The Explainer: No indictment
Now that federal prosecutors have dropped the grand jury investigation of Lance Armstrong, what becomes of all the evidence? Will it/can it ever be made public? Certainly, there is some interesting stuff in there, even if it didn’t support prosecutors’ calculations for a trial.
I have to admit that it was an interesting – and somewhat unexpected – news item that popped up my screen yesterday.
The office of André Birotte, the U.S. Attorney for the Central District of California, issued a terse statement noting that he had “determined that a public announcement concerning the closing of the investigation was warranted by numerous reports about the investigation in media outlets around the world.”
Beyond that, Birotte’s office remained tight-lipped. A nearly two-year grand jury investigation is over and it appears that we’ll be hearing very little of what was found over the course of that effort.
Normally, the work of a grand jury is shrouded in secrecy, but Birotte was correct in noting that there had been considerable coverage of the case and it was only fair to announce that it had not resulted in a criminal prosecution. Still, it raises questions.
I have to admit that I was more than a little surprised by this one. I honestly expected at least something to come of a nearly two-year investigation. That said, I wasn’t privy to what was going on in the grand jury and the subject of the investigation had his own take on my speculative essays from the past (see photo at right).
Sources close to the investigation say that the decision came as a surprise to many of them, too. The case was being handled by Assistant U.S. Attorneys Doug Miller and Mark Williams, with the help of FDA Criminal Division investigator Jeff Novitzky. The U.S. Attorney’s office did not indicate who decided to end the investigation, whether it was based on a lack of evidence, whether there were strategic problems with pursuing an indictment or whether pressure came to bear from outside the Central District. Indeed, the Assistant U.S. Attorneys, Novitzky and other investigators were informed of the decision only about 30 minutes before the press release was issued. Somehow, I think we’re going to hear a bit more about what went into this decision. I remain curious.
That big hurdle
While many have hailed the end of the investigation as a sign that Armstrong has been “cleared” of doping allegations, it may have just come down to other issues. Again, while the grand jury’s work was secret, there were indications that much of the investigation was focused on allegations of financial crimes, starting with the U.S. Postal Service’s sponsorship of Armstrong’s first Tour de France-winning team.
News reports from a year ago also indicated that U.S. investigators were making considerable progress as they worked with their counterparts in France and Italy to examine a complex web of financial transactions involving physician Michele Ferrari and a number of high-profile cyclists.
Right off the bat, though, pursuit of any charges stemming from those transactions would run up against both jurisdictional problems and questions of whether prosecutors could get past the federal statute of limitations.
Much of what was being investigated involved acts that occurred as many as 13 years ago. Any crime involving the fraudulent use of federal funds derived from the Postal sponsorship, for example, would have occurred prior to the 2004 expiration of that sponsorship. Meanwhile, federal law (18 U.S.C. Section 3282) pretty much limits prosecutions for most crimes to a five-year period prior to the issuance of an indictment.
One approach that might have gotten past that hurdle was for prosecutors to rely on the Racketeer Influenced and Corrupt Organizations Act (RICO), (18, U.S.C. Sections 1961-1968), the statute designed to give prosecutors more options in pursuit of a larger criminal conspiracy. When it was passed in 1970, it was intended to be used in “Mafia” prosecutions, but it’s since been used in cases involving a wide variety of financial crimes.
Under RICO the statute of limitations might — under a very narrow set of circumstances — be extended to 10 years. But somewhere along the way, someone determined that there wasn’t a winnable case.
As you might imagine, a team of lawyers, federal investigators and a grand jury would generate a ton of paper over the course of a two-year investigation. And as you said, Doug, it’s likely that “there is some interesting stuff in there.” I am the first to admit that I would give my right … errr … uhhh … arm to spend a few weeks sorting through that mountain of paper. It ain’t gonna happen, folks.
The Federal Rules of Criminal Procedure govern the work of federal grand juries. Rule 6 outlines a very narrow set of circumstances under which the results of a grand jury investigation might be shared. The only way that it would be shared with the public is if there had been an indictment. Then the charging document would have outlined the basis for a charge.
Now, the work of the grand jury will be available only to other federal authorities in the course of their work. There is no indication that there are other federal investigations under way. As far as we know, that side of the case is pretty much over and Mr. Armstrong has most certainly breathed a sigh of relief — if for no other reason than that he has now been spared the stress and expense of defending himself against a serious criminal charge.
What about the dope?
Okay, so despite the shroud of secrecy, there have been media reports about some of the testimony presented in this case. If you scan the aforementioned Rule 6, you will notice that the rules limit the obligation of secrecy to those directly involved in the grand jury or the investigation.
