Lance Williams, Mark Fainaru-Wada, Chronicle Staff Writers
Thursday, April 27, 2006
From the time federal agents confronted him in the BALCO steroids case, Greg Anderson, Barry Bonds' weight trainer and longtime friend, refused to talk about whether he had provided banned drugs to the Giants star.
Anderson and Bonds in 2002
Now, legal experts say, Anderson faces the unhappy choice of either answering a federal grand jury's questions about Bonds and steroids -- or going back to prison.
In what the experts called an unusually tough move, a federal grand jury in San Francisco has subpoenaed Anderson, who recently completed a prison term for dealing steroids in the BALCO case, to testify in an investigation of whether Bonds lied under oath in 2003 when he said he had never taken steroids.
Because Anderson already has pleaded guilty and has served his time, he probably cannot avoid testifying about Bonds and drugs by citing his Fifth Amendment right against self-incrimination, the experts said in interviews.
And without the Fifth Amendment protection, he and another BALCO defendant who has been subpoenaed -- BALCO Vice President James Valente, who also pleaded guilty in the case -- have few legal options other than telling the grand jury what they know about Bonds.
"This is hardball," said Peter Keane, law professor at Golden Gate University. Anderson "has a choice -- he can either testify or go to jail and be locked up for the life of the grand jury."
Veteran San Francisco defense lawyer Doron Weinberg said the government runs the risk of appearing to violate "the implicit expectation of fair dealing" when it demands the testimony of a defendant who already has settled his case and paid his debt to society.
But if a witness' evidence is relevant and important, he said, the law seems to allow the government to force a former defendant before a grand jury to testify about his crimes and to jail him in an effort to coerce his testimony. Former federal prosecutor Tony West called the new round of subpoenas in the case "an unusual and pretty heavy-handed tactic."
The government "is trying to make an example of him (Bonds) by pursuing him this heavily," West said. "It goes back to Martha Stewart, Scooter Libby, really pursuing these high-profile individuals."
At issue in the case is Bonds' testimony before the BALCO grand jury in December 2003. As The Chronicle has reported, Bonds denied using steroids. He acknowledged that Anderson had given him substances that matched the description of two undetectable steroids distributed by BALCO -- the "cream" and the "clear" -- but he insisted they were flaxseed oil and an arthritis balm.
Bonds also professed no knowledge of a series of calendars and other documents seized from Anderson's home that prosecutors believed detailed Bonds' use of banned drugs. Prosecutors didn't believe his testimony, the grand jury transcript indicates. Last year, his former girlfriend, Kimberly Bell, testified that Bonds had confided to her in 2000 that he was taking steroids. The grand jury resumed its investigation of Bonds and perjury recently. Today, Bonds' surgeon, Dr. Arthur Ting, and Giants team trainer Stan Conte are expected to testify.
Bonds' lawyer, Michael Rains, called the subpoenas of Anderson and Valente "a grotesque display of harassment of two people who have already been put through the mill" by the government. "I'm just astounded that the prosecution would stoop this low and do these sort of mean-spirited and inappropriate things to try to get to Barry," he said.
When federal agents raided Anderson's Burlingame home in September 2003, the trainer admitted he had been giving banned drugs to four former Giants: Benito Santiago, Bobby Estalella, Armando Rios and Marvin Benard.
Anderson denied that Bonds had used "the clear" or "the cream," but when the agents confronted him with documents that reflected Bonds' use of banned drugs, the trainer said he thought he should stop talking because he didn't want to go to jail, according to a government memo. As the BALCO case played out in court, his lawyer, J. Tony Serra, told reporters Anderson would never cooperate with the government to prosecute ballplayers. Serra couldn't be reached for comment Wednesday.
If compelled to testify, Anderson presumably could provide extensive information about Bonds and performance-enhancing drugs. Anderson was Bonds' trainer for five years, supervising his gym workouts and accompanying him into the Giants' clubhouse and to BALCO's Burlingame offices.
The doping calendars seized in the case -- some of them thought to be in Anderson's handwriting -- indicate Bonds' use of a cocktail of illegal drugs: "the clear" and "the cream," human growth hormone, testosterone, insulin and clomid, a female fertility drug used in part as a masking agent.
Valente, who was put on probation after pleading guilty to one count of steroids distribution in the BALCO case, also knows about Bonds and steroids, court records show.
In September 2003, Valente told federal agents that he was the middleman in helping Anderson provide performance-enhancing drugs to athletes. Valente said Bonds was among several baseball players Anderson brought to BALCO to obtain drugs that would not be detectable on Major League Baseball's steroids test. Bonds had received "the cream" and "the clear" on a "couple of occasions," Valente told the agents, and he quoted Anderson as saying he was providing human growth hormone and testosterone cypionate to his baseball clients. Valente also could provide the current grand jury with details about a sample of Bonds' blood sent in February 2003 from BALCO to LabOne, a lab that counts steroid testing among its services. Valente sent the sample with Bonds' name on it but then filed an affidavit saying it actually belonged to Anderson.
Valente later admitted to investigators that he knew the sample was Bonds' but switched the name at Anderson's request because Bonds did not want his name on the blood sample.
The experts said Anderson might still seek Fifth Amendment protection before the grand jury, perhaps by arguing that he feared being forced to admit to crimes the government hadn't uncovered. Depending on a judge's ruling, the government might be forced to offer Anderson immunity from prosecution to get him on the witness stand.
After that, if he refused to testify, he would face jail.
Weinberg said courts have held that while the government can jail a witness in an effort to compel testimony, jailing isn't legal simply to punish somebody for refusing to cooperate. With Anderson, "I would argue at the outset that this is punitive," Weinberg said. "Clearly the government must understand he is not going to testify."
E-mail the writers at lwilliams@sfchronicle.com and mfainaru-wada@sfchronicle.com.
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