U.S.A v. Thomas

• Decision Date: 22 July 2010
• Docket Number: No. 08-10450.,08-10450.
• Citation: 612 F.3d 1107
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Tammy A. THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

612 F.3d 1107

UNITED STATES of America, Plaintiff-Appellee,v.Tammy A. THOMAS, Defendant-Appellant.

No. 