It could explain why Barry Bonds' attorneys believe the grand jury questions to him were impossibly vague and why the focus of the BALCO case veered from prosecuting distributors of illegal anabolic steroids and money launderers to catching world-class athletes lying about drug use.
Taking the Clear – the star drug of the Bay Area Laboratory Co-Operative – was not a crime, according to expert testimony included in grand jury documents.
Not only was the performance-enhancing drug tetrahydrogestrinone (THG) not specifically banned when athletes squirted "The Clear" under their tongues to gain an edge, the testimony also indicates that the drug wasn't categorized by the Justice Department as a steroid until January 2005, long after the drug laboratory had been shuttered.
Yahoo! Sports has examined sealed grand jury testimony given by drug-testing expert Dr. Donald Catlin in 2003 and BALCO lead investigator Jeff Novitzky in 2004. Both men testified that THG was not a steroid according to the federal criminal code. Furthermore, Novitzky testified that "there's never been any studies to show whether or not THG does, in fact, enhance muscle growth."
The judge in the Bonds perjury case lifted a protective order in November that had prevented about 30,000 pages of documents in the far-reaching BALCO case from becoming public. This is the first in a series of Yahoo! Sports stories that will broaden the understanding of the BALCO investigation, which has resulted in the prosecution of several athletes for perjury or lying to a federal agent and has cost taxpayers an estimated $55 million since the investigation began in 2003.
Bonds, baseball's single-season and all-time home run king, faces 10 counts of perjury and one charge of obstruction of justice in what legal experts say is probably the final stage of the BALCO investigation. Bonds' trial is scheduled to begin March 2 in San Francisco, and the deadline for his attorneys to file pretrial motions is Thursday. Bonds, who has been out of baseball since the end of the 2007 season, has pleaded not guilty and has steadfastly denied any wrongdoing.
Prior to the filing of charges, Bonds already was portrayed by some as a hulking personification of baseball's steroid era, making him an ideal target for the government.
"If you're going to topple a symbol of the evil of steroids, there's no one better that you can put in the dock than Barry Bonds," said Roger Abrams, a professor at the Northeastern University School of Law. "Knock him over and the kids will listen."
Evidence that the Clear was legal and technically not a steroid until the Anabolic Steroids Act of 2004 took effect in January 2005 could emerge as central to Bonds' defense, experts say. Perjury questions must be unambiguous to win a conviction, and the testimony of Catlin and Novitzky could establish that the government knew about ambiguity concerning the Clear before Bonds took the stand.
Experts say prosecutors might have intentionally asked Bonds what they knew to be ambiguous questions – never defining steroids or making a distinction between drugs that were illegal or merely banned by many major sports.
"This case has been presented as Barry Bonds lying about steroids," said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. "The government's theory is that he was taking the Clear. If the government knows the Clear wasn't a steroid – then when Barry said he wasn't taking a steroid, he was telling the truth."
The indictment cites questions posed to Bonds in the December 2003 grand jury hearing about whether he was getting the Clear or the Cream from his personal trainer, Greg Anderson, in December 2001. The ballplayer was also asked whether he was getting "the flaxseed oil or the Cream in 2000."
The Cream, another creation of BALCO founder Victor Conte, was a 10 percent testosterone cream mixed with the masking agent epitestosterone. The drug was not meant to be anabolic, but to disguise the effect of anabolic drugs like the Clear from testers.
Prosecutor: "Let me be real clear about this. Did he [Anderson] ever give you anything that you knew to be a steroid? Did he ever give you a steroid?"
Bonds: "I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that."
Prosecutor: "Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroids that he gave you?"
Bonds: "Not that I know of."
Bonds' attorneys could argue that even if he took the Clear, he wasn't lying when he responded by saying "Not that I know of."
"It's reasonable to think that the person answering a question about steroids would think they were asking about an illegal steroid," said Charles La Bella, a former U. S. attorney and chief of the criminal division for the Southern District of California who now practices criminal defense in San Diego.
"[A jury] wants unambiguous terms."
More than two months after Bonds testified, the government dropped clues that it was aware that the Clear was legal – and not a steroid. Buried in the February 2004 BALCO indictment of Conte, the government charged that the Clear or THG lacked directions in its labeling and was a "'designer steroid' or 'steroid-like derivative,' which would provide 'steroid-like' effects without causing the athlete to test positive for steroids."
The U.S. Attorney's office in San Francisco declined to comment.
Conte wrote the following in an unpublished manuscript called "BALCO": "There were actually two different species of The Clear from 2000 through 2003. The first was the anabolic steroid norbolethone, which was used successfully through the 2000 Sydney Olympics, helping Marion Jones win five medals that year, including three golds. It was only when I found out that the testers had identified strange metabolites in the urine samples of some of the athletes associated with BALCO at the Sydney Olympics that we moved on to the second designer steroid THG."
