The Explainer: Is time running out on the Armstrong case?

The Explainer: Is time running out on the Armstrong case?

Is time running out? Well, yes ... and no.

Dear Explainer,
I am among those who really wish “the past” would just go away, but it hasn’t yet. Is December 31 the absolute drop-dead date for grand-jury action on the Lance Armstrong case? Is there wiggle room?
― Tim

Dear Tim,
I am not one of those lawyers who has a lot of experience with federal grand juries — either as an attorney or as a defendant — so I checked in with a friend who works as an assistant U.S. attorney in another district.

As is usually the case, there is a rule out there and my friend pointed me to the Federal Rules of Criminal Procedure, which sum up the question rather nicely.

Rule 6(g) of the Federal Rules of Criminal Procedure provides:

(g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension may be granted for no more than 6 months, except as otherwise provided by statute.

Given that it operates under a shroud of secrecy, it’s kind of hard to find out precisely when the grand jury was originally empaneled. Still you can make an educated guess. Most observers agree that the grand jury was originally charged with a far more general investigation into the distribution of performance-enhancing drugs in cycling. The impetus for that came after Joe Papp began to cooperate with authorities after pleading guilty to conspiracy to distribute performance-enhancing drugs, including human growth hormone and EPO, at a time when he was offering information against other athletes suspected of doping violations.

While Papp originally came into the public spotlight when he testified at the Floyd Landis doping hearings in 2007 as to the efficacy of testosterone use by cyclists, what appears to have caught the attention of federal authorities is information he offered regarding former Rock Racing rider Kayle Leogrande.

According to sources close to the investigation, one target was former Rock Racing owner Michael Ball, who was allegedly involved in the purchase of performance-enhancing drugs for other riders. (Ball was the owner of Rock & Republic Jeans, which has since sought bankruptcy protection, given that the market for $300 sequined blue jeans has pretty much dried up in these hard economic times.)

We first learned that Papp was cooperating with federal investigators and the U.S. Anti-Doping Agency back in February of 2010. Now we shouldn’t assume that the grand jury was empaneled at that point. Papp’s testimony was probably reviewed in detail by Assistant U.S. Attorney Doug Miller and Food and Drug Administration Criminal Division investigator Jeff Novitzky, the two men heading up the investigation. That had to take some time and most believe that the grand jury was formally empaneled around April of 2010. That would suggest that we’re close to the 20-month mark in the life of this grand jury.

So we’re beyond 18 months and we’re guessing that the U.S. Attorney’s office in Los Angeles has asked for — and received — the six-month extension provided for in Rule 6(g). The most likely justification for that is the complexity of the case involving not Michael Ball, but a much bigger target, Lance Armstrong, who came to the attention of investigators in May of 2010 after Floyd Landis very publicly leveled a number of doping allegations against the former Tour winner.

That Armstrong is now a focus of the grand jury’s efforts is pretty clear at this point. We’ve all heard of the parade of former teammates and staff subpoenaed in the matter. Had there been any doubt, that disappeared when Tyler Hamilton was interviewed on CBS’ “60 Minutes” show, offering details as to the testimony he presented to the grand jury.

Now, there has been very little news about the grand jury since the big flap over the Hamilton interview, but that doesn’t mean that there isn’t anything happening out there in L.A. I’ve recently spoken with two attorneys whose clients have testified to the grand jury within the last 40 days. My guess is that the work is continuing, but Miller and Novitzky are staying quiet, as they are required to do.

Assuming the April 2010 empanelment date is right, the existing grand jury investigating Lance Armstrong could continue to work all the way up to April of 2012. So, we might hear of indictments being handed down some time in early 2012.

What if there are no indictments?
So what happens if the clock ticks by and we don’t hear of indictments by April or May of next year? Sure, that could be viewed as an indication that no charges will be filed against any of the subjects of the investigation. Indeed, the odds are good that you will probably hear statements from Armstrong’s attorneys that the absence of formal charges is an affirmation of his innocence … as it may well be.

However, the simple fact that the grand jury’s time has expired shouldn’t be considered definitive. If the U.S. Attorney’s office decides to continue pursuing the case, they have the option of empaneling a second grand jury, which would have full access to the records and transcripts from the first.

But as they say, “time waits for no one,” and it won’t wait for grand juries. Even though the grand-jury clock isn’t necessarily a big deal to the prosecution side, there is the whole question of the statute of limitations. Federal law (18 U.S.C. Section 3282) establishes that there cannot be prosecutions for most crimes committed more than five years prior to the issuance of an indictment. Certainly most of Landis’ allegations involve alleged acts that occurred much more than five years ago.

There is one very notable exception to that limit in the form of the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), (18, U.S.C. Sections 1961-1968). RICO was designed to give prosecutors a package of options to pursue longtime criminal conspiracies.

