09/02/09 12:36 AM ET
Prosecutors seek stay in drug-testing case
U.S. attorney wants to protect evidence as appeal continues
By Doug Miller / MLB.com
The Associated Press reported Tuesday that the prosecutors asked for the stay while arguing that the evidence might be destroyed.
Late Monday, the AP reported, the U.S. attorney's office in San Francisco filed the request with the 9th U.S. Circuit Court of Appeals and "said the solicitor general, in consultation with the criminal division of the Justice Department and the U.S. attorney's office, was considering whether to ask the Supreme Court to review the decision," which could happen until the Supreme Court filing deadline of Nov. 24.
According to the report, the prosecutors wrote that if the appeals court's decision is not stayed, "the district courts will obtain jurisdiction over this case, and the materials seized pursuant to the warrant and subject to the grand jury subpoena may be destroyed. Destruction of the property may render the issues presented by the government's appeals moot."
The latest filing is in response to the San Francisco appeals court ruling on Aug. 26 that said federal agents were wrong to seize the entire list of 104 Major League players who allegedly tested positive for performance-enhancing substances in 2003, according to the AP.
Federal agents took the list of players during '04 raids in connection with their investigation of the Bay Area Laboratory Co-Operative (BALCO), which was later found to be the center of a steroids distribution ring.
But in a 9-2 vote, the appeals court ruled -- in conjunction with three lower-court judges -- that those federal authorities only had the right to take the results of the 10 drug-test results listed on their search warrant, the AP wrote last week.
"The court has affirmed lower-court rulings that the seizure of individual 2003 testing records violated the constitutional rights of the players and of the Players Association," MLBPA executive director Donald M. Fehr and general counsel Michael Weiner said in a statement last week. "Anyone who leaks information purporting to contain those 2003 test results is committing a crime.
"We are very gratified by this decision and hope that this will finally bring this long litigation to a close."
Recently, names of players on that full list -- including Alex Rodriguez, David Ortiz and Manny Ramirez -- have been leaked.
"This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," chief judge Alex Kozinski wrote. Kozinski also issued guidelines for investigators to follow in future raids that included submitting computers to independent computer experts for sorting data.
In April 2004, agents sifted through a computer hard drive at Comprehensive Drug Testing Inc. in Long Beach, Calif., which contained material related to testing for 13 other sports organizations and three businesses.
Since then, the Major League Baseball Players Association and the U.S. government have gone back and forth on the appropriateness of the seizure.
Doug Miller is a reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.