JULY 15, 1994:
Testimony began at 10:17 a.m. with Wadler back on the stand. He remained there until 12:30. McDevitt repeatedly tried to use quotes from Wadler’s book against him on matters that at best loosely applied to the case. Wadler repeatedly said McDevitt was quoting the book out of context. McDevitt did establish that Wadler was paid around $8,600 (based on $150/hr.) by the government for his testimony at the Zahorian trial and is on pace to earn $38,000 for his testimony at this trial.
Laura Brevetti, in her cross-examination, used breast implants as an example of a medical procedure done not for the treatment of disease where opinions on its dangers are changing constantly. After an objection by O’Shea and a sidebar, Brevetti moved on. Wadler was reluctant through his testimony to give in on any point, even if it was an innocuous, irrelevant point.
O’Shea announced the government rests.
After the jury was excused, McDevitt argued that counts two and three should be dropped due to lack of venue for distribution and no evidence for distribution on or about Apr. 13 or Oct. 24. O’Shea argued vehemently that the drugs were possessed with intent to distribute in Nassau county because Zahorian reached into the district to purchase the steroids from Rugby-Darby.
He cited two cases where “reaching into a district” with a mere phone call is enough to establish venue – and in this case, argued O’Shea, the only way Zahorian could get steroids from Rugby-Darby was by calling them. He said Emily Feinberg testified that she gave packages of steroids to Jim Stuart to deliver to Hogan at either MSG, Meadowlands, or Nassau, the three arenas in the Eastern District. McDevitt argued there was no evidence that Bollea received steroids in the Eastern District and that Zahorian could have purchased steroids for the Apr. 13 charge from any of a number of drug companies outside of the Eastern District since there was no order from Rugby-Darby that month, so the steroids for that shipment came from his stock.
The judge asked the defense if they saw any advantage to letting the jury consider the charges because if they are so frivolous that no reasonable jury would find them guilty of those two counts, they would let them come to that conclusion. If instead the judge throws out the charges based on lack of venue, the defendant could be indicted in Connecticut or Pennsylvania, whereas if a jury finds them not guilty on those two charges, “double jeopardy” laws would prohibit them being charged for the same crime in a different district.
The defense heard him out, but still chose to argue for immediate dismissal of the charges. The judge seemed perturbed at the prosecution, saying he didn’t drop those charges as McDevitt had asked several dozen times because he expected the prosecution to present evidence of delivery to a location in the district. Nonetheless, he said he would not decide to dismiss yet.
The defense also asked for the conspiracy count to be dismissed. McDevitt went point by point, explaining why he felt the conspiracy count should be dropped before going to jury since no reasonable jury would find there was enough evidence to convict. McDevitt argued that even if four points of conspiracy were true, it would still take a meeting of the minds for a conspiracy to take place and McMahon and Zahorian met in 1988 10 months before the law changed that they supposedly conspired to break.
The judge interrupted and asked McDevitt if he was saying distribution of steroids was lawful without the presense of a legitimate doctor-patient relationship, a premise on which much of the defense was built. O’Shea cited examples of distributing illegally, impairing and impeding regulation, and other elements of a conspiracy. The judge asked O’Shea, “What if they didn’t know.” O’Shea responded, “They don’t need a meeting of the minds of specific knowledge of a specific statue (to break it). That excuse ‘we didn’t know’ is not relevant. The way they hid transactions, warned Zahorian, called from payphones (shows they knew something was wrong).”
Earlier, McDevitt argued that it is a misdemeanor, not a felony, for a layperson to distribute drugs if they didn’t attempt to deceive the recipient. The judge asked O’Shea about that and with the more emotion than he showed during the previous two weeks, he said, “That’s DEAD WRONG if they are defrauding the FDA. There is sufficient evidence they were impairing and impeding regulation to distribute steroids.”
The judge denied the motion to dismiss.
The defense then argued in favor of eliminating names from the list of recipients of FedEx packages from Zahorian who were not WWF wrestlers at the time of the shipments. The judge ruled against them. McDevitt and Brevetti vehemently protested, at which point the judge asked them to take his ruling as final for once. While the judge was talking, Vince McMahon got out of his chair with a look of distress and left the court room (see “Cover Story” for more details).
As Brevetti left the courthouse Friday, ready to spend a weekend preparing more motions and her closing summary, she continued to be optimistic. “We rested without calling a witness because if we presented evidence, it would only give the prosecution a chance to prove what they couldn’t (with their evidence).”
Wednesday, after both sides present their closing summaries, the jury will decide whether they believe, like Brevetti, the prosecution didn’t prove their case. If the jury feels the prosecution did prove their case and if McMahon goes to prison, the wrestling industry may undergo dramatic, sudden change. If the jury feels the prosecution failed to prove their case, McMahon will breath a sigh of relief, quickly regroup, and attempt to resolidify the WWF’s position as the leader of this country’s professional wrestling industry.