What that means is that witnesses, for example, are free to talk about their testimony. The most obvious examples have been the public interviews offered by Floyd Landis and Tyler Hamilton after they offered testimony alleging doping on U.S. Postal. Hamilton even made an appearance on CBS’ “60 Minutes” program to discuss his testimony.
Others have testified and some elements of that testimony have been leaked to the public. In this case, “the public” is composed of all of us: reporters, cycling fans, the curious … and the U.S. Anti-Doping Agency.
Indeed, USADA’s chief executive officer, Travis Tygart, issued his own statement on Friday, noting: “Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws. Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”
As I mentioned, the Federal Rules of Criminal Procedure do provide for exceptions to the secrecy provisions. The rules under 6(e)(3) outline the circumstances in which the work of a grand jury may be disclosed to certain other entities. Mostly, those are to other federal attorneys, but it can be shared with state and foreign courts under limited circumstances.
Tygart’s comment would almost seem to suggest that he believes that a USADA investigation may fall under the provisions of Rule 6 and might allow some of the evidence acquired by the grand jury to be shared with his agency. We’ll see. I would expect to see a fight on that one. A strict interpretation of the the rules pretty much limit access to:
(i) an attorney for the government for use in performing that attorney’s duty;
(ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law;
I can’t imagine, though, that Tygart and USADA would try to make a claim that it does qualify as a “state actor” since that would open up a whole other can of worms when it comes to future doping cases. There are, however, obligations under the UNESCO International Convention against Doping in Sport, the 2005 treaty to which the U.S. is a signator. The treaty encourages officials to share relevant evidence with anti-doping authorities. Furthermore there is considerable evidence in this case that had not yet been presented to the grand jury. Some of that could be shared as part of the government’s duty under the treaty or under any cooperative agreements various agencies have with USADA.
If it appears that investigators are prepared to share some of that information, though, we can expect a fight to erupt as attorneys representing Armstrong and others seek to prevent any evidence from the case from being handed over to USADA.
You might also keep in mind, however, that Tygart may already have a fair share of evidence acquired outside of the grand jury process. There were early indications that Tygart was involved in working with Novitzky in this case. Last year, Associated Press reporters spotted Novitzky in France on a trip that involved a visit to Interpol headquarters in Lyon. Tygart was also there. One must assume that the USADA CEO has seen at least some of the evidence in this case.
Would the SOL mean USADA’s SOL?
But again, any USADA investigation of Armstrong would involve allegations against a now-retired rider. Armstrong’s last Tour win came in 2005. Most of the allegations raised in the grand jury investigation — at least those disclosed to the public — go back even further than that.
Under the World Anti-Doping Agency Code, a national anti-doping agency has eight years in which to bring a case against an alleged violator. So that would involve the 2005 win … and maybe 2004. But there are five others that would remain unaffected, right?
But wait …
Interestingly enough, USADA only recently won a case that imposes sanctions for violations that occurred well beyond that eight-year-window.
In a decision issued just last week by the American Arbitration Association, former Olympic marathoner Eddy Hellebuyck was sanctioned for violations that occurred more than 10 years ago.
It is an interesting decision and one based largely on the fact that the AAA panel determined that Hellebuyck had not testified truthfully at an earlier hearing. Of course, making that determination was simplified by Hellebuyck’s public admission that he had been using EPO as far back as 2001. That stood in contrast with testimony he had offered in a hearing in December 2004 after testing positive for EPO earlier that year.
In its 2012 decision, the AAA ruled that the athlete’s active efforts to cover up past use – specifically in this case his perjured testimony at his first hearing – meant that the statute of limitations didn’t apply. The panel acknowledged that it was venturing into new territory, and, if Hellebuyck cares to appeal, it will certainly be subject to review by the Court of Arbitration for Sport (CAS).
Either way, based on the decision in Hellebuyck, we may see Tygart and USADA go full bore into an investigation of Armstrong and others. If that’s the case, USADA and WADA have their own rules regarding disclosure of an ongoing investigation. Again, it wouldn’t be until a case is actually filed before you might see some of the evidence presented in that matter.
The bummer about WADA rules is that whatever “trial” takes place would be behind closed doors. Of course the respondent has the option of requesting a public hearing, but you saw how well that went last time a big-named athlete went that route.
In other words, it could be some time before any of us see any evidence in this case … if ever. I know a lot of you are tired of the whole thing and the past-is-past argument is gaining traction in some circles.
Me? I’m just interested in watching how all of this unfolds. I’m not betting on the outcome, but I remain intrigued. I guess it’s like watching a train wreck. It’s hard to turn your head once you see what’s going on in front of you.
The Explainer is now a weekly 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.