July 31, 2009
Michael Schmidt of the New York Times reported this week that David Ortiz and Manny Ramirez were two of the baseball players who tested positive for for anabolic steroids as part of Major League Baseball’s “non-disciplinary and anonymous†steroid testing in 2003.
Jon Pessah, a senior writer at ESPN Magazine, responded that the “real questions about steroids” raised by the New York Times story involve the illegal activity that resulted not only in the government seizure of the list but also the subsequent leaking of the names.
The seizure of the list is the subject of a lawsuit by the Major League Baseball Players Association (MLBPA) against the federal government. The Ninth Circuit Court of Appeals imposed a gag order on all parties involved in the case preventing the leaking of names under the penalty of contempt of court.
Jon Pessah, writing for True/Slant,  questioned whether reporters are themselves breaking the law in their aggressive purusit of steroid users in Major League Baseball (“The Real Questions About Steroids,” July 30). Read more
July 29, 2009
The U.S. Food and Drug Administration (FDA) issued a Public Health Advisory (PHA) warning consumers to avoid using bodybuilding supplements claiming to contain “steroids”, “steroid-like substances”, “steroid alternatives” and “hormone products”. The FDA warning failed to give guidance on the specific product ingredients that were problematic. The extremely broad language cast suspicion upon all “body building supplements” marketed for performance enhancement because they might contain synthetic steroids (“FDA recommends that consumers should not use body building products marketed as containing steroids or steroid-like substances,” July 28).Â
- “marketed as containing steroids or steroid-like substances”
- “marketed for body building and increasing muscle mass”
- “marketed as alternatives to anabolic steroids for increasing muscle mass and strength”
- “promoted to athletes to improve sports performance and to aid in recovery from training and sporting events”
The target was ostensibly illegal synthetic steroids that are not compliant with the Dietary Supplement Health and Education Act (DSHEA). However, the FDA news releases and statements appears to demonize ALL steroid products including those that are legally sold and marketed as dietary supplements under DSHEA. Read more
July 26, 2009
Russ Walker, a security police officer at a high-security government nuclear weapons facility, was fired after testing positive for anabolic steroids. Walker attributes the positive steroid test to his use of the over-the-counter supplement identified as “DecaVol” manufactured by Advanced Muscle Science (AMS).
Russ Walker was a model employee at Wackenhut Services Inc. Oak Ridge (WSI-OR). WSI Oak Ridge is the private security contractor for the Y-12 nuclear weapons plant in Tennessee where nuclear warheads are manufactured for the U.S. military. Walker was asked to undergo steroid testing based on unspecified probable cause that he was in violation of company and Department of Energy policy.
Walker’s employment was terminated after he tested positive for anabolic steroids. Walker is one of several WSI-OR security police officers who have blamed positive steroid test results on the use of over-the-counter supplements Read more
July 25, 2009
FDA Special Agent Jeff Novitzky, the agent who has become the face of the federal government witch-hunt against steroid users in professional sports during the BALCO scandal, has move his attention to investigating dietary supplement companies suspected of selling designer anabolic steroids.
Novitzky’s latest steroid investigation targeted two popular products sold and marketed as dietary supplements, “Tren Xtreme” and “Mass Xtreme”. These products were manufactured by American Cellular Labs Inc. (ACL) and sold exclusively through Max Muscle Sports Nutrition (MMSN) stores and via the ACL website (“Two Dietary Supplements Said to Contain Steroids,” July 23).
The exact nature of the business relationship between ACL and MMSN is unclear. Maurice Sandoval, the owner of the Max Muscle San Francisco franchise and the Regional Marketing Director for Max Muscle, was identified as the chief executive of ACL in a government affidavit. Sandoval told the New York Times that he sold ACL in 2008. ACL, Max Muscle San Francisco, and Sandoval’s residence were targets of search warrants executed on July 23, 2009.
