BALCO case takes another twist

Jeff Passan
Yahoo! Sports

Of all the places for the tortuous BALCO case to end up, even this seemed extreme: A potential showdown in the United States Supreme Court balancing the cost of busting steroid cheats with the sanctity of the Bill of Rights in the computer age.

Oh, it figured to get dirty, certainly, with San Francisco Giants outfielder Barry Bonds preening and posturing from the get-go. Government officials abhor arrogance, and so what should have been a quick-and-easy bust-and-run case has mushroomed into a battle over whether the confidential records of more than 100 players who tested positive for steroids in 2003 are available for the government's use in pursuing its case against Bonds and, perhaps, distributors of performance-enhancing drugs.

A federal appeals court ruled Wednesday that the copious records from drug-testing-lab computers, seized with a search warrant seeking information regarding only 11 BALCO clients, were the property of the government. Before it can enter any of the evidence into the record, use the information in its investigation or, as was widely reported, name those who tested positive, a magistrate judge must determine whether the Major League Baseball Players Association is correct in its contention that "intermingled evidence" – in this case, the results of the positive tests found in some of the same computer files as the BALCO players' – is private and not privy to seizure under the Fourth Amendment. No date has been set for that ruling.

In three previous separate cases, U.S. district judges in Los Angeles, San Francisco and Las Vegas had ruled in the players union's favor before the Ninth U.S. Circuit Court of Appeals overturned them by a 2-1 decision Tuesday. And even if the magistrate, an impartial appeal judge, does force the government to keep the list secret, a source said Wednesday the union still would likely appeal the case – either to the full body of Ninth Circuit judges or to the nation's high court – dragging it out for years to come.

Already haunted by the Capitol Hill steroid hearings, baseball faces even greater embarrassment with the potential publication of the list, which is said to include 104 names. Surely some are big ones, too, since almost 8.7 percent of players on major-league rosters tested positive in the spring of 2003. Because that number exceeded five-percent threshold contained in the collective bargaining agreement, MLB agreed to implement testing for performance-enhancing substances in 2004.

"We're not commenting," MLB spokesman Rich Levin said. "We haven't had a chance to read through the decision."

The union echoed MLB's public sentiment, all the while wondering how a raid on a small office in Burlingame, Calif., turned into such a nightmare.

Much of it stems from IRS Special Agent Jeff Novitzky, the BALCO case's primary investigator whose aggressive maneuvers could topple Bonds. Novitzky discovered how the Bay Area Laboratory Co-Operative had become a center for steroid distribution and helped send owner Victor Conte and his accomplices to jail. He busted Arizona Diamondbacks reliever Jason Grimsley with human growth hormone and wrote the affidavit in which Grimsley allegedly accused former teammates of using performance-enhancing drugs. And now, if the latest ruling stands, he will have handed prosecutors a Beverly Hillbillies-level strike.

"The stakes in this case are high," wrote Judge Sidney R. Thomas, near the beginning of his dissenting opinion, and he wasn't just talking about Bonds.

At issue was the search warrant executed April 8, 2004, at Comprehensive Drug Testing and Quest Diagnostics, the laboratories that compiled MLB's tests and stored the data. Both companies had refused to comply with subpoenas, so Novitzky obtained a warrant. He and 11 other agents searched CDT's Long Beach, Calif., office that day and found a list that matched the names of each player with a corresponding number linking to their specimens, which authorities later seized from Quest's Las Vegas office.

Despite CDT's attempt to conceal some documents – attorney David Bancroft said "CDT had only one hard copy document available for seizure," which was not true, according to the majority opinion – investigators left with quite a haul. Among their findings were a 25-page master list of all the players tested in the spring, 34 pages of positive test results – including eight of the BALCO players, though the government did not identify whether Bonds, Gary Sheffield or Jason Giambi were among them – and the mother lode, known as the "Tracey directory."

In addition to housing five sub-directories strictly for baseball, the Tracey directory, according to the dissent, contained 2,911 files that had "nothing to do" with MLB testing. Drug testing for 13 sports – including hockey, which, an attorney for the government admitted to a judge, might have had its records searched – were represented in those files.

National Hockey League officials received the ruling Thursday and planned to look over the 115-page document. "We will defer comment until we have reviewed the full decision," an NHL Players Association spokesperson said.

The fairness of other leagues' records being searched under the warrant for the 11 baseball players linked to the BALCO case was up for interpretation, and as Judge Diarmuid F. O'Scannlain reminded in the Ninth Circuit's majority opinion, citing U.S. v. Hill, "As always under the Fourth Amendment, the standard is reasonableness."

