutors recently subpoenaed Major League Baseball drug test results for seven Balco-linked players, including Bonds. I'm holding out hope that the results might be used later to build perjury cases related to the athletes' grand jury testimony.

But that seems an odd way to make a case, given the preponderance of diverse evidence linking specific athletes to specific drugs in specific instances. And in my view it's unlikely the subpoenaed drug tests will turn up anything useful, given that drug tests are notorious for failing to identify doped athletes.

Is Ashcroft interested in wrapping up simple, meaningless drug-dealing cases by November, rather than in going after beloved sports heroes?

I'd have loved to have accompanied IRS investigators on Sept. 11, 2002, as they staked out Balco Labs. According to the search warrant affidavit, IRS agents had spent months investigating a pro ballplayer steroid ring. On this day they were about to hit a bull's-eye.

According to the affidavit, Greg Anderson emerged from Balco's offices and drove directly to Pac Bell Park. Once he arrived, guards waved Anderson into the gated players' parking lot, where he double-parked in front of several other players' cars and entered the players' area of the stadium.

Two weeks later, during another stakeout, agents saw Anderson arrive at Balco Labs in a car driven by "a person identified as a baseball player." Anderson and the ballplayer got out, and Anderson, a friend of Bonds since Little League days, introduced the unnamed athlete to James Valente and Balco owner Victor Conte. The four entered Balco's offices, and seven minutes later they emerged and the baseball player drove off with Anderson in the passenger seat. "Neither the baseball player nor Anderson carried anything away from Balco," IRS Special Agent Brian Watson wrote.

Added Special Agent Jeff Novitzky in an earlier affidavit discussing the same stakeout: "Athletes have been surveilled spending short amounts of time within Balco, indicating the possibility of steroid administration from within Balco Laboratories."

The documents don't name Bonds, and another ballplayer could certainly have chauffeured Anderson to Balco. And Anderson could have hurried straight from Balco's offices to the Giants' stadium to meet a ballplayer other than Bonds.

But while these documents intentionally hide players' names, they inadvertently illuminate the underlying phoniness of the current national debate surrounding sports fraud.

Baseball owners posit themselves as victims of the doping problem. Their hands are tied by collective bargaining agreements that limit testing, they say. Loosen these fetters and owners will supposedly do the right thing and institute systematic testing.

But Special Agent Watson's affidavit suggests a different reality. Anderson -- identified by a police informant as a well-known steroids dealer -- apparently had the run of the Giants' facilities. It's hard to believe the team's front office couldn't keep Anderson from being waved into secured areas by guards, from being allowed to double park in the secured players' lot, and from entering normally off-limits players' facilities as if he belonged there. I detect a conspiracy of silence: How disappointed were Giants managers when their star player magically gained 30 lean pounds?

Claims that systematic drug tests will clean up sports are also specious. Testing of the sort currently demanded by politicians like Arizona Sen. John McCain has, in every case in which it's been implemented, proved a sham. The development of effective drug tests and new, undetectable doping techniques is a Cold War-style arms race that's been plaguing professional sports since the 1960s. The endless, repeating story has gone like this: The doping camp discovers, or develops, an undetectable performance enhancer. After a few years, sports regulators find out about it and spend several years attempting to develop an effective test. Typically dopers stay a half-decade ahead of testers.

Balco executives and their doper clients narrate this war in e-mails gathered by IRS Special Agent Watson. They describe a lopsided détente in which testers seek to detect an imbalance of testosterone, and athletes counter by using the masking agent epitesterone, for which no definitive test exists. Cheaters scan doping regulators' banned-substances lists so they know which drugs to stay away from, then seek out obscure medications such as Norbolothone, a steroid that was never released commercially and thus evaded the banned-substances list for six years, according to Watson's affidavit. In other cases pushers get around the list by customizing their own drugs, such as the steroid THG, a Balco specialty.

It's inconceivable to me that Major League Baseball would implement anything more than nuisance testing without the prod of criminal prosecution of athletes. For sports corporations, image is everything, regardless of reality. That's why seemingly rigorous yet ultimately ineffective drug tests are ubiquitous in all high-profile sports save baseball. It's why positive test results are relatively rare in any sport. And it's why customs stings and police raids invariably produce results suggesting systematic drug use by "clean-testing" competitors.

This leaves police work as the best way to fight doping fraud. And unless the Justice Department includes in its case the most prominent members of this conspiracy, athletes will find other supplier peons to do their dirty work.

"The paradigm has shifted; the person receiving the drug is in the position of being a kingpin. That person has a $20 million contract and has benefited from the drug -- if that's true that they're using," says Ellerman, the lawyer for Balco's vice president. "I don't see how that's consistent with Ashcroft's idea of sending a message."

The promenade that runs between the Giants' stadium and the bay is set with manhole-size brass medallions commemorating Bonds' home runs. Around the corner, a gift shop sells Bonds jerseys; a few steps farther a cathedrallike entrance invites fans into what has become a temple to Barry Bonds. Awhile ago I showed the edifice to my friend Toño, who was visiting from Mexico. A group of tourists stood near the entrance, faces in the air, mouths agape, eyes as big as baseballs.

"It's because they're Dominicans," Toño said.

Neither of us is a baseball fan, but we understood how travelers from such a sports-enraptured nation felt.

Twenty years ago, Toño and I were enthralled by the exploits of Italian bicycling star Francesco Moser. He had been known for winning the difficult Paris-Roubaix race over cobbles, in the rain. In 1984, Moser became a demigod in the sport by traveling to high-altitude Mexico City to break the hour record, cycling's most prestigious timed event. The next year I moved there and caught Moser mania. Toño and I bought Moser-brand racing bicycles with his 51.151 km record engraved in the fork crown. Sometimes when it was raining I would seek out potholed roads, tilt my head to the side to shield one eye from water like Moser did, and imagine myself the Italian star.

In 1994, at the age of 42, Moser announced he would travel to Mexico City to break the record again. The resulting hysteria compelled an Italian magazine to urge him to stay home. His native country was suffering the humility of corruption trials, the editorial said; if Moser failed, Italy's spirit might never recover. During the race I spoke with a priest who was the Vatican's envoy to sport. He was so excited by the spiritual implications of Moser's attempted comeback that he grew red in the face trying to explain. Moser failed, barely. But his effort inspired me.

Years later, as part of a crackdown on drugs, police seized the computer of Moser's ex-trainer. An Italian sports official broke the omerta code of silence and said that in 1984 an Italian diplomat had smuggled doped blood that Moser injected. In 1994, computer records showed, the cyclist's trainer gave clients EPO, a red-blood-cell-boosting drug that has also turned up in the U.S. government's investigation of Balco.

It's easy to think that U.S. regulators have been more aggressive than Europeans in pursuing corporate financial fraud, while Europeans have done more about drugs in sports, since Americans care more about money and Europeans, culture.

But that's not true, really. For every person who once wanted to emulate Martha Stewart, 10,000 still daydream of being Barry Bonds.

Our national character will benefit if prosecutors go after Barry Bonds as vigorously as they did Martha Stewart.

About The Author

Matt Smith


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