J'accuse, Floyd Landis finally admits drug use and is accusing others Options

[rational head]

http://velonews.competitor.com/2010/07/new...rmstrong_132057
An informative summary on what the charges could be along with the author's expert opinion.
(I took the liberty to quote the pieces that in my opinion caught the essence)

The BALCO case…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…

Misuse of public funds?……..Likely it is not.

The racketeering theory……..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.

[adker]

http://velonews.competitor.com/2010/07/new...rmstrong_132057
An informative summary on what the charges could be along with the author's expert opinion.
(I took the liberty to quote the pieces that in my opinion caught the essence)

a very interesting read thanks for the post

What I read out of it, is the only solid angle to get LA is to be able to PROVE that he was doping and get him to lie about it. I do not see where FL or TH or anyones elses claims that they saw him do it qualify as solid proof, but I am gonna guess they are pursuing them to see if anyone can supply concrete evidence.

I found the retirement comment interesting. As I read it his retirement allows him to escape the RICO act because he did no sustain racketeering control for the entire period. Wonder if they knew about that when he retired. They obviously lack a positive test that has held up, and it sounds like tracking the funds from USPS being used for PED's is a tough one since it is past the statute of limitations and there were funds coming into the team from other sources. Then you have the dynamic of services received outside the US. With disclosure rules I would guess the the LA team knows everything they HAVE on him. I do not see where the is a solid case.

It will be interesting to see how the LA team responds.

[D-Queued]

a very interesting read thanks for the post

What I read out of it, is the only solid angle to get LA is to be able to PROVE that he was doping and get him to lie about it. I do not see where FL or TH or anyones elses claims that they saw him do it qualify as solid proof, but I am gonna guess they are pursuing them to see if anyone can supply concrete evidence.

...

I would be happy if they just demonstrate conclusively that he doped.

Simple honesty has a value and a place.

...

It will be interesting to see how the LA team responds.

They have already been reciting from the same old song sheet.

...witch hunt... ...never tested positive... ...(Floyd, Betsy, anyone and everyone else) is a liar... ...you must love cancer... ...28 million cancer patients will be harmed... ...didn't have proper credentials... ...it's not about the bike, it all about ME... ...I am a miracle...

The thing about Lance is that he is always understated and has no hint of narcissism.

Dave.

[adker]

I would be happy if they just demonstrate conclusively that he doped.

Simple honesty has a value and a place.


They have already been reciting from the same old song sheet.

...witch hunt... ...never tested positive... ...(Floyd, Betsy, anyone and everyone else) is a liar... ...you must love cancer... ...28 million cancer patients will be harmed... ...didn't have proper credentials... ...it's not about the bike, it all about ME... ...I am a miracle...

The thing about Lance is that he is always understated and has no hint of narcissism.

Dave.

I have not seen anything from the post tour, have they made statements? links?

[D-Queued]

I have not seen anything from the post tour, have they made statements? links?

Sorry, nothing post Tour that I am aware of... all/most of this was stated or inferred during the Tour.

Dave.

[Kiwi]

a very interesting read thanks for the post

...I do not see where the is a solid case.

It will be interesting to see how the LA team responds.

Yes, it seems like the legal case against Armstrong may be quite thin (although perhaps the parallel one against Michael Ball is much stronger).

Am I right in understanding the process that the grand jury can effectively find that there is no case against Armstrong, therefore stopping it from going to trial?

Maybe this suggests that the grand jury testimony and documentation will be the key outcome - an additional weight of evidence against Armstrong, and a resulting sullying of his reputation - but no actual criminal charges.

[adker]

Yes, it seems like the legal case against Armstrong may be quite thin (although perhaps the parallel one against Michael Ball is much stronger).

Am I right in understanding the process that the grand jury can effectively find that there is no case against Armstrong, therefore stopping it from going to trial?

Maybe this suggests that the grand jury testimony and documentation will be the key outcome - an additional weight of evidence against Armstrong, and a resulting sullying of his reputation - but no actual criminal charges.

you are correct in that they can dismiss it and refuse to indict. However, after serving grand jury 3 times (the one lottery I continually win) I will say that that almost never happens. There is no defense presentation at the grand jury, only the states evidence is presented and they almost never take it to the Grand Jury unless there is enough evidence to get and indictment. Unless there is not solid evidence the Grand Jury always pushes it to trial so that both side can be heard and there is no burden of proof for them, that is the responsibility of the courts. If the get it before the grand jury he will be indicted. IMHO

[one-mint-julich]

Maybe this suggests that the grand jury testimony and documentation will be the key outcome - an additional weight of evidence against Armstrong, and a resulting sullying of his reputation - but no actual criminal charges.

