As these matters were coming to a head, McCormack instructed Wing, his lawyer, to approach the authorities. Wing called the FBI. A week later, on September 8, Steven B. Merrill, the FBI’s lead agent on the leak case, called Raphael in Los Angeles. There had finally been a break: McCormack claimed that Ellerman was Fainaru-Wada’s source and had shown him the grand jury transcripts. Merrill and Raphael quickly arranged a conference call with McCormack. Was he credible? What was his evidence? And why was he coming forward now?
McCormack described his work for Ellerman during the case and recounted his dealings with Fainaru-Wada. He said he’d confronted Ellerman after the June leak, and said he knew it was wrong “from the get-go.” McCormack said he was worried that he might be potentially liable for the leak. He acknowledged that he’d had a falling-out with Ellerman, and had just been fired from his job at the rodeo association. But he insisted he’d been thinking of coming forward long before that dispute. He worried that if the reporters decided to name their source, and implicated Ellerman, he might face liability as Ellerman’s accomplice. He specifically mentioned “misprision of felony”–a crime so obscure even the prosecutors weren’t familiar with it–and he also said he thought it was unfair that the reporters would have to go to jail, when it was Ellerman who violated the law.
Given the timing of McCormack’s revelation, just days after being fired, Raphael wasn’t so sure McCormack’s motives were all that pure. Nevertheless, McCormack’s disclosures were detailed and plausible. It bolstered his credibility that McCormack said he had not actually seen Ellerman show Fainaru-Wada any grand jury transcripts, nor had Ellerman explicitly admitted doing so. Still, they would likely still need testimony from the reporters to prove the case against Ellerman, which didn’t resolve the issue of the reporters’ having to testify or going to jail.
Now Raphael was even more relieved that the reporters’ prison sentence had been stayed pending appeal. The prosecutors had represented to the court that they had exhausted all possible leads–and now a promising one had materialized. Did the judge–and the reporters–need to be told that circumstances had changed?
Since the reporters were in no imminent risk of imprisonment, the lawyers decided to continue the investigation, using McCormack as an undercover source. McCormack readily agreed to be wired and secretly record Ellerman. He’d done the same thing countless times as a law enforcement officer, and he even showed Merrill, the FBI agent, how to install the wire.
Despite their recent estrangement, McCormack and Ellerman were still in touch, and McCormack called him and said he had some files he needed to drop off. On October 5 the two met in the parking lot outside Ellerman’s office, and McCormack started moving the files from his truck into Ellerman’s van. Wearing his wire, McCormack said he’d been to see a lawyer and he was still nervous about the leak investigation. Ellerman told him to stop worrying, that the reporters would never talk. “I went and talked to Fainaru-Wada,” Ellerman said, according to a transcript of McCormack’s recording. “I went right to him. He is not going to say a word . . . and I made sure he wasn’t going to say a word about you or me.”
“I have to worry about my livelihood,” McCormack said, now that he was out of a job.
Suddenly it seemed to dawn on Ellerman that McCormack was a threat. He swore. “Are you trying to take me down? You’re a goddamned snitch.”
“I don’t play the snitch game, Troy,” McCormack responded. “But if I am, what does that make you?”
Ellerman broke off the conversation and went back to his office. People outside his office heard him throwing and smashing things.
McCormack felt terrible. Whatever had happened between them, Ellerman was still his friend. He felt he’d just betrayed him.
When Raphael listened to McCormack’s tape, he was convinced Ellerman was the reporters’ source. The comments only made sense if Ellerman was; he never denied it or asked McCormack what he was talking about. The tape was probably enough to corroborate McCormack’s testimony. Still, Ellerman never said point-blank that he’d given Fainaru-Wada the transcripts. He and Merrill decided to try for more.
