Retesting “Old Samples”

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I remember my thoughts the first time, years ago, I heard that they were planning on keeping the B samples of drug tests and retest them later as the testing process caught up with the drug usage. I thought, this is perfect. It seemed like a great way to “persuade” guys not to start taking drugs in the first place. You’d have the thought that you were going to get caught in the future to worry about about forever and that would discourage the whole process in the first place.

But, in reality, the process never took hold. There isn’t any entity that has any interest in retesting samples. They never changed the process where the urine is divided into 3 samples, instead of 2, to allow a B and C sample to be saved for future testing. There was no mechanism the UCI/WADA or anyone set up to follow up on the initial idea. At least not one that I ever heard of. That was until now.

This article says that US “authorities” are requesting Lance’s urine from the 1999 Tour de France. And, it seems like it is not going to be as easy as you would think for them to get it. But, the process is “on-going”.

I never saw it going this way. I know that the testing is years behind the current drugs and procedures. That is obvious by how few riders are being caught. But, years ago, when they said they were going to retest samples, I thought they would do it without prejudice. I assumed they would take the samples of all the race winners, or podium places from each major event and retest them, maybe 5 years later, as the testing progressed. I never imagined that the justice department or foreign equivalent, would request individual samples for their investigations.

Maybe it isn’t much different than Valverde’s problem in Italy. I don’t know. I applauded the results and not the exact process in that situation. Evidence is evidence. Blood is blood.

But, what is bothering me is that I’m not sure that when I give an urine sample, I expect the sample used for anything other than testing for drugs that aren’t approved to be used while racing bicycles. I think most riders probably think the same thing.

This justice department investigation isn’t about bicycle racing. It is about defrauding the federal government. At least that is what I think it is about.

Normally I would say “fuck ’em” and use all means available, whenever you can, to catch these guys. But, I’m not sure that I personally can condone urine samples from an athletic event being used for future criminal prosecution on a different continent. I wouldn’t mind so much if the French had tested the samples and the US authorities used those results as part of their evidence, but this seems different.

Like I said above, evidence is evidence. But, I might need to think a little bit longer on whether I think that past urine samples should be used for anything
other than disqualifying a rider from the event he gave that sample in. It is pretty complex and perplexing.

10 thoughts on “Retesting “Old Samples”

  1. jonM

    To begin with… I’m pretty uninvested in how the Lance Armstrong investigation turns out. With that said, if cycling was the mechanism to attract and / or maintain a sponsor through agreements of non-doping as a mandate to performance, then I can see why the government would pursue this. However, why was the US Postal Service ever involved in cycling anyway? I’m more curious as to how those conversations arose and came to be than whether or not Lance doped.

     
  2. Stanley

    Since Lance was riding for US Postal at the time the sample was collected, wouldn’t it be appropriate for that organization to have the rights to use the sample as they intend? It seems to me that if they suspect any wrongdoing they should be able to investigate, since he was employed by them at the time.

     
  3. Jim

    I just wonder who stores all these “old” samples?? Where do they store them?
    Doesn’t seem like it would be all that easy to find and/or obtain them.

     
  4. mat

    I’ll pee in several cups today, you can save it as long as you want, and unless something in Pop Tarts is ruled legal in the future, I don’t care how long you wait to test it. Testing would show that I hadn’t taken anything that would be “cheating.”

    Unless testing several samples from 1999 shows the same elements (and maybe it does), I’m certain that one showing EPO (which was not allowed at the time) is cheating!

     
  5. Vincent

    Strange paradox. There are 3 places to spend the testing budget. Current sample, old samples, testing technology. As testing gets better then current testing becomes more of a deterrent. If current testing is expected to always be behind current doping then where do you spend your money to effect the largest deterrent? The answer of course depends on how much you think the threat of testing old samples acts as a deterrent. I think it has little.

     
  6. DavidR

    Steve, I think I understand your point: that the samples athletes provide are given with the understanding that the samples are to be used only for the purpose of determining whether or not an athlete has broken a contractual agreement (i.e. that the athlete would not use prohibited substances). Now, apparently, the samples Armstrong provided (and perhaps no one else?) for that specific, limited purpose are being requested for use in a completely different purpose, and one which potentially carries significant legal penalties. Regardless of what one may think of Armstrong’s possible doping, the $64K question essentially becomes “is this legal, and if so, should it be?” As much as I have become convinced over the years that Armstrong did “dope”, I don’t think using the samples he submitted (voluntarily) to AFLD/UCI/et al should or could be legally used against him in legal proceedings. I’m not a lawyer, so if anyone who actually IS a lawyer could provide some clarity on the rules of evidence, then I would sure like to know how this could play out in a US court.

     
  7. dirty_juheesus!

    JonM

    USPS is but one way to deliver packages internationally. They were advertising their service.
    It’s one of the few sponsorships that makes sense. (to me) FYI, I dealt with many delivery service providers and USPS was very good for me. Slightly more expensive, but much better information in/out of customs and in-country status.

    Steve,

    From waaay outside, the case is much bigger than just another TdF guy doping. Large scale fraud at Tailwind, all kinds of controlled substances violations. There are the allegations of a team-wide policy of “dope or go home” that violate any number of Federal laws.

    It looks like we’re talking Pete Rose, 1919 Black Socks drama. Epic! Marion Jones/BALCO looks pretty small-time in comparison.

