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Posted: Thursday May 29, 2008 3:32PM; Updated: Friday May 30, 2008 3:29PM
David Epstein David Epstein >
VIEWPOINT

Witnesses, juror kept Graham convicted on just one charge

Story Highlights
  • Trevor Graham was convicted on one count of lying to IRS investigators
  • He faces up to five years in prison, but will most likely get less than that
  • The jury deadlocked on two other counts, thanks in part to one juror
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Trevor Graham was convicted on one count of lying to the federal investigators.
Trevor Graham was convicted on one count of lying to the federal investigators.
AP
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SAN FRANCISCO -- If Trevor Graham assembles a Christmas card list this year, he might consider replacing some of the athletes that testified against him with Frank Stapleton, a 59-year-old art materials distributor whose only exposure to track and field prior to Graham's trial was "channel surfing during the Olympics."

Stapleton, the jury foreman and owner of McPherson's in Emeryville, Calif., a small art material sales business, was the lone voice standing between Graham and a guilty verdict on one of the counts of lying to federal agents that Graham faced, and one of only two jurors to vote in Graham's favor on another count.

Just after 10 a.m. Pacific Time on Thursday the jury found Graham guilty of lying to IRS investigators Jeff Novitzky and Erwin Rogers in June 2004, when he told them that he last contacted performance-enhancing drug dealer Angel "Memo" Heredia by phone in 1997. On the other two counts -- that Graham had lied about facilitating drug use by athletes, and about whether he had ever met Heredia in person -- the jury hit what it called an "insurmountable impasse."

Regarding whether Graham had met Heredia in person, the "insurmountable impasse" consisted of only Stapleton. With 11 jurors voting to find Graham guilty on that count, Stapleton stuck to his guns despite the fact that the prosecution produced a photo of Graham and Heredia together. In order to deliver a guilty verdict, jurors had to believe that not only had Graham and Heredia actually met, but also that Graham knowingly lied about the meeting and that his lie was "material," or could have influenced the actions or decisions of IRS investigators.

For Stapleton, the fact that the IRS agents spent only a few minutes toward the end of a three-hour and twenty-minute interview asking Graham about Heredia made him doubt whether Graham's statement was that important, and whether Graham might not have just slipped up at the end of a long talk. "[The agents] didn't make a tape recording of it," Stapleton said, "Some jurors thought [the agents] asked [Graham about Heredia] several times, but there was no recording, so you had to take the agents' word for that, and personally, I had doubts."

Meg McNiece, 46, another juror, did not say how she voted, but said that jurors wondered whether Graham's assertion that he hadn't met Heredia "just popped out" or "whether it was deliberate."

As to the first count, that Graham had purchased drugs from Heredia and had referred athletes to Heredia for drugs, Stapleton was joined by one other juror in a 10-2 hang-up. Multiple jurors said that there was extended discussion about whether the athletes -- including previously pristine gold medalist Antonio Pettigrew, the godfather of Graham's child -- who testified that Graham had helped them use drugs, had "an ax to grind."

"To me, [the government] got witnesses who either had an ax to grind, immunity, or lied on previous occasions," Stapleton said. From juror comments it was clear that there were questions about whether the athletes were simply trying to pass the buck for their own indiscretions.

None of the athlete witnesses, however, fell as flat as did Heredia. Going into the trial Heredia appeared to have star-witness potential, and he did indeed detail a relationship with Graham in which he supplied both Graham and his athletes with drugs over a number of years. But, said Stapleton, "the jurors completely discounted Angel Heredia because nobody believed anything he said."

Particularly galling to Stapleton was Heredia's testimony regarding FedEx receipts that he said were from drug shipments he sent to Graham. Heredia testified that he had filled out all of the FedEx receipts presented by himself, but the receipts appeared to have clearly different handwriting, and one of them listed Graham's first name as Travis instead of Trevor.

"My question," said Stapleton, "is why do they put a guy up who has the audacity to lie to us under oath? That was their key witness." Stapleton called Heredia a "true devil, an untruthful drug dealer."

Stapleton also was less than convinced by phone conversations that Heredia clandestinely recorded between himself and Graham. In one grainy conversation Heredia told Graham that he "had to deny the whole thing" when he spoke with federal agents, "otherwise both of us would be in trouble." Graham responds simply, "yeah, yeah, yeah." At one point Graham tells Heredia that he's "got your back."

"'I've got your back'" is just slang thrown out there," Stapleton said. "It seemed to me that Trevor Graham was trying to say as little as possible. Like he was trying to get off the phone."

One thing the jury found unanimously convincing, though, were Graham's phone records, which is why they convicted him for willfully lying when he said he had last talked to Heredia on the phone in 1997. During the trial the prosecution showed phone records of more than 100 calls that Graham made to Heredia between 1998 and 2000.

The jurors must have engaged in a little math behind closed doors, because multiple members of the jury noted that, on average, Graham would have made more than a phone call per week during that period. "You'd probably remember that," McNiece said.

Graham faces a maximum of five years for the one guilty verdict, but it is likely that his sentence, which is tentatively scheduled to be delivered on Sept. 5, will be much shorter.

The government may still seek to retry Graham on the two counts that defied jury consensus, but prosecutors would not comment on their intentions on Thursday. William Keane, Graham's lawyer, said that he plans to file a motion asking the judge to overturn the one guilty verdict. "We were obviously really disappointed in the verdict on count three," Keane said. In his closing arguments Keane continually explained to the jury that because Heredia had not been charged, and because none of Graham's athletes had been charged with drug use in relation to the BALCO investigation, his statements were not material. Outside the courtroom Graham would not comment on his plans for the future.

For Stapleton, it's back to life as an art materials distributor, and it will be a pleasant return. "It was kind of odd," he said, "having 10 people hating you." When asked whether he was under a lot of pressure in the jury room, "Are you serious?" Stapleton responded, with a smile.

 
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