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United States v. Thomas

July 22, 2010

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE,
v.
TAMMY A. THOMAS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding. D.C. No. 3:06-cr-00803-SI.

The opinion of the court was delivered by: Bybee, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted December 7, 2009-San Francisco, California

Before: A. Wallace Tashima, Susan P. Graber, and Jay S. Bybee, Circuit Judges.

OPINION

Defendant-Appellant Tammy Thomas, a former professional cyclist, challenges her convictions, after a jury trial, of three counts of perjury under 18 U.S.C. § 1623(a) and one count of obstruction of justice under 18 U.S.C. § 1503. We affirm.

I.

Thomas was prosecuted for statements she made at a November 6, 2003, appearance before a Northern District of California grand jury that was investigating the distribution of anabolic steroids to professional athletes and money laundering by persons affiliated with Burlingame, California-based BALCO Laboratories. The investigation into BALCO began in the summer of 2002, when the IRS Criminal Investigation Division began looking into allegations that BALCO and its principal, Victor Conte, were distributing illegal performance-enhancing drugs and were laundering profits from those sales. During the first part of the investigation, the IRS obtained and analyzed financial records. Later, investigators, including IRS Special Agent Jeff Novitzky, seized items such as needle wrappers and used syringes from BALCO's trash. These were later found to contain steroids.

In the spring of 2003, investigators uncovered an email exchange between Conte and a track-and-field coach in Greece referencing an individual named Patrick Arnold as "the clear man." In August 2003, the United States Anti-Doping Agency (USADA) sent a fluid-filled syringe to Dr. Don Catlin, the director of a UCLA laboratory that tested urine specimens obtained by USADA. The syringe, which had been sent to USADA by a track coach, was found to contain tetrahydrogestrinone (THG), a previously unidentified substance. USADA documented five athletes who had tested positive for THG and prepared to publicize these positive tests. At the behest of Dr. Catlin, USADA contacted Novitzky, and criminal investigators obtained search warrants ahead of public disclosure of these positive tests.

In September 2003, law enforcement officers executed search warrants at several locations, including BALCO and Conte's home. At the time the warrants were served, both Conte and James Valente, BALCO's vice president, voluntarily answered investigators' questions, telling agents that BALCO distributed two substances: "the clear," a substance with anabolic properties, so named because it had been undetectable by anti-doping testers, and "the cream," a testosterone-based substance. Conte and Valente independently told investigators that "the clear" came from Patrick Arnold. After the search, both Conte and Valente obtained counsel and refused to cooperate further.

The BALCO searches yielded documentary evidence indicating the distribution of illegal performance-enhancing drugs, including doping calendars, steroid tests, invoices with athletes' names, and other documents suggesting a relationship among BALCO, Conte, and numerous athletes in a variety of sports. Among the documents seized in the BALCO search was a May 1, 2002 fax from Arnold's business to BALCO. This fax included a document from the United States Olympic Committee Athletic Center referencing a urine sample collected from Tammy Thomas on March 14, 2002, which had tested positive for norbolethone, an anabolic steroid.*fn1

The BALCO search also turned up numerous emails, including the following message sent from Arnold to Conte on May 1, 2002:

I know the girl who they just snagged for norbolet-hone. It is not the same girl I was helping in the Olympics, but a cyclist girl. I saw her tests and everything. She is trying to fight it, and I am advising her technically on how to do it. Needless to say, if you know anyone taking the stuff who is taking subject to testing, then tell them to stop.

The May 1, 2002 email also included an earlier exchange between the two men regarding Dr. Catlin's discovery of norbolethone.

After the BALCO search, approximately thirty athletes, including Tammy Thomas, were subpoenaed to testify before a Northern District of California grand jury that was investigating the illegal distribution of steroids. Most of these athletes had been linked to BALCO in some way. Thomas, on the other hand, appeared to have a direct link to Arnold, the manufacturer of norbolethone and the apparent source for THG, and was subpoenaed because investigators believed she would have material information linking Arnold to Conte.

Thomas appeared before the grand jury on November 6, 2003. By the time of this appearance, Thomas had tested positive for norbolethone in urine samples collected on August 30, 2001, March 14, 2002, and April 10, 2002. The August 2001 and April 2002 urine samples also tested positive for THG. At the grand jury hearing, Thomas testified pursuant to an immunity agreement in which she acknowledged that she understood that her statements at the grand jury could not be used against her in a subsequent criminal proceeding as long as they were truthful, but that she could be subject to criminal or civil liability for answering untruthfully. Thomas was placed under oath and told she was not a subject or target of the grand jury investigation and that she could consult with counsel outside the grand jury room at any point in her testimony if she wished to do so.

