About eight pages of a 51-page government brief filed in federal court in San Francisco on Wednesday were electronically blacked out to protect what prosecutors said was sensitive material concerning a grand jury's investigation into steroid use in baseball.
But the secret passages can be viewed by simply pasting the document into a word processing program. The passages open a window onto a particularly aggressive government leak investigation, one that seeks to force two San Francisco Chronicle reporters to reveal the identity of their confidential sources. The passages also help explain why prosecutors are pursuing the matter so vigorously.
The glitch was first reported in The New York Sun.
The Chronicle reporters, Mark Fainaru-Wada and Lance Williams, received subpoenas in May seeking their sources for articles that quoted verbatim from grand jury testimony. The filing Wednesday was the government's response to the reporters' motion to quash the subpoenas.
Phil Bronstein, the editor of the Chronicle, said the government might have taken more care to protect the blacked-out passages in light of the nature of its investigation. "It's a little surprising and ironic in this case in particular," Bronstein said, "that this information which the government filed is somehow available to the public."
Eve Burton, vice president and general counsel of Hearst Corp., which owns the Chronicle, said prosecutors might be guilty of the very thing that they were investigating. "It is our hope," she said, "that the government did not leak the document."
Mistakes in handling sensitive material electronically are relatively common. The government made a similar mistake once before in the steroids investigation.
In February 2004, prosecutors in San Francisco sent documents to news organizations revealing that Gary Sheffield, a Yankees outfielder, had sent mail to the supplements laboratory at the center of the investigation: the Bay Area Laboratory Co-Operative, or BALCO. In paper copies of the filings, Sheffield's name had been blacked out.
The latest leak investigation is being handled by federal prosecutors in Los Angeles because government employees in San Francisco are among the relatively limited number of people who had access to the grand jury transcripts.
Thom Mrozek, a spokesman for the U.S. attorney in Los Angeles, declined to comment on the substance of the mistakenly released passages.
"The electronic filing by the Department of Justice - which appropriately redacted certain material - was not as secure as it should have been," Mrozek said in a statement."It is an unfortunate error, one that we regret."
The blacked-out passages mostly summarize and quote from e-mail messages between Fainaru-Wada and one of his sources, and they suggest that the government views the conduct of both with disdain. The source, Victor Conte Jr., was the president of BALCO, which distributed performance-enhancing drugs to athletes.
After Conte's indictment on charges of distributing steroids in February 2004 but before he pleaded guilty and was sentenced to four months in prison last year, Conte, other defendants in the case and their lawyers were provided with grand jury transcripts so they could prepare their defenses. Judge Susan Illston of U.S. District Court in San Francisco issued a protective order that forbade them from disseminating the transcripts. The defendants and their lawyers all signed the order.
The e-mail messages between Fainaru-Wada and Conte indicate that the government believes that Conte nevertheless provided the transcripts to the Chronicle. Fainaru-Wada, the filing says, "repeatedly discussed with Conte secret grand jury information and e-mailed Conte in an effort to gain access to the grand jury transcripts." The e-mail messages were obtained by the government in January 2005 when FBI agents searched Conte's home.
In an e-mail message June 18, 2004, Conte wrote, according to the filing: "I would say at this point the only way the athletes' grand jury testimonies will come out is at trial. Unless I give you a copy of the indexed CD-ROM that contains all 30,000 pages of evidence. How would you like that? Just kidding."
Fainaru-Wada pursued the matter in a series of e-mail messages over the next several days.
"I'm still waiting for that CD-ROM," he wrote June 20, adding that he was "somewhat reticent to be terribly overt on the e-mail front." The next day, Fainaru-Wada suggested communicating by "pay phone or cell or even meeting."
On June 24, the Chronicle published an article quoting at length from the grand jury testimony of Tim Montgomery, a former Olympic sprinter.
After the article was published, the reporter and his source discussed the legality of the disclosure and whether their earlier e-mail messages had included incriminating information.
Burton, the Hearst lawyer, declined to address the e-mail correspondence. "We don't comment in any regard on our news-gathering processes," she said.
For his part, Conte has signed a sworn statement denying that he was the source and has allowed his lawyers to file papers seeking to dismiss the indictment based on supposed government misconduct. That motion, the Wednesday filing says, might have been "a fraud on the court."
In a statement yesterday, a lawyer for Conte, Mary McNamara, said her client "did not leak grand jury transcripts."
"It is unclear why the government's submission discusses e-mails that plainly prove no breach of the law by Conte," McNamara continued. "The government admits that the leaker could be anyone, government personnel included."