Metropolitan News-Enterprise


Thursday, August 27, 2009


Page 1


Ninth Circuit Rules Investigators Wrong to Seize MLB Drug List


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals ruled yesterday that federal agents were wrong to seize the infamous drug list and samples of 104 Major League Baseball players who allegedly tested positive for performance-enhancing drugs in 2003.

Sitting en banc, the court in a 9-2 vote agreed with three U.S. district court judges who chastised investigators who had a warrant for only 10 drug test results as part of the BALCO investigation into Barry Bonds and others.

The panel said federal agents trampled on players’ protections against unreasonable searches and seizures, and in an opinion by Chief Judge Alex Kozinski set forth procedures and safeguards federal courts must now observe in issuing and administering search warrants and subpoenas for electronically stored information.

Kozinski said the players’ union had good reason to want to keep the list under wraps, citing leaks of the identities of players purportedly on the list.

“The risk to the players associated with disclosure, and with that the ability of the Players Association to obtain voluntary compliance with drug testing from its members in the future, is very high,” he wrote. “Indeed, some players appear to have already suffered this very harm as a result of the government’s seizure.”

Starts Named

Yankees star Alex Rodriguez and Red Sox slugger David Ortiz both have acknowledged being on the list, and The New York Times has reported the Dodgers’ Manny Ramirez and Sammy Sosa also could be found on it.

The government seized the samples and records in April 2004. The list of 104 players said to have tested positive, attached to a grand jury subpoena, has been part of a five-year legal fight, with the players’ union trying to force the government to return what federal agents took during raids.

“This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause,” Kozinski commented.

Noting that the case was a significant test of the government’s search and seizure powers in the digital age, the judge said magistrates in the future should insist that the government waive reliance upon the plain view doctrine in cases involving search warrants or subpoenas in digital evidence cases.

He wrote that segregation and redaction must be done by specialized computer personnel or an independent third party, and that if done by the former, the government must agree in the warrant application that the personnel will not disclose to investigators any information other than that targeted by the warrant.

Search Protocol

Kozinski opined that warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize the information in other judicial fora. He also said the government’s search protocol must be designed to uncover only information for which it has probable cause, and that only that information may be examined by case agents.

In the event that the government obtains other data not covered by the warrant, Kozinski continued, the government must destroy it or—if the party from whom the government obtained the data may legally possess it—return the data, keeping the issuing magistrate informed about when the government has done so and what it has kept.

Judges Andrew J. Kleinfeld, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Marsha S. Berzon and Milan D. Smith Jr. joined Kozinski in his opinion.

Judge Consuelo M. Callahan partially concurred, but dissented from the proposed guidelines adopted by the majority.

Judge Carlos T. Bea, joined by Judge Sandra S. Ikuta, concurred in the majority’s conclusion that the government’s appeal of one of the district court’s orders was untimely, but dissented from the preclusive effect given to some of the orders by the majority. Bea also wrote that he would reverse the other district court orders.

Majority Criticized

Ikuta, joined by Callahan, also wrote separately to criticize the majority for affirming a district court order requiring the government to return evidence it seized and to destroy any remaining copies.

Bay Area Laboratory Co-Operative founder Victor Conte has long been critical of the actions of the government, especially then-lead investigator Jeff Novitzky.

“I have said that Novitzky has been using illegal tactics and not following the law since the day of the BALCO raid,” Conte said. “He seems to just make up his own rules as he goes along.”

U.S. attorney spokesman Jack Gillund in San Francisco said the government was reviewing its options, which could include an appeal to the U.S. Supreme Court.

Players’ association lawyer Elliot Peters said the union was happy with the ruling but still angry that names of several players allegedly on the list have been leaked to journalists.

“The leaks were crimes,” Peters said. “The people who committed the crimes should be investigated and punished.”

Peters declined to say whether he asked a federal judge to look into leaks from the list.

“If the government hadn’t unconstitutionally seized this in the first place, there wouldn’t have been any leaks,” he said.

The list’s genesis goes back six years, to the time when an agreement between MLB and the players’ association on drug policing was just being implemented.

In 2003, baseball conducted survey drug testing — without penalties. Each player provided a urine sample and an additional follow-up five-to-seven days later. Up to 240 players could be selected randomly for additional testing.

Two companies were involved, Comprehensive Drug Testing Inc. of Long Beach, Calif., and Quest Diagnostics Inc. of Teterboro, N.J., and samples were marked with codes to keep track as they were processed.

The players’ association said it first received the results of the initial round of drug testing on Nov. 11, 2003, and sent a memo on the subject to its members on Nov. 14. Promptly thereafter, union head Donald Fehr has said, the first steps to begin destroying the testing materials and records were taken.

But on Nov. 19, the union learned a federal grand jury subpoena had been issued for some of the test results and records as part of the BALCO investigation and the destruction steps halted.

Months of wrangling followed but federal agents finally got a search warrant and seized samples from a Quest lab in Las Vegas and records from CDT in Long Beach on April 8, 2004—records the Ninth Circuit now says the government never should have taken.

“We are very gratified by this decision, and hope that this will finally bring this long litigation to a close,” Fehr and union general counsel Michael Weiner said in a statement.

The case is United States v. Comprehensive Drug Testing, Inc., 05-10067.


Copyright 2009, Metropolitan News Company