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 in 2004.

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. 3, 2004.

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 the documents.

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 said.

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 been."

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 2005.

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 use.

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 transcripts.

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."

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