Aug. 2, 2007 · A federal magistrate judge in Phoenix on Friday denied a request made by The Associated Press to release blacked-out portions of a search warrant affidavit filed last year that allegedly includes the names of current and former Major League Baseball players accused of using performance-enhancing drugs.
The warrant was used by federal agents last year to search the Scottsdale, Ariz., home of former Arizona Diamondbacks baseball pitcher Jason Grimsley in connection with his alleged illegal receipt and distribution of anabolic steroids, human growth hormone and amphetamines. Grimsley has not been charged with any criminal wrongdoing.
U.S. Magistrate Judge Edward C. Voss cited the continuing nature of the investigation as justification for keeping names in the affidavit secret.
“Disclosure at this time may compromise the government’s ongoing investigative efforts in several ways,” Voss wrote. “For example, cooperation could be affected, investigation of the named individuals could be compromised, leads developed from the undisclosed information could be cut-off, and evidence could be destroyed.”
Publicly available portions of the affidavit, signed by Internal Revenue Service Special Agent Jeff Novitsky, state that Grimsley agreed to cooperate with federal agents after illegally receiving two kits of human growth hormone on April 19, 2006, in an operation by federal investigators.
The affidavit states that in addition to admitting his own receipt and use of steroids and other drugs, “Grimsley also provided details about his knowledge of other Major League Baseball players receipt and use of athletic performance-enhancing drugs, including several described close acquaintances.”
It was these names, blacked out on five pages of the 20-page sworn statement, that the AP sought access to.
“The players are public figures,” AP attorney Peter Kozinets said. “They have ready access to the media to respond to any allegations that are made about them.”
Kozinets said that the traditional practice with search warrants and supporting affidavits is that once they are executed, they are filed with the court and then become public record.
In this case, however, the names were redacted when the affidavit was filed with the warrant on June 6, 2006. Voss agreed with the government that the ongoing nature of the investigation required that the names continue to remain sealed.
But Kozinets said that the length of this investigation, which finds its origins in the case that surfaced in 2003 involving the Bay Area Laboratory Co-Operative in San Francisco, belies the government’s claims that disclosing names at this stage could hurt any investigation that might still be under way.
“It’s been five years and eight individuals have been indicted,” Kozinets said. “The government’s position seems to be at odds with the publicly known facts.”
Voss countered in his ruling that the fact that several indictments have issued and some convictions have even been obtained does not foreclose future additional investigations and subsequent criminal prosecutions.
The judge also rejected the AP’s argument that the names should be released because the Los Angeles Times published an article in October listing some high-profile players supposedly named in the affidavit and citing a source with “authorized access” to the unredacted document. Voss said the article is inaccurate.
Kozinets said the AP has not decided whether it will appeal the magistrate’s decision.
(In The Matter of the Search of 10792 East Fanfol Lane Scottsdale, Arizona, Media Counsel: Peter Kozinets, Steptoe & Johnson LLP, Phoenix) — LC