Heredia was heavyset, with the build of a shot-putter. He had dark, neatly clipped hair and a trim goatee. “You’re Erwin,” Heredia replied. He already knew Rogers and Novitzky were looking for him. Heredia and Rogers had spoken by phone in December, after the agent left his card at Heredia’s sister’s house, where Heredia had been living, and Heredia called his number.
Rogers asked Heredia if his nickname was “Memo.”
“No,” Heredia replied.
Did he know anything about performance-enhancing drugs?
“No,” Heredia replied. (Both answers were blatant lies. “I was afraid,” he later said.)
The agents reassured Heredia that he was only being questioned as a witness, and that he’d never be prosecuted as long as he told the truth. Heredia assessed the situation and agreed to talk. He was eager to finish his degree in sports and science and didn’t want to be deported to Mexico.
Heredia said he’d first spoken to Trevor Graham by phone in 1996. “I told him that I could get pretty much everything in Mexico; that it was very easy to get certain things, and whatever things were not available, I could get them from twenty-two different countries, no problem,” Heredia said. In December, Graham and two of his athletes made the twenty-two-hour drive from Raleigh to Laredo and stayed with Heredia.
Then Heredia produced what seemed a trump card for the government: a photograph of him and Graham in Heredia’s bedroom. It was seemingly irrefutable proof that Graham had lied when he said he’d never met Heredia in person. Other photos from the visit showed Graham at the local track.
After that visit, Heredia and Graham dealt with each other over the phone. In one call, Graham introduced Heredia to Montgomery. “He told me that he wanted me to take care of them, to put them on the gold plan. That the money was not an issue, they wanted to get the best things available. The most important is to remain undetectable for the drug testing toward Olympics,” Heredia later testified. And he had extensive conversations with Graham about a drug program for Marion Jones.
Shortly after the Sydney Olympics, Heredia and Graham had fallen out over money, with Heredia claiming Graham owed him $20,000–$30,000.
Despite being an illegal drug dealer and an illegal immigrant, Heredia was a godsend to the government, with valuable firsthand testimony against Graham and Jones. He hired a lawyer and repeated his story to the grand jury in San Francisco, this time under a grant of immunity. The government helped him obtain a work visa. He also told the agents he’d be willing to operate undercover and wear a wire.
During the summer, he met and spoke to Graham at a track meet in Eugene, Oregon. He also taped calls with Graham in which he discussed the investigation. Graham was obviously wary, and never directly acknowledged dealing in steroids. But according to a government summary of the tapes, they clearly had a “long-standing relationship,” contrary to Graham’s statements that they barely knew each other; Graham assured Heredia that he’d told the authorities “nothing,” confirmed that Heredia had “said no” when asked about Graham’s athletes, agreed with Heredia that they both needed to “deny the whole thing,” assured Heredia that he “had Heredia’s back,” and told Heredia they’d have nothing to worry about as long as Heredia “said nothing” if they “put him on the stand.”
Still, Heredia wasn’t an ideal witness. He’d told the agents he stopped dealing drugs in 2004, but in October 2006, Rogers called and asked, “Hey, are you still dealing drugs? We have been working with you for two years. Are you still dealing?”
“I’m not going to answer that unless I still have the immunity I had from the grand jury,” Heredia replied.
Heredia felt bad about cooperating. “Even at the last moment, I felt I was betraying my oath, the underground oath among athletes,” he later said. “What hurt me was that deep down, I didn’t want to put all this stuff on the table. I truly felt sad about it.”
I
n January 2005 Troy Ellerman, the lawyer for Valente and Conte, was named commissioner, or chief executive, of the Professional Rodeo Cowboys Association and moved to the association’s headquarters in Colorado Springs.
