15. MOSS BEATS BACK
US ATTORNEY' S SUBPOENA

From The Cancer Chronicles #27
© June 1995 by Ralph W. Moss, Ph.D.

[This is a record of my own brief but memorable encounter
with the U.S. Attorney's office investigating Burzynski.--RWM]

On May 22 [1995], Gaynelle Griffin Jones, the US Attorney in Houston, withdrew a subpoena that three weeks earlier had been served on Ralph W. Moss, PhD, editor of this newsletter, in reference to the Burzynski case.

"By this letter," Jones wrote, "I am withdrawing the subpoena previously issued to you by the federal grand jury sitting in Houston, Texas. Therefore you are under no compulsion to provide records to the grand jury." In a verbal agreement reached days before with Assistant US Attorney Amy M. Lecocq, Moss agreed to voluntarily provide a single letter that Dr. Burzynski had sent to him the day after his clinic was raided on March 24.

This letter was in no way damaging to Dr. Burzynski; on the contrary, it provided a vivid description of the raid as well as a moving defense of his own claims to be innocent of all charges regarding the illegal shipment of his medicines across state lines.

Jones¹s letter ended a tense period, during which Moss researched and wrote his legal response pro se, while friends at the Center for Medical Consumers set up a defense committee in his name. Several thousands of dollars were raised for that fund, but happily could all be returned to the donors with a note of profound thanks after the subpoena was dropped.

The struggle began on 5/2/95, when an agent from the FDA¹s Brooklyn office served Moss with a subpoena, c/o The Cancer Chronicles, at his Manhattan home. The independent journalist, who specializes in the question of cancer alternatives, was told to produce every bit of correspondence between himself and Burzynski since January 1, 1988. This covered most of the time he was writing The Cancer Industry and Cancer Therapy, both of which discuss Burzynski¹s work, as well as 27 issues of the Cancer Chronicles, not to mention personal and confidential communication.

What follows is Moss¹s answer to Assistant US Attorney, Amy LeCocq, delivered on 5/12/95:

"This is in response to the subpoena that I received from your office on May 2, to deliver any and all communications between me and Dr. Burzynski from January 1, 1988 to the present.

"With this letter I am hereby requesting either that you withdraw this subpoena or give me an extension of several weeks to find legal counsel in Texas.

"I have tried unsuccessfully to arrange for legal representation....Rather than register me as non-compliant, Ms. LeCocq, please regard this letter as my 'pro se' response to your subpoena. I would prefer, however, that you either drop this subpoena or that you reformulate it. My reasoning is as follows:

"You apparently did not realize that I was a journalist when you issued the subpoena. Frankly, this surprises me, since the subpoena is addressed to me c/o my newsletter, The Cancer Chronicles, a bimonthly publication that has been discussed in many leading newspapers and magazines. Several days ago I Fedexed to you a packet of my writings, especially those pertaining to Dr. Burzynski. These include chapters of my books Cancer Syndrome, Cancer Industry, and Cancer Therapy, as well as back issues of the Chronicles. "I hope you are not maintaining that since I do not have a full-time job with the major media that I am not a journalist or covered by the kind of consideration that is required of journalists by employees of the Justice Department. I work full-time at my trade, have written eight books (for such publishers as HarperCollins, Doubleday, St. Martin's, etc.), three documentaries (including several for PBS), many articles (including for major national publications), edit a newsletter, serve as a government advisor, etc. Since I am a bona fide journalist, I believe you were and are required to deal with me as per the Justice Department¹s own guidelines in 28 C.F.R. §50.10. These require the following:

  • "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media."
  • "Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated."
  • "The government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media."
  • "No subpoena may be issued to any member of the news media...without the express authorization of the Attorney General."

    And, in so seeking the Attorney General¹s authorization, the following principles apply:

    "...the information sought is essential to a successful investigation‹particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information."

    The government "should have unsuccessfully attempted to obtain the information from alternative nonmedia sources."

    The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information...."

    Such subpoenas should be "handled with care to avoid claims of harassment."

    Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demands for documents.² Please note: "Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary sanction."

    "Essentially, Ms. LeCocq, my position is this: although I am personally against this investigation of Dr. Burzynski, I would certainly comply with any legitimate request. However, I feel that your request is overbroad and therefore a threat to the First Amendment rights of all journalists, especially those investigating the field of alternative medicine.

    "I understand that the focus of your investigation of Dr. Burzynski is the interstate shipment of medicines. My own involvement with him, however, has been entirely that of journalist or a Special Government Employee (at N.I.H.) trying to facilitate scientific evaluations of his work. This is completely peripheral to his medical shipment practices, about which I can contribute nothing. "This subpoena also puts a heavy financial burden on me personally. I would like to avoid further costs of having to retain an attorney in Houston. I ardently hope that this entire subpoena was an innocent mistake and can be settled amicably. However, you should be aware that I and many other people are seriously concerned about any unwarranted infraction of our rights..."

    Sincerely,

    Ralph W. Moss, Ph.D.


    Ralph W. Moss, Ph.D. is director of the The Moss Reports for cancer patients. Dr. Moss is the author of eleven books and three documentaries on cancer-related topics. He is or has been an advisor on alternative cancer treatments to the National Institutes of Health, the National Cancer Institute, the American Urological Association, Columbia University, the University of Texas, the Susan G. Komen Foundation and the German Society of Oncology. He wrote the first article on alternative medicine for the Encyclopedia Britannica yearbook. He is listed in Marquis Who's Who in America, Who's Who in the World, Who's Who in the East, and Who's Who in Entertainment (as a film documentarian). This Web site does not advocate any particular treatment for cancer. We urge you to always seek competent medical advice for all health problems, especially cancer. Before consulting our site please read our full Disclaimer statement.



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