In response to questions, Thomas testified that she received the legal supplement 1-AD, but nothing else, from Patrick Arnold. She denied ever getting any other "products" from Arnold, ever "tak[ing] anything that Arnold gave [her]," and "ever tak[ing] anabolic steroids."

In February 2004, the first BALCO grand jury handed down a forty-two count indictment against Conte, Valente, Greg Anderson (a BALCO-linked trainer), and Remi Korchemny (a BALCO-linked track and field coach). Among other things, the indictment alleged a conspiracy to distribute anabolic steroids. In July 2005, all four defendants pleaded guilty. According to the government, the failure to indict Arnold along with Conte, Valente, Anderson, and Korchemny in 2004 was attributable at least in part to Thomas's grand jury testimony, because Thomas's denials before the grand jury led investigating agents to think that they had "lost . . . the opportunity to have the one witness with direct knowledge and direct contact with Patrick Arnold in the early stages of th[eir] investigation."

In August 2005, more than a year after the initial BALCO defendants were indicted, a second grand jury in the Northern District of California began investigating Arnold and his activities related to BALCO. In November 2005, this grand jury handed down a three-count indictment in the Northern District of California against Arnold, charging him with, among other things, conspiring with Conte to distribute norbolethone and THG. On May 1, 2006, Arnold pleaded guilty.

On December 14, 2006, a third Northern District of California grand jury indicted Thomas on six counts relating to Thomas's November 6, 2003 grand jury testimony. Counts one through five of the indictment against Thomas alleged material false declarations in violation of 18 U.S.C. § 1623, while count six of the indictment alleged that Thomas obstructed justice in violation of 18 U.S.C. § 1503 "by knowingly giving Grand Jury testimony that was intentionally evasive, false, and misleading, including but not limited to the false statements made by the defendant as charged in Counts One through Five of this indictment."

Arnold, Novitzky, Catlin, and several other witnesses testified for the government at Thomas's trial. Viewing the evidence in the light most favorable to the jury's verdict, see United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc), the following facts were established at Thomas's trial: Arnold successfully manufactured norbolethone starting in 1998 and sent norbolethone to Conte on five to seven occasions from approximately 2000 to July 2001. Later, Arnold also provided Conte with THG, a "designer steroid" that Arnold created and that was unavailable from any source but Arnold.*fn2 Arnold's goal in developing THG was to create a substance with steroid-like effects that would be undetectable by drug-testing authorities. His efforts were successful, at least for a while-THG was distributed by Conte to numerous elite athletes and nicknamed "the clear" because it was, for a time, undetectable to drug testers. However, while Conte, through BALCO, provided THG to many athletes, Thomas received THG and norbolethone from Arnold directly. Like THG, norbolethone was intended to be undetectable and, according to Arnold, that was why Thomas used it.

Thomas first contacted Arnold in 2000 in an email in which she introduced herself as a competitive cyclist who was interested in any products that might help her performance. Arnold replied that he could help, and the two subsequently talked on the telephone approximately five times. During these conversations, Arnold discussed with Thomas his products, her performance, and his recommendations for using his products. Initially, Arnold provided Thomas with nutritional supplements and his best-selling legal supplement, 1A-D. Based on his discussions with Thomas, it soon became clear to Arnold that Thomas wanted steroids. Arnold's practice was to "never" send THG or norbolethone to anyone "without an inquiry or discussion and an agreement" as to what was being received. Thus, according to Arnold, when he personally sent THG to Thomas at least once, and perhaps two to three more times, in the spring of 2002, "Thomas understood full well that [THG] was undetectable and that was its intention."

In addition to Arnold's personally sending THG to Thomas, Arnold's then-live-in girlfriend Kelcey Dalton sent norbolethone to Thomas several times between 2000 and 2002. Dalton spoke on the phone with Thomas dozens of times during a three-to-four month period, and she "facilitated" shipping drugs to Thomas. When Thomas needed more of something, Dalton relayed that request to Arnold. Dalton never sent either norbolethone or THG without consulting Arnold or without Arnold's knowledge.

During their conversations, Dalton and Thomas compared notes on their strength training. Dalton described Thomas as having a "steroid voice." Based on her conversations with Thomas, Dalton understood that "Tammy wanted to win medals in her sport, sprint cycling. She wanted the norbolethone and the THG in order to gain the athletic edge necessary to win those medals." Dalton and Thomas used the word norbolethone during their conversations, and Dalton testified that Thomas understood that norbolethone was not listed on any of the doping agencies' testing lists and thus would allow her to use steroids without getting caught. Dalton testified: "[A]t no time was . . . Tammy Thomas not aware that she was taking undetectable steroids. These weren't pet names or game names. It was very clear in our conversations between Tammy and I what she was taking."

