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Source steps up, lets BALCO reporters off legal hook

By The Associated Press
02.15.07

SAN FRANCISCO — Prison time appeared to be looming for two San Francisco Chronicle reporters who refused to divulge who leaked them secret grand jury documents from the BALCO steroids investigation.

Then the source finally stepped forward.

But it wasn't until the FBI got a tip more than two years after the leak that the case began unraveling. The tip led investigators to attorney Troy Ellerman, who agreed yesterday to a plea deal that lets the reporters off the legal hook.

In court papers filed in U.S. District Court, Ellerman said he allowed the Chronicle's Lance Williams and Mark Fainaru-Wada to view transcripts of the grand jury testimony of baseball stars Barry Bonds, Jason Giambi, Gary Sheffield and sprinter Tim Montgomery.

Ellerman had represented Victor Conte, founder of the Bay Area Laboratory Co-operative, the Burlingame-based supplements lab that allegedly provided performance-enhancing drugs to the elite athletes. Ellerman also represented James Valente, a BALCO vice president. They were among five men who pleaded guilty to steroids-related charges in an earlier phase of the investigation.

Prosecutors would say only that a "previously unknown witness" approached the FBI and offered to help prove Ellerman was the source. Larry McCormack, former executive director of the Pro Rodeo Hall of Fame and a private investigator connected to the BALCO investigation, confirmed to the Associated Press late yesterday that he tipped off FBI agents.

"Doing illegal things and watching people go to prison behind it and thousands and thousands of dollars being spent on it ... I didn't think it was right. I told Troy that several times," said McCormack, who knew Ellerman through the rodeo circuit and called him a friend. Ellerman is commissioner of the Professional Rodeo Cowboys Association.

Ellerman, 44, of Colorado agreed to plead guilty to four felony counts of obstruction of justice and disobeying court orders. He could spend up to two years in prison and pay a $250,000 fine. A judge still has to approve the terms of Ellerman's plea agreement; no sentencing date has been set.

Ellerman, licensed to practice law in California, also faces disbarment.

His attorney, Scott Tedmon, could not be reached in time for this story.

The Chronicle published stories in 2004 that reported Giambi and Montgomery admitted to the grand jury that they took steroids, while Bonds and Sheffield testified they didn't knowingly take the drugs. The leaked testimony also was featured prominently in the writers' book, Game of Shadows, which recounts Bonds' alleged use of steroids.

A federal judge ordered the reporters jailed after they refused to divulge their source. They have remained free pending an appeal to the 9th U.S. Circuit Court of Appeals, but Ellerman's plea deal states that federal prosecutors will no longer try to put the reporters in prison.

Eve Burton, general counsel for Hearst Corp., which owns the Chronicle, would not confirm or deny that Ellerman was the source of the leaked documents. The reporters also declined to discuss their source.

"As we have said throughout, we don't discuss issues involving confidential sources," Williams and Fainaru-Wada said in a joint statement.

Ellerman earlier represented Conte, but it was in 2004, when he was preparing Valente's defense against steroid-distribution charges that he says he became a key source for the two Chronicle reporters.

In March 2004, Ellerman signed an agreement that he would not disclose grand jury testimony given to him to prepare the defense. But in June of that year, he allowed Fainaru-Wada to come to his office and take verbatim notes of Montgomery's testimony, and the Chronicle published a story about the sprinter's testimony on June 24, according to court documents.

After telling Judge Susan Illston he was angry about the leak, Ellerman filed a statement with the court swearing he wasn't the source. And in October 2004, Ellerman filed a motion to dismiss the criminal case against Valente because of "repeated government leaks of confidential information to the media."

The following month, he again allowed Fainaru-Wada to take verbatim notes of the grand jury transcripts, this time of the testimony of Bonds, Giambi and Sheffield, the court papers show.

"I find the fact that Troy Ellerman has admitted to leaking the BALCO grand jury transcripts to be outrageous," Conte said in an e-mail to the Associated Press. "This man was an officer of the court who was highly paid to provide the services of a criminal defense attorney. Instead, he chose to serve his own agenda and act in a way that was tremendously damaging to his own clients."

San Francisco U.S. Attorney Kevin Ryan said the plea deal should end speculation that his office was a source of the leaks.

"I've maintained from the beginning that neither the agents nor the federal prosecutors involved in the BALCO case were the source of any grand jury leaks," he said. "I've always had the utmost confidence in this team's integrity."

Besides Conte and Valente, chemist Patrick Arnold, Bonds' personal trainer Greg Anderson, and track coach Remi Korchemny have all pleaded guilty in the BALCO probe. Korchemny and Valente were sentenced to probation and the others were each sentenced to jail terms no longer than four months.

Bonds has never been charged, but suspicion continues to dog the San Francisco Giants slugger as he chases baseball's career home run record.

He told the grand jury he thought Anderson had given him flaxseed oil and arthritic balm, rather than the BALCO steroids known as "The Clear" and "The Cream." A federal grand jury is investigating him for possible perjury and obstruction of justice charges.


Previous
Conyers to DOJ: Quit pursuit of BALCO journalists' source
New chair of House Judiciary Committee says subpoenas of two San Francisco Chronicle reporters runs 'directly counter' to First Amendment protection of press. 01.19.07

Related

Court rejects AP request for athletes' names in steroid probe

'Disclosure at this time may compromise the ongoing investigation in several ways,' says federal magistrate. 07.30.07

Judge balks at request to release names in baseball-steroids case
'Requiring public disclosure would have a negative effect on the government's effort to investigate criminal conduct,' court finds. 09.17.07

Shield law or no, protection of confidential sources uncertain
Proposed measures would offer only modest shelter for journalists who want to withhold identities of those who gave them information. 03.17.08

Ongoing confidential-sources cases
By Bill Kenworthy Compilation tracking current cases involving efforts to force journalists to disclose confidential sources. 08.04.05

Congressmen’s letter a refreshing defense of press freedom
By Gene Policinski Democrat, Republican co-sign request to Justice Department to stop trying to force San Francisco Chronicle reporters to reveal sources in steroids trial. 01.28.07

When these reporters make a promise, it’s for keeps
By Gene Policinski San Francisco Chronicle journalists covering BALCO may have put themselves in awkward position with confidential source, but cost of breaking pledge would have been high. 02.25.07

When courtrooms peer into newsrooms, watch out
By Gene Policinski A free, independent news media must stand apart from government to be effective — not be a source of notes, interviews, videotapes and other materials increasingly sought by judges and attorneys. 03.11.07

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