Ellerman cites Libby in plea for sentence leniency

SAN FRANCISCO -- An attorney who admitted leaking the confidential grand jury testimony of slugger Barry Bonds to the media asked a federal judge for leniency Tuesday, noting that President Bush commuted I. Lewis "Scooter" Libby's prison sentence for a similar crime.

In doing so, Troy Ellerman joins a growing a list of defendants across the country who have made the same arguments for leniency since Bush said the former vice presidential aide's 2-year sentence for leaking the name of a CIA operative was too harsh and commuted it to probation and a fine.

Ellerman's invocation of Libby's case Tuesday was part of a much larger court filing arguing for a prison sentence of 15 months, rather than the two years federal prosecutors are seeking.

Last month, U.S. District Court judge Jeffrey White said that even two years in prison was too light of sentence, and he refused to accept Ellerman's plea deal. White said Ellerman's conduct was especially egregious because he was a lawyer and lied to judges and in court filings when discussing the leaked grand jury transcripts.

Ellerman, 44, pleaded guilty to allowing a newspaper reporter to view confidential transcripts of grand jury testimony from Bonds, Jason Giambi, Gary Sheffield and other athletes embroiled in the government's steroids investigation. He initially blamed federal investigators for leaking the testimony.

Ellerman was a successful Sacramento attorney when Victor Conte, founder of the Bay Area Laboratory Co-Operative, hired him following the raid of the Burlingame nutritional supplements lab, as part of the government probe.

A friend and former private investigator in Ellerman's law office turned him in to authorities after they had a falling out over employment at the Professional Rodeo Cowboys Association, where Ellerman served briefly as commissioner before he was indicted.

He pleaded guilty to four felony counts of obstruction of justice and related charges in February.

Ellerman's lawyer, Scott Tedmon, urged the judge to consider Libby's commutation when he sentences Ellerman on Thursday.

"As with Mr. Libby, Troy Ellerman is a first-time offender with years of exceptional work as an attorney in both the public and private sectors," Tedmon argued in the court filing, which also noted that Ellerman pleaded guilty while Libby demanded a jury trial. "Mr. Ellerman, unlike Lewis Libby, has done everything in his power to promote the judicial process in expediting this case to a prompt resolution."

Tedmon noted that the Libby and Ellerman were both convicted of leaking confidential information to reporters and then lying to investigators.

But he said there was one dramatic difference between their cases: "Mr. Libby's conduct involved matters of national security, while Mr. Ellerman's conduct has no nexus to national security."

Tedmon said in an interview Tuesday that both men have suffered embarrassment and lost professions because of their crimes and that both should be treated similarly by the judicial system.

"Ellerman and Libby are both former lawyers," Tedmon said. "Both leaked information they shouldn't have."

Lawyers and law professors have taken to calling the argument for leniency based on the president's commutation a "Libby motion."

Ellen Podgor, who teaches criminal law at Stetson University in St. Petersburg, Fla., said she's been asked to review several Libby motions and has heard of other arguments being made around the country.

"There is a legitimate reason to make this motion," Podgor said.

Still, Podgor said she's doubtful that many of those motions will be successful in winning lighter sentences.

"There is going to be a judge or two out there that may use it," she said.

Assistant U.S. Attorney Douglas Miller, who led the Ellerman prosecution, declined comment. In court papers filed Tuesday, Miller urged the judge to sentence Ellerman to two years in prison.