On October 31, Merrill and two other agents met with Ellerman at his office in Colorado Springs. Now that he was the prime suspect, and not just one of twenty people with access to the transcripts, they wanted to ask him more pointedly what he knew about the leaks and observe his demeanor. They again warned him that any false statement is a federal crime. According to Merrill’s report of the interview, Ellerman denied leaking anything and tried again to blame Conte. “Ellerman stated it would not have been worth ruining his career by leaking this FGJ [federal grand jury] material. Ellerman stated representatives of the
San Francisco Chronicle
never tried to ‘hit him up’ to leak these materials . . . Ellerman stated he does not know ‘for sure’ who leaked BALCO FGJ materials to the media, however, Ellerman thinks Conte leaked BALCO FGJ materials.”
The moment the FBI agents left, Ellerman called McCormack. “I need to talk to you,” he said. “I need you to come over here right now.”
“I can’t. I’ve got things to do,” McCormack said, resisting.
“I need you to get over here,” Ellerman repeated, his voice strained.
“Dude, I don’t work for you anymore,” McCormack reminded him. Then he relented. “Okay, give me a few minutes.”
Merrill called McCormack. “He’s gonna call you.”
“He just did.”
They agreed he’d again wear a wire.
When McCormack arrived, Ellerman’s demeanor had changed. He was scared. He turned on the TV and turned up the volume. He told McCormack the FBI had just been back.
“Where’s this thing going to end?” McCormack asked.
Ellerman argued again that the reporters would never talk and neither of them had anything to worry about if they kept their mouths shut. But now he sounded like he was trying to convince himself. McCormack was amazed that it still hadn’t dawned on him that it was too late–that McCormack had already talked.
“Troy, you’ve got to clear this up,” McCormack said. “Why don’t you just come forward?”
“I can’t,” Ellerman said. “I’ve looked at the sentencing guidelines and there’s no way I can work this out. I’ll go to prison. If I have to go to prison, I’ll kill myself.”
Much of this recording was obscured by the sound of the television in the background. Still, the FBI managed to capture key passages and put excerpts from both recorded sessions on a CD.
The FBI asked McCormack to try making a third recording, but this time he balked. Merrill had been transferred to New Delhi, replaced by a less experienced agent McCormack considered a “clown.” He was also evidently having second thoughts about his extensive cooperation, and how it might look in the close-knit rodeo community. He’d started working with a nonprofit organization based in Phoenix, Cowboys for Kids, which introduces disadvantaged children to rodeo activities. The new agent suggested McCormack call Ellerman and say the FBI was coming to interview him. What should he say?
McCormack drew the line. To him, this was an effort to entrap Ellerman in yet another crime: inducing McCormack to make a false statement. “Look,” McCormack told the agent. “What he did, he did. But I’m not going to get him into more trouble. I told you he did it, now you prove it.”
“Are you saying you feel sorry for this guy?” the agent asked.
“You goddamn well better believe I do,” McCormack said indignantly. “He’s my best friend.”
At this juncture Raphael asked for a closed hearing with Judge White. Over their protests, the
Chronicle’
s lawyers were excluded. Raphael disclosed the break in the leak case as well as some excerpts from McCormack’s undercover tapes of Ellerman. Judge White seemed annoyed about not being informed earlier, but Raphael assured him that had the reporters been in jail, he would have told him immediately. The judge agreed they should continue the investigation.
E
ven as grand jury testimony to the contrary mounted, Trevor Graham continued to insist that he was a whistle-blower about steroid use in track and field, not a perpetrator. But by now, an astounding twenty-five of Graham’s athletes had tested positive for steroids–a highly incriminating pattern. Many of them had come forward to testify that Graham gave them performance-enhancing drugs and introduced them to Heredia, including Antonio Pettigrew, an Olympic medalist who was also godfather to Graham’s daughter. Pettigrew had initially lied to agents, and then recanted when warned he was risking a prosecution for false statements. Once he was granted immunity, Pettigrew said Graham had called him and said, “You don’t have to say anything, just be quiet.”
