Defense attorney admits to BALCO transcripts leak,
agrees to plead guilty

Photo courtesy www.thehomerunguys.com

By Julia Cheever, Bay City News Service

February 15, 2007

SAN FRANCISCO (BCN) - A former lawyer for a Bay Area Laboratory Co-Operative (BALCO) executive admitted in federal court papers yesterday that he leaked grand jury transcripts of testimony by Barry Bonds and other athletes to two San Francisco Chronicle reporters.

Attorney Troy Ellerman, 44, of Woodland, Colo., made the admission in a proposed plea agreement filed in federal court in San Francisco. The pact calls for Ellerman to plead guilty to four felony counts related to the leaking of confidential grand jury testimony in the BALCO sports steroids case to reporters Lance Williams and Mark Fainaru-Wada in 2004. No date has been set for the guilty plea.

The admission appears to mean that the two reporters no longer face the threat of going to prison for refusing to reveal their source of the transcripts.

Thom Mrozek, a spokesman for federal prosecutors, said that after the guilty plea has been entered, the Justice Department will withdraw subpoenas that sought to force the two reporters and the Chronicle to reveal their source.

Mrozek said that action is expected to end proceedings in which the reporters were found in contempt of court and ordered to prison for refusing to say who gave them the transcripts.

Williams and Fainaru-Wada had remained free while they appealed the contempt order by U.S. District Judge Jeffrey White.

Ellerman, who formerly practiced law in Sacramento, represented BALCO Vice President James Valente, who pleaded guilty in 2005 to conspiring to distribute anabolic steroids to professional athletes. Valente was sentenced to three years' probation.

Valente was one of four defendants indicted in the BALCO case in 2004. The defendants, their lawyers and prosecutors were all given copies of secret grand jury testimony by baseball stars Barry Bonds, Jason Giambi and Gary Sheffield and sprinter Tim Montgomery.

All were subject to a protective order by U.S. District Judge Susan Illston forbidding them to reveal the testimony.

After the Chronicle published excerpts of the testimony in 2004, the attorneys, defendants and prosecutors all signed statements saying they hadn't revealed the information.

Illston then asked the Justice Department to investigate the leak and federal prosecutors convened a new grand jury that sought to learn the two reporters' source.

Ellerman says in the plea agreement that he allowed Fainaru-Wada to take verbatim notes on Montgomery's testimony in his law office in June 2004 and allowed him to return in November 2004 for notes on testimony by Bonds, Giambi and Sheffield.

The proposed plea agreement would require Ellerman to plead guilty to four criminal charges filed in federal court by prosecutors.

The charges include two counts of contempt of court for disobeying Illston's order, one count of falsely stating under oath that he had "no idea who provided the information to the media'' and one count of obstruction of justice.

The obstruction count charges that Ellerman filed a motion for dismissal of charges against Valente in October 2004 on the ground of alleged "repeated government leaks of confidential information to the media,'' when Ellerman knew that he himself was the source.

The leak probe was carried out by the U.S. attorney's office in Los Angeles because federal prosecutors in San Francisco were among those who had received the transcripts.

U.S. Attorney Kevin Ryan of San Francisco said, "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. I've always had the utmost confidence in this team's integrity.''

Mrozek, a public affairs officer for the Los Angeles office, said a previously unknown witness approached the FBI this fall and offered to help prove that Ellerman was the source of the leaks.

Mrozek said FBI agents pursued that lead and about three weeks ago, Ellerman's attorney contacted prosecutors and said he was prepared to admit disclosing the testimony and plead guilty to criminal charges. The proposed plea agreement followed three weeks of negotiations.

The spokesman said he expects the case to be handled by White, the same judge who found Williams and Fainaru-Wada in contempt of court. Under the agreement, White has the discretion to decide on a sentence ranging from probation to up to two years in prison.

The judge can reject the agreement if he disagrees with its terms, in which case Ellerman would be entitled to withdraw from the agreement, Mrozek said.

A spokesperson for the Chronicle was not immediately available for comment.

Copyright © 2007 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

####