By Josh Peter, Yahoo! Sports
December 21, 2006
Josh Peter
Yahoo! Sports
Related: A closer look at Troy Ellerman | Truth comes from a messy case | Timeline
The FBI has targeted a defense attorney for leaking confidential grand jury information linking Barry Bonds and other world-class athletes to alleged steroid use, Yahoo! Sports has learned.
The defense attorney, Troy Ellerman, has been the subject of an FBI investigation, according to Larry McCormack, a former private investigator who worked on the BALCO federal steroids case and who said he was a co-tenant in an office with Ellerman in Sacramento, Calif., where they worked together on cases, at the time of the alleged leaks. Other sources have said they were interviewed by the FBI.
McCormack, who said he did investigative work on behalf of BALCO founder Victor Conte Jr. in the early stages of the case, said he told the FBI that Ellerman relayed confidential grand jury information to a reporter from the San Francisco Chronicle in 2004.
"I felt it was wrong," McCormack said of the leaks during a recent interview. "I said it was wrong from the get-go."
Ellerman, reached by phone Wednesday, said, "I don't have any comment."
Troy Ellerman
Troy Ellerman.
Ellerman initially represented Conte, who founded Bay Area Laboratory Co-Operative (BALCO), the company at the center of the steroid distribution investigation. Ellerman later represented James Valente, vice president of BALCO.
Both men pleaded guilty in 2005 to charges connected to the distribution of steroids. Conte was sentenced to four months in prison and four months of house arrest. Valente received probation.
Conte did not respond to calls and an email from Yahoo! Sports. His attorney, Mary McNamara, said, "Neither Victor nor our firm will be making any comment."
Attempts to reach Valente on Wednesday were unsuccessful, and his attorney, Ann Moorman, declined comment through a receptionist.
Grand jury leaks helped fuel worldwide media coverage of the BALCO case, the biggest doping scandal in sports history. Triggered in part by an anonymous tip in 2003, the case involved the alleged use by the athletes of designer steroids and human growth hormone previously not detected by drug tests administered by Olympic officials, Major League Baseball and other sports leagues.
According to published reports, 27 athletes, including Olympic gold-medal-winning track star Marion Jones and San Francisco Giants slugger Bonds, were called to testify before a grand jury in San Francisco in the fall of 2003.
Five men connected with the steroids investigation were convicted of various crimes. Two reporters for the Chronicle – Mark Fainaru-Wada and Lance Williams – face prison time for contempt of court after refusing to disclose who provided them with confidential grand jury information they cited in articles for the newspaper and in their book – Game of Shadows – that was on the New York Times best-seller list for several weeks.
Michael Rains, the attorney representing Bonds, said he doesn't believe Ellerman leaked grand jury information or transcripts in part because, according to Rains, Ellerman would not have had access to some of the information that was reported by the Chronicle in 2005.
"I find that hard to believe to begin with, that Troy would do that," Rains said Wednesday. "But obviously I don't know the man very well, and the first time I met him was in connection with this case.
"I've always thought it was people within the government that have leaked this stuff ,and I still believe it."
McCormack, recently fired from an organization that Ellerman leads, said that he spoke with the FBI about three months ago on the advice of an attorney, told the federal agents what he knew about the alleged leaks and cooperated with the subsequent investigation. McCormack said FBI agents met with Ellerman on Dec. 13 and later told McCormack that the investigation is complete and everything came out fine but disclosed little else.
McCormack said he agreed to talk to Yahoo! Sports because he was concerned about his own reputation in the rodeo industry and fears that he will be seen simply as disgruntled over his dismissal from a job Ellerman got him with the Professional Rodeo Cowboys Association.
Over the course of six months in 2004, the Chronicle cited leaked grand jury testimony in reporting details of alleged steroid use by Bonds, baseball player Jason Giambi and Olympic sprinter Tim Montgomery. In Game of Shadows, Fainaru-Wada and Williams included information from confidential grand jury transcripts, which contained extensive details of alleged steroid use by Jones, Bonds and a host of other athletes.
At the time, Ellerman attacked the leaks as totally misguided and untrue and wrote a letter to the prosecutors suggesting the government was responsible for the breach.
"It is outrageous the leaks continue," Ellerman wrote in a letter introduced to the court in April 2004, according to published reports. "Someone in law enforcement refuses to abide by a [confidentiality] agreement and is attacking to prejudice our client's right to a fair trial."
Robert Weisberg, a law professor at Stanford University who has followed the BALCO case, said, "If the lawyers did this, it's not wrong because it's aggressive and strategic. It's wrong because it's illegal … if it violated the judge's order."