According to Keith Scherer, an attorney who wrote a chapter in the book "The Juice" on the prosecution of the BALCO case, O'Scannlain, who was joined by Judge Richard C. Tallman in his opinion, could have used this logic: If, during a criminal investigation, a computer was seized, and in searching it investigators found evidence of another illegal activity, would they not be allowed to use that evidence in a later proceeding?

MLB Players Association executive director Donald Fehr, in a statement released Thursday, cited a portion of the dissent that claimed under such a ruling "no laboratory or hospital or health care facility could guarantee the confidentiality of records."

"That is something which should be of serious concerns to all Americans," Fehr wrote.

Instead of taking the directory, Novitzky and his team made copies of "limited diskettes and documents containing relevant information," according to the majority opinion. While the dissent argued that relevance should be left to a magistrate – the searching party deciding what's relevant, the argument went, seems quite a conflict – the government tried to claim the seizure was under the purview of the plain-view doctrine.

Essentially, the doctrine says that property can be seized, even without a warrant, so long as it's out in the open and the authorities have probable cause to believe it is worthy evidence of a crime. In this case, the government claimed, all of the files on the computer were in plain view.

In his dissent, Thomas was enraged at the government's interpretation of the doctrine, calling it a "breathtaking expansion" of the Fourth Amendment. Still, in the digital age, when definitive and equal case law can be hard to come by, the dissent claimed the majority had ignored the 24-year-old case U.S. v. Tamura, about intermingled records. High-court appeals, such as the one the union could levy in the BALCO case, can accordingly become benchmarks. And though the majority and dissent disagreed with the government on the plain-view argument, O'Scannlain saw no problem with Novitzky's tactics gathering the information or in his procurement of the search warrant.

When contacted Thursday, Novitzky declined comment on the ruling.

"We do not discern bad faith or 'callous disregard,' " O'Scannlain wrote, "simply because the agents determined, after an initial review, that certain intermingled files needed to be reviewed off site."

What those intermingled files say is significant.

Even after a year in which no active major-league player tested positive during the regular season, performance-enhancing drugs remain a hot topic in baseball as much because of the politics as the effect on the game. Washington politicians used them as a bipartisan platform in 2004, and Novitzky has continued to chase them long since the primaries in the BALCO case were sentenced.

Meanwhile, baseball is steadying for its next Hall of Fame vote, when Mark McGwire, an admitted prohormone user alleged to have used steroids, is a candidate. Surveys of voters indicate McGwire is unlikely to get in on his first vote, and some have said they frown upon his alleged performance-enhancing-drug use.

Were the list of 104 to be revealed, others would likely suffer the same skydive from grace.

"The harm they would suffer," wrote Judge Florence-Marie Cooper, one of the circuit-court judges who sided with the MLBPA, "if the records were released (even if the positive tests are shown to be innocuous) would be irreparable."

She added the government's investigation showed "extremely troubling conduct … almost desperate."

Novitzky has pursued Bonds since Sept. 3, 2003, when local and federal authorities raided BALCO's office in Burlingame. Bonds testified at grand-jury proceedings that fall, claiming that he unknowingly used "the cream" and "the clear," two designer steroids that, when baseball did its testing in the spring, were undetectable.

If so allowed by the magistrate, perhaps the government could gather Bonds' sample – officials would not say whether they had one – and test it for "the clear," better known as tetrahydrogestrinone, or THG. It could, conceivably, test all of the samples and leverage players into testifying against middle men or suppliers.

However Novitzky proceeds, Bonds will likely be in the middle. One grand jury has already expired with no charges, and though the second has jailed Bonds' trainer, Greg Anderson, for refusing to testify, it has not made enough progress to charge Bonds with a crime – neither perjury, for lying to the grand jury in 2003, nor tax evasion.

Bonds, with 734 career home runs, is 22 away from breaking Henry Aaron's career record, and recently agreed with the Giants on a one-year, $16 million deal. The contract has yet to be signed, with specific language, possibly pertaining to the BALCO case, still to be worked out.

This case begets such uncertainties, ones that have left players curious how the release of the 104 positive tests could damage the sport. Some will wonder why the union did not immediately destroy the tests and samples, and others will question how a veil of confidentiality could vanish like flash paper.

"There is no question that the baseball players who participated in the random testing had a justified expectation of privacy in the test results," Thomas wrote in the dissent, "and, in particular, that the test results would not be disclosed."

Maybe so. Though with the BALCO case, whenever something seems to jibe, there's a new twist, a new turn – something new that keeps it alive and primed to make even more history.

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