I could see that happening very easily. Critics of Novitzky like to point out he still hasn't nailed Bonds, but thanks to BALCO, baseball's arguably greatest all-around player almost certainly is not going to the Hall of Fame. It may turn out that the greatest damage to LA was done in these few months following Floyd's allegations.

We know in politics that if you repeat a smear enough times, people eventually believe it. The longer this goes on, the more people who thought LA was clean begin to accept that maybe he wasn't. I think a confession would be better for everyone, but this slow, gradual grinding down of his reputation may be a more likely scenario.

Here's another summary:

http://sports.espn.go.com/espn/commentary/...e=munson/100729

The author mentions that the Belgian Cycling Union is also investigating. I hadn't known that. Is Bruyneel Belgian?

[Kiwi]

you are correct in that they can dismiss it and refuse to indict.

...If the get it before the grand jury he will be indicted. IMHO

Thanks for the additional info.

So, if there's going to be a case made against Armstrong, he won't appear at the grand jury stage, only later in court if indicted.

I think Armstrong on the stand, under oath, is what a lot of folks have been hoping for - if for no other reason to get the truth.

(One can only speculate as to what a Nicholson-esque speech might sound like: You can't handle the truth! Son, we live in a world that has the Tour. And that Tour has to be ridden by men on drugs. Who's gonna do it? You? ...I have a greater responsibility than you can possibly fathom. You weep for Simeoni and you curse the Ferraris. You have that luxury. You have the luxury of not knowing what I know: that doping, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives... You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that road...")

[rational head]

Yes, it seems like the legal case against Armstrong may be quite thin ...

That's not how I understood the article. To me, it sounded like the author believes that of all the legal options for indictment (perjury, misuse of Federal funds, Rico) perjury is the most likely. Same as in Balco where Novitzky scored 10 out of 11 (the Bonds case is hardly equivalent to Armstrong's)

So, if there's going to be a case made against Armstrong, he won't appear at the grand jury stage, only later in court if indicted.

Again, that's not my understanding but I could be wrong (legal eagles please correct me)

If a perjury charge is the most likely, I believe Armstrong will have to be subpoenaed before a Grand Jury eventually because the Procecutor (after building the evidence unknown to Armstrong) may want him to either
-tell the truth or
-take the 5th or
-refuse to testify (and thus face the charge of contempting the court, is that the right term?) or
-lie and face perjury charge or
-get caught in some inconsistencies between his GJ testimony and the actual trial

Whichever way you look at the options, Armstrong would stand to lose something if it gets public.

If the get it before the grand jury he will be indicted. IMHO

That's what I was also told by a fiend who is a criminal trial attorney. The probability of Armstrong's indictment is high. What will happen after that is unknown.

A side note: there was some discussion of whether testing Armstrong's samples will be of benefit (admissible, relevant whatever the proper legal term) for the Prosecution. I will post my thoughts on the subject a bit later when I think through the issue and find some time.

[D-Queued]

...
One can only speculate as to what a Nicholson-esque speech might sound like: You can't handle the truth! Son, we live in a world that has the Tour. And that Tour has to be ridden by men on drugs. Who's gonna do it? You? ...I have a greater responsibility than you can possibly fathom. You weep for Simeoni and you curse the Ferraris. You have that luxury. You have the luxury of not knowing what I know: that doping, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves livescancer victims... You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that road..."

Awesome! True craftsmanship. (One small suggested change)

Dave.

[one-mint-julich]

A side note: there was some discussion of whether testing Armstrong's samples will be of benefit (admissible, relevant whatever the proper legal term) for the Prosecution. I will post my thoughts on the subject a bit later when I think through the issue and find some time.

I'll leave the legal aspects of this to others. Some thoughts on the scientific ones:

We start with the '99 samples that tested positive for EPO. It will be interesting to see if the grand jury--perhaps calling Ashenden or some other expert to testify--accepts that the test has some validity. If there's enough of the samples left, they could be re-tested in the presence of LA or his agent, and also any 2000 samples available. Beginning in 2001, samples were tested for EPO, but only for the original form of synthetic EPO. Newer, indetectable forms like CERA were becoming available sometime during this period, and a test for them was not developed until after LA retired in 2005. So it seems to me that it would be important to test available samples after 2001 for these newer forms of EPO, to the extent possible.

