The Explainer: You’ve been served
How does the subpoena for Yaroslav Popovych work? I assume he still holds Ukrainian citizenship. Is his cooperation voluntary or can they require him to appear as long as he wishes to apply for a visa in the future, to say, race in the Tour of California? Just curious.
Popovych’s testimony before the grand jury in Los Angeles on Wednesday does raise an interesting question. Does a federal grand jury in the United States have the authority to subpoena a foreign national?
The short answer is yes. The problem, of course, is getting them to show up.
Normally, the process involves a formal communication between the U.S. court, at which the grand jury is empanelled, and the court with jurisdiction over the foreign national being asked to appear. That may be complicated and take time, but assuming the foreign court and authorities in that country cooperate, the witness can be served with a subpoena. Enforcing it could still be a problem, though.
At the request of the Justice Department, the U.S. Department of Homeland Security can also establish a border watch, which flags the witness’ passport and make certain that he is formally served after he crosses into the United States. Of course, that only works if he actually comes to the United States.
But none of that proved to be problematic in Popovych’s case, since he was already in the U.S., attending the Lance Armstrong Foundation’s Ride for the Roses Weekend charity event in Austin, Texas, last month.
Popovych’s involvement in the ride was heavily promoted in advance of the event and investigators from the FDA Criminal Division and the U.S. Attorney’s simply arranged to have him served while he was there. The result was that Popovych’s stay in the U.S. was extended beyond the brief visit he had planned.
Instead of a quick visit to Austin, followed by a relatively brief vacation trip, Popovych stayed in the U.S. for about two weeks in order to make his appearance before the grand jury in Los Angeles on Wednesday.
Yeah, theoretically, he could have just carried on with his plans and returned home and blown it off. But, in his case, the wiser strategy was to appear and testify. Why? Well, to start, if the court finds that the subpoena was valid, the failure to appear before a grand jury can result in fines or imprisonment after facing contempt of court charges under Title 18 of the U.S. Code, section 401 or being treated as a “recalcitrant witnesses” under 28 U.S.C. § 1826.
So what? He lives out of the country. How can those be enforced in Ukraine or where he lives in Italy? Extradition could be an option, but it is a complicated process and one fraught with a host of complex diplomatic, jurisdictional and procedural problems. Enforcing a contempt warrant that way would likely not be worth the trouble. But that’s not the only tool the U.S. court would have at its disposal.
To start, as you mentioned, Popovych may have an interest in coming back to the U.S. at some point in the future. Popovych has, indeed, ridden in the Tour of California and is likely to do so again. Obviously with an outstanding warrant for his arrest on criminal contempt charges – and a very public presence while here – his appearance at a major American stage race would make enforcement of that warrant inevitable.
Furthermore, even if he didn’t ever return to the U.S., the civil penalties could also pose a problem. Popovych is a member of the U.S.-registered RadioShack team. The team is managed by a U.S. company, Capital Sports and Entertainment, a company operated by Lance Armstrong’s long-time friend and business partner Bill Stapleton. The team has a U.S. sponsor, the Texas-based RadioShack Corporation – formerly Tandy Corp.
The U.S. connections pretty much mean that a fine against him could likely be enforced by simply seizing a significant portion of his salary at its source. Add to that the potential for UCI and WADA sanctions for a refusal to cooperate in an ongoing doping investigation and the likely public relations disaster that would result from ignoring a U.S. subpoena and you have to conclude that Popovych’s best strategy was to do exactly what he did, namely show up and testify. He did the right thing – and he did the smart thing – in this case.
Whether it was worth the trouble to have him appear is another question. According to his attorney, Popovych testified that he had no information about doping on any of the teams he’s ridden on and his appearance before the grand jury lasted only about 90 minutes.
Assuming that he testified honestly and accurately, that should be the end of it. The panel does, now that he has appeared, retain jurisdiction over Popovych and he could be called back to testify at a later date, though that appears to be unlikely at this point.
“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to CPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.