The FDA investigation did not involve any steroid contaminants or undisclosed anabolic steroids. Federal investigators specifically targeted the openly listed ingredients in Tren Xtreme and Mass Xtreme commonly referred to as “Tren” and “Madol”, respectively. Read more
July 23, 2009
United States Attorney General Eric Holder praised the Justice Department’s use of terrorism laws to disrupt the illegal distribution of human growth hormone (hGH) during his remarks at a Justice Department leadership conference. Holder celebrated the use of the Patriot Act to eliminate a top supplier of performance enhancing drugs (PEDs). The Patriot Act law “permitted” the United States to pursue an international biopharmaceutical company and seize millions of dollars “physically located” in another sovereign country.
The successful asset forfeiture codenamed Operation Honor Student resulted in the forfeiture of $2.7 million dollars by Lei Jin, PhD and his company Genescience Pharmaceutical (GeneSci). Jin and GeneSci were indicted as part of Operation Raw Deal in 2007.  The defendants were charged with illegally marketing and distributing human growth hormone over the internet to bodybuilders, athletes, and pharmacies Read more
July 22, 2009
Oklahoma law enforcement has arrested numerous amateur and professional bodybuilders in an ongoing investigation into the distribution of anabolic steroids that started in December 2007. Special Agent R. Brian Surber, of the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBNDD), has spearheaded the investigation that has resulted in numerous arrests. It has also resulted in the steroid raid of a U.S. Secret Service Agent that did not result in any arrests or criminal charges.
The Oklahoma investigation may be setting a trend in law enforcement with the profiling of bodybuilders as users of anabolic steroids. Special Agent Brian Surber has seemingly perpetuated “physique profiling” in several steroid cases. Surber has allegedly shown a bias towards using bodybuilder-type physiques as putative evidence of anabolic steroid use. He has used photographs of a suspect’s muscular physique as part of the probable cause to support the acquisition of search warrants  (“Multiple bodybuilders busted for anabolic steroids in Oklahoma – more busts on the way“, April 17).
As I said, I’ve spoken to [Brian Surber] (*now on multiple occasions) and can tell you that he’s very sharp – as part of his probable cause warrants, he even includes pictures of the “alleged†steroid users. Think about that for a second…those pictures of Darrell Terrell and Sherry Smith, which were all over the Internet showing off their physiques – ultimately helped lead to their downfall, and were used as part of the probable cause to issue a search warrant for steroids on them.Â
It should be noted that the Oklahoma investigation has not used “physique profiling” as a primary predictor of steroid use. Physique as a criterion for obtaining search warrants appears to be one among many factors. However, the emergence of physique profiling in the war on steroids should serve as warning to bodybuilders who have not traditionally been subject to discrimination by law enforcement based upon their physical appearance.Â
OBNDD Special Agent Brian Surber is NOT a rogue agent blatantly violating the law in a witch-hunt against bodybuilders. Surber is an accomplished attorney intimately familiar with search and seizure law with extensive “in the field” experience. Accordingly, potential efforts by the Oklahoma Bureau of Narcotics to profile bodybuilders should be taken very seriously.
R. Brian Surber was formerly the Deputy General Counsel for the OBNDD, a prosecutor for the Eighth District Drug Task Force in Oklahoma, a special assistant attorney general for the State of Oklahoma multi-county grand jury division and a special prosecutor for the Oklahoma County District Attorney’s Office. Surber has also authored two books, “The Investigator’s Guide to Search and Seizure” and “The Prosecutor’s Guide to Fourth and Fifth Amendment Motions to Suppress“.
At one time, most of Surber’s efforts went toward legitimately making our communities safer; Surber received considerably accolades as he helped thwart murderers, shut down methamphetamine labs, and catch rapists.
[Brian Surber] has even done undercover work, posing as a hitman. And for all of the people who say “these guys should be going after meth labs†– you can check Agent Surber’s record, because he’s done that too. He’s even caught rapists (check out this story – you’ll need to scroll down and read the letter he wrote, detailing how he solved a rape case from another state!).
For whatever reason, the focus of Surber’s considerable knowledge and experience seems to have been diverted to the the investigation and arrest of bodybuilders for non-violent crimes involving anabolic steroid possession and distribution.
Given the role of Brian Surber in the Oklahoma steroid investigations and the use of “physique profiling”, it worthwhile to review some of his recommendations and advice aimed at law enforcement with special considerations as to how it could apply to bodybuilders.