Although norbolethone was illegal, no evidence has emerged to suggest the substance was given to Bonds or any other baseball players alleged to have received drugs through BALCO or Bonds' trainer Greg Anderson. In an interview with Yahoo! Sports, Conte said that by January 2001 select BALCO athletes were receiving THG, and norbolethone had been shelved for good.
According to sources, the prosecution is expected to argue at trial it has proof that aside from the Clear and the Cream, Bonds took other banned steroids. The defense is likely to counter with chain-of custody and test admissibility arguments.
But prosecutors could have difficulty proving Bonds was lying when he said he didn't recall getting the Clear or the Cream on earlier dates, but recalled receiving them on later dates. That much is apparent from the grand jury testimony of Catlin, the founder of the UCLA Olympic Laboratory, and the chemist credited with decoding THG. Novitzky, who spearheaded the entire BALCO investigation while working for the IRS, also testified about the Clear.
On Oct. 23, 2003, just a few weeks before Bonds testified, prosecutor Jeff Nedrow questioned Catlin before the grand jury.
Nedrow: "There is actually a list promulgated in the federal criminal code of several steroids which are outright prohibited. Is that correct?"
Nedrow: "Is THG on that list in the federal code?"
Two months later – after most of the 30 some athletes had testified – Novitzky addressed the grand jury. Nedrow asked him about Catlin's response when asked whether the Clear, beyond being a substance banned by most sports, was "actually an anabolic steroid?"
Novitzky: "He said it was another matter when looking at federal criminal law and the problem that you run into there is there's a certain amount of steroids that are listed under criminal law that say: Hey, these substances are definitely steroids. And then there's a catchall phrase that says if it's not one of these substances, then if you can say pharmacologically or chemically related to testosterone, which in this case THG is, and you also have to show that it enhances muscle growth in human beings.
"And that's the problem that we've run into with THG and which Dr. Catlin testified to the grand jury, is that there's never been any studies to show whether or not THG does, in fact, enhance muscle growth."
If Novitzky's understanding of the law is correct, the fact that no studies had been done on the substance meant that possessing or taking THG was not a crime. However, the FDA announced Oct. 28, 2003, that THG was "an unapproved new drug" and could not be "legally marketed without FDA approval."
Major news organizations announced that the FDA had ruled THG an illegal steroid. But all the FDA had done was to rule that THG was not a dietary supplement and therefore could not be legally marketed without FDA approval.
Novitzky and Catlin had already testified that the testing on humans necessary to determine THG's legal status had never been performed.
Catlin acknowledged in the grand jury that tests had been done only on baboons: "THG – well we are just beginning – we don't know anything really about the kinetics and the time course and how long it lasts. We are waiting for the studies of the baboon to tell us some of that. But a baboon is not a man. It's complex. We cannot give THG to a human being without FDA approval, which we would never get."
THG was classified as an illegal steroid on Jan. 20, 2005, the date that the Anabolic Steroid Control Act of 2004 took effect. The Act eliminated the previous requirement to prove muscle growth and listed 59 specific substances instead of the previous 23 as anabolic steroids.
The new law closed the designer drug window exploited by Conte. But it was not retroactive and had no effect on the charges against anyone caught up in the probe. Conte served four months in prison beginning in December 2005 after pleading guilty to a single count of laundering $100 and steroid distribution. But as federal drug cases go, it was minor. Forty of the 42 counts against Conte were dismissed, and Anderson was the only other of the four accused co-conspirators sentenced to jail. BALCO vice president James Valente and track coach Remi Korchemny received probation.
Neither Conte nor Anderson was charged with distributing THG. In fact, nobody in the seven-year BALCO investigation has been charged with possession or trafficking of the drug. Less than $2,000 of drugs was found in the highly publicized raid of the Burlingame, Calif., laboratory in 2003.
Besides the staggering amount of taxpayers' money the investigation has cost, BALCO spawned Congressional hearings, countless television news accounts and the best-selling book "Game of Shadows." Yet the lack of a federal criminal punch made it difficult for the government to bring traditional charges against athletes for taking drugs.
The paucity of illegal profits and drugs raises the question whether prosecutors realized that the only potential for criminalizing the behavior of athletes who took banned substances was to set perjury traps or bait athletes into lying to the grand jury or to a federal agent.
"It sounds like a misuse of the grand jury," said John Bartko, a former assistant U.S. Attorney in San Francisco who has tried perjury cases. "They go and try to trip the guy into lying."
The government believes it has tripped Bonds, but whether he falls will be determined in court. The fact that the key drug he is accused of taking was legal and not recognized as a steroid under federal law could complicate the case, experts say.
"I don't understand why the government would seek an indictment after obtaining Catlin's expert testimony that the Clear was not a steroid," Cannon said. "Why come up with an indictment based on an ambiguous definition?"
- Barry Bonds