At first glance, RICO does provide for a broader time horizon in that it requires a defendant to have committed at least two acts of “racketeering activity” within 10 years of commission of a prior act of racketeering activity. However, RICO’s wording can be confusing, especially that “pattern of racketing activity” language with the 10-year reference. The fact remains that RICO is still subject to the general five-year statute of limitations, unless bank fraud is involved, and then it can be extended to 10.

Now here’s the rub. Sources close to the investigation have hinted that the Armstrong investigation is focused on much more than doping and could involve significant financial transactions. RICO’s 10-year window also covers the Currency and Foreign Transactions Reporting Act (31 U.S.C. Section 5311),  which may be at issue here, since we’re dealing with allegations of moneys being transferred across international borders in order to advance a criminal conspiracy.

The bottom line is that yes, the clock is ticking, but we have a number of deadlines out there. We just have to read the indictments — if there are any — to see what argument prosecutors will use to justify pursuit of the case.

My buddy, the aforementioned assistant U.S. attorney, says he’s beginning to believe there won’t be indictments. Me? I’m not a betting man, so I am not going to venture a guess. All I know is that if there are indictments, they should make for some mighty interesting reading … and I always enjoy a good read.
― Charles


The Explainer is now a regular feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

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10 comments

  1. Mike

    I acknowledge that the implication of such issues can be relatively significant (beyond what we think at first blush). However, having almost died in a car/bike collision 6 weeks ago (I was where I should have been, the car was not … yet it still won!), I find them far less important than I used to (though, I agree, it does make for good reading!).

    P.S. — I was wearing my RKP kit … and they had to cut it all off! Now, THAT is a tradgedy! Peace and be safe out there!

    1. Padraig

      While I’ve already told Charles, I’ll share with everyone that this was one of my favorite Explainers ever, and I’ve read every one of them. Fascinating stuff. I really didn’t think there were many teeth left due to the statute of limitations.

      Mike: Tragic. On both fronts. I think we can get you a discount on a replacement kit. I know the guy in charge.

  2. Jesus from Cancun

    Well, this was a very interesting read, indeed. We should also start hearing more about the Contador case within a few weeks.
    Thank you again, Master Pelkey!

  3. Skippy

    Quite how the ” Politically Appointed Talking Heads ” heading up the various agencies involved decide to jump will determine the outcome of this long running saga !
    Was this a ” Special Grand jury ” ? Should that be the case then the ” mushroom farmers ” on Cycling news forum think the original empanelment is two years with several court ordered extentions of six months possible ! If that is the case then this GJ could extend past the Presidential innaugeration of 2013 and thus those sitting on the sidelines or trying to keep their head below the parapet in the political arena will enjoy open season after the dust settles .
    My blogs like those of others have been full of speculation and will continue to be based on ” smoke and mirrors “!
    The ” mushroom farmers ” keep predicting indictments on ” Tuesday ” but each week passes with more hot air and theories espoused , shrove tuesday has recently been offered as some are losing the plot .

    Best wishes for the Festive Season to ALL particularly those being maligned , the maligners i am happy to see continue to suffer frustration !

    Twitter recently asked me to follow a convicted felon whose name rhymes with crapp and because he was caught and convicted and is suffering far less than i feel is his due continues to denigrate others that UNTIL they are indicted are due the ” presumption of Innocense “!

    Being involved in a Grand Jury in any manner requires getting ” Lawyered Up ” and thus a great many totally innocent people find their pockets drained by the expense of legal representation .

    No doubt Charles can enlighten us when more on these affairs are broadcast ?

  4. Fixie Bike Advocate

    Thank you Charles, it can be frustrating trying to follow this from Europe where the practice of Grand Juries is not employed. I’ve been very impressed in the apparent *lack* of leaks during this whole process. I know Armstrong’s representation have made official complains against some leaks but I think in the great scheme of things these have been minor. Let’s hope we get some sort of official movement soon so that this affair can be put to bed one way or the the other.

  5. Fat2Cat

    Charles,
    More fine work, indeed.

    Question: In light of the lax penalty that ultimately resulted in his watered-down conviction from charges that, although not exactly identical to what Lance Armstrong could be facing, do at least at their heart employ some of the same language (namely words like “performance,” “enhancing,” “drugs,” and “illegal use of”), does Barry Bonds’ confinement to his palatial estate in Beverly Hills (where the cycling fan will no doubt be riding his trainer a lot) mean that Novitsky and Co. will be less likely to go through with an indictment, for fear of major political backlash and a poor precedent?

  6. drew

    Thanks, ill be looking forward to hearing more. I’m not sure the $300 jean market is all that hurt, it was the bejeweling that bankrupted them.

  7. Pingback: Backcountry.com: The Goat » Blog Archive » The Statute of Limitations on Lance Armstrong

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