An article written by Surber for the Oklahoma State Game Warden Association may provide some insight into how law enforcement officials can attempt to accomodate the Fourth Amendment when using a bodybuilder-type physique as putative evidence of steroid use in establishing probable cause (“Search and Seizure For The Oklahoma Game Warden“, 2005).
A game warden needs probable cause to arrest and probable cause to search. Forget all of the hoopla surrounding the definition of probable cause. It is simply a FAIR PROBABILITY. Just ask yourself, With the facts I know, is there a fair probability that: (1) I’ll find some evidence, (2) the suspect committed the crime (i.e., if you hear a high powered rifle shot in late November, forty-five minutes later the suspect walks out of the woods with blood on his hands and pants, is there a FAIR PROBABILITY that he shot a deer?).
The important standard of evidence for probable cause involves “fair probability”. How could Brian Surber’s interpretation of “fair probability” be applied to the profiling of bodybuilders?
Is there a fair probability that bodybuilders competing in the NPC and/or IFBB uses anabolic steroids? Is there a fair probability that the bodybuilders committed a crime to obtain anabolic steroids? E.g. if you see an extremely muscular and well-defined bodybuilder compete in an IFBB or NPC competition, is there a fair probability that he uses steroids?
Is you see any big, muscular and lean individual walking out of a commercial gym in a tank-top, is there a “fair probability” that he (or she) uses steroids? Then, why not use his (or her) bodybuilder-type physique as part of the probable cause for a search warrant?
Brian Surber’s interpretation of “reasonable suspicion” sets an even lower standard of evidence as the requirement to detain an individual.
You need a reasonable suspicion to detain a suspect or stop his vehicle. The courts have defined this as “much less demanding than probable cause and considerably less than a preponderance.” That means that your suspicion could be flat out wrong a considerable majority of the time. That is not much guidance and this is a tricky area of law. You should be okay if (1) you are suspicious, and (2) you can articulate why (i.e., more than a hunch).
Surber’s interpretation would suggest that it is acceptable for law enforcement to detain bodybuilders and/or stop their vehicles if the officer can make up (and “articulate”) a good reason. After all, there is apparently nothing to lose since law enforcement can be wrong most of the time.
Next, Surber offers some tips for “articulating probable cause and reasonable suspicion”.
Tips for Articulating Probable Cause and Reasonable Suspicion:
Expert Testimony: Rather than a judge or prosecutor telling you whether you have probable cause or a reasonable suspicion, you are more equipped to tell them. [...] Here is the trick: You must be able to describe to your prosecutor or judge why you thought this activity was suspicious. For instance, if you are set up on surveillance, don’t just say that I observed the defendant’s vehicle traveling at a suspicious speed. Rather, say that you have observed dozens of vehicles traveling down this road, farmers and local residents travel at approximately X speed, this vehicle was in an area known for road hunting, the vehicle traveled at a speed consistent with deer poaching and the occupants appeared to be scanning the clearings, etc.
How would a law enforcement investigator potentially utilize Brian Surber’s “tips” to target bodybuilders with probable cause?
Brian Surber provided us with an example when he wrote the following in support of a search warrant leading to the seizure of three computers during the Maryland SWAT team raid of a United States Secret Service Agent. Surber “articulates” the belief that bodybuilders’ use of computers to communicate via email, discussion of steroids using the Internet, and/or storage of pictures of themselves with other steroid-using bodybuilders are consistent with steroid use.
I have also learned from other experience steroid investigators that bodybuilders and anabolic steroid users abusing performance enhancing drugs utilize personal computers as a form of communication. I have also learned that individuals I have investigated for steroids in Tulsa were in fact communicating over their computers regarding anabolic steroids, growth hormone, and other performance enhancing drugs. I have also found in my investigation that the users of anabolic steroids often maintain photographs (image files) on their personal computers and also found these photographs are relevant to establish relationships between the co-conspirators.
