July 7, 2007
Lawyer Who Leaked BALCO Grand Jury Transcripts Agrees to Higher Sentence
The former defense attorney for the founder of Balco (Bay Area Laboratory Co-operative) agreed to an increase in the sentence that can be imposed as part of his plea bargain in the hope it will satisfy U.S. District Judge Jeffrey White, who rejected the earlier agreement that limited the sentence to two years. Troy Ellerman admitted to allowing a reporter for the San Francisco Chronicle to review the grand jury testimony of soon-to-be home run king Barry Bonds and other athletes about their receipt and use of steroids obtained through Balco. He had received the transcripts as part of the discovery in the narcotics prosecution of his client, and they were subject to a protective order. When the Chronicle reported on the testimony, he accused the government of leaking the transcripts in a filing with the district court.
Ellerman entered a guilty plea to obstruction of justice, filing a false declaration, and two counts of criminal contempt. Under the Federal Sentencing Guidelines, the range is from 24 to 33 months, and the new agreement authorizes a sentence up to the top end of the applicable Guidelines range rather than capping it at two years. Whether Judge White will accept the new plea agreement remains to be seen because the court has discretion to impose a sentence above the advisory Guideline for the case; a sentencing hearing is scheduled for July 12. Interestingly, the newly-agreed sentence is the same as that imposed on Victor Rita in the case recently decided by the Supreme Court upholding the appellate presumption of validity for sentences within the Guidelines, and only three months more than the sentence imposed on I. Lewis Libby before the President's commutation. No word on whether Ellerman's attorney will offer a "Libby motion" to reduce the prison term, but given the Judge's views on the need for an increased sentence an argument about it being "excessive" would be an exercise in futility. A Chronicle story (here) discusses the most recent plea agreement. (ph)
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