Thursday, December 28, 2006
The investigation of possible perjury in the Balco (Bay Area Laboratory Co-Operative) steroids investigation took another interesting turn with the release of a Ninth Circuit opinion (here) overturning lower court orders directing the government to return drug tests because the searches were unconstitutional. The government originally subpoenaed two drug testing labs in early 2004 for the results of drug tests of ten major league baseball players with Balco connections who may have tested positive for steroids. The most famous player linked to Balco is San Francisco Giants slugger Barry Bonds, who testified before a federal grand jury in 2003 that he did not knowingly take steroids provided by his trainer, Greg Anderson, who was involved with Balco. After the labs refused to provide the drug tests, investigators obtained search warrants for the facilities and seized records of the drug tests of all major leaguers, and athletes in a number of other sports. The government then issued another subpoena to obtain many of the records it had already seized. District court judges in Los Angeles, Las Vegas, and San Francisco ordered the return of the records and granted a motion to quash a subpoena at the urging of the baseball players union, which intervened to represent the interests of all the players whose records were seized.
In its decision in United States v. Comprehensive Drug Testing, Inc., a divided panel upheld the search warrants, including the seizure of computer records, and ordered the lower court to segregate records that fall outside the scope of the warrant for review by a magistrate judge. A second issue decided by the Ninth Circuit majority was to reverse the district judge's order quashing the subpoena issued after the search as unreasonable. The appellate court determined that the government may issue a subpoena for documents held by a third party even after a search for the same records.
A strong dissent by Circuit Judge Sidney Thomas, which runs 60+ pages, accuses the government of acting improperly in both the search and subpoena issuance. Judge Thomas concluded about the seizure of private medical records not covered by the warrants:
In discussions of the alleged use of steroids by baseball players, much is made about “the integrity of the game.” Even more important is the integrity of our legal system. Perhaps baseball has become consumed by a “Game of Shadows” [a book written about Bonds' steroid use], but that is no reason for the government to engage in a “Prosecution of Shadows.” The district judges were entirely right to order the government to return the thousands of private medical records it wrongfully seized by use of pretext and artifice.
The Ninth Circuit decision raises a number of interesting issues that are coming up more often in white collar crime cases, such as the scope of a warrant to search a computer, plain view of computer files, the government's right to seize intermingled documents, and the prosecutor's authority to use both a search warrant and a grand jury subpoena for the same records. These are not issues the Supreme Court has confronted in the context of white collar-related investigations, and much of the Court's Fourth Amendment jurisprudence arises in drug and gun cases that are not always a good fit when applied in corporate and business crime investigations -- how often does the auto search exception arise in a mail fraud case?
The union has some very deep pockets, and a strong interest in keeping the drug testing results secret, so I expect the players' lawyers (from leading San Francisco firm Keker & Van Nest) will seek rehearing en banc and, if that fails, certiorari from the Supreme Court. While the government has won this round, don't look for a quick resolution of the question whether prosecutors can use any drug test taken by Bonds as evidence for a potential perjury prosecution. Bonds has denied failing a drug test, so the value of the evidence remains to be seen. (ph)
UPDATE (12/28): Not surprisingly, Donald Fehr, head of the baseball players union, said the union will consider further action to overturn the Ninth Circuit panel's 2-1 ruling allowing prosecutors access to player drug tests in 2003. In a prepared statement (here), Fehr said, "We will consult with our counsel, and then determine what our next step should be in our fight to protect the Constitutional rights -- including the basic right to privacy -- of our members." (ph)