     
  8. Hudson Luce

    I practice criminal defense law, so I know a little bit about this sort of thing. First of all, the usual Constitutional protections as to search and seizure do not apply outside of the borders of the US:

    As to seizure of property without search warrants outside of the boundaries of the US, and not on US possessions, territories, or US military bases abroad, it’s eminently possible. US agents can not only seize records and other items with impunity, but according to the US Supreme Court, in UNITED STATES v. VERDUGO-URQUIDEZ. 110 S.Ct. 1056, 29 ILM 441 (1990), the Court held that none of the usual Constitutional protections for people in the US apply. Moreover, it’s possible under this decision for US agents to kidnap people and forcibly take them back to the US for interrogation and trial, as was done in Alvarez-Machain v. US, 107 F.3d 696 (9thCir.1996):

    “In April 1990 the United States Drug Enforcement Agency (DEA) orchestrated the abduction and torture of Dr. Alvarez-Machain, a Mexican doctor, and transported him to the United States for prosecution … On April 2, 1990, a team of men alleged to be hired by DEA agents working in Mexico, abducted Dr. Alvarez-Machain from his office in Guadalajara. They blindfolded him, transported him to an unknown location, and proceeded to beat him and subject him to electrical shocks. His kidnappers injected him with unknown chemical substances causing nausea and dizziness, denied him food and water, and forced him to lie face down on the floor for a long period of time. His life was repeatedly threatened, as well as the safety of his family. After enduring this torment for several hours, he was delivered into the hands of the DEA in El Paso, Texas. … On April 10, 1990, Alvarez-Machain was transferred to Los Angeles and arraigned on charges of murder before United States District Judge Edward Rafeedie. Subsequently, Judge Rafeedie dismissed the charges, concluding that the court lacked jurisdiction over Alvarez-Machain because his abduction violated the extradition treaty between the United States and Mexico. United States v. Caro-Quintero, 745 F.Supp. 599, 601 (C.D.Cal.1990), aff’d sub nom United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir.1991). The Supreme Court reversed the dismissal, however, and Alvarez-Machain was forced to stand trial. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). As noted, the prosecution ended with a judgment of acquittal on December 14, 1992. After the acquittal, Judge Rafeedie revealed that the government had withheld potentially exculpatory evidence from the defense, in addition to failing to take him promptly before a magistrate after he reached United States territory under arrest. … In dismissing the constitutional claims arising out of conduct in Mexico, the district court held that the United States Constitution does not protect Mexican nationals in Mexico from wrongs committed against them by United States government agents engaged in extraterritorial law enforcement. … III. Extraterritorial Application of the Fifth Amendment Alvarez-Machain argues that the district court erred in holding that the Fifth Amendment due process clause does not protect aliens from actions taken by the United States abroad. We find it unnecessary to reach this issue. The issue is precluded because, under the instruction of the Supreme Court, in his criminal prosecution, we have already held that the actions taken by United States government agents or their employees against Alvarez-Machain in Mexico did not violate due process. United States v. Alvarez-Machain, 971 F.2d 310 (9th Cir.1992) (on remand from the United States Supreme Court).” see Alvarez-Machain v. US case: http://ftp.resource.org/courts.gov/c/F3/107/107.F3d.696.95-56121.95-5576

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    As to whether the evidence is admissible, if it is against federal law to use EPO (or whatever drugs are found) without a prescription, and if that is what they’re charging him with, then it’s likely that the probative value will exceed the prejudicial effect, and since the evidence is material to the case, it’ll probably be admitted. There’ll have to be a good foundation laid, showing unbroken chain of custody from time of collection to presentation at trial, and there will undoubtedly be expert testimony from both sides as to the validity of the testing procedure, degradation over time of the samples, and so on. In the end, it’ll be for the judge to decide whether the samples can come in or not. This would be a criminal matter, where the US Attorney alleges violation of US criminal law; it’s not breach of contract, which is a civil matter. If the samples are held in the US, it’s a simple matter of getting a subpoena duces tecum, and serving it on whoever has the samples. If they refuse to turn them over voluntarily, then the sheriff or US Marshalls get called in and people get taken into custody – and they can get charged with obstruction of justice, amongst oher things.

     
  9. Chris Sauer

    But am I breaking US law if I take an illegal drug in another country? If not, then how can they prove where Armstrong took the EPO, assuming that his 12 year old sample comes back positive? Also, they’re relying on the chain of custody of the French drug lab? Seems even with a positive, they would have a difficult case to prove.

    “As to whether the evidence is admissible, if it is against federal law to use EPO (or whatever drugs are found) without a prescription, and if that is what they’re charging him with, then it’s likely that the probative value will exceed the prejudicial effect, and since the evidence is material to the case, it’ll probably be admitted”

     
  10. markK

    I pretty much have the same response as jonM.

    dirty J.
    The USPS was ruled by the Supreme Court as NOT being a government-owned corporation although they still have a legal monopoly to letter carrying to mail boxes.

    So, if they are not a government-owned corporation how can it be defrauding the government?

    Reference: see the Governance and organization part
    http://en.wikipedia.org/wiki/United_States_Postal_Service

    Who then owns it and chose to invest some of it’s profits into a cycling team that may have breached their contract through doping?

     

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