As Game of Shadows’ authors Lance Williams and Mark Fainaru-Wada await their appeal, and ultimately a decision on whether or not they go to jail, the government continues its investigation into who leaked BALCO transcripts and court documents to the San Francisco Chronicle. Meanwhile, Barry Bonds’ lawyer, Michael Rains, is trying to leverage the government into abandoning its perjury investigation of Bonds. Rains claims to have his own evidence as to who leaked the BALCO grand jury testimony and court documents. Rains says the leak is inside the federal government, and has threatened to go public with his information if the government indicts Bonds. Rains wouldn’t say who he believed the source was, but it is widely speculated to be IRS Agent Jeff Novtzky.
During a routine filing on June 22, 2006, the Justice Department, using Adobe’s web-standard PDF format to publish court documents, failed to properly black out sections the public was not supposed to see. The computer-generated filing system used a flawed method of redacting the evidentiary portions. As a result, the redacted portions could be easily read by copying them into a word processing program.
The document contains the government’s evidence and reasoning as to why Williams and Fainaru-Wada should not be exempt from divulging their source of the BALCO court documents to the grand jury. The main component of this evidence is an incriminating e-mail correspondence between Conte and Fainaru-Wada before and after the leak.
Below is all parts of the correspondence disclosed in the document, some transcribed by Williams and Fainaru-Wada in Chronicle articles. The reporters repeatedly discussed secret grand jury information with Conte even e-mailing Conte in an attempt to gain access to the grand jury transcripts. Williams and Fainaru-Wada are therein known as ‘Movants.’
Conte to Fainaru-Wada, On or About October 18, 2003
Conte informed Movants that Barry Bonds had been subpoenaed to testify before the BALCO grand jury.
Conte to Fainaru-Wada, On or About March 9, 2004
Fainaru-Wada informed Conte that Fainaru-Wada wanted to continue a dialogue with Conte, off the record, about events in the BALCO case.
Conte to Fainaru-Wada, March 23, 2004
Conte sent an e-mail to Fainaru-Wada claiming that the government investigators “lie and fabricate” and “even lie under oath before a grand jury.. Wait until some of the actual evidence starts to come out. Many of the investigators lies will be revealed big time. Remember, we are off the record. Victor.”
Conte to Fainaru-Wada, April 6, 2004
Conte sent an e-mail to Fainaru-Wada discussing the grand jury testimony of Dr. Don Catlin, director of the UCLA Olympic Analytical Laboratory. Conte told Fainaru-Wada that Catlin’s grand jury testimony differed from what Catlin had told the Chronicle (as reported by Fainaru-Wada). Conte commented that, “at some point, there may even be a direct comparison published of what he told the Chronicle and what he told the grand jury about THG [a performance-enhancing drug]”
Fainaru-Wada to Conte, April 6, 2004
Fainaru-Wada responded in an e-mail to Conte that “I’m sure it would be quite interesting to read Dr. Catlin’s testimony and put them in the context of the public comments that he has made on the subject.”
Conte to Fainaru-Wada, June 3, 2004
Conte sent an e-mail to Fainaru-Wada suggesting that the “BALCO story is going to get bigger and bigger for the next several weeks.”
Fainaru-Wada to Conte, June 8, 2004
Fainaru-Wada sent Conte an e-mail about “the big fish” [referring to track coach Trevor Graham] and inquiring if Conte had anything to “offer up on that front – naturally with no sense it came from you.”
Fainaru-Wada to Conte, June 9, 2004
The next day, Fainaru-Wada commented in an e-mail to Conte that “it seems the question of what athletes told the grand jury is getting mentioned a bit more. What have you heard today?”
Conte to Fainaru-Wada, June 10, 2004
In Conte’s response the next day, Conte informed Fainaru-Wada about the interview of C.J. Hunter, an Olympic shot putter and former husband of track star Marion Jones. Conte indicated that Hunter “gave up EVERYTHING” and that Marion Jones’ “grand jury testimony has come back to bite her butt big time.”
Fainaru-Wada to Conte, June 11, 2004
Fainaru-Wada sent Conte an e-mail suggesting that “the biggest news revolves around Bonds/baseball.” Conte confirmed that “[o]ff the record. I agree that there is a very, very big story still on the horizon for Barry.”
Conte to Fainaru-Wada, June 14, 2004
Conte sent an e-mail to Fainaru-Wada disclosing that Marion Jones and Barry Bonds “are the only ones that did not admit to any wrong doing” before the grand jury.
Fainaru-Wada to Conte, June 14, 2004
In response, Fainaru-Wada questioned Conte as to whether professional baseball player Jason Giambi admitted to taking steroids in his testimony before the grand jury, and Conte confirmed that Giambi did so. Conte commented that Fainaru-Wada should put him (Conte) “on your payroll.”
Fainaru-Wada to Conte, June 15, 2004
Fainaru-Wada sent an e-mail to Conte indicating that he (Fainaru-Wada) wanted to do a substantial story on Conte and wanted to look at the information and documents in Conte’s possession.
Fainaru-Wada to Conte, June 15-17, 2004
Fainaru-Wada informed Conte that he “would love to hear all that you know AND HAVE SEEN.”
Fainaru-Wada to Conte, June 15-17, 2004
In response, Conte confirmed that “the athletes, besides Marion and Barry, have already ‘snitched’ on themselves during their grand jury testimony.”
On June 18, 2004, Cristina Arguedes, the lawyer for 100-meter world record holder Tim Montgomery, issued a press release that was reported on by the media. The press release discussed the BALCO case, and Montgomery’s relationship to Conte, and asserted that Montgomery “did not do anything wrong” and that Conte had a motive to lie.
