BALCO defense lawyer guilty of leaking testimony
Photo courtesy www.thehomerunguys.com
By Julia Cheever, Bay City News Service
February 16, 2007
SAN FRANCISCO (BCN) - A former defense lawyer in the
BALCO, or Bay Area Laboratory Co-Operative, sports steroids case
pleaded guilty in federal court in San Francisco Thursday to charges
of leaking of grand jury testimony by Barry Bonds and other athletes
to two San Francisco Chronicle reporters.
Troy Ellerman, 44, of Woodland Park, Colo., will be sentenced
by U.S. District Judge Jeffrey White on June 14.
He pleaded guilty before White to four counts, including obstruction
of justice, making a false statement and two counts of contempt
of court for disobeying a court order to keep the information
White told Ellerman that his acts "cut to the very core
of our criminal justice system."
He said, "Your acts represent corruption of our system by
a member of the bar."
The judge said that because of the seriousness of the crimes,
he hasn't made up his mind whether to accept a provision of a
plea agreement in which prosecutors will seek a sentence of no
more than two years in prison.
If White decides Ellerman deserves a heavier sentence, the attorney
will be entitled to withdraw the guilty plea and go to trial.
The possible maximum sentence for the four counts is 15 years.
Federal prosecutors said that as a result of the plea, they will
now seek to end contempt-of court proceedings against reporters
Mark Fainaru-Wada and Lance Williams, who faced possible imprisonment
for refusing to reveal their source of the grand jury testimony.
Assistant U.S. attorneys Douglas Miller and Michael Raphael said
they withdrew grand jury subpoenas for the reporters and will
ask White to dismiss an order in which he found them in contempt
of court and said they must go to prison.
The two reporters had been allowed to remain free during their
appeal, which was scheduled to be heard by the 9th U.S. Circuit
Court of Appeals in San Francisco next month.
Fainaru-Wada and Williams said in a joint statement, "We're
pleased that the prosecutors have stopped their efforts to force
us to testify about the sources for our reporting on the BALCO
sports steroids case.
"As we've said from Day One, we felt these subpoenas were
inappropriate and posed a danger to future investigative reporting.
We look forward to the prospect of getting back to covering the
news without the threat of federal prison hanging over us,"
the reporters said.
Eve Burton, general counsel of the Hearst Corp., the Chronicle's
parent company, said, "We are relieved that the government
has ended its investigation and withdrawn the subpoenas to our
reporters. The legacy and lesson of this three-year battle demonstrates
the need for a federal shield law, which is gaining bipartisan
support every day."
While 49 states have some kind of shield law protecting reporters'
sources, there is no U.S. shield law that would apply to federal
White told Ellerman that in determining his sentence, he will
balance the seriousness of the offenses against the fact Ellerman
has accepted responsibility and made further court proceedings
Ellerman, who previously practiced law in Sacramento, briefly
represented BALCO President Victor Conte and later became the
lawyer for BALCO Vice-President James Valente. Both men pleaded
guilty in 2005 to giving anabolic steroids to professional athletes.
Ellerman and other lawyers for four BALCO defendants, prosecutors
and the defendants all received copies of testimony before a grand
jury investigating the steroids case. All signed a protective
order in which U.S. District Judge Susan Illston required them
to keep the information secret.
After the Chronicle published excerpts of testimony by baseball
players Barry Bonds, Jason Giambi and Gary Sheffield and sprinter
Tim Montgomery in 2004, Illston asked the U.S. Justice Department
to investigate the source of the leaks. The department then convened
a new grand jury for the probe.
Ellerman admitted to allowing Fainaru-Wada to take notes on the
transcripts in June and November 2004 and signing a false declaration
in which he said he had "no idea" who leaked the information.
He also pleaded guilty to obstructing justice by filing a motion
for dismissal of the charges against Valente that was based on
a false allegation that there were "repeated government leaks
of confidential information to the media."
Ellerman told the judge during his guilty plea, "I filed
a motion to dismiss based on the leaks knowing that I knew who
the person was and that was me."
Ellerman's attorney, Scott Tedmon, declined to comment after
the hearing on Ellerman's reasons for leaking the information.
But Tedmon said that before the sentencing takes place, "We
will give the court sufficient information for the court to understand
what was going on in Mr. Ellerman's mind."
Tedmon noted that the two reporters will now be spared incarceration
and said it was important to Ellerman "not to cause any one
else to go to prison."
Deputy U.S. Attorney General Paul McNulty said in Washington
D.C., "This investigation proved an especially cynical abuse
of our system of justice.
"A lawyer secretly and illegally leaked information protected
by a court order. He then turned around and filed public motions
blaming the government for the leaks and sought to have his client's
case thrown out because of these public disclosures," McNulty
If Ellerman is given a sentence of two years in prison, it will
be the heaviest penalty in the BALCO case thus far.
In the original BALCO case, Valente and track coach Remi Korchemny
were given probation, personal trainer Greg Anderson was sentenced
to three months of prison and three months of home detention and
Conte was given four months in prison followed by four months
of home detention.
A fifth defendant who was indicted in 2005, chemist Patrick Arnold,
was sentenced to three months in prison and three months of home
detention for conspiring to distribute an anabolic steroid.
Two other defendants, cyclist Tammy Thomas and track coach Trevor
Graham, are awaiting trial.
A separate grand jury is currently investigating whether Bonds
may have lied during his grand jury testimony in 2003 in the original
BALCO probe. Anderson is currently in prison for contempt of court
for refusing to answer the new grand jury's questions about whether
he ever gave Bonds steroids.
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