I don’t think Lance Armstrong is getting good advice.
Something you learn very early in your career as a defense lawyer is that it is extremely difficult to win “confession cases.” In other words, if your client has already spilled his guts to the police, his girlfriend, or the guy he shared a cell with for a few hours before he bonded out of jail, your chances of winning at trial are pretty slim.
That’s why Armstrong’s decision to suddenly reverse field on years of denial about using performance enhancing drugs is a head-scratcher for me. I understand he feels the need to repair his reputation and salvage his legacy as a cancer survivor and advocate for cancer sufferers. I get that. That part is easy.
The hard part is figuring out why Lance thinks he can admit to having used PED’s and walk away without any exposure to criminal charges. I’m not even talking about drug charges, which would be improbable at best. Lance was never actually caught in possession of any drugs. I’m talking about the possibility that a creative federal prosecutor could charge Armstrong under a financial fraud theory. Here’s how it would work:
Armstrong and his fellow doping co-conspirators raced under the United States Postal Service banner between 1998 and 2005. According to recent reports, the USPS paid Armstrong’s team over 30 million dollars during years 2001 through 2004 – a hefty sum by anyone’s yardstick. Make no mistake, this was public money paid directly from the coffers of the good old U S of A.
By all accounts, Armstrong has now freely admitted, in an interview scheduled to air today, that he used performance-enhancing drugs to win the Tour de France. If it’s true, Armstrong has likely admitted violating the terms of his sponsorship agreement with USPS.
It wouldn’t take a particularly imaginative federal prosecutor to argue that Armstrong and his cronies obtained over 30 million dollars from the government under false pretenses by failing to disclose to USPS that they were involved in a sophisticated doping campaign the entire time. This theory could be used to seek an indictment under 18 U.S.C. Section 371, which proscribes conspiracies to defraud the United States.
What about the statute of limitations? Good question. Generally, the statute of limitations applicable to federal crimes is five years. So if the last payment to Armstrong’s team was made in 2004 or 2005, he might be in the clear, right?
Maybe not. Statutes of limitations in conspiracy cases don’t begin to run until the last act in furtherance of the conspiracy is committed. In some cases, acts intended to conceal or cover up the conspiracy can be used to start the statute of limitations over again. So arguably, Lance’s reported efforts to bully and intimidate witnesses and conceal his part in the conspiracy may have extended any statute of limitations, potentially by several years.
In short, while I’m not sure who is advising Lance on his exposure to criminal charges, Lance’s decision to publicly admit to doping is risky. It suggests to me that he either hasn’t considered all of the angles, or he’s willing to play with fire.