A federal grand jury has issued fraud indictments for a Buffalo art professor who uses bacteria in his exhibits and the Pittsburgh genetics professor who supplied him the organisms.

On Tuesday (June 29) the Buffalo jury returned four counts each against Steven Kurtz, an associate professor of art at the State University of New York's Buffalo campus, and Robert Ferrell, a professor of human genetics at the University of Pittsburgh. Each count carries a maximum sentence of 5 years. The pair will be arraigned in Buffalo July 8, and both will enter pleas of not guilty, their lawyers said yesterday (June 30).

The men are charged with mail and wire fraud in connection with Ferrell's purchasing supplies of two common bacteria, Serratia marcescens and Bacillus atrophaeus, for Kurtz's biotechnology-oriented performance art projects. B. atrophaeus is considered harmless, according to researchers' descriptions of it, and both materials can be worked with in biosafety level 1 labs, the lowest classification of such facilities. However, S. marcescens can cause nosocomial infections in very sick patients.

The indictment alleges that the two professors defrauded both the University of Pittsburgh and American Type Culture Collection (ATCC), the Virginia organization that sold Ferrell the microbes. Pitt was defrauded, it claims, because Ferrell gave the bacteria to Kurtz for free and didn't follow the university's written procedures about handling and transferring biological materials.

ATCC is likewise a victim, the indictment argues, because Ferrell didn't follow all the requirements of the company's material transfer agreement, which requires shipped materials to be used only in the recipient's lab and only for research. In addition, the men arranged for Ferrell to buy the bacteria after Kurtz determined he couldn't qualify as an ATCC customer. "The two men knew it could not be obtained from ATCC," William Hochul, Jr., the assistant district attorney in charge of the case told The Scientist yesterday, "so they set about to defraud ATCC and the University of Pittsburgh."

Richard Ebright, a lab director at Rutgers University's Waksman Institute of Microbiology, said that using ATCC materials in teaching would appear to violate the material transfer agreement because such a use would be for education, and not research. Ebright said, however, that he thinks educational uses should be allowed.

Kurtz's lawyer, Paul Cambria, told The Scientist yesterday that the indictment is an overreaction by a Bush Administration in a campaign season. "There's no sense to be made of it, except to realize that the administration wants the public to feel there's this constant threat and paranoia," Cambria said. "They're seeing terrorists in every corner and every shadow," he said, trying to convince voters to leave President Bush in office "because we're under a constant threat."

Cambria also said that the bacteria transfer should never have been made into a Federal criminal case. Had either Pitt or ATCC felt defrauded, they could have sued the two men in local civil courts for the value of the supplies.

In addition, Cambria claimed that Kurtz offered to buy the bacteria, but Ferrell declined because the sum was so "trivial," and that an E-mail the indictment cited shows that Kurtz told Ferrell he needed a safer version of S. marcescens. Cambria said the version Kurtz ultimately received was "harmless."

In a press release yesterday, Pitt said, "Dr. Ferrell has been made aware that his actions were unacceptable and potentially placed in jeopardy other projects." However, he remains chair of the university's human genetics department. According to the statement, Pitt had dealt with the problem before the federal investigation began. ATCC president Ray Cypess told The Scientist that the university had "tightened up the process for ordering biomaterials."

Efrem Grail, Ferrell's attorney, said yesterday, "Dr. Ferrell is a wonderful academic and a respected member of his faculty. We are surprised and extremely disappointed at the news of the government's indictment."

Cypess said that biologists need to be educated about the importance of intellectual property rights and the need to document material transfers. Whether the sharing of samples that typically goes on among life science researchers "is a practice or not, things are changing," he said. "If the scientific community doesn't respond positively," he added, "then we'll see even more difficult regulations."

But bioterrorism researchers said they were disappointed by the indictment. "I am dismayed by what appears to me to be yet one more instance in which knowledgeable persons in the field of bioterrorism are not being brought in and consulted to ascertain what might be real problems and what are purely spurious problems," said D.A. Henderson, senior advisor of Pitt's Center for Biosecurity.

C. J. Peters, a professor at the University of Texas Medical Branch in Galveston, said, "It seems to me that this is not an example of a dangerous situation and that the measures taken have a much greater likelihood of a chilling effect on clinical diagnosis and research than of preventing bioterrorism."