Wednesday, December 29, 2004

Government Interviews with BALCO Officers

On Dec.28, U.S. District Judge Susan Illston issued an order in the BALCO (Bay Area Laboratory Co-operative) case denying defense motions to dismiss and granting an evidentiary hearing on a motion to suppress.  The evidentiary hearing will be on the issue of whether statements obtained by the government investigators while executing a search warrant at BALCO's office were taken in violation of Miranda because the questioning constituted a custodial interrogation.  A common tactic during the execution of search warrants in investigations that involve business organizations (corporations, partnerships, LLCs and LLPs) is to have agents ask employees on the scene whether they would be willing to answer questions.  The government usually tries to ensure that the interviews are voluntary, and generally avoids giving the Miranda warning because it can serve to discourage responses.  Many defense lawyers advise their business clients to send all non-essential employees home and to notify counsel, who will be the only person to speak with the agents conducting the search.

Judge Illston ordered the hearing because of the conflicting assertions of the government and defendants regarding the atmosphere surrounding the interviews.  The District Court's order states:

Defendants contend that their statements were made while they were in custody. Defendants assert that the agents’ manner of entrance into the business, combined with the agents’ forcing defendants to sit in the lobby with their hands on their knees, gave defendants the reasonable belief that they were not free to leave. When Joyce Valente stood up to help an agent locate a key to a storage area, the agent yelled at her to sit down. James Valente Decl. at ¶ 7. Hours later, when Joyce Valente’s interview ended, she was told that she could leave, but that her husband could not. Id. at ¶ 14. Conte alleges that he was surrounded by armed agents at all times. Conte Decl. at ¶ 8.

Although the suppression of the interviews would likely harm the government's case, Victor Conte's statements on a recent 20/20 program admitting that he provided steroids to various athletes may be sufficient to convict him.  (ph)

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