A DISCUSSION OF LAW AND JOURNALISM

Armstrong Retires, Still Fighting Drug Accusations

LanceArmstrong

By Paul Irlando

Lance Armstrong is retiring from professional cycling.  The seven-time Tour de France winner and cancer survivor is calling it quits for the second time, after retiring in 2005 and then making a comeback in 2008 to try to win an unprecedented eighth Tour.  Mr. Armstrong, cycling’s greatest hero, or villain, depending on who you ask, announced on February 16, that he is leaving the sport again, amid allegations that he used performance enhancing drugs (PEDs) while racing on the United States Postal Service Team.  Having fought and overcome cancer and having conquered L’Alpe d’Huez, the Col du Tourmalet, and many other formidable Tour de France mountains, Mr. Armstrong now faces a new, and far more fearsome foe: Jeff Novitzky, the FDA agent heading the investigation against him.

Neither gentleman is new to the doping world.   Mr. Armstrong has been dogged by accusations that he took PEDs since the early nineties, despite never yielding a positive test (which speaks volumes considering that he has been one of the most tested athletes in all of professional sports).  Mr. Novitzky, while entering the scene more recently, quickly made a name for himself while investigating steroid use by major league baseball players in the now infamous BALCO case.

A January Deadspin.com article points out that Mr. Novitzky’s past is not without its own controversy.  In fact, it appears that Mr. Novitzky is willing to do whatever it takes to bring down professional athletes suspected of using PEDs, including breaking the law.

In January, Sports Illustrated ran an article on the case against Lance Armstrong.  The article lists a number of federal charges Mr. Armstrong could face if Mr. Novitzky convinces a grand jury to press charges, which it looks like he should be able to do.  As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor, hence Judge Sol Wachtler’s famous saying that a prosecutor can get a grand jury to “indict a ham sandwich.”

Under the landmark 1991 Supreme Court case of United States v. R Enterprises, Inc., federal grand jury subpoenas are presumed to be reasonable and the burden of showing unreasonableness is on the recipient. A motion to quash a federal grand jury subpoena on relevancy grounds must be denied unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

And if indicted, Mr. Armstrong could face charges for conspiracy, defrauding the U.S. government, and other related offenses.  (The defrauding the government charge stems from the U.S. Postal Service providing nearly $40 million to underwrite Mr. Armstrong’s team between 2001-2004.)

We’ve researched what’s needed to be convicted of each crime and whether the evidence as set out in reportage of the matter is sufficient to prove beyond Mr. Armstrong’s guilt beyond a reasonable doubt.

Conspiracy to defraud the government is codified in 18 U.S.C 371.  It states that “two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

Like many conspiracy cases, this one will likely be based on circumstantial evidence. At least two witnesses have stated they saw Mr. Armstrong in possession of PEDs.  Yet both witnesses, ex-teammate Floyd Landis and ex-bicycle mechanic Mike Anderson, have highly questionable credibility.  Mr. Landis himself, who has embarked on a personal campaign to take down Mr. Armstrong, tested positive for PEDs in 2006 after winning the Tour de France.  He vehemently denied taking them for years, only later to admit he had  after he’d exhausted his excuses, which were numerous and in some cases, quite far-fetched.  And Mr. Anderson has not been on good terms with Mr. Armstrong for years; he sued Mr. Armstrong in 2005, after Mr. Armstrong allegedly backed out of a business deal.  The allegations of PED’s came after that.

The problem for Mr. Novitzky is that Mr. Armstrong has never tested positive for PEDs, had never been caught with them, and has two star witnesses saying they’ve seen Mr. Armstrong with PEDs who arguably have ulterior motives.

There are, of course, others, who would agree to testify that Mr. Armstrong not only encouraged doping, but directed them to take PEDs.  In 1995, ex-teammate Stephen Swart alleged that Mr. Armstrong suggested, after a disappointing team result in the previous day’s race, that riders start taking Erythropoietin, or EPO, a substance banned by the IOC in 1990.  This testimony may be enough to get past a grand jury, but it’s unlikely to result in a conviction.  A criminal conviction requires proof beyond a reasonable doubt.  It bears repeating:  Mr. Armstrong has never been caught with or tested positive for PEDs. And a jury trial might make conviction even tougher.  Mr. Armstrong is an inspiration to many cancer survivors and their families, and he has undeniably done much good work for cancer research through his creation of the Livestrong Foundation.

Mr. Armstrong’s attorneys complain that their client is the focus of a criminal probe by Mr. Novitzky in search of a legal theory.  Considering Mr. Novitzky’s previous actions, which include conducting an illegal search of a BALCO facility, allegedly leaking medical information to the media about one hundred MLB players confiscated during the illegal search, and rooting through trash behind BALCO offices, It’s possible that he’s so intent on bringing down Mr. Armstrong, he’ll bend the rules any way he can, hoping Mr. Armstrong will slip up, opening up the possibility of a potential perjury charge.  It’s how Mr. Novitzky brought down Marion Jones and will attempt to bring down Barry Bonds.

While there is likely not enough evidence to convict Mr. Armstrong on any of the charges, this case could take years.  Mr. Bonds’s BALCO case began in 2003.  His perjury trial is set for March.  Mr. Armstrong will need to call on the inner strength he used to beat cancer and climb mountains faster than all of his rivals.  He faces a long and arduous battle ahead.

UPDATE: February 3, 2012:  The arduous battle is over.  Case dropped!

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