Even though Graham had sworn that he hadn’t spoken to Heredia since 1997, Novitzky had collected phone records that showed more than a hundred phone calls between the two from 1998 to 2001 alone. And while Graham had insisted he’d never met Heredia, prosecutors had Heredia’s photograph showing the two together, as well as testimony from the two athletes who’d accompanied Graham to Texas for the face-to-face meeting with Heredia.
On November 2, the grand jury investigating BALCO in San Francisco indicted Graham on three counts of making false statements to Novitzky when he said that he “never set up any of his athletes with drugs obtained from Source A,” when he said he had “never met Source A in person,” and when he said he had “last contacted Source A via a phone call in approximately 1997.” Source A, of course, was Angel “Memo” Heredia.
T
he Wrangler National Finals Rodeo, rodeo’s biggest annual event, started the first week in December in Las Vegas. The FBI told McCormack that they were going to confront Ellerman, but he begged them to hold off. He argued that arresting Ellerman then could disrupt the entire event and affect the livelihood of hundreds of participants. The FBI agreed. McCormack and his wife attended, and despite their recent problems, McCormack felt Ellerman treated them like royalty, giving them VIP seats in the front row and inviting them to dinner with him and the show’s chairman. It was as though nothing had come between them, but “it was all smoke and mirrors,” McCormack says.
Four days later, on December 13, FBI agents pulled up at Ellerman’s house in Colorado Springs in the early morning. After he came to the door, they played the CD containing excerpts from the tapes and told him McCormack would testify against him. They added that McCormack didn’t want him to call. “Tell him not to call me, either,” Ellerman said. He said he wanted to speak to a lawyer, and the agents left.
Ellerman hired Scott Tedmon, a lawyer he knew in Sacramento, but as a criminal defense lawyer himself, he knew the game was over. Tedmon entered into plea negotiations on Ellerman’s behalf, and Ellerman admitted he had leaked the grand jury transcripts and then lied repeatedly about it. He resigned his post with the rodeo association and withdrew from the California bar. He gave the government almost everything it wanted, which was a guilty plea to four felonies: two counts of contempt of court, one of obstruction of justice, and one of filing a false declaration under penalty of perjury. In return, the government agreed not to seek a prison term greater than twenty-four months.
As Raphael subsequently told the court:
The entire judicial system relies on the integrity of its proceedings and the lawyers’ duty of candor with the court. Defendant repeatedly violated this duty in order to avoid having his own criminal behavior exposed. To make matters worse, defendant then sought to capitalize on his criminal conduct by filing a motion to dismiss an indictment returned against his client, which he knew was frivolous and, if granted, could result in his client, who later pled guilty, going unpunished. For an experienced criminal attorney, who has been practicing for a decade, to engage in such deceitful and self-motivated criminal behavior in the course of a high-profile federal prosecution is shocking. Indeed, there are few, if any, other examples of an attorney committing such blatant crimes in the course of litigating a case.
The BALCO prosecutors in San Francisco also submitted a blistering memo:
Mr. Ellerman attempted to use his own illegal dissemination of the grand jury transcripts to destroy the government’s prosecution of this case [BALCO] and . . . to destroy the professional and personal reputations of the law enforcement professionals involved in the investigation. . . . Mr. Ellerman’s obvious indifference to the impact his false accusations might have on the reputations and lives of others is one of the more unsettling and disturbing aspects of this conduct.
Of course, the greatest potential impact was on the
Chronicle
reporters, who were preparing to go to jail to protect Ellerman’s identity. Fainaru-Wada tried to explain to his children that he might be going to prison in order to protect someone, and that not everyone who goes to prison is a bad person. As Raphael noted, Ellerman “used the media’s belief that it has a ‘reporter’s privilege’ against a grand jury subpoena to cover up his crimes, and he was willing to have reporters go to prison for him.”
The reporters got the news that Ellerman had confessed to being their source when an AP reporter called them for comment on Valentine’s Day. They declined to comment on any relationship with Ellerman. They were relieved, but experienced a range of emotions. It wasn’t the vindication in a precedentsetting court of appeals ruling they’d hoped for.