In the wake of the prosecutorial flub heard ’round the country in Roger Clemens‘ perjury trial, and a jury finding home run king Barry Bonds guilty on only one of four federal felony counts, one former FBI agent thinks it is time to reevaluate whether prosecuting athletes linked to performance-enhancing drug scandals is the best way to pursue steroid cases.
Greg Stejskal, a retired agent with over 30 years of experience at the bureau, spearheaded Operation Equine, an investigation into steroid distribution and trafficking that eventually spread across the country, into Mexico and Canada, and led to over 70 convictions. The case exposed Jose Canseco and Mark McGwire as big-name athletes who used PEDs. But Stejskal and fellow FBI agent Bill Randall (who operated undercover during Equine’s three-year run) targeted dealers, and the two agents worked their way up the “food chain” as the probe unfolded. Their intent was to nail dealers, not users, and Stejskal wonders if the appeal of prosecuting a sports star is the impetus behind these recent high-profile cases.
It has been the generally accepted doctrine, at least when I was working drug cases, that you try to work up the food chain – going after the bigger fishes, so to speak.
In 1982, the FBI was given collateral jurisdiction with the Drug Enforcement Administration (DEA) in drug cases; that is, cases covered under Title 21 of the US Code. (Until that time the FBI did not work drug cases.)
Part of the rationale for giving the FBI this jurisdiction was the belief that the FBI’s expertise in using sophisticated techniques such as wiretaps – which had been used successfully in organized crime cases – could be equally successful in prosecuting the upper levels of drug organizations.
The DEA had been successful at making buy-bust cases, but had some difficulty making prosecutable cases against some of the higher echelons of the drug trafficking networks – difficulty, in other words, moving up the food chain. After 1982, the FBI, often partnering with DEA, state or local police, had significant success in prosecuting cases against upper levels of drug organizations. (It is noted that in Michigan and some other states, police agencies have no authority to conduct wiretaps or other types of electronic surveillance.)
In 1988, anabolic steroids (not all steroids are anabolic) were made illegal under federal law. Dealing or possessing steroids with the intent to sell became a felony. Mere use or possession was a misdemeanor. (The amount of steroids possessed was an indicator of whether there was an intent to sell.)
In 1989, when Michigan football coach Bo Schembechler and his strength coach, Mike Gittleson, persuaded me that steroids were becoming a significant problem at all levels of football, I proposed to FBI headquarters that we initiate an undercover operation (UCO) targeting steroid distribution. FBIHQ was not enthusiastic about pursuing the illegal distribution of steroids, but reluctantly authorized a limited UCO to last only 6 months.
The operation, code-named Equine, started slow. We made buys from some street-level dealers – gym rat dealers/users. Towards the end of our six- month term, I got a call from FBIHQ. They had apparently received an inquiry from the White House regarding steroid investigations. Equine was the only steroid case being worked in the U.S. at the time, and consequently FBIHQ wanted me to renew the case and upgrade it.
What had been envisioned as a local case morphed into an international operation targeting dealers from all over the country, Mexico and Canada. The focus was always to identify and prosecute the biggest suppliers.
Those early gym-rat dealers were confronted and offered favorable treatment if they would identify their suppliers and, in some cases, introduce the undercover agent to the supplier. Some of the low or mid-level dealers were athletes or body builders, but none had much notoriety (with the possible exception of the then Mr. Ohio, a body builder). We ended up convicting over 70 dealers in several jurisdictions. Many of these dealers supplied athletes, some of whom were well-known. One dealer had supplied some of the players on the Michigan State football team that won the Big 10 and the Rose Bowl. Tony Mandarich, a notable member of that MSU team, whose photo graced the front of Sports Illustrated, admitted years later to steroid use while at MSU.
Another dealer told us that that he had supplied Jose Canseco and Mark McGwire, the so-called Bash Brothers, while they played for the Oakland A’s. We arranged for that dealer to be debriefed by MLB, and he testified before a Senate sub-committee.
Former FBI agent Greg Stejskal (r.) begins examining the use of steroids among athletes at the urging of Michigan football coach Bo Schembechler in the late 1980s. (Handout)FDA estimated that Equine resulted in the seizure of 8-10 million dosage units of real and counterfeit steroids.)
In addition to the UCO, we used a telephone wiretap to make a prosecutable case against one very large dealer. We had been unable to penetrate his organization using the undercover agent. (On the wiretap we intercepted one conversation in which the dealer threatened to “get rid” of the UCA.) That wiretap allowed us to identify the entire organization, its sources of supply, and to intercept a huge shipment of steroids from Mexico.
Throughout the three-year undercover operation, we were steadfast in working up the food chain, towards the upper echelons of the steroid trafficking organizations. It was tempting to want to prosecute some of the well-known players who we learned were using steroids, but despite their celebrity, they were just users.
In the case of the dealer, who had supplied Canseco and McGwire, he identified suppliers in California, and he was willing to make controlled buys from them. The U.S. Attorney’s Office in Northern California was not interested in prosecuting the dealer or his suppliers, so we arranged for the dealer to work with the California State Police.
They were able to successfully prosecute the suppliers with the cooperation of our dealer. Ironically, it was the same U.S. Attorney’s Office in California that later prosecuted the BALCO case and ardently prosecuted Barry Bonds for perjury in relation to his steroid use, with minimal success and at great expense.
When our UCO ended, and we announced some of the federal indictments, there was some local and national media coverage. We had hoped there would be more. We wanted to send a message as a deterrent to steroid traffickers and aspiring athletes. We tried to warn Major League Baseball in the summer of 1994 that they had a big steroid problem, but for whatever reason, MLB ignored the warning.
We did have second thoughts about not prosecuting some of the players. As various steroid scandals became public, and Jose Canseco started outing himself and others, all of the sudden the media took an interest.
Equine became more famous for having unsuccessfully warned MLB than for what we accomplished in prosecuting dealers. The reluctance of the Department of Justice and U.S. Attorney’s Offices to prosecute steroid cases, including athletes and players, was suddenly gone. Instead, it seemed only to be an interest in prosecuting famous players. Prosecutorial discretion seemed to have made a 180-degree shift, at least in the Northern District of California.
The results of those player prosecutions have been less than stellar.
Barry Bonds was tried for perjury and obstruction of justice, felonies. His use of steroids was a misdemeanor. He was convicted of one count of obstruction of justice. I’m certain more money has been spent trying to prosecute Barry Bonds and Roger Clemens then we spent during the entire operational and prosecutorial phases of Equine, even correcting for inflation.
Don’t misunderstand me. The players’ use of steroids as performance-enhancing drugs was nothing less than cheating and did grave, if not irreparable, damage to their sports.
In baseball, the effect was so great that the 1990’s will be forever remembered as the steroid era. Further, their use of steroids encouraged steroid use by young aspiring athletes, sometimes with tragic results. And perjury before a grand jury or Congress cannot be ignored.
But were the players placed in front of forums in the hope that they would lie so as to create a prosecutable felony? Shouldn’t prosecutorial discretion apply if that lie is extremely difficult (read expensive) to prove? A prosecution should not be based solely on a cost-benefit analysis, but it should be a factor. Being cynical, I wonder how much consideration was given to the celebrity of the defendants and the media interest in the prosecutions?
I now have a renewed understanding of the wisdom of working up the food chain in drug investigations, no matter who the users are.
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