Lawyers for the two men at the center of the Bay Area Laboratory Co-Operative (BALCO) scandal filed two motions for dismissal of the federal steroid distribution case against them yesterday alleging misconduct by government officials.
The 93-page filing in U.S. District Court in the Northern District of California on behalf of BALCO founder Victor Conte and business associate James Valente also sought the suppression of all evidence seized in a raid of BALCO last fall, alleging the government used improper search tactics, according to a copy of the document that was provided to The Post by Conte's legal team.
Citing quotes from a federal agent reported in a Playboy article in May, attorneys Robert M. Holley and Troy L. Ellerman allege that the lead investigator on the case had a personal vendetta against Barry Bonds, whose trainer, Greg Anderson, was indicted on steroid distribution charges along with Conte, Valente and track coach Remi Korchemny in February.
The motion also alleges that the lead investigator, Internal Revenue Service Special Agent Jeff Novitsky, did not provide a copy of a search warrant until after the raid of BALCO, did not read Conte and Valente their Miranda rights, ignored their requests for the presence of their attorneys and tried to intimidate them.
It further charges that confidential e-mail messages and financial records were illegally obtained, and that Novitsky fabricated portions of interviews with two athletes. The athletes, Kenny McDaniel and LaKiesha Givens, provided statements in support of those claims.
"I wish now that it had been recorded because the 'Memorandum of Interview' . . . contains so many misstatements, incriminating innuendos, and complete fabrications that both LaKiesha and I simply wish to set the matter straight," McDaniel said in an Aug. 20 declaration that is attached.
Novitsky declined to comment, but Kenneth Hines, the assistant special agent in charge of IRS criminal investigation, said in a statement: "This is a matter for the court to settle. As for Special Agent Novitsky, we are certain of his integrity and professionalism."
Luke Macaulay, a spokesman in the U.S. Attorney's Office in the Northern District of California, declined to comment. The office, however, is expected to file a response motion in the coming weeks.
The motion also charges that Novitsky illegally read some of Marion Jones's grand jury testimony to her former coach, Trevor Graham, during an interview related to the case. In Novitsky's report on the interview, which is included with the motion, he states that Graham read and commented on the part of Jones's testimony that related to him.
"After reading a portion of her testimony regarding Graham's requesting tests for her and her identification of Graham's handwriting on the calendars, Graham reiterated that he never ordered any tests for Marion and none of the handwriting on the calendars in her folder was his," Novitsky's memorandum from the June 8 interview stated.
The filing further states that "The extensive pretrial publicity generated by the government" by providing information seized in the raid of BALCO "to Playboy Magazine, Congress and USADA [the U.S. Anti-Doping Agency], who gave it out like candy . . . has made the charges virtually impossible to defend against."
The BALCO case has spurred an unprecedented performance-enhancing drug crackdown led by USADA in the sport of track and field. Four U.S. athletes, including 100-meter world record holder Tim Montgomery, face lifetime bans from the sport for their connection to BALCO. Ten others accepted lesser sanctions.
Other prominent professional athletes were summoned to testify before the BALCO grand jury, including Bonds, Jason Giambi and Gary Sheffield. In this week's Sports Illustrated, Sheffield said he told the grand jury he used a substance provided by BALCO known as "The Cream" but did not know that it contained a steroid.
Conte, Valente, Korchemny and Anderson pleaded not guilty to the charges.