Reporters won't face jail

Two San Francisco Chronicle reporters won't face jail time after a criminal defense lawyer admitted to being the source who leaked the journalists secret grand jury documents in the BALCO steroids case.

According to court documents, Troy Ellerman – an attorney who represented two men at the center of the biggest doping scandal in sports history – faces two years in prison and a $250,000 fine after he agreed to plead guilty to obstruction of justice, perjury and criminal contempt of court. He faced up to 15 years in prison and a $500,000 fine before agreeing to the plea bargain, which the government said will save resources by resolving its investigation into the leaks.

Yahoo! Sports reported Dec. 21 that the FBI had targeted Ellerman as the source of the leaks.

The presiding judge in the case must approve the plea agreement for it to go into effect and no court date has been set, according to a press release issued by the U.S. Attorney's office in Los Angeles, which oversaw an investigation into the leaks.

The government said it will drop its case against the two Chronicle reporters, Mark Fainaru-Wada and Lance Williams, if the plea deal is accepted because Ellerman's guilty pleas would end its investigation into the leaks. Fainaru-Wada and Williams, who cited the secret grand jury transcripts in reports for the Chronicle and in a subsequent book, faced up to 18 months in prison for refusing to testify about who provided them the confidential grand jury testimony.

Ellerman let Fainaru-Wada take verbatim notes from the grand jury transcripts, according to the court documents filed Wednesday in federal court in San Francisco.

Using information supplied by Ellerman in violation of a court order, the Chronicle reporters wrote articles and a book about the scandal that fueled worldwide coverage of the case, prompted congressional hearings, forced Major League Baseball to review its drug policy and tarnished the reputation of San Francisco Giants slugger Barry Bonds, New York Yankees first baseman Jason Giambi, Yankees outfielder Gary Sheffield and track star Tim Montgomery.

Court records indicate the witness who cooperated with the FBI and spoke with Yahoo! Sports provided the key evidence leading to the plea bargain.

Larry McCormack, a co-tenant in an office with Ellerman in Sacramento, Calif., at the time of the leaks, told Yahoo! Sports in December that he contacted authorities in September and later wore a recording device during conversations in which Ellerman admitted leaking the grand jury testimony. Though the court documents do not refer to McCormack by name, they cite his role in the investigation of Ellerman.

"This fall, a previously unknown witness approached the FBI offering to help prove that Ellerman was the source of the leaks," a press release stated. "Since that time, the government has worked expeditiously to attempt to prove that Ellerman was the source of the leaks, which included interviewing Ellerman about the criminal conduct."

Before McCormack came forward, the government said it had exhausted all alternative sources in its investigation and had no choice but to prosecute the reporters. But FBI agents working with McCormack obtained evidence that led to the plea bargain, court documents show.

McCormack, a former private investigator who worked with Ellerman, said he contacted the FBI upon the advice of his attorney. But he also said one reason he came forward was he knew he had information that could keep the reporters out of prison.

"They don't have to worry anymore, " McCormack said by phone Wednesday.

A spokeswoman for the Chronicle said the only comment the reporters or newspaper had was, "As we have said throughout, we do not discuss issues involving confidential sources."

In December 2004, the Chronicle reported that Bonds testified that during the 2003 baseball season he unknowingly used steroids provided by his trainer and prosecutors produced documents allegedly showing Bonds used a variety of performance-enhancing drugs between 2001 and 2003. Ellerman provided the confidential information for that story and also provided grand jury testimony from Montgomery, Giambi and Sheffield, according to court documents.

Bonds' attorney, Michael Rains, could not be reached for comment.

In the steroids case, Ellerman initially represented Victor Conte, founder of BALCO, and later represented James Valente, vice president of BALCO.

Grand jury testimony was distributed in early 2004 to Ellerman and all other parties involved in the federal trial after Conte, Valente and two other men were indicted in the doping case. The judge in the case issued an order stating that no one could disseminate the grand jury information to the media or for economic gain.

Conte, Valente and three other men eventually pled guilty to criminal charges, but the government pressed forward with its investigation into the leaks.

On June 24, 2004, the Chronicle that reported Montgomery had testified Conte gave him weekly doses of human growth hormone in 2001. According to court documents, Ellerman let Fainaru-Wada copy excerpts of Montgomery's testimony. But on July 12, 2004, according to court documents, Ellerman made a false and material declaration under oath that he "had no idea who provided information to the media concerning Mr. Montgomery’s grand jury testimony nor why it was done."

Ellerman committed obstruction of justice on Oct. 8, 2004 when, according to court documents, he filed a motion to dismiss the case "on the grounds that the government had leaked grand jury transcripts to the media, whereas, in truth and fact, as defendant then knew, he was the one who had leaked grand jury transcripts to the media."

In December 2004, again using grand jury testimony provided by Ellerman, the Chronicle reported that Giambi testified that he injected himself with human growth hormone in 2003 and used steroids he obtained from Bonds' trainer, Greg Anderson. The Chronicle also reported testimony excerpts from Bonds and Sheffield. The reports led to a federal probe into the leaks.

As the investigation intensified in 2006, McCormack said he began deliberating about contacting authorities. On Wednesday, he said he had no regrets but felt badly about Ellerman's plight even though he said he told Ellerman from the outset that his leaking the documents was wrong.

"I think he regrets it," McCormack said of Ellerman. "In fact, I know he does. He told me he regretted it."