The IRMS test for testosterone became available I think in 2004. Even after it became available, it was not used unless a rider had a T/E ratio of > 4/1. I think before the test, a T/E of 6/1 was the criterion for a positive. So we know that LA never had an elevated T/E ratio while he raced. Still, there are ways to beat the T/E test, so IRMS testing of samples prior to 2004, or even after, might reveal something. But remembering the hornet's nest of problems that resulted from Floyd's case, I tend to doubt that this would be a very fruitful approach. (As an aside, a recent study of soccer players from several different countries found differences in IRMS of testosterone metabolites related to diet, and of particular interest, concluded that the 3.0 parts per thousand difference applied to Floyd's results was insufficient: http://www.ncbi.nlm.nih.gov/pmc/articles/P...eport=abstract).

Then there is blood doping, which is far more likely. The HBT was first used in 2004 to detect transfusion of someone else's blood, though I suspect even before that, many riders were transfusing their own blood. But certainly it would be interesting to test samples post 2001, when the EPO test was available, and prior to 2004, during which period any form of blood doping would have been indetectable. Unfortunately, stored blood samples can not be used for this test unless the red blood cells are first separated from the serum (that's why Tyler's B sample at the Olympics was messed up, and he was able to keep his Gold Medal). I doubt if samples during this period were processed in this manner, but I really don't know.

We do know, from Floyd’s statements, some of the Puerto records, etc., that EPO was commonly taken in conjunction with blood doping, both to replenish the body’s red blood cells faster following a withdrawal, and to counteract the inhibition of reticulocyte synthesis that transfusion induces, in order to keep the off-scores in line. So even if riders were turning to transfusion to avoid the EPO test, they would be taking some EPO, and that underscores the point made earlier about possibly testing for some other forms of it.

And finally, maybe artificial oxygen vectors like perfluorocarbon (PFC)? From a doping point of view, these might be safer than EPO. PFC is cleared from the body with a half-life of hours, and is thought to be excreted entirely through the lungs, as a gas or vapor; nothing in the urine. And though there have been concerns about heart attacks, PFC can be administered in the form of micro-droplets that are much smaller than red blood cells, and therefore carries much less risk of blocking blood vessels.

FWIW, LeMond alludes to some new (at the time) form of blood doping, in the interview with him I posted earlier in this thread:

The reason, he says, dates back to the 2000 Tour, when his former mechanic Julian DeVriese, who’d gone to work for Armstrong, told him that Armstrong’s U.S. Postal Service team was experimenting with some sort of superior blood-doping product, more powerful than EPO, that cleared out of an athlete’s body within 48 hours and was thus undetectable. “‘This isn’t cycling any more,’” LeMond testified that DeVriese had told him. It was competitive pharmacology. (“Absolutely, 100 percent not true,” Armstrong says; DeVriese later signed an affidavit denying he’d said any such thing.)

WADA has no test for PFC, and even supposing, hypothetically, that blood samples were withdrawn from a rider which contained PFC, I don't know if it could be shown to be present after prolonged storage. It seems to be resistant to metabolic breakdown, but if there is no recognized test for it, these samples would be of no benefit in building a case.

This post has been edited by one-mint-julich: Jul 30 2010, 10:16 PM

[lakeArrowheadrider]

That's not how I understood the article. To me, it sounded like the author believes that of all the legal options for indictment (perjury, misuse of Federal funds, Rico) perjury is the most likely. Same as in Balco where Novitzky scored 10 out of 11 (the Bonds case is hardly equivalent to Armstrong's)Again, that's not my understanding but I could be wrong (legal eagles please correct me)

If a perjury charge is the most likely, I believe Armstrong will have to be subpoenaed before a Grand Jury eventually because the Procecutor (after building the evidence unknown to Armstrong) may want him to either
-tell the truth or
-take the 5th or
-refuse to testify (and thus face the charge of contempting the court, is that the right term?) or
-lie and face perjury charge or
-get caught in some inconsistencies between his GJ testimony and the actual trial

Whichever way you look at the options, Armstrong would stand to lose something if it gets public.
That's what I was also told by a fiend who is a criminal trial attorney. The probability of Armstrong's indictment is high. What will happen after that is unknown.

A side note: there was some discussion of whether testing Armstrong's samples will be of benefit (admissible, relevant whatever the proper legal term) for the Prosecution. I will post my thoughts on the subject a bit later when I think through the issue and find some time.

The grand jury testimony is sealed. One of the major convictions from BALCO was an attorney who leaked testimony, so the public will never know what was said. Also Armstrong can not take the 5th or refuse to testify in the Grand Jury. The writer of the above article has that wrong.

[adker]

Grand Juries are not trials. There is no defense. it is the prosecutor who is there to make a case to send it to trail and the grand jury only determines if it gets to go to trial, that is the only ruling they can make, yes trial,(indictment) or no trial.

