Lance Armstrong's Attorney Meets With BALCO Lawyers
Attorney Tim Herman told FanHouse on Monday that he recently traveled to Northern California where he spoke to a handful of defense lawyers who had cases linked to the Bay Area Laboratory Co-Operative (BALCO) scandal. Since federal investigators have been mum on their inquiry into whether Armstrong and his former teammates were part of a conspiracy to purchase and use illegal performance-enhancing drugs, Herman said such a trip from his office in Austin, Texas, proved necessary.
Herman was particularly interested in how Jeff Novitzky, who uncovered the BALCO scandal while he was an IRS agent in 2003, goes about his business. Novitzky, now with the Federal Drug Administration's Office of Criminal Investigations, is leading up the inquiry into Armstrong.
"I wanted to talk to some people who had some experience with him," Herman said. "All I really came away with was the BALCO template. I don't know if it will help me, but nobody on the government side is willing to share what's going on."
Federal investigators are probing whether Armstrong or any of his teammates misappropriated money on a team sponsored by United States Postal Service from 2002-04 to establish a doping program. The claims against Armstrong were made by Floyd Landis, who was stripped of his 2006 Tour de France title after a failed doping test and only recently admitted he was a drug cheat after years of denials.
In e-mails obtained by The Wall Street Journal in May, Landis wrote that members of the U.S. Postal Service team sold 60 new bicycles to help finance the doping operation and he's reportedly been in contact with Novitzky in the weeks since.
"I think he's way off the FDA reservation," said Herman, who is the final stages of selecting a criminal defense firm. "I don't know what else he's doing with his time besides this."
Novtizky faced much of the same kind of scrutiny in height of the BALCO scandal -- a ring he uncovered when he sifted through a dumpster outside the now-defunct company's headquarters in Burlingame, Calif. In the years since, Novitzky has been the government's go-to guy for performance-enhancing drugs.
"Jeff has an undying commitment to justice," said U.S. Anti-Doping Agency CEO Travis Tygart, who aided in the BALCO investigation. "He's very thoughtful and obviously tenacious, but I also think he's overly fair and compassionate."
Novitzky, who is hard to miss at 6-foot-7, has largely been a silent figure publicly and he declined to comment on Monday. His only public statements have come via the testimony in the two BALCO cases that went to trial that resulted in convictions of former elite cyclist Tammy Thomas and former track coach Trevor Graham.
Thomas' lawyer, Ethan Balogh, tried to paint Novitzky as an overzealous investigator in the closing arguments of the 2008 trial.
"Their cheating sickened Mr. Novitzky,'' Balogh told the jury. "The fact that they used (performance-enhancing drugs) to cheat ... didn't sit well with the diligent young agent."
Regardless of how he's been portrayed, Novitzky has gotten results. Ten of the 11 people charged as the result of the BALCO raid were either convicted or accepted plea deals.
But Armstrong is the biggest athlete to find himself in Novitzky's crosshairs since all-time home run champ Barry Bonds. Bonds could stand to be the lone blemish on Novitzky's anti-doping crusade, since the chances of a conviction of the former San Francisco Giants slugger dimmed after a U.S. District Court Judge Susan Illston and later an appeals court ruled key evidence would not be allowed to be shown to a jury.
A new trial date has not been scheduled.
Herman said his impressions of Novitzky were cemented when he learned Illston said Novitzky and other investigators had "callous disregard" for the Fourth Amendment when they obtained subpoena to raid a lab Major League Baseball used to process its test results in 2003. MLB and the player's union have fought for years to keep the results under seal, although some names – such as New York Yankees third baseman Alex Rodriguez and Boston Red Sox slugger David Ortiz --- have leaked out.)
Victor Conte, co-founder of BALCO, said Novitzky overstepped his authority by getting a search warrant for his home and added that he was not immediately given a copy of the search warrant for the raid on BALCO.
"I think [the Armstrong investigation] is another witch hunt," said Conte, whose supplement company, SNAC, has become popular with many pro athletes, including Chicago Cubs outfield Marlon Byrd. "This is going to be another trophy for Jeff Novitzky. After an investigation into BALCO that costs millions, he's going to start up a whole new BALCO. I'm not saying anybody did or didn't do drugs, but there has to be a cost-benefit analysis. Really, enough is enough."
Novtizky has been called the Elliot Ness of steroid investigators, although Paul Canny, one of the attorneys for Bonds' friend and former personal trainer of Greg Anderson, took a tongue-and-cheek shot at that designation.
"He's more like the Kitty Kelley of cops," said Canny, referencing the author of several sensationalized biographies. "I'm surprised the federal government doesn't try to rein him in."
Beyond BALCO, Novitzky has also consulted with federal prosecutors in Washington who are looking into whether former hurler Roger Clemens perjured himself when he denied using human growth hormone or steroids in front of the House Oversight and Government Reform Committee in February 2008. Novitzky has also been involved in the investigation of supplement companies who have used unapproved and sometimes illegal anabolic agents in their products.
"He's got a lot of pull in the federal government," Peter Keane, former dean of the Golden Gate University Law School, said. "You name a federal investigation involved in steroids and he's inserted himself into it. He made his bones in so many of these cases that he's become a bloodhound. He's got a lot of credibility."
Along with the FDA, investigators from other government agencies -- including the Internal Revenue Service, Federal Bureau of Investigation and the Drug Enforcement Administration -- could assist in the investigation of Armstrong in one form or another. The World Anti-Doping Agency (WADA) Director David Howman also said INTERPOL , the international police agency, would be involved.
So far, the feds have issued a handful of subpoenas. Three-time Tour de France champ Greg LeMond, who alleges that Armstrong tried to pay somebody $300,000 to claim LeMond used endurance-boosting EPO, was served with one of those subpoenas and will testify in a Los Angeles courtroom on July 30, the New York Daily News reported.
Herman bemoaned the fact the such information has been leaked to reporters. The Associated Press obtained a letter Herman sent to Assistant U.S. Attorney Douglas Miller, the federal prosecutor in charge of the case, in which he wrote it's "especially unfair to subject Mr. Armstrong to this continuing media blitz when he is in the middle of his final Tour de France."
Beyond Landis' claims, investigators are looking for proof members of the USPS team or its management misappropriated funds to purchase performance-enhancing drugs that would lead to charges of illegal drug importation and fraud.
But Novitzky may go back to his BALCO playbook. Most of those charged in the wake of the raid weren't for steroid distribution or possession, but for making false statements to either investigators or the grand jury.
If a judge sees fit to approve a subpoena of Armstrong, investigators could effectively work around the statute of limitations that has since expired and avoid any legal issues relating to the fact these crimes may have occurred away from U.S. soil.
"That's going to be the formula they'll use," Canny said. "They'll want to get Lance in front of the grand jury, give him immunity and ask him questions. If he doesn't testify in accordance to what they think the truth is, he could be prosecuted for perjury."