USADA’s report against Lance Armstrong reveals more issues

The U.S. Anti-Doping Agency report that charged iconic cyclist Lance Armstrong with running the most sophisticated and extensive doping scheme in professional sports history presented a compelling, fact-filled case.

The 202-page report released Wednesday included affidavits from 11 of Armstrong’s former teammates detailing elements of Armstrong’s — and in some cases their — use of performance-enhancing drugs.

But what was left unanswered was why a federal grand jury in Los Angeles couldn’t come to the same conclusion after its 18-month review and why no criminal charges were ever filed?

It’s simple if you ask Armstrong’s people.

“That’s because the USADA investigation was a very one-sided report,” Armstrong spokesman Mark Fabiani said Thursday. “The federal government spent a considerable amount of hours and manpower on its case, and if one-tenth of what USADA is saying was true, the federal government would’ve brought charges against Lance a long time ago.”

U.S. Atty. Andre Birotte Jr. isn’t giving his side of the story. A spokesman in his office declined to comment Thursday and wouldn’t speculate whether the case might be resurrected.

Fabiani did point out that several of Armstrong’s teammates who had never admitted to using drugs or seeing Armstrong involved in doping activities, provided affidavits to USADA only after Armstrong pulled out of the arbitration process that would have subjected the riders to cross-examination.

A USADA official, who asked not to be identified because of the sensitivity of the matter, disputed Fabiani’s claim on the timing, insisting Armstrong’s 11 former teammates “would have been live witnesses if,” Armstrong, “did not withdraw, and they would not have needed affidavits since they would have testified live, under oath. Their information was provided before we brought the case,” and “is in large part what we brought the case on.”

USADA announced Thursday that cyclists Tom Danielson, George Hincapie, Levi Leipheimer, Christian Vande Velde and David Zabriskie each have accepted six-month suspensions, effective Sept. 1, 2012, as a result of their testimony in the Armstrong investigation.

In August, six months after federal prosecutors announced the grand jury was concluded, Armstrong withdrew from USADA’s arbitration process and the agency banned him from competition for life. Armstrong, who won the Tour de France seven times, has never tested positive for performance-enhancing substances.

Among the slew of alleged transgressions listed in the USADA report were some that those close to the investigation said could — if true — have generated a criminal conspiracy indictment.

For example:

•USADA published bank statements showing that Armstrong made more than $1 million in payments to Dr. Michele Ferrari for allegedly administering performance-enhancing drugs and providing instruction for use. Those payments could be a tax crime.

•Armstrong’s agent was said to have told sponsor Coca-Cola the rider did not engage in performance-enhancing activity before being awarded a contract. That could be cause for a charge of fraud based on the statements of 11 of Armstrong’s teammates who alleged a culture of doping.

•Hincapie, Armstrong’s former friend and teammate, provided an affidavit saying Armstrong gave Hincapie the banned energy-boosting substance EPO in California and encouraged its use. It is illegal to distribute banned or prescribed drugs without a license.

•And, Armstrong also made recent efforts, according to Hincapie and the wife of former teammate Leipheimer, to discourage and intimidate their cooperation with prosecutors. (Leipheimer was also suspended by the Omega Pharma-Quick-Step cycling team Thursday.)

If true, any one of these could have been brought forward by the grand jury as possible crimes.

Matthew Orwig, a former U.S. attorney, said “conspiracy charges can extend to the last overt act,” such as Armstrong’s text messages to Leipheimer’s wife in the last year, and encompass acts that may have otherwise been subject to the statute of limitations.

Yet, other legal experts such as former Washington, D.C., federal prosecutor Mathew Rosengart, say federal prosecutors operate by a manual that urges them to exercise “prosecutorial discretion.”

The Department of Justice “has the discretion to consider who the target is, what his contributions to society have been and, based upon a cost-benefit analysis, whether an indictment is in the interests of justice and a conviction can be obtained,” Rosengart said.

That could have been a factor in Armstrong’s favor, considering his popular cancer-fighting foundation, Livestrong, along with the fact federal prosecutors spent millions but failed to win prison time for steroid-linked baseball superstars Barry Bonds and Roger Clemens.

“In this case, it appears DOJ prudently exercised that discretion.… Juries do not like to convict heroes,” Rosengart said.

Elliot Peters, an attorney for Armstrong during the grand jury review, said he believes the statute of limitations applied to several alleged acts and noted that others allegedly happened in Europe or were not crimes, such as blood doping.

“These were smart men, [in the U.S. attorney’s office] who realized you would have to contort the law to make a case,” Peters said.

The attorney rejected speculation by some, including Armstrong’s original accuser Betsy Andreu, that Birotte’s office was subjected to political pressure to drop the case.

“There was no juice to this,” Peters said.

State Sen. Michael Rubio (D-East Bakersfield) said his request with colleagues for U.S. Sens. Diane Feinstein and Barbara Boxer to review USADA’s ability to discipline athletes is pending. Two federal lawmakers filed a bill last month seeking to make USADA accountable to Congress.

“Politicians always try to get involved in things they ought to stay out of, and I’m sure some influence on the U.S. attorney’s office was attempted,” said Orwig, who headed the Eastern District of Texas from 2001 to ’07.

“I’m also sure those within the office who disagreed with the declination [to file charges] in the first place are now making their case again.”

Meanwhile, things continued to go downhill for Armstrong on Thursday although in a much less significant way. The International Olympic Committee is reviewing the USADA report and could move to strip Armstrong of his 2000 Olympic bronze medal in the time trial.

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