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Hearings on the search might be held later

12/1/2004

SAN FRANCISCO -- A federal judge said Wednesday she would
not immediately dismiss charges against four men accused of
distributing steroids to top athletes, amid accusations that
prosecutors illegally searched a nutritional supplement laboratory
and Barry Bonds' trainer's house and car.
At the outset of an 80-minute hearing, U.S. District Judge Susan
Illston ruled "my preliminary view is to deny everything." She
said a written ruling would come soon, and set a preliminary trial
date in March.
But before trial, Illston said she may conduct evidentiary
hearings in January into whether federal agents illegally searched
Victor Conte's Bay Area Laboratory Co-Operative in Burlingame, and
wrongfully obtained statements from him and its vice president,
James Valente.
The outcome of those hearings could determine whether some or
all of the charges would be dismissed, as attorneys for the four
defendants demanded Wednesday.
Conte, Valente, Bonds' trainer Greg Anderson, and track coach
Remi Korchemny face federal indictment on a range of accusations,
including distributing steroids, possession of human growth
hormone, money laundering and misbranding drugs with intent to
defraud. All have pleaded not guilty.
Attorneys for Conte, Valente and Anderson said searches last
year at BALCO and at Anderson's Burlingame house were illegal
because officers did not supply search warrants to the men. Federal
agents stated in court records that they seized calendars and other
documents detailing the use of steroids by professional baseball
players during the search of Anderson's home.
"Included among these files with apparent steroid distribution
details was a folder for Barry Bonds," Internal Revenue Service
agent Jeff Novitzky wrote in court documents. Bonds denies using
steroids.
In court papers last month, Novitzky wrote that during the
September 2003 raid on BALCO, "Conte openly acknowledged giving
testosterone-base cream, itself a steroid, to numerous professional
athletes and specifically identified the names of the specific
athletes to whom he had given drugs."
An IRS memo about that conversation listed baseball players
Bonds, Jason Giambi and Gary Sheffield, in addition to track
standouts Marion Jones, Tim Montgomery and others.
These and other athletes testified before a federal grand jury
here, which eventually led to the indictment of the four men.
Robert Holley and Troy Ellerman, attorneys for Valente and
Conte, also said the statements their clients allegedly made to the
government should not be allowed as evidence. The attorneys said
their two clients believed they were not free to leave the premises
during the search by armed agents, meaning any statements they made
there cannot be used in court because their rights were not read to
them.
"The government has treated this case frivolously," Holley
told the judge. He said if a person doesn't believe he is free to
leave police during questioning, that person is under arrest and
must be given Miranda rights.
Prosecutor Jeff Nedrow said the fact that agents waited until
the end of an eight-hour search to review the warrant with Conte
and Valente was simply a "technical violation." And, he said,
Anderson was shown the search warrant during the raid of his
property, an assertion Anderson's attorneys dispute.
"Is it a violation that requires suppression?" Nedrow asked
Illston. "Absolutely not."
Attorneys for all four also urged Illston to dismiss the entire
case because of what Anderson attorney Tony Serra called
"outrageous governmental behavior."
Serra alleged the government had leaked damaging evidence, or
"poison ink," to the San Francisco Chronicle, preventing the four
from getting a fair trial by an unbiased jury.
Among the most damaging leaks was a secret recording the
Chronicle described in an October published report. A voice the
Chronicle claimed to be Anderson's was heard saying he provided
steroids to Bonds.
Nedrow denied the government was responsible for the leaks,
reminding the judge that Conte is making his own case to the media
by appearing Friday on ABC's 20/20 to discuss it.
Outside the courtroom, Conte read a statement about his upcoming
ABC interview and took no questions.
"The truth, the whole truth and nothing but the truth will be
told by Victor Conte," he said.
The case is United States v. Conte, 04-0044.