Feds Seize Reporters' Communications in BALCO Probe

E-mails seized by federal authorities identify the convicted founder of the Bay Area Laboratory Co-Operative as a source in the San Francisco Chronicle's reporting on the steroids scandal, according to an online court filing that accidentally revealed confidential information.

The filing details exchanges between Chronicle reporter Mark Fainaru-Wada and Victor Conte, who jokingly suggests in one message that he be placed on the newspaper's payroll in exchange for information about grand jury testimony by elite athletes.

It was unclear from the filing whether Conte provided the reporters with grand jury transcripts, but it does show Conte discussing the testimony of athletes about their steroid use.

Beginning in 2004, the Chronicle published a series of stories citing the grand jury testimony of Giants slugger Barry Bonds, Yankees star Jason Giambi and others. The government has been investigating who leaked the transcripts to Fainaru-Wada and fellow reporter Lance Williams. Both men are fighting subpoenas to testify in that case.

Through his lawyer, Conte denied Thursday that he was the source of the leak.

"Mr. Conte did not leak grand jury transcripts," attorney Mary McNamara said. "It is unclear why the government's submission discusses e-mails that plainly prove no breach of the law by Mr. Conte."

Chronicle editor Phil Bronstein said it was alarming the government was reviewing communications between a source and a journalist, but would not disclose whether Conte was the leaker.

"Remember, this is not a national security case or anything approaching it," Bronstein said.

The government obtained the communications when it raided Conte's house in a San Francisco suburb in January, 2005, according to the document.

Sections of Wednesday's government filing were electronically blacked out to protect what prosecutors said was sensitive material concerning the grand jury's investigation. But those passages are revealed when the document is pasted into a word processing program.

Thom Mrozek, a spokesman for federal prosecutors in Los Angeles, who are conducting the leak probe, said the government committed an "unfortunate error, one that we regret" for failing to properly hide the blacked-out material.

The filing doesn't say that Conte gave the Chronicle the 30,000 pages of testimony by top athletes who appeared before the BALCO grand jury, though they show Conte discussing the secret testimony with Fainaru-Wada.

Conte, who pleaded guilty to steroid distribution charges and served four months in prison, was privy to the sealed grand jury transcripts because they were available to the BALCO defendants, their attorneys and government authorities connected to the case.

"I would say at this point the only way the athletes' grand jury testimonies will come out is at trial," Conte wrote in a June 18, 2004 e-mail to Fainaru-Wada. "Unless I just give you a copy of the indexed CD rom that contains all 30 thousand pages of evidence. How would you like that? Just kidding."

Fainaru-Wada immediately replied: "OK, why not, you talked me into it. ... Wondering if you should even joke about that; I've become somewhat paranoid about e-mail these days. My wild imagination at work."

In another exchange, Conte confirmed that Giambi admitted to the grand jury he took steroids.

On June 24, 2004, immediately after the Chronicle published portions of the grand jury testimony of Olympic sprinter Tim Montgomery, Conte sent the reporter an angry e-mail titled "The End," threatening to cut off communication between them.

Nonetheless, Conte e-mailed Fainaru-Wada again that same day and asked if the newspaper's lawyers had concerns about publishing the secret testimony, which he compared to selling stolen property.

"This is not something I can discuss in any way," Fainaru-Wada responded, "than to say I believe we're fine."

The government told a judge Wednesday that its investigation of the leak came up empty, and that's why it subpoenaed Fainaru-Wada and Williams to testify before a grand jury and reveal their source.

Conte's lawyer said that fact alone shows the government does not have enough to indict his client as being the leaker.

"It's clear there isn't sufficient evidence against Mr. Conte," McNamara said.