Regrettably, Brian Surber has gone from a prosecutor and agent who legitimately made our communities safer by putting violent criminals behind bars to someone who spends an ever increasing amount of time trying to put non-violent bodybuilders behind bars on steroid crimes.Â
The flawed steroid laws are ultimately to blame for the colossal waste of taxpayer resources used for steroid investigations; however the police perpetuation of physique profiling, and the inevitable false positives, in the war on steroids is reason for concern. Profiling by law enforcement could have particularly dire consequences for a marginalized bodybuilding subculture.
July 20, 2009
The Maryland residence of a United States Secret Service Agent was raided in July 2008 based on unverified allegations of steroid possession and distribution. The allegations were obtained during the course of the Oklahoma steroid investigation targeting competitive bodybuilders that started in December 2007.Â
At least fifteen members of the Maryland State Police SWAT team led by Matthew Newman entered the Agent’s house and held his family (including an infant child) at gunpoint during the raid. No anabolic steroids or illegal drugs of any kind were found. Analysis of the seized computer and bank records revealed no evidence of illegal activity. A urinalysis revealed no evidence of steroid use by the suspect. No charges were filed.
The Maryland raid is part of a larger steroid investigation spearheaded by R. Brian Surber, agent and attorney with the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD). The Oklahoma-based investigation has led to the arrests of several IFBB and NPC bodybuilders and others in the Oklahoma competitive bodybuilding network. Surber has promised additional arrests including out-of-state arrests.
A disturbing trend has emerged in most of these cases. Brian Surber has shown an apparent bias towards using bodybuilder-type physiques as putative evidence of anabolic steroid use. While not a primary predictor of suspected steroid violations, Surber has reportedly used pictures of the muscular physiques as part of the probable cause to obtain search warrants in similar cases. Read more
July 17, 2009
Federal prosecutors with the U.S. Attorney’s Office in Houston are investigating the girlfriends of defendants indicted in the major Texas steroid bust codenamed Operation Pharmacia Juicy Fruit according to recently filed court documents. Prosecutors have made it clear to defendant Bruce Zaccaria and his attorney that they have the goods on a former girlfriend;  she was identified by first name practically as an unindicted co-conspirator. The relevance of this disclosure is unknown.
One thing that has emerged as a new known fact to the United States is the following: while the defendant was working at My Mechanic (his co-worker has been proposed as a surety by the defense and his steady work record has been offered as evidence he is stable and reliable) and during the interception of calls between the defendant and Brock Falkenhagen, the defendant ordered and even met with Falkenhagen to receive anabolic steroids… Furthermore, the defendant was directing Falkenhagen at times to drop off the anabolic steroids with his girlfriend “Carly  Clearly, the defendant exercises a degree of control over his then girlfriend who was receiving the illegal drugs on his behalf. [Emphasis added]
The “new fact” emerged from the extensive surveillance and interception of phone calls made by defendants during the course of the steroid investigation. There may have been thousands of intercepted phone calls. Prosecutors have not ruled out additional indictments arising out of the Texas steroid investigation. Read more
July 17, 2009
The detention of Bruce Zaccaria without bail has been exposed as inappropriate by a local defense attorney in the latest court filings from the major Texas steroid bust codenamed Operation Pharmacia Juicy Fruit. Attorney R. Trent Gaither, representing Bruce Zaccaria, has outlined seven factors that legally limit and confine government detention authority.
Gaither argues that the Government has violated the Bail Reform Act and abused its power by acting outside these constraints. Federal prosecutors have failed to identify a single applicable factor to justify the detention of Bruce Zaccaria. Read more
July 16, 2009
The Iron-Garfield Counties Narcotics Task Force has compared anabolic steroid underground labs (“UGLs”) to dangerous and hazardous methamphetamine labs (“meth labs”). Task force officer Melissa Fritz-Fuller made the comparison when announcing the arrest of Mark Sherratt of Liquipharm Labs. Sherratt allegedly manufactured steroids from raw powders in a clandestine laboratory at his home; Liquipharm steroids and ancillary drugs were reportedly sold directly from his Liberty Lending office in Cedar City, Utah as well as extensively on the Internet.
