Little Fish, Big Fish

Memo to Ashcroft: Why aren't you pursuing Barry Bonds the way you did Martha Stewart?

Imagine an alternate universe where an entertainment figure is linked to fraud. Federal investigators, aware of the deterrent potential of a high-profile prosecution, target the celebrity's underlings, accomplices, and enablers. They conduct stakeouts, obtain phone records, seize computer disks, and analyze e-mails until they can threaten the peons with prison, making the peons more amenable to testifying against the star. Salacious headlines result. And other cheats in the celebrity's corporate realm are forewarned that, in the recent words of Attorney General John Ashcroft, "it is the honor, the duty, and responsibility of the United States Department of Justice to ensure that no one stands above the law -- regardless of power, position, or privilege. The rule of law -- and the people's trust -- depend on swift, sure justice in the prosecution of crimes that manipulate competition or deceive the public."

Imagine, in other words, that federal prosecutors went after Barry Bonds like they did Martha Stewart. And when you're done imagining, open your eyes and ask yourself: Why do they seem to be protecting him as they prosecute drug-pushing peons instead?

Both George Bush and John Ashcroft have said they're pumped up about confronting performance-enhancing drug use, in my view a type of financial fraud in which drugged athletes, along with team owners, sponsors, and merchandisers, make fortunes on phony, juice-induced achievements. Yet Bonds apparently feels so safe from prosecution that he's telling reporters the current steroid scandal will soon blow over, even though federal prosecutors possess confessions, grand jury testimony, financial and surveillance records, e-mail archives, discarded drug packages, syringes, and other evidence that implicates a small group of professional athletes including an unnamed S.F. Giants player known to hang out with Bonds' lifetime pal and personal trainer, Greg Anderson.

Last month the U.S. Attorney's Office indicted two executives of a Burlingame lab accused of providing steroids, steroid masking agents, and other sports-fraud-related drugs to ballplayers. The indictment also charged Anderson and another trainer, who allegedly served as middlemen between the steroid-pushing lab and a professional athlete whose name the government has chosen to protect. Following the president's recent State of the Union address, which included a condemnation of drugs in sports, Ashcroft touted the case as if it were a Martha Stewart-style warning shot.

"These drugs are bad for sports, bad for the players, and bad for the young people who look to athletes as role models," Ashcroft was quoted as saying in the press release announcing the indictment of officers of Balco Labs, a Burlingame physiology testing and nutrition supplement company alleged to have dealt steroids to top athletes.

But a review of the affidavits, indictments, and commentary surrounding United States of America v. Victor Conte Jr. et al. -- in which the Justice Department throws the book at Balco while concealing the names of, and apparently granting immunity to, athlete-users -- suggests the government may instead be offering a friendly pat on drug cheats' butts.

Bonds is among a handful of athletes who have reportedly testified before the federal grand jury in exchange for immunity from prosecution. Athletes' names have been excised from all public documents associated with the case, although the indictment and search warrant affidavit make repeated references to the drug-related actions of specific athletes, testimony said to name specific drug-using athletes, and correspondence involving specific drug-using athletes.

A spokeswoman for the U.S. Attorney's Office told me the athletes' names have not been released because the players have not been indicted. U.S. Attorney Kevin Ryan, who is supervising the Balco prosecution, won't comment on whether the government will charge the athletes, the spokeswoman said.

If this were a recreational-drug case, such an approach might make sense. Pushers of those drugs seduce hapless users, then profit mightily. But in pro sports, athletes are the drug kingpins. Performance-enhancing drugs create fortunes for ballplayers, team owners, sponsors, and merchandisers, with pushers forming only a small part of the economic food chain.

Yet federal prosecutors appear to be letting prominent, wealthy athletes off the hook to provide evidence against teensy Balco Labs. It's as if they gave the late Colombian drug lord Pablo Escobar immunity in order to convict one of his mules.

"In this case, the government's message from the beginning was, 'We want to send a message; that's part of our effort to clean the sport up,'" says Troy Ellerman, a Sacramento lawyer representing Balco Vice President James Valente. "But it's inconsistent to go after four guys from Burlingame. That's a message that's not going to be sent very far."

Ellerman says he has received no overtures from federal prosecutors seeking to trade leniency for help in going after the sports stars implicated in the case.

"They know my phone number," Ellerman says.

News reports say prosecutors recently subpoenaed Major League Baseball drug test results for seven Balco-linked players, including Bonds. I'm holding out hope that the results might be used later to build perjury cases related to the athletes' grand jury testimony.

But that seems an odd way to make a case, given the preponderance of diverse evidence linking specific athletes to specific drugs in specific instances. And in my view it's unlikely the subpoenaed drug tests will turn up anything useful, given that drug tests are notorious for failing to identify doped athletes.

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