Emails show San Francisco Chronicle reporter, BALCO founder
Conte, discussing grand jury
By Julia Cheever, Bay City News Service
June 22, 2006
SAN FRANCISCO (BCN) - Accidentally disclosed e-mail messages
in a federal court filing show that Bay Area Laboratory Co-Operative
(BALCO) founder Victor Conte discussed information about a secret
grand jury proceeding with a San Francisco Chronicle reporter
The purported messages were intended to be blacked out of a Justice
Department brief filed in U.S. District Court in San Francisco
on Wednesday, but the blacked-out pages were revealed when an
online copy of the brief was transferred to another computer program.
The purported e-mails show Conte commenting to Chronicle reporter
Mark Fainaru-Wada about testimony by professional athletes including
Barry Bonds, Tim Montgomery and Marion Jones before a grand jury
investigating a sports steroids scandal in 2003.
One message cited in the brief shows Conte telling Fainaru Wada
on June 14, 2004, that Jones and Bonds "are the only ones
that did not admit to any wrongdoing" before the grand jury.
But the e-mails do not show that Conte was the source of grand
jury transcripts published in the Chronicle on June 24 and Dec.
The Justice Department is now investigating who leaked the transcripts
to Fainaru-Wada and fellow reporter Lance Williams.
The government brief was filed to support the government's bid
to force Fainaru-Wada and Williams to testify about how they got
While it was not illegal for the reporters to publish the material,
it is illegal for parties in a grand jury probe -- including prosecutors,
defense lawyers and defendants -- to disclose the information.
Violations can be punished as contempt of court. Conte became
a defendant and thus received the transcripts after he and three
other men were indicted by the grand jury on Feb. 12, 2004, on
charges of distributing steroids to professional athletes.
He and two other defendants pleaded guilty in 2005 to conspiring
to give anabolic steroids to athletes. A fourth defendant pleaded
guilty to a lesser charge. The four men were given sentences ranging
from parole to eight months in confinement.
The purported e-mails show that Conte joked in an e-mail on June
18, 2004, about giving Fainaru-Wada a CD-ROM containing 30,000
pages of evidence.
"How would you like that? Just kidding," Conte's message
An e-mail from Fainaru-Wada to Conte on June 21 jokes that the
reporter is "waiting, waiting, waiting" for the CD-ROM
and says, "Frankly, I wanted to make a pitch about seeing
some stuff and talking about a few things."
But the quoted messages do not reveal how the reporters got the
transcripts of Montgomery's testimony that they published in the
Chronicle on June 24, 2004.
Conte defense lawyer, Mary McNamara, said today, "Mr. Conte
did not leak grand jury transcripts. It is unclear why the government's
submission discusses e-mails that plainly prove no breach of the
law by Mr. Conte."
McNamara continued, "The government admits that the leaker
could be anyone, government personnel included. Mr. Conte is confident
that he will ultimately be vindicated in this matter."
The probe into the leaks is being carried out by the U.S. attorney's
office in Los Angeles on behalf of the Justice Department.
U.S. attorney's office spokesman Thom Mrozek said today, "The
electronic filing by the Department of Justice -- which appropriately
redacted certain material -- was not as secure as it should have
Mrozek said the disclosure of the blacked-out material "is
an unfortunate error, one that we regret, and we have since taken
steps with the court to try to correct the problem."
The investigation is being carried out before a new grand jury
convened in San Francisco to look into the leaks. The e-mails
were seized during an FBI search of Conte's computer in January
Fainaru-Wada and Williams are contesting subpoenas in which they
have been summoned to testify before the new grand jury. U.S.
District Judge Jeffrey White will hold a hearing on Aug. 4 on
their request to quash the subpoenas.
The reporters contend they should be excused from testifying
because the leak was not a serious crime, their free speech would
be harmed and the public benefited from the reports on steroid
Federal prosecutors argued in Wednesday's brief that the reporters
have no right to refuse to testify and that the leak strikes "at
the very heart of the secrecy of grand jury proceedings."
The government brief notes that prosecutors, defense lawyers
and defendants in the BALCO case all signed sworn statements in
2004 telling the judge in that case they had not disclosed the
Whoever was the perpetrator "baldly lied to the court in
a sworn declaration," the government brief states.
The brief states investigators have explored all reasonable alternative
sources of information about the leak and the two reporters "are
the only individuals, other than the leaker himself, who would
have personal knowledge of the leaker's identity."
Copyright © 2006 by Bay City News, Inc. -- Republication,
Rebroadcast or any other Reuse without the express written consent
of Bay City News, Inc. is prohibited.