The dangers association with meth labs are well-known and include risk of contamination with hazardous and toxic chemicals and increased risk of fire and/or explosion. The comparison with UGLs erroneously suggests that the risk of manufacturing underground anabolic steroids is comparable to methamphetamine “cooking” (“Narcotic task force arrest businessman,” July 16).
The lab was similar to one used to make methamphetamines, Fritz-Fuller said, and officers found hazardous powders imported from China to make the steroids, as well as glassware, bottles and labeling.
The powders, testosterone and anabolic steroids found are controlled substances, which can be prosecuted both locally and federally, Fritz-Fuller added.
Law enforcement has unfairly demonized anabolic steroids by making comparisons between anabolic steroid users and methamphetamine/cocaine users. They have tried to convince the general public and the media that anabolic steroids are just as harmful as methamphetamine, cocaine and heroin; similarly, they allege that steroid users represent a dangerous threat to society comparable to users of narcotic drugs.
The credibility of federal and state law enforcement agencies who try to equate anabolic steroids with methamphetamines and narcotic drugs continues to suffer.
Houston DEA Special Agent Zoran Yankovich promotes anti-steroid propaganda with statements such as: “Those arrests today are no different than traditional drug dealers peddling their poison -methamphetamines and cocaine and heroin – on the street corner.â€
Similarly, the United States Customs and Border Patrol encourages the suspension of disbelief to justify the steroid witch-hunt, “Steroids are treated like any other illegal drug that threatens the American public – like all illegal narcotics, their sale and possession represent critical links in a larger criminal process, one that funds terrorism, death, and addiction around the world.” Read more
July 16, 2009
The public hysteria over anabolic steroids has spread to the debate involving the use of banned drugs to enhance antler growth in Texas white-tailed deer. There is concern that hunters’ trophies and records for huge racks could be tainted or subject to asterisks suggestive of the steroid era in baseball.
Anabolic steroid use does NOT appear to enhance antler growth and may actually have the opposite effect. Veterinarian Ken Waldrup, with the Department of State Health Services in El Paso, addressed the speculation that anabolic steroids were being used by white-tail deer breeders at a recent Texas Parks and Wildlife Department (TPWD) White Tailed Deer Advisory Committee (“Juiced-up … deer? Say it ain’t so!,” July 16). Read more
July 10, 2009
The girlfriend of one of the co-defendants in the Brandon Millay (Kong Labs) steroid case has been indicted by a federal grand jury for hiding anabolic steroids from federal agents during the investigation. Mary Kay Hamilton, along with her boyfriend Jimmie Lynn Garrison, allegedly “concealed and covered up anabolic steroids from United States Postal Inspection Service and Food and Drug Administration agents investigting the illegal distribution of anabolic steroids” according the additional charge filed by federal prosecutors on July 8, 2009. Hamilton allegedly helped Garrison obstruct the federal investigation on or about May 6, 2008 shortly after the Brandon Millay steroid ring was busted in April 2008 (“Owensboro couple charged in steroid investigation,” July 9).
Jimmie Garrison was indicted along with three other co-conspirators in December 2008 on various steroid-related charges. Brandon Millay, the alleged ringleader, is the only defendant to have pleaded guilty thus far; Millay has agreed to completely and truthfully cooperate with the government by testifying before any grand juries and trials upon demand.
Mary Hamilton initially appeared to have escaped prosecution. However, federal prosecutors decided to include her name in the superceding indictment shortly before Brandon Millay was scheduled to be sentenced and prior to the other co-defendants going to trial.
It is unclear why the U.S. Attorney’s Office waited so long to indict Hamilton although the federal government has been known to intimidate and pressure the families of defendants. In some steroid cases, federal prosecutors have been accused of using spouses and girlfriends as bargaining chips to influence cooperation, testimony and/or plea agreements by defendants.
July 9, 2009
Bruce Zaccaria has been detained without bail as an unacceptable “danger to the community” based solely on an allegation of selling 250 vials of anabolic steroids to bodybuilders who were members of a Houston-area 24 Hour Fitness almost two years ago. By contrast, a judge in an unrelated Dallas-area case apparently feels that a suicidal man firing a gun at police does not represent a threat to society.