Fainaru-Wada to Conte, June 18, 2004
That same day, Fainaru-Wade sent an e-mail to Conte attaching the Montgomery press release and noting that most people did not really know the whole story “because so much remains under seal.”
Fainaru-Wada to Conte, June 18, 2004
Later that day, Fainaru-Wada sent another e-mail to Conte asking for Conte’s thoughts regarding the press release, and noting that it will “be interesting to see if and when that comes back to bite
them.”
Conte to Fainaru-Wada, June 18, 2004
Conte responded that “Tim is dumb for trashing me like that. If his attorney does not know the scoop about his grand jury testimony, then she is not as smart as I have been told that she is by Robert Holley [Conte’s counsel]. Why set him up for a total fall when the truth comes out? And you can bet your last dollar that it will.”
Conte to Fainaru-Wada, June 18, 2004
Fainaru-Wada replied, “as to the truth coming out, you talking about during an expected trial? Or something else?”
Conte to Fainaru-Wada, June 18, 2004
Conte responded to Fainaru-Wada’s inquiry concerning “the truth coming out,” in an e-mail “off the record.” Conte stated “I would say at this point the only way the athletes grand jury testimonies will come out is at trial. 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 to Conte, June 18, 2004
Fainaru-Wada immediately responded, stating “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.”
Fainaru-Wada to Conte, June 20, 2004
Fainaru-Wada sent an e-mail to Conte inquiring about documents in Conte’s possession. Fainaru-Wada wrote: “So I checked my mail yesterday and I’m still waiting for that CD-Rom. Figured you were gonna Fed-ex it to me. Perhaps it will arrive tomorrow. Or the next day. Or the next. Or the next . . . OK, won’t hold my breath. . . . Frankly, I’m somewhat reticent to be terribly overt on the e-mail front. I know I said the other day half-jokingly that I’ve become a bit paranoid re: e-mails, but I actually am wary. . . . Anyway, all that is a preface to see if there’s a chance we can actually have a conversation on the phone at some point in the near future. Just a thought.”
Conte to Fainaru-Wada, June 20, 2004
In response, Conte commented that he shared Fainaru-Wada’s concerns about e-mail but believed the phone was just as bad as the “feds” may have tapped his phone.
Fainaru-Wada to Conte, June 21, 2004
Three days before the Chronicle, in a story by Movants, published substantial portions of Montgomery’s grand jury transcript — Fainaru-Wada made another attempt to obtain documents in Conte’s possession. Fainaru-Wada wrote: “Well, maybe there’s another way of some sort to communicate; either pay phone or cell or even meeting that would provide more comfort. Frankly, I wanted to make a pitch about seeing some stuff and talking about a few things.. As to our email exchanges, well, the only way they end up in our paper is if/when you give me the green light. As with the CD-Rom, waiting, waiting, waiting ..”
Fainaru-Wada to Conte, June 23, 2004
Fainaru-Wada sent an e-mail to Conte indicating that he (Fainaru-Wada) was busy working on some stories that may be “up on the web soon. Hope you like them.”
Conte to Fainaru-Wada, June 23, 2004
Conte responded that he was looking forward to seeing the article and that his lawyer would be available for comment.
On June 24, 2004, in two articles written by Movants, the Chronicle published detailed and verbatim portions of the November 2003 grand jury transcript of Tim Montgomery
Conte to Fainaru-Wada, June 24, 2004
immediately after the Movants published their first article containing Montgomery’s grand jury information, Conte sent an e-mail to Fainaru-Wada which he titled “The End,” in which Conte purported to be extremely upset about the
article and commented that it was “sad that I can no longer communicate with you.”
Conte to Fainaru-Wada, June 24, 2004
Conte sent another e-mail to Fainaru-Wada in which he commented that “maybe you have done me a big favor” because Conte’s lawyer would be filing a motion to dismiss the indictment based on the government leaking the information. Conte noted that “[t]his information is supposed to be kept secret. Testimony is supposed to be sealed under protective order.”
Conte to Fainaru-Wada, June 24, 2004
Conte asked Fainaru-Wada if the Chronicle’s legal department had concerns about running the stories containing grand jury testimony of Montgomery. Conte commented that it was analogous to selling stolen property, and that other newspapers and Montgomery’s lawyer had suggested it was illegal. Conte said he was “curious if the legal department considered it to be no problem” and that “the only people who had access and would be motivated to have it published would seem to be the feds.”
Fainaru-Wada to Conte, June 24, 2004
Fainaru-Wada responded to Conte’s e-mail stating, “unfortunately, this is not something I can discuss in any way, than to say I believe we’re fine.”
Conte to Fainaru-Wada, June 25, 2004
After the hearing at which the Court requested that the government investigate the source of the leak, Conte and Fainaru-Wada communicated about their concerns about what the government might find.
Conte to Fainaru-Wada, July 1, 2004
Conte informed Fainaru-Wada that Conte believed the government has been monitoring his e-mails.
Fainaru-Wada to Conte, July 1, 2004
In response, Fainaru-Wada sent an e-mail to Conte stating that he (Fainaru-Wada) will: “go back and look at some of the exchanges to see what it is they’re [the government] likely to offer up on the 16 [the date of the Court ordered hearing on the leak]. I’m guessing any previous references you may have made to me — or others — regarding grand testimony, admissions of athletes, etc., would be the kind of thing they will trot out and the kinds of thing they would try to say implicates you.. I’m gonna look back at those exchanges out of curiosity.”
Conte to Fainaru-Wada, July 1, 2004
That same day, Conte responded “let me know if you find anything. Probably just kidding around stuff, but they may try to make it into something.”
Fainaru-Wada to Conte, July 2, 2004
Fainara-Wada sent an e-mail to Conte stating that he would review their prior e-mail correspondence. Fainaru-Wada stated, “If I find something, how should I let you know, given your concerns about being watched.”