Though he could be subpoenaed to the grand jury he does not need to testify against himself because he does not have the right to a defense attorney in front of the grand jury so he may take the 5th.

Copied from Wiki:
As federal grand juries have the power to subpoena individuals and force them to take the witness stand, defendants in such proceedings invariably refuse to answer any questions put to them, citing their Fifth Amendment rights. If the defendant does answer any question put by the prosecutor during the proceeding, the protection of the Fifth Amendment is lost.

AKA if he was subpoenaed to the grand jury he would not give any testimony. Additionally any
evidence given the the grand jury is sealed and may not be used in court trial.

[D-Queued]

Hi Adker,

Thanks.

Can the prosecutor/Grand Jury subpoena bank records and other information that the defendant may have possession of? Thus, can the defendant elect not to answer a question, but may still be required to provide various forms of evidence if it is requested?

Dave.

[TheMight]

Here is the American Bar Associations FAQ on Grand Juries:

http://www.abanet.org/media/faqjury.html

There are two interesting points, one evidence that isn't normally admissible might be presented, perhaps test results from 1999.

The other is that in the case of fraud some of the confidentiality privileges may not apply, such as what might be said between spouses or perhaps a doctor and patient.

[adker]

Here is the American Bar Associations FAQ on Grand Juries:

http://www.abanet.org/media/faqjury.html

There are two interesting points, one evidence that isn't normally admissible might be presented, perhaps test results from 1999.

The other is that in the case of fraud some of the confidentiality privileges may not apply, such as what might be said between spouses or perhaps a doctor and patient.

Yes Dave,

As TheMight's link shows yes they can ask for evidence, and more importantly it can not be challenged. In a court trial the defense attorney can challenge the use of certain evidence based on validity, age, etc but in the grand jury they can not. That said....the only thing we can learn from the entire grand jury proceeding not matter what happens in there, is whether or not there was enough evidence presented to go to trail, everything else that is shared in there is sealed and not even admissible in trial. So the Grand Jury thing will not be the big Ah HA! moment that everyone thinks it will be, in fact no one will even get to know what comes out of it.

[D-Queued]

... So the Grand Jury thing will not be the big Ah HA! moment that everyone thinks it will be, in fact no one will even get to know what comes out of it.

Thanks adker, and apologies to TheMight for not following the link.

As for a big Ah Ha moment, perhaps we aren't all looking for the same thing.

If a trial is pursued, that will be big. You describe this as a highly likely outcome from a Grand Jury. While I have confidence in your experience, count on me for an 'uh huh'.

Dave.

[floridacyclist]

The grand jury testimony is sealed. One of the major convictions from BALCO was an attorney who leaked testimony, so the public will never know what was said. Also Armstrong can not take the 5th or refuse to testify in the Grand Jury. The writer of the above article has that wrong.

Flat wrong (on the 5th). This has been discussed previously. Armstrong could (and would) take the 5th. Only if the prosecution elects to offer a grant of immunity from future prosecution, would he be compelled to testify in response. In that case, he could still refuse to answer questions, and dare the judge to hold him in contempt and jail him on the spot. Even the process of making a grant of immunity is not as neat and simple as it sounds. There is plenty of grounds for negotiating what the bounds will be on a grant of immunity, and thus there is plenty of grounds for Armstrong's attorneys to argue over whether a proper grant of immunity has been offered.

As for sealing of GJ testimony, this is true. It's also true that you'd be hard pressed to find a high profile GJ of any interest to the media, where at least some portion of the contents didn't leak. Occasionally someone's stupid enough to have leaked in a way that leaves an evidentiary trail and gets busted. But 99 times in 100, the media recipient of the information shields it behind 1st amendment, and that's that.

I would be willing to wager if Armstrong ever were called to a grand jury, it would leak like a sieve, and we'd learn plenty about what was going on in the soap opera inside.

[TheMight]

Flat wrong (on the 5th). This has been discussed previously. Armstrong could (and would) take the 5th. Only if the prosecution elects to offer a grant of immunity from future prosecution, would he be compelled to testify in response. In that case, he could still refuse to answer questions, and dare the judge to hold him in contempt and jail him on the spot. Even the process of making a grant of immunity is not as neat and simple as it sounds. There is plenty of grounds for negotiating what the bounds will be on a grant of immunity, and thus there is plenty of grounds for Armstrong's attorneys to argue over whether a proper grant of immunity has been offered.

Isn't that where this becomes tricky? Doping in sports is not a crime in the US, potentially devastating to his brand and sporting image and legacy but not crimes he can be charged with. Can you elect to not answer arbitrary questions? Can you take the fifth in a GJ if there is not incrimination? I didn't think the fifth was protection from embarrassment.