In My Opinion

Baseball’s battle with A-Rod trumped Florida law

 

fgrimm@MiamiHerald.com

Major League Baseball, in its zeal to nail A-Rod and other accused juicers, paid thousands for stolen medical records.

Not that we don’t relish the prospect of overpaid jocks getting their comeuppance, but there’s a small problem with trafficking in stolen property. It’s stolen.

Florida law’s not fuzzy about the legality of "dealing in stolen property." A state statute puts it bluntly. "Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree."

The legislature, in writing the statute, failed to include an exception for Major League Baseball. No worries. It has become apparent, as this latest baseball doping scandal unfolded, that MLB investigators are allowed to operate beyond legal restraints that hamper less exalted elements of society.

The incriminating records originally belonged to Biogenesis of America, a now defunct "anti-aging" clinic down on South Dixie Highway, run by Anthony Bosch, a phony unlicensed doctor who made most of his money dispensing private concoctions of performance enhancing drugs to jocks and the occasional policeman.

Bosch had a kind of junior partner in the business, Porter Fischer, who he owed some $4,000. But last year, Fischer grew ever more disenchanted. As a hedge against his tenuous investment in the dodgy operation, Fischer began filching notebooks, client lists, medical records.

Fischer took his cache to the Miami New Times. The story in January set off the biggest baseball doping scandal since the Barry Bond home run derby, implicating a passel of major and minor league baseball players, including Yankee superstar Alex Rodriguez. MLB badly wanted to get the juicers. Especially the unrepentant A-Rod. Which meant MLB badly needed the records Porter Fischer had grabbed from Biogenesis.

Negotiations with Fischer faltered last March. MLB managed to get them anyway. But not from Porter Fischer.

Thanks to the Boca Raton police, we now have a link in the mysterious chain of custody that took the incriminating files into the league’s eager clutches. Apparently, on March 25, Fischer fetched several boxes of Biogenesis records from a storage locker, put them in the trunk of his car and headed off, he said, to turn over the files to the Florida Department of Health to use in pursuit of Tony Bosch, the counterfeit doc.

Fischer stopped along the way at his longtime hangout, Boca Tanning for a spray-on tan and a chat with old friend Gary Jones, a salon employee and – just to make the story more intriguing – an ex-con. Meanwhile, someone outside was breaking into his Corolla.

Fischer told police that the burglar, after smashing out the passenger door window, stole a Beretta, $800 in cash, a laptop. Oh yes – this supposedly random burglar also schlepped off with four boxes of Biogenesis documents.

The medical records weren’t really lost in the theft. Just re-routed. Somehow, MLB’s investigators managed to purchase the files. From Boca Tanning’s own Gary Jones. According to The Associated Press, Jones claimed he was paid $125,000 in $100 bills by a MLB official at the Cosmos Diner in Pompano Beach in March and another $25,000, this time in $50s and $100s, for a second batch in April.

The mystery, of course, is how Jones came by either batch.

Last week, Boca police came up with a clue when they arrested one of Gary Jones’ fellow Boca Tanning employees, Reginald St. Fleur, 20. Police said they had finally gotten around to checking drops of blood on the broken car window and came up with a DNA match for St. Fleur, who had a couple of grand theft priors on his rap sheet.

St. Fleur’s lawyer, after a bail hearing, repeating allegations coming out of MLB, suggested that Fischer himself might have staged the car break-in, which occurred just six days after league lawyers had notified him not to dispose of any documents that might be relevant to legal proceedings. His old buddy Jones, according to this theory, would be under no such restriction and could sell the documents to the highest bidder.

In another odd twist in this exhausting, convoluted tale, the New York Daily News reported in April that Boca Tanning owner Anthony Carbone and his brother Pete Carbone, who owns a tanning Salon franchise in Coral Gables (not far from the old Biogenesis location), had also tried to peddle the purloined records to MLB. Last month, ESPN reported that the Carbones sold Biogenesis records to Rodriguez’s representatives. The brothers denied both claims. Apparently, Anthony Carbone is paying for young St. Fleur’s lawyer.

At St. Fleur’s brief bail hearing last week, no one said how the stolen stuff might have made its miraculous way from St. Fleur to Jones on its way to the MLB. One might think that the league’s ex-cops, before handing over bundles of hundred dollar bills, would have run a background check on the 54-year-old Jones and discovered a criminal record that included a conviction for bank robbery. By the way, Florida law warns that the purchase of suspicious property from someone "without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen."

Interception of the evidence wrecked the Department of Health investigation. DOH let Bosch off with a $5,000 fine – later reduced to $3,000 – and a cease and desist order.

There’s another legal complication in MLB’s pursuit and purchase and use of purloined records. Medical records are confidential and, according to Florida law, "may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given." I’m not sure that MLB’s meeting with a convicted bank robber at the Cosmos Diner quite qualifies as an evidentiary hearing.

MLB used those purloined medical records to force 17 major and minor league players to accept suspensions. Only A-Rod has fought back. So his lawyers and MLB’s baseball’s lawyers are in a furious legal and PR war. A-Rod lawyers have filed suit charging baseball’s investigators of "despicable, unethical and possibly illegal" tactics. (Meanwhile, MLB’s lawyers, in yet another mad twist, claimed that A-Rod’s representatives had spent some $300,000 buying up their own copies of the Biogenesis records, then leaked select documents about fellow players to divert attention from his own case.)

But all of this stuff, this trafficking in purloined records, these cash payoff, these deals with nefarious characters, some with criminal records, has been pursued as if this was none of our business. As if baseball’s battle with A-Rod trumped public interest.

South Florida witnessed a similar high-handed attitutide during the NCAA’s rogue investigation into the University of Miami athletics, when the investigators coddled up to convicted Ponzi schemer Nevin Shapiro. They improperly slipped money to the convict’s attorney to subpoena and depose uncooperative witnesses in the case against UM on the mendacious pretense that these witnesses had information pertinent to Shapiro’s case in U.S. bankruptcy court.

Major League Baseball, much like the NCAA, seems to exist in some separate universe, where the particular concerns of bigtime sports organizations eclipse the law. Bosch, meanwhile, has worked out a cooperative and reportedly very profitable agreement to be MLB’s star witness against his former "patients." This, despite claims from Porter Fischer that Bosch was also dispensing PEDs to high school athletes. Which meant those files contained crucial evidence of serious crimes against minors.

Not that local law enforcement officials seemed to mind. The Miami-Dade State Attorney’s Office was content, for months, to allow MLB to handle the investigation, as if allegations that a celebrity professional baseball player used PEDs were far more serious than a fake doctor selling powerful, illegal drugs to school kids.

State prosecutors didn’t get around to subpoenaing those infamous Biogenesis records until September, eight months after the New Times broke the story, after boxes of the stuff had been bought and sold and stolen like black market commodities. I suppose by then, MLB decided that it was ready to share the evidence.

Read more Fred Grimm stories from the Miami Herald

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