I’ve been following coverage of the Floyd Landis story for years, including this most recent round of investigations triggered by his confession and the allegations of others that followed it.
What confuses me is the type of charges I see that the Feds are considering in this case. Is it just me, or doesn’t it seem extreme to be investigating a bunch of doping cyclists using laws that were designed for mobsters and drug dealers? How does this make sense?
Los Angeles, California
First off, I would caution anyone to take news reports of those who claim to know with any degree of certainty precisely which charges Federal investigators and prosecutors are considering in this case with a grain of salt. There have been no formal statements from Assistant U.S. Attorney Doug Miller or Food and Drug Administration Criminal Division investigator Jeff Novitzky.
From my own experience, speaking with Novitzky doesn’t exactly open the floodgates of information. Frankly, you’d be hard-pressed to get him to confirm that the sun is out while staring up at the sky in the middle of the Sahara Desert. And you really can’t blame him. The investigation is still in its early stages and no one has a reason to show their cards at this point.
The BALCO case
Miller and Novitzky were key players in the federal grand jury investigation of the Bay Area Laboratory Cooperative (BALCO) scandal and that case may offer some insight into how the Landis matter may develop.
The longest sentence handed out in that case was to now-disbarred attorney Troy Ellerman, who was given 30 months for revealing details of the testimony offered to the grand jury by Barry Bonds and others.
Beyond Ellerman and the original targets of the investigation — BALCO owner Victor Conte and chemist Patrick Arnold — there have been just three other criminal convictions involving former coach Trevor Graham, who lied to federal investigators and two athletes who were also convicted of making false statements. Track and field star Marion Jones was also found to have lied to investigators and track cyclist Tammy Thomas was convicted of three counts of perjury for statements she made to a grand jury in 2003. Both athletes had denied doping. Thomas, a 2009 graduate of the University of Oklahoma law school, was sentenced to house arrest and probation, and faces an uphill battle to get a license in her new profession as a result. She appealed to the Ninth Circuit, but her conviction was upheld last week.
Jones, who once described herself as “the most tested athlete on earth,” was sentenced to six months in federal prison and was released in September of 2008. Bonds is still under indictment for perjury, but his trial date remains uncertain.
Much of what is being reported about the focus of the federal investigation involves speculation and, as one journalist reporting on the case for a major newspaper described it, “wishful thinking” on the part of sources that may have an interest in the outcome.
Misuse of public funds?
One possible area that may be of concern is that Landis has publicly spoken of extensive doping on Lance Armstrong’s team at a time when it received the bulk of its sponsorship money from the U.S. Postal Service. While the Postal system is now a largely self-supporting agency, it remains a public entity and while it does not receive direct payments from Congress, the revenues it generates are, nonetheless, considered public funds. So the theory suggests that because the team received public funds and then allegedly conspired to purchase, distribute and use illegally acquired prescription drugs and other substances that it would constitute a misuse of those public funds.
It could be a valid charge to consider, but there is one huge hurdle in that road, namely the section of the U.S. Code that outlines the statute of limitations (18 U.S.C. Section 3282). That establishes that there cannot be prosecutions for most crimes committed more than five years prior to the issuance of an indictment. There have, as of yet, been no indictments in this case. The Postal Service’s sponsorship expired at the end of 2004, nearly six years ago, and it would be difficult to pursue the case were that the sole basis of the investigation. Likely it is not.
The racketeering theory
In recent weeks, some have speculated that Miller might be considering use of the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), (18, U.S.C. Sections 1961-1968), to pursue the case. RICO was designed to give prosecutors a package of options to pursue long-time criminal conspiracies, primarily involving that fine organization dedicated to script development for film and TV, also known as “the Mafia.”
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 ten 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 ten 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 ten.
Racketeering activity is a broad term that includes just about any nefarious deed, such as gambling, murder, kidnapping, extortion, arson, robbery, bribery (including sports bribery), distribution of obscene materials or — and here’s the kicker — chemicals and drugs that fall under the Controlled Substances Act. Anabolic steroids, for example, are classified as Schedule III controlled substances.
RICO also covers violations of 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. It might be worth noting that before he made the jump to the FDA Criminal Division, Novitzky was an investigator for the Internal Revenue Service. This guy knows money and the things that criminal conspirators tend to do with it.
Assuming that there is evidence to show that a pattern of illegal drug use or money laundering continued past the Postal years and into the Discovery, Astana and RadioShack eras, prosecutors might be able to present evidence of an ongoing criminal conspiracy. The crucial question is the scope of the conspiratorial agreement, and whether the conspiracy is seen to continue until its purpose has been achieved or abandoned. If Lance Armstrong is, as some have suggested, the main focus of the investigation, then his 2005 retirement and subsequent return to cycling — and, by implication, the ongoing conspiracy — might also be at issue here.
I’m not sure that sports doping necessarily falls within the scope of Congress’s original legislative intent when it passed the law in 1970 and the courts would certainly take a close look at that. Ultimately, RICO is among a small class of crimes (tax crimes being another) where the local U.S. Attorney’s office does not have prosecutorial discretion. All RICO cases have to be reviewed and approved by the Department of Justice in Washington, D.C., and, in that sense, they are quite unlike run-of-the-mill mail fraud or theft of public funds cases.
There are host of complicated jurisdictional questions that will inevitably arise when the grand jury begins to look at allegations of crimes that largely took place outside of the borders of the United States.
Ultimately, the current investigation (we really do need a catchy name for this thing) may end up like BALCO. Riders are being subpoenaed and questioned. They and their lawyers are keenly aware that the most serious prosecutions to come out of BALCO were for perjury. Those riders called to appear before the grand jury are likely to cooperate, given that they risk falling into that perjury (18 U.S.C. 1621) or false statements (18 U.S.C. 1001) trap that caught Marion Jones and Tammy Thomas. Cycling’s vaunted tradition of omerta probably won’t hold up too long when the threat of time in federal prison encourages candor.
I’m no prosecutor and every time I look at this case, I end up with more questions than answers. It should be an interesting process for cycling fans, reporters and attorneys alike.
Email Charles Pelkey
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