Although Ellerman still represented Valente, his responsibilities on the case had waned, which made it possible for him to move to Colorado and make just the occasional trip back to the courthouse in San Francisco. Victor Conte had proved vexing both as a client and as a defendant. As a client, he had repeatedly defied his lawyers’ advice. Bob Holley had resigned (Conte says he was fired) after Conte’s
20/20
appearance and his awkward exchange with the judge, and Conte hired new lawyers with no ties to Ellerman or Holley. As a defendant, Conte had initially cooperated with Novitzky, freely answering questions the day of the raid. Then he had abruptly reversed course, denying he had named his clients, accusing Novitzky of dishonesty, refusing further cooperation. And then he had implicated many of his clients on national television.
Even without the mounting testimony of witnesses before the grand jury recounting how they’d obtained illegal steroids from Conte and his own admissions, it was obvious from the documents seized in the raid that Conte was guilty. Apart from his legal gamesmanship and reckless accusations against the government, Conte had never disputed the essence of the charges. He may never have told the whole truth, but he didn’t lie about his steroid distribution. His codefendants, Valente and Anderson, had kept quiet and stayed in the background. But their fates were inextricably linked. They, too, had essentially acknowledged their guilt the day of the raids.
Interest in the trial, which had been set by Judge Illston for September, focused more on the professional athletes likely to be called as witnesses than it did on the outcome, which seemed a foregone conclusion. Would Bonds and Jones, the two biggest names, repeat their grand jury denials on the witness stand? Would a score of other top professional athletes from track, baseball, and football have to admit steroid use? Unlike a secret grand jury proceeding, any trial would be public. Given the government’s focus on steroid distributors and not users, any trial of Conte, Valente, and Anderson was likely to have the perverse effect of becoming a de facto trial of steroid users.
As his letter to President Bush indicated, Conte wanted a plea bargain. Considering the overwhelming strength of their case, it’s hard to see why prosecutors would have had any interest in anything but a straight plea, unless Conte, Valente, and Anderson could aid the ongoing investigation into other potential defendants. In this regard, Anderson had great value as a potential witness in any perjury case against Bonds, and Conte and Valente had some value in perjury cases against Jones and Graham. But their lawyers rejected any notion of cooperation. No proffers–statements indicating what their clients would say if called to testify–were made.
So it came as a surprise to most when U.S. Attorney Kevin Ryan announced, on June 15, that Conte and Anderson would plead guilty to just two counts–conspiracy to distribute steroids and money laundering–and Valente would plead to just one, distributing steroids. The other forty counts were dropped. Prosecutors would recommend sentences of just four months in prison for Conte and probation for Valente. They would make no recommendation for Anderson. The recommendations did not depend on any cooperation from any of the three men. Anderson’s lawyer, Anna Ling, said he would “never” cooperate with the government by naming athletes. “It’s not in his character,” she said.
Conte maintains that he essentially dictated the terms on which he would plead, and that he and his codefendants were able to extract such lenient pleas because they had so much evidence of misconduct by Novitzky and other agents, which his lawyers were prepared to demonstrate in an evidentiary hearing. Novitzky “never served me with a search warrant; he lied about that. In his memo, he said I made a confession; he lied about that. Eighty percent of his memo is conjecture. I certainly never mentioned any athletes using drugs,” Conte said. He was also influenced by Martha Stewart’s sentence, which may have been less of a deterrent than Judge Cedarbaum had anticipated. “After watching how quickly her time in prison seemed to pass, I decided that I would be willing to accept a similar split sentence of four and four,” Conte later wrote.
Ryan defended the decision by noting that federal penalties for steroid distribution were light, and that the maximum sentence any of the men faced if convicted at trial was a year. He called for Congress to enact stiffer penalties. In the meantime, he issued a statement denouncing athletes who cheat.
But Ryan’s statement again focused on athletes–not distributors–and no athlete had been charged or even named by the government. As the
San Francisco Chronicle
noted in an editorial:
If the goal of the prosecution was to cleanse professional sports of steroids and other cheating substances, as Ashcroft suggested, the Justice Department came up short. None of the defendants who admitted to conspiring to sell steroids would name the recipients of illegal substances–and the plea deal will ensure that many of the details of the investigation will never be heard in open court.
