NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · Feb. 15, 2007
Prosecutors plan to drop subpoenas of BALCO reporters
Feb. 15, 2007 · Defense attorney Troy Ellerman has admitted that he allowed San Francisco Chronicle reporter Mark Fainaru-Wada to take detailed notes of secret transcripts of federal grand jury testimony during the BALCO investigation, according to a Department of Justice statement issued Wednesday.
According to the statement, prosecutors will withdraw the subpoenas of Fainaru-Wada and fellow reporter Lance Williams once Ellerman’s guilty pleas are entered in court since that “will alleviate the need for the reporters to testify before the grand jury.”
If this occurs, the “withdrawal of the subpoenas is expected to moot [the] previous decision to hold the reporters in contempt,” according to the department’s statement.
The Bay Area Laboratory Co-Operative, known as BALCO, has been the subject of a federal investigation since 2003. Ellerman represented BALCO vice president James Valente while the company and its executives were being investigated for distributing banned performance-enhancing drugs to athletes, including sports stars Barry Bonds and Jason Giambi. News reports said Ellerman previously represented BALCO founder Victor Conte.
Williams and Fainaru-Wada used the leaked grand jury testimony of athletes such as Bonds and Giambi for Chronicle articles and for their book “Game of Shadows,” which focused on the use of steroids within professional baseball.
Federal prosecutors first subpoenaed Williams and Fainaru-Wada in May, and the reporters moved to have those subpoenas quashed. On Aug. 15, U.S. District Judge Jeffrey White in San Francisco denied the motions and ordered Williams and Fainaru-Wada to testify, stating that the grand jury’s interest in the information outweighed the reporters’ First Amendment rights in this case. The Chronicle was also found to be in contempt of court.
In September, White sentenced the reporters to prison for civil contempt of court and ordered the Chronicle to pay a fine. However, White allowed these sanctions to be stayed pending appeal to the Ninth Circuit Court of Appeals in San Francisco.
According to the Department of Justice, Ellerman claimed to be “angry” about the testimony leaks during the investigation and even filed a declaration under penalty of perjury saying that he did not know the source of the leaks. Ellerman also filed a motion to dismiss the charges against Valente and claimed that because of the leaks, Valente could not get a fair trial.
Prosecutors did not name the witness who tipped them off about Ellerman, but former defense investigator Larry McCormack, who was once fired by Ellerman, has said he told the FBI that Ellerman was the source.
According to prosecutors, when the FBI questioned Ellerman in December, he “made admissions that could be used to prove his guilt.” Prosecutors said negotiations of Ellerman’s plea deal had been ongoing for the past three weeks.
The Department of Justice said Ellerman has agreed to plead guilty 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. All of these offenses are federal felonies.
When a judge is assigned to the case, it will be within his or her discretion to withdraw the contempt citations.
Both Williams and Fainaru-Wada, as well as their attorneys, have refused to comment to the media on Ellerman’s apparent admission. The reporters both asserted that they would go to prison to keep the promise of confidentiality they made to their source.
For his role in the leaks, Ellerman could spend up to two years in prison and pay a up to a $250,000 fine. Ellerman also faces losing his California law license.
(In re Grand Jury Subpoenas (Fainaru-Wada and Williams), Media Counsel: Eve Burton, Hearst Corp., New York) — ES