NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · July 19, 2007
BALCO leaker sentenced to prison
July 19, 2007 · A federal judge in California last week sentenced defense attorney Troy Ellerman to 30 months behind bars for allegedly leaking grand jury testimony from the federal investigation of the Bay Area Laboratory Co-Operative, also known as BALCO, to San Francisco Chronicle reporter Mark Fainaru-Wada.
Fainaru-Wada and fellow Chronicle reporter Lance Williams used the testimony of professional athletes like Barry Bonds and Jason Giambi to write articles and a book that brought awareness to the problem of steroids use in professional baseball.
The reporters and the newspaper were later subpoenaed to reveal their source and faced possible prison time when they repeatedly refused to comply with prosecutors’ requests for the source’s identity.
Ellerman, who represented BALCO executives during the investigation, pleaded guilty earlier this year to two counts of contempt of court, one count of obstruction of justice and one count of filing a false declaration with a federal court, according to court filings.
In his plea agreement, Ellerman admitted allowing Fainaru-Wada to copy grand jury testimony of the athletes at the same time he was asking for the case against his client to be dismissed because of the leaks.
Following Ellerman’s plea, federal prosecutors withdrew the subpoenas issued to the reporters and to the newspaper. The reporters have refused to confirm that Ellerman was their source.
In a sentencing memorandum to the court, Ellerman’s attorneys compared Ellerman’s crimes to those of former White House aide I. Lewis “Scooter” Libby, whose 30-month sentence for perjury, obstruction of justice and lying to investigators was commuted by President Bush earlier this month. Ellerman’s attorneys argued that “President Bush’s analysis and weighing of various factors in the Libby matter is instructive in Mr. Ellerman’s case,” since both men were charged with obstruction of justice.
The filing suggested that Ellerman should receive a lighter sentence than Libby because “Mr. Libby’s conduct involved matters of national security while Mr. Ellerman’s conduct has no nexus to national security.”
According to a report in the Chronicle, U.S. District Judge Jeffrey White rejected that argument, but said that “under the president’s reasoning, any white-collar defendant should receive no jail time, regardless of the reprehensibility of the crime.”
The Chronicle also reported that White declined to impose a fine on Ellerman because of potential hardship to Ellerman’s family. However, White reportedly ordered Ellerman to give speeches about his crimes at several California law schools upon his release to emphasize the importance of being honest in the legal profession.
Ellerman will have to report to prison in September.
(U.S. v. Ellerman) — ES