Key BALCO-related articles
SFGate's BALCO coverage:
# Reporters sentenced to 18 months – Sept. 21, 2006
# Reporter bios
# Amicus curiae brief filed by 24 states (PDF)
# Amicus curiae brief filed by news organizations (PDF)
# Amicus curiae brief filed by Chronicle (PDF)
# What Bonds told BALCO grand jury – Dec. 3, 2004
# Simple case turned catalyst – Dec. 29, 2004
# Bonds used steroids in 2003 – Oct. 16, 2004
# Not-guilty pleas by all in steroids ring case – Feb. 14, 2004
# Book traces Bonds' steroid use to McGwire-Sosa home run race – March 7, 2006
# The perjury evidence against Bonds – April 16, 2006
# Feds want name of BALCO source – June 22, 2006
# Subpoena order for source name (PDF)
# Professional Rodeo Cowboys Association
# Cowboys for Kids
Grand jury testimony was distributed to all other parties involved in the case – including Ellerman – in early 2004 so they could prepare for the federal trial that was scheduled after Conte, Valente and two other men were indicted for their role in the steroid distribution investigation. U.S. District Judge Susan Ilston ordered those who received the grand jury material to keep it private.
It is unclear if the FBI's investigation and a possible determination of Ellerman's role in leaking information would keep the Chronicle reporters from going to prison. They were ordered to serve time in September, pending an appeal set for Feb. 12.
Though McCormack said he worried about the reporters, he also acknowledged worrying about himself when he decided to come forward. He said he feared he could face criminal charges if the reporters identified Ellerman as their source and investigators found out McCormack knew Ellerman leaked the confidential information but never came forward. Ultimately, McCormack said, he contacted authorities on the advice of his attorney.
McCormack, who said his career spans 13 years in law enforcement and 18 years as a private investigator and includes experience as an expert witness in federal cases, told Yahoo! Sports that he was not granted immunity in exchange for working with the FBI but expects to face no charges and is willing to testify against Ellerman.
The Justice Department is investigating the matter and the U.S. Attorney's office in Los Angeles is playing the lead role. Thom Mrozek, a spokesman for the U.S. Attorney's office, declined to comment Wednesday.
Saying he did not want to interfere with the FBI's case, McCormack provided few details of the investigation and limited information about how he knows Ellerman leaked information from the court documents. He declined to say if Ellerman leaked the actual grand jury documents, saying that was part of the FBI's investigation.
McCormack did confirm the FBI wired him during conversations with Ellerman, but said, "I don't know what is on the tape, and I don't want to go into what was in the conversation."
Yahoo! Sports spoke to two other sources who said they had been interviewed by the FBI on the matter. Both sources declined to be identified for this story.
McCormack said Ellerman leaked information from the grand jury to Fainaru-Wada. McCormack said he met Fainaru-Wada during a lunch meeting with Ellerman in the spring or summer of 2004. He also said he saw Fainaru-Wada again when the reporter visited the Sacramento office McCormack shared with Ellerman about a half-dozen times between June and December, when Fainaru-Wada and Williams wrote articles citing leaked grand jury documents.
On June 24, 2004, when McCormack saw an article in the Chronicle that reported sprinter Montgomery had testified Conte gave him weekly doses of human growth hormone in 2001, McCormack said he knew the confidential information had come from Ellerman. He then confronted Ellerman.
"What in the hell are you doing?" McCormack said he asked. "Man, this is nuts. I don't know why you dragged me into this."
He said, "Don't worry about it. They (the reporters) won't testify."
Fainaru-Wada and Williams shared the byline on the June 24 article, covered the bulk of the BALCO story together and co-wrote Game of Shadows.
McCormack said he never met Williams but that Ellerman continued to have regular contact with Fainaru-Wada after the June 24 article and that McCormack saw Fainaru-Wada when the reporter visited their office.
"We talked," McCormack said. "We used to shoot the (bull) when he was in the office."
The news leaks infuriated Judge Ilston, who required members of the defense and prosecution teams to sign statements saying they had not leaked information from the grand jury proceedings.
Even after prosecutors secured guilty pleas from Conte, Valente, Bonds' personal trainer Greg Anderson, track coach Remy Korchemny and chemist Patrick Arnold in the BALCO case, federal investigators were determined to find the source of the leaks. Until then, McCormack said, he thought the leaks could lead to nothing more than a contempt of court charge and was unconcerned about the situation.
But as the government intensified its investigation, McCormack said he began to worry that he could be charged with a crime for failing to report evidence about Ellerman's alleged leaks.
McCormack said he wrestled with his decision to contact the FBI because he has known Ellerman for nine years, shared an office with him for five years and still considers him a friend. But McCormack also said he expected some would question his motives because his relationship with Ellerman had become strained.
They worked together at the Professional Rodeo Cowboys Association (PRCA), the world's premier rodeo association, headquartered in Colorado Springs, Colo. Ellerman, a former bull rider, took over as commissioner in January 2005. McCormack said Ellerman hired him that March as chief operating officer and later appointed him as executive director of the PRCA's Hall of Fame museum.
