Federal authorities have begun a criminal investigation into who leaked confidential FBI documents in the probe of private eye Anthony Pellicano in violation of a judge's protective order.
The investigation will be conducted by the U.S. attorney's office in San Diego, according to sources close to the case, because prosecutors and FBI agents in Los Angeles are among those who have access to the compromised information.
Attorneys representing Pellicano and six others under indictment in the wiretapping scandal also have been given FBI investigative reports known as "302s" and other documents in the case. Under a protective order issued by U.S. District Judge Dale S. Fischer almost four weeks ago, they can share the information only with their clients and potential witnesses.
The confidential information was first disclosed two weeks ago, when the New York Times published the first of several stories citing FBI reports of interviews in the investigation, which has spanned more than three years.
The reports were on computer discs turned over to defense attorneys April 5, two days after Fischer ordered that the information not be disclosed, expressing concern that leaks could expose confidential informants and impede the ongoing probe.
Federal authorities are conducting two other leak investigations in California to determine who divulged confidential information in a recently completed terrorist prosecution in Lodi and a grand jury investigation in San Francisco into the use of steroids by professional athletes.
Those who are found to have leaked documents or other evidence in violation of a protective order could be found in contempt of court and fined, imprisoned or both. Newspapers and other media outlets, however, are not prohibited from publishing the information.
While several defense attorneys have privately denounced the leaks as a ploy to sully individuals not yet charged and divert attention from those already indicted, prosecutors are clearly concerned that the leaks could jeopardize the confidential nature of their investigation.
"They won't walk away from it," said one federal law enforcement source who is not involved in the case. "Part of the reason grand jury proceedings are secret is that you don't want to publicly identify people who might never be charged in a case. And you defeat all of that if you leak information" despite a court order.
Just days after the New York Times first published the leaked information, prosecutors Daniel Saunders and Kevin Lally notified Fischer that her protective order had been violated. The article, they noted, included "verbatim quotes from numerous FBI interview reports that the government produced." With a status conference in the case scheduled for Monday, the leaks are a likely topic of discussion with the judge.
On Thursday, Terry W. Bird, one of the attorneys for divorce lawyer Dennis M. Wasser, said he had asked prosecutors to have the U.S. Justice Department's Office of Professional Responsibility investigate the leak of the FBI interview summaries.
"We are outraged," Bird said, speaking on behalf of himself and his partner Vincent J. Marella, who also is representing Wasser. "This was a calculated effort to leak information in an abusive way."
Bird said neither he nor his client had seen any of the documents.
In late February, Bird and Marella acknowledged that authorities had notified them that Wasser, who has used Pellicano in several cases, was a "person of interest" in the case.
In the parlance of federal investigations, a "person of interest" or "subject" falls within a broad category of individuals who are associated with the events in question and who may or may not face prosecution. In contrast, a "target" is a person at whom the investigation is aimed and who is likely to be charged.
Bird said this week that he and Marella expect that Wasser will not be charged. "We have no reason to believe that Dennis was involved in anything illegal," Bird said.
Wasser and attorney Stephen A. Kolodny were on opposite sides of a rancorous child custody case in 2002, with Wasser representing billionaire Kirk Kerkorian and Kolodny representing his former wife, Lisa Bonder Kerkorian.
Another attorney representing Kerkorian in the matter, Terry N. Christensen, has been indicted for allegedly paying Pellicano $100,000 to wiretap Bonder Kerkorian, a charge Christensen denies.
According to the indictment, an unnamed attorney -- subsequently identified by sources as Wasser -- called Pellicano in March 2002 and told him to contact Christensen about "going after" Kolodny, who had reported Christensen to the state bar for improperly contacting his client. But Wasser's attorneys deny that he did anything wrong.