BALCO Case Has Incentive for Settlement

For all the controversy generated by the BALCO scandal -- allegations of steroid use among famous athletes, a Senate investigation, angry denials -- legal experts say the criminal case that started it all is fairly mundane.

Evidence from that case has pointed to some of the biggest names in American sports, including Marion Jones and Barry Bonds. It has prompted President Bush to publicly decry steroid abuse.

A related investigation by anti-doping authorities could keep a number of top U.S. athletes out of the upcoming Olympic Games in Athens.

Yet the BALCO indictments, alleging distribution of steroids and other performance-enhancing substances, pale in comparison to larger cocaine and heroin busts, experts say. The four defendants might face little, if any, time behind bars.

Using federal guidelines, law professor and former federal prosecutor Laurie Levenson calculated the potential sentences could be six months or less.

“It’s a small-time operation,” Levenson said.

Prosecutors have sought to negotiate a plea bargain with the man at the heart of the case, BALCO founder Victor Conte. Though a meeting earlier this week failed to produce an agreement, sources said Friday that discussions were expected to continue.

The U.S. attorney’s office declined to comment, as did Conte’s attorney, Robert Holley.

It was unclear if there was a deadline for the talks. A decision could be made before the next scheduled court date on June 25, said two sources who spoke on the condition of anonymity because the case is ongoing.

Also in question is the effect that the U.S. Anti-Doping Agency’s related investigation might have on federal proceedings.

By most accounts, prosecutors have shown little inclination to help clean up the Olympic team. But they have spoken with USADA officials on numerous occasions and one source said: “I think they are trying to get something done, so that USADA can get something done.”

The scandal began last summer after agents raided the Burlingame, Calif., offices of the Bay Area Laboratory Co-Operative, or BALCO, a nutritional supplement maker. Prosecutors later alleged that BALCO was distributing steroids to dozens of professional and Olympic athletes.

USADA has since pursued Olympic athletes alleged to have received these performance-enhancing substances. Sprinter Kelli White recently accepted a two-year suspension. The agency possesses what it has told attorneys is evidence of doping violations involving Jones, Tim Montgomery, Michelle Collins, Chryste Gaines and others.

No athletes have been criminally charged. Many, including Jones, have denied using steroids.

In the federal criminal case, Conte stands charged along with BALCO vice president James Valente and two associates -- track coach Remi Korchemny and personal trainer Greg Anderson, who worked with Bonds.

Some if not all of the codefendants have been involved in plea-bargain negotiations, sources said.

These talks are not unexpected -- most criminal cases in federal court are resolved without a trial.

But there is added incentive to settle in the BALCO case because information from Conte, in particular, could be used to pursue star athletes and because federal sentencing guidelines would appear to call for relatively little prison time.

The guidelines, developed in the late 1980s to take sentencing discretion out of judges’ hands, consist of a complicated matrix that assigns a point system to various crimes, adding or subtracting points for aggravating or mitigating circumstances.

The points translate into a particular sentence, expressed as a range in time -- for instance, 33 to 41 months for a robber with no prior criminal history.

Michael Goldsmith, a law professor at Brigham Young and former vice-chair of a federal commission that reviews the guideline rules, emphasized that any prediction should be viewed with caution because the indictment does not specify the quantity of steroids at issue. Quantity is crucial in calculating a guideline range in drug-related cases.

Defense attorneys have characterized the amounts in question as small.

Regardless, Goldsmith and others said, the guidelines do not treat steroid distribution harshly. Thus a conviction -- even on multiple charges of the 42-count indictment -- could result in zero to six months in custody, said Levenson, who teaches at Loyola Law School.

Levenson said she was so surprised by that number, she checked her research with two working prosecutors who confirmed the result.

The guidelines could also be read to call for 41 to 51 months, said Goldsmith, adding that a footnote in the rules might allow a judge to apply a “reasonable penalty” of up to five years. That footnote applies to trafficking in human growth hormone, among the substances allegedly distributed.

But even a longer sentence might be mitigated by a provision that says defendants who provide “substantial assistance” in the “investigation or prosecution of another offender” can be offered leniency. The prosecution must make a formal motion for such leniency; a judge decides whether to grant it and, if so, by how much.

Because of his association with elite athletes, Conte could be of valuable assistance were he to cooperate.

In the meantime, defense attorneys in the case have expressed skepticism at the energy the government has expended prosecuting and, in their eyes, publicizing a case of this magnitude.

Atty. Gen. John Ashcroft appeared on national television to announce the indictments in February. The previous month, Bush had voiced his concern during the State of the Union address.

When federal prosecutors tried to keep their evidence sealed, the Senate stepped in, subpoenaing court files in April and handing them over to USADA.

Given Washington’s interest, Troy Ellerman, who represents Valente and is also one of Conte’s attorneys, said he believes prosecutors have been pushing for a quick trial because they want to resolve the matter before November’s presidential election. No date has been set.

Tony Serra, who represents Anderson, also has been vocal in calling the case politically motivated.

Serra recently filed a motion asking to see relevant correspondence between prosecutors and officials in the nation’s capital.

“The genesis of this case, underlying investigation, and announcement of the indictment have been rife with many characteristics uncommon to the majority of criminal investigations,” the motion stated.

Korchemny’s lawyers were slightly more understanding of legislators’ interest.

“The Senate is obviously concerned about the type of athlete and the character of the athlete that will appear in the Olympic Games,” attorney George Walker said. “I can understand that concern.”

His co-counsel, Alan Dressler, offered another theory.

“The government has a history of trying to kill mosquitoes with Howitzers,” he said.