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Posted: Wednesday May 28, 2008 12:07AM; Updated: Wednesday May 28, 2008 10:20AM
David Epstein David Epstein >
VIEWPOINT

Graham trial now in jury's hands

Story Highlights
  • Trevor Graham is charged with lying to BALCO investigators in 2004
  • Track coach's attorney told the jury two of three counts were 'not material'
  • Graham interviewed in '04 after BALCO raid implicated six of Graham's athletes
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SAN FRANCISCO -- Based on Tuesday's closing statements, it appears that track coach Trevor Graham's fate will rest not so much on whether he lied to federal investigators but whether his alleged lies were of any potential importance to ongoing performance-enhancing drug investigations.

Without calling any witnesses, Graham's attorney William Keane sought to convince the jury that two of the three counts against Graham of making false statements to federal agents were "not material," or did not alter the agents' investigation, and thus cannot be deemed criminal. The other count, that Graham hooked his athletes up with performance-enhancing drugs, Keane flat out denied.

Graham, who over the last week has watched some of the most accomplished athletes he coached -- including gold medalists Dennis Mitchell and Antonio Pettigrew, the godfather of Graham's child -- testify against him, is charged with lying to BALCO investigators in 2004 when he told them that he had never met in person admitted performance-enhancing drug peddler Angel "Memo" Heredia; that the last time he had contacted Heredia was by phone in '97; and that he had never obtained drugs for athletes from Heredia or referred athletes to Heredia so that they could obtain drugs. Graham, 44, could face up to 15 years in prison if convicted of all three charges.

A photograph that the prosecution presented of Heredia and Graham together in Laredo, Texas, along with two of Graham's athletes, made short shrift of Graham's contention that he had never seen Heredia's face, though Keane argued that Graham simply misspoke at the end of an interview that lasted more than three hours. As to his last contact with Heredia -- Graham claimed it was in '97 -- the prosecution obtained Graham's phone records, which showed more than 100 calls he made to Heredia between '98 and 2000.

So Keane spent most of his two-hour closing statement to argue that Graham's inaccuracies were inconsequential to any investigation, given that none of the people who received drugs from Heredia have been prosecuted for drug use, and Heredia himself has not been charged.

In order to find Graham guilty, the jury not only has to find that he lied, but also that he did so intentionally and that the subject of his lie was "material." The prosecution informed the jury that in order to qualify as material, Graham's alleged lies only have to meet the standard that they "could have influenced actions or activities" of federal investigators.

The IRS investigators interviewed Graham in '04 after a raid on BALCO produced documents implicating six of Graham's athletes, including Marion Jones, in systematic doping, and showing that Graham himself had visited BALCO.

Assistant U.S. attorney Jeffrey Finigan said that Graham's alleged lies are the very definition of material. "The lies he told were a calculated effort to lead investigators away from him," Finigan said, "and from Memo Heredia." Finigan said that Graham's statements did, in fact, impact the investigation going forward, because other athletes had identified Heredia as a drug dealer, and investigators sought corroboration from Graham. The agents "had to go find others [to talk about Heredia] because [Graham] lied," Finigan said. He added that the fact that Heredia himself was not directly tied to BALCO did not mean that statements Graham made about Heredia were not material, because the statements still impacted the follow-up questions that investigators asked Graham and others they interviewed about Heredia.

Keane responded that Graham could only be found guilty if his statements were "material to an ongoing investigation." Essentially what he meant was the BALCO investigation or any investigation of Heredia. Because Heredia has not been charged, Keane said, Graham's statements about Heredia are not material to an investigation of him. Keane also downplayed the importance of Heredia to investigators, noting that lead government investigator Jeff Novitzky referred to him only as "Memo," in his interview with Graham, and did not use his last name. Novitzky testified that the last name simply "wasn't on [his] mind."

"How important could [Heredia] be if agent Novitzky couldn't remember his last name?" Keane asked. He added that the investigators also never followed up with Graham about Heredia and that the questions about him took only a few minutes at the end of a three-hour and 20-minute interview. "The only thing you've heard," Keane told the jury, "is, 'Well, we needed to corroborate.'"

In the final statements of the trial, assistant U.S. attorney Matthew Parella hammered the jury with the idea that "the defense over-blew the materiality standard ... [a statement] just has to be capable of affecting [investigators] actions." As Judge Susan Illston told jurors before allowing them to begin deliberations, the decision of whether statements by Graham were material is not up to Keane or to Finigan or to Parella -- it's now in their hands alone. And if the closing statements are any indication, a decision on the materiality of Graham's statements may be the jury's most cumbersome task, as well as its most important.

 
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