In December, Conte and Anderson began their terms in federal prison, four months and three months respectively, followed by an equal amount of house arrest. Valente was placed on probation. The BALCO case itself was essentially over. Had witnesses before the grand jury testified truthfully–and had someone not leaked the transcripts of their testimony–it would have been over. For the athletes who used the steroids BALCO supplied it would have been over as well. As it was, the case all but disappeared. More than three years after the BALCO raid, Bonds retained his $17-million-a-year contract with the Giants and continued his pursuit of the all-time home run record. Even Giambi and Sheffield, who admitted they used steroids, emerged largely unscathed.
Then, in April 2006, Greg Anderson, still under house arrest, was subpoenaed to testify before a grand jury–this time for evidence that Bonds had committed perjury. Having already pleaded guilty and been sentenced for distributing steroids, Anderson was no longer at risk of prosecution–and hence couldn’t invoke the Fifth Amendment and refuse to testify. Nonetheless, he was shocked that he was being asked to testify about Bonds’s steroid use after being told that he didn’t have to cooperate as part of his plea agreement. And he argued that leaks had undermined any confidence that his testimony would be secret. U.S. Judge William Alsup, assigned to Anderson’s contempt case, swiftly rejected those arguments and ordered Anderson jailed until he agreed to testify or the grand jury term expired.
Anderson didn’t have a First Amendment argument, nor did he argue for a common-law “trainer-client” privilege (though another trainer later did, unsuccessfully), but he had run into the same issue as Judith Miller: criminal law expects and demands that all citizens testify truthfully when questioned about crimes they may have knowledge of. Except for recognized privileges, such as priest-penitent and husband-wife, it doesn’t matter that testimony may be demanded against a close friend, a client, or a benefactor. Loyalty may be a virtue, but it is irrelevant to a grand jury.
“We will wait and see how loyal [Anderson] wants to be to someone other than his government, his country,” Judge Alsup observed.
T
he combination of his flamboyant personality and infatuation with the media had made Victor Conte an obvious suspect in the ongoing leak investigation. Even Ellerman, a member of Conte’s own defense team, had blamed his client for the leaks. On January 26, Los Angeles–based prosecutors Brian Hershman and Michael Raphael, who been assigned to the leak investigation, had obtained a search warrant for Conte’s home, where federal agents seized his computer.
Although the agents found extensive e-mail correspondence between Conte and Fainaru-Wada, it not only didn’t prove that Conte had leaked the transcripts but, if anything, suggested he hadn’t. In his e-mails to the reporter, Conte seemed angry about the leak. It’s “sad I can no longer communicate with you,” Conte wrote after their stories ran, although their correspondence soon resumed. He also seemed surprised that the
Chronicle
’s legal department had approved the stories, asking Fainaru-Wada whether it wasn’t analogous to selling stolen property. “This is not something I can discuss in any way, other than to say we’re fine,” Fainaru-Wada had replied. Why would the source of the leak be criticizing the
Chronicle
for running it?
The investigation was at an impasse, short of asking the reporters themselves to identify their source. As the prosecutors reported to the court:
The criminal violations at issue here strike at the very heart of the secrecy of grand jury proceedings and the integrity of the judicial system. An order of this United States District Court, the Honorable Susan Illston, was blatantly violated by a party to a criminal proceeding who leaked secret grand jury testimony to reporters for the
San Francisco Chronicle
. The perpetrator then baldly lied to the Court in a sworn declaration denying his or her involvement in violation of 18 U.S.C. § 1623. If the leaker is a government employee, this deliberate violation of a Court order and false declaration to the Court undermines the trust we place in our public servants, as well as the leaker’s obligations under Federal Rule of Criminal Procedure 6(e). If the leaker was a defendant or defense counsel, this egregious conduct was compounded by moving to dismiss the criminal indictment based on false accusations that the government had leaked the grand jury transcripts, perpetrating yet another fraud on the Court.