Bruce Zaccaria’s pre-trial detention highlights the significant disparities in sentencing for defendants awaiting trial in Texas in court cases where anabolic steroids are involved.
U.S. Magistrate Judge Calvin Botley seems to have concluded that the safety of the community is at considerable risk from steroid use by bodybuilders. Judge Botley determined there were absolutely no conditions that could possibly protect the community from the dangerous Zaccaria if he were released on bail. Zaccaria was charged with “conspiracy to manufacture/possess with intent to distribute anabolic steroids†punishable by up to 5 years in prison.
Meanwhile, a Dallas-area man threatening suicide under financial duress, fired a gun at Frisco Police officers, was arrested and released on $20,000 bail after a four-hour standoff with police special operations unit on June 28-29, 2009. Paul Bailey was charged with “aggravated assault with a deadly weapon” which is a second-degree felony punishable by up to 20 years incarceration. Bailey was in possession of five bottles of anabolic steroids at his home, including nandrolone decanoate, testosterone cypionate and methandrostenolone. The courts did not feel that Bailey was a “danger to the community” even though his neighbors in the affluent Frisco subdivision of Lakes of Preston Vineyards feared for their safety after he was released Read more
July 3, 2009
Bruce Zaccaria continues to be  improperly detained without bail in the Joe Corley Detention Facility after his arrest in the Texas steroid bust codenamed Operation Pharmacia Juicy Fruit according to his lawyer Trent Gaither. Zaccaria was charged with one count of “conspiracy to manufacture/possess with intent to distribute anabolic steroids” with a maximum penalty of up to 5 years in prison.
The United States Magistrate Judge Calvin Botley refused to release Zaccaria on bail due to “clear and convincing evidence exists” that he is a “danger to the community”. Magistrate Botley further stated that “no conditions or combination of conditions… would secure the safety of the community” if Zaccaria is released.
 The sole stated reason for Bruce Zaccaria’s detention was based on the allegation that he bought and distributed approximately 250 vials of anabolic steroids to bodybuilders who were members at 24 Hour Fitness. Who knew that steroid-using bodybuilders made 24 Hour Fitness, or any commercial gym for that matter, so dangerous for the community at large?
Attorney R. Trent Gaither suggests that the government may have arbitrarily and capriciously, in violation of the Bail Reform Act, detained Zaccaria while inexplicably releasing most of his co-defendants indicted on similar, multiple or much more serious charges, including those who sold more dangerous drugs such as MDMA and hydrocodone .
As of this writing, Zaccaria is one of only five who have not been released on bond of some sort. For example, Charles Brock Falkenhagen is charged in 44 counts, including at least four different kinds of drugs, with exposure of well over ten years. Yet, he has been released on a $75,000 unsecured bond. Several of those charged with counts subject to ten or twenty years are likewise released on unsecured bonds. There was no evidence presented that would distinguish Zaccaria as being inherently more dangerous than the co-defendants, especially those charged with more serious crimes, subject to greater prison exposure, or who were more actively involved.
Disparity is an issue at sentencing, and should be a factor to consider in pre-trial detention. Upon what theory is lodged and explained the notion that the alleged kingpin of the organization, who arguably is subject to about 500 years in prison, less dangerous than one whose maximum exposure is 5 years? This is, of course, not limited to just Falkenhagen. One can go down the list and easily come to the Alice in Wonderland-ish conclusion that the defendant who has among the least exposure is somehow considered by the government to be the most dangerous, and the individual who has, under the government theory, demonstrated his capacity for all kinds of evil doings, yet is apparently not all that dangerous..Â
Bruce Zaccaria was one of FOUR defendants ONLY charged with ONE count of “conspiracy to manufacture/possess with intent to distribute anabolic steroids” in the 46 count Falkenhagen indictment. The other three co-defendants facing identical steroid-related charges are NPC Texas Chairman Lee Thompson, NPC bodybuilder Bryan Barth, and NPC bodybuilder Brandon George. Thompson was quickly released on $50,000 unsecured bond and Barth and George were each promptly released on $75,000 unsecured bond. They remain free while awaiting trial.