But McCormack said he and Ellerman found themselves at odds over issues, such as Ellerman's aborted plan to move the PRCA to New Mexico. The board of trustees, by an 8-7 vote, fired McCormack on Aug. 30 and cited the museum's growing debt as the reason for his dismissal, according to McCormack. McCormack contends he was wrongfully terminated and that the PRCA's plan to uproot the headquarters and a public backlash created most of the museums financial problems.
About a week after his ouster, McCormack said, he contacted the federal authorities about the alleged leaks in the BALCO case. He also said he talked to Ellerman about a financial settlement but instructed his attorney to hold off on pursuing the settlement until the FBI completed its investigation. McCormack said he didn't want it to look as if he was trying to extort money from Ellerman.
McCormack said he plans to file a letter demanding $500,000 from the PRCA before the end of the year.
McCormack also said he contemplated going to federal authorities long before the PRCA fired him and that his disputes with Ellerman had nothing to do with his decision to call the FBI.
His decision to come forward coincided with the two Chronicle reporters facing increased pressure to reveal who gave them the leaked grand jury information. McCormack said he first spoke to an FBI agent on Sept. 8, and on Sept. 22 the two reporters were ordered to prison, pending appeal.
The FBI asked McCormack not to discuss the case, according to McCormack, who said he spoke to Yahoo! Sports in part because he wanted a chance to explain why he decided to contact the FBI. McCormack also said he wanted to tell his side of the story to protect his reputation, especially from those who might accuse him of betraying Ellerman and brand McCormack a snitch.
McCormack said he now works for a non-profit organization called Cowboys For Kids and fears a backlash over his cooperation with the FBI could hurt his ability to make a living in the rodeo industry. He said he decided to give up his job as a private investigator when Ellerman offered him a job with the PRCA.
McCormack said he refused the FBI's request to make a phone call to Ellerman last week. McCormack said the call could have further implicated Ellerman.
McCormack said he did investigative work for Conte early in the case and introduced Ellerman to BALCO's founder. Conte hired Ellerman as his attorney, but eventually Conte retained attorney Robert Holley and Ellerman ended up representing BALCO's vice president, Valente.
The BALCO case broke in September 2003, when federal and local authorities raided the company's offices in Burlingame, Calif., a short drive from San Francisco.
That fall, a host of prominent athletes were called to testify before the grand jury, and the group included Jones, who won five medals at the 2000 Olympic Games; baseball players Gary Sheffield, Benito Santiago, Bonds and Giambi; NFL players Bill Romanowski and Barret Robbins; track-and-field athletes Dwain Chambers, C.J. Hunter, Kevin Toth, Regina Jacobs, Chryste Gaines and Montgomery; swimmer Amy Van ****n; and boxer Shane Mosley.
The case picked up momentum in February 2004, when federal authorities announced a 42-count indictment against BALCO executives Conte and Valente in addition to Anderson and Korchemny. Arnold was charged later.
Then the leaks began in earnest.
On June 24, the Chronicle, citing confidential testimony, reported that Montgomery told the grand jury Conte gave him weekly doses of human growth hormone. In December, the Chronicle reported that Giambi, the New York Yankees slugger, testified that he injected himself with human growth hormone in 2003 and used steroids he obtained from Bonds' trainer.
A day later came the bombshell: The Chronicle reported that Bonds testified that during the 2003 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.
Between July 2005 and April 2006, Conte accepted a plea deal for his role as mastermind behind distributing performance-enhancing drugs; Valente pleaded guilty to reduced charges of steroid distribution and received probation; Anderson pleaded guilty to money laundering and a steroid distribution and was sentenced to three months in prison and three months in home confinement; Korchemny got one year probation after he pleaded guilty to one count of distributing the sleep-disorder drug modafinil, which athletes sometimes use to enhance performance; Arnold got three months in prison and three months home confinement after pleading guilty to conspiracy to distribute steroids.
McCormack said he grew concerned after reading Game of Shadows because the book indicates federal authorities continue vigorous efforts to find the source of leaked grand jury documents.
"I started seeing this thing was not going to go away," McCormack said.
He said he sought advice from a counselor, his wife and three attorneys before deciding to contact the FBI after the attorney who now represents him advised him to do so.
"We talked about the moral issues of right and wrong," McCormack said. "That was eating me alive and whether I should do something."
Three FBI agents came to McCormack's home on those occasions and twice monitored and taped his conversations with Ellerman, according to McCormack.
When McCormack said he learned FBI agents planned to confront Ellerman during the National Finals Rodeo – rodeo's premier annual event, which ran from Nov. 27 to Dec. 9 – McCormack asked them to wait. He worried the incident could affect his own rodeo-related business interests, spoil the event for the entire rodeo industry and cause Ellerman unnecessary embarrassment.
The agents granted his request and met with Ellerman in Colorado Springs on Dec. 13, according to McCormack.
"I don't want to see Troy go to prison," he said. "It's just been a nightmare for me."
