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Bob Egelko, Chronicle Staff Writer Friday, July 13, 2007 A lawyer who admitted leaking grand jury transcripts about athletes' steroid use to The Chronicle was sentenced to 21/2 years in prison Thursday by a federal judge who upbraided President Bush for commuting the sentence of Lewis "Scooter'' Libby, the former vice presidential aide who faced an identical prison term on nearly identical charges. "Under the president's reasoning, any white-collar defendant should receive no jail time, regardless of the reprehensibility of the crime," US District Judge Jeffrey White, a Bush appointee, said before sentencing attorney Troy Ellerman to prison. Ellerman's lawyer, in seeking a lesser sentence, had cited Bush's July 2 decision to commute the prison sentence for Libby, Vice President Dick Cheney's former chief of staff. Libby was convicted of lying to federal agents and a grand jury investigating the leak of a CIA operative's identity. In rejecting the defense request, White noted that Bush and Attorney General Alberto Gonzales have criticized federal judges who sentence defendants to lesser terms than the minimum provided by federal guidelines. "Libby's sentence was within those guidelines, yet the administration said it was too harsh," said White, who spent eight years as a federal prosecutor and 24 years as a business lawyer in San Francisco before Bush named him to the bench in 2002. White said Ellerman's sentence was also within the federal guidelines, which are based on the seriousness of the crime and the defendant's record. He did not impose a fine, saying it would be a hardship for Ellerman's family, but ordered the attorney to give talks at 10 California law schools about "the importance of being a fair and honest advocate" in the three-year period after his release. With good behavior in prison, Ellerman could be released in a little over two years. Ellerman admitted in February that he had allowed Chronicle reporter Mark Fainaru-Wada to see transcripts of the closed-door testimony of Giants outfielder Barry Bonds and other athletes before a grand jury investigating the Bay Area Laboratory Co-Operative's distribution of illegal performance-enhancing drugs. He also admitted falsely blaming the federal government for the leak in an unsuccessful motion to dismiss charges against his clients, BALCO founder Victor Conte and Vice President James Valente. Ellerman's guilty plea to four felony charges spared Fainaru-Wada and fellow Chronicle reporter Lance Williams from prison terms of up to 18 months for refusing to identify the source of grand jury material they quoted in a series of articles about the BALCO case in 2004. The reporters and the newspaper have refused to confirm that Ellerman was their source, saying they remain bound by promises of confidentiality. Five defendants, including Ellerman's former clients, pleaded guilty to drug distribution charges. Another grand jury is investigating whether Bonds committed perjury by denying that he ever knowingly used steroids. White questioned federal prosecutors about leaks in the BALCO case Thursday, saying he had received a letter from Bonds' lawyer, Michael Rains, asserting that Ellerman was not the only source of illicit disclosures and that the investigation should continue. Assistant US Attorney Michael Raphael replied that there may have been other BALCO leaks but that the government had no evidence that anyone else had furnished grand jury transcripts to the reporters and was ending its investigation. Prosecutors initially agreed with Ellerman on a sentence of up to two years in prison, but White rejected the plea agreement last month, saying it was too lenient. The two sides reached a new agreement last week for a sentence of up to two years and nine months. In court papers this week, Ellerman's lawyer, Scott Tedmon, urged White to follow Bush's rationale in Libby's case and impose a 15-month sentence. Bush said the former Cheney aide was already being punished by a $250,000 fine, the loss of his law license, the harm to his reputation and the suffering of his family. Tedmon said Ellerman's circumstances were virtually the same as Libby's, with two major differences: Ellerman pleaded guilty rather than going to trial, and he leaked material about sports, not national security. But White said Bush's actions were legally irrelevant to Ellerman's case, because the Constitution gives the president unlimited power to commute sentences, while judges are bound by the law and are required to consider the sentencing guidelines. He also said Ellerman deserved no special consideration for admitting wrongdoing, because "he did so only after he was caught" by a former employee who turned him in. The judge said Ellerman should be punished severely as a lawyer who lied to the court. "If you can't believe what the lawyers say, you have no basis for finding the truth, no basis to follow the law, and the system breaks down," White said. Ellerman was apologetic before his sentencing but denied that he had leaked the transcripts to get his clients off the hook. The motion to dismiss the charges was suggested by a fellow defense lawyer, Ellerman told White, and "I didn't have the courage to come forward and stop the lying" by admitting he was the source. Chronicle staff writer Susan Sward contributed to this report.
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