After Thomas's positive drug test for norbolethone in March 2002, Arnold spoke with Thomas and expressed his disappointment with her because he had previously told her on several occasions to stop taking norbolethone, which was a "hot potato" for testers. To deal with Thomas's situation, Arnold and Thomas "brainstormed" a "cover story"-"a false story to cover up the truth." This scheme was reflected in the text of the email Arnold sent to Conte stating that Arnold "kn[e]w the girl who they just snagged for norbolethone" and that "[s]he is trying to fight it, and I am advising her technically on how to do it."

Shortly after the execution of the BALCO search warrants, Thomas and Arnold again exchanged emails. Thomas used the name "Ann Frank" in corresponding with Arnold and wrote:

I have no idea what this is in reference to, but a federal agent tracked me down today and subpoenaed me to testify in front of a grand jury in San Francisco. This is totally bizarre because I don't really know anyone in San Francisco. . . . This is really weird since I can't think of anyone except maybe V.C. out in San Fran. Have you heard anything else on his case?

Arnold responded, "[i]f you have no connections to the guy in S.F., then it makes no sense why they would subpoena you," to which Thomas replied:

I spoke with feds briefly today. They said they found a record with my name at V.C. and they said they thought V.C. and P.A. were giving steroids to athletes. I was never one of V.C.'s athletes that he helped. I only contacted him after I was notified of my hearing for the ban . . . . He was supposed to clean house after it was all over, but, apparently, did not. . . . It would be helpful if I knew what documents V.C. still had that the feds got their hands on, but I really don't know anything about anything.

At the close of Thomas's perjury trial, both parties submitted proposed jury instructions. Thomas sought an explicit instruction regarding her so-called "literal truth" theory of defense, but the district court refused to give the jury Thomas's proposed literal truth instruction or any separate instruction on "literal truth."

On April 4, 2008, the jury acquitted Thomas on counts two and five of her indictment and convicted Thomas on counts one, three, four, and six. In a special verdict form, the jury indicated that its verdict on count six-the obstruction of justice count-rested on the statements alleged in counts one and three, plus two additional statements appended to the indictment. On October 10, 2008, Thomas was sentenced to five years' probation with six months' monitored home detention, 500 hours of community service, and a mandatory $400 special assessment. Thomas timely appealed.*fn3

II.

[1] Section 1623(a) of Title 18 makes it unlawful to knowingly make a false material declaration under oath before a grand jury. See United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003). Thomas challenges her convictions on counts one, three, and four of the superseding indictment, asserting that her answers were "literally truthful." Thomas's convictions rested on the following answers given under oath before the grand jury:

Q: Did you ever-besides this one instance of getting the 1-AD from Mr. Arnold, did you ever get any other services from Mr. Arnold or products?

A: No, no other products.

(Count one of superseding indictment).

Q: Did you take anything that Patrick Arnold gave you?

A: No.

(Count three of superseding indictment).

Q: Now, let me ask, as you sit here now, and before this grand jury "today, have you ever taken anabolic steroids?

A: No.

(Count four of superseding indictment).

Thomas argues that her statements before the grand jury were in fact "literally true" and that, therefore, no reasonable jury could have convicted Thomas of making material false statements. In the alternative, Thomas argues that the district court erred in refusing to submit her proposed "literal truth" instruction to the jury and that she is entitled to a new trial on this basis. We reject both of Thomas's "literal truth" arguments.

A.

Thomas's contention that she is entitled to a judgment of acquittal because her statements to the grand jury allegedly were "literally true" stems from the Supreme Court's decision in Bronston v. United States, 409 U.S. 352 (1973).*fn4 See United States v. Cowley, 720 F.2d 1037, 1041-42 (9th Cir. 1983) (applying Bronston to a prosecution under 18 U.S.C. § 1623). In Bronston, the Court "consider[ed] a narrow but important question in the application of the federal perjury statute, 18 U.S.C. § 1621: whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." 409 U.S. at 352-53 (footnote omitted). Defendant Samuel Bronston was indicted for perjury based on the following exchange that occurred under oath at a bankruptcy hearing:

Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?

A: No, sir.

Q: Have you ever?

A: The company had an account there for about six months, in Zurich.

Q: Have you any nominees who have bank accounts in Swiss banks?

A: No, sir.

Q: Have you ...


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