Rarity: Judge Rejects BALCO Leaker's Plea Bargain

By: A federal judge took the unusual step Thursday of rejecting a plea deal for an attorney who admitted leaking the grand jury testimony of elite athletes to two newspaper reporters.

Troy Ellerman's lawyer and federal prosecutors had agreed on a range of punishments, from 15 to 24 months, after Ellerman pleaded guilty to allowing two San Francisco Chronicle reporters to view transcripts of grand jury testimony from Barry Bonds, Jason Giambi, Gary Sheffield and other athletes embroiled in the government's steroids investigation.

U.S. District Judge Jeffrey S. White said both recommendations were too low and that, as a lawyer, Ellerman "should be held to a higher standard of conduct."

"The court hereby rejects the plea agreement and refuses to be bound thereby," White said, declaring that Ellerman had "corrupted several different aspects of the criminal justice system," particularly the grand jury. Ellerman lied to government agents, courts and the news media, the judge said.

White said Ellerman's actions had "impacted all three branches of government," including the legislative branch, by prompting new calls for a federal shield law that would protect journalists from being forced to disclose their sources.

Ellerman must now decide whether to withdraw his guilty plea and take the case to trial. He and his attorney, Scott Tedmon, declined comment as they left court after the hearing. White also promised to reconsider his rejection of the plea agreement.

Assistant U.S. Attorney Doug Miller said outside court that the two sides would spend the next four weeks trying to iron out a new plea agreement. That will be complicated by the judge's refusal to say what range of sentences he thought was appropriate, prosecutors said.

If convicted of all the crimes he has admitted to, Ellerman could face roughly 15 years in prison, Miller said, emphasizing that he was speaking from memory and that federal sentencing guidelines could be slightly different.

In the courtroom, White's ruling put the normally adversarial teams of lawyers in an unconventional alliance, with both trying to persuade the judge the sentence was stiff enough. The judge's surprise ruling prompted two huddles between the rival lawyers, as Ellerman stood off to the side, alone.

"We would implore the court to reconsider," Miller said, renewing his call for a 24-month sentence.

But White angrily cut Miller off when the prosecutor said Ellerman had saved the government resources by "coming forward" to acknowledge his wrongdoing.

"Wait a minute!" the judge said. "He didn't come forward. He got caught."

Miller insisted Ellerman's eventual cooperation had saved the government from the "old, contentious litigation" that would likely be required to force the Chronicle reporters to testify.

Spending government money on such a protracted battle "does start to cut against the public interest," Miller said.

Chronicle executive editor Phil Bronstein referred an inquiry seeking the paper's response to Thursday's court action to a lawyer for the Hearst Corp., the Chronicle's owner. The lawyer did not return a call Thursday evening after business hours.

Ellerman was a successful Sacramento attorney when BALCO founder Victor Conte hired him following the raid of his Burlingame nutritional supplements lab, part of the government probe.

Ellerman also later served as the attorney for BALCO vice president James Valente. It was while he was representing Valente that he allowed reporter Mark Fainaru-Wada to view the players' grand jury testimony, according to the plea agreement.

Fainaru-Wada and fellow reporter Lance Williams then published stories in 2004 reporting that Giambi and others had admitted using steroids, while Bonds and Sheffield testified they didn't knowingly take the drugs. The leaked testimony was also featured prominently in the writers' book "Game of Shadows," which recounts Bonds' alleged use of steroids.

After Ellerman pleaded guilty to four felony charges of obstruction of justice and disobeying court orders in February, prosecutors dropped their case against the two reporters. They had faced up to 18 months in prison for refusing to divulge the source of the leak.

Ellerman also was fired as commissioner of the Professional Rodeo Cowboys Association.

Before Thursday's hearing, a probation officer approached him as a celebrity of sorts, saying she was surprised to learn he had been the stunt rider for Paul Hogan in a 1994 movie, "Lightning Jack."

"Did you do all the stunts?" she asked.

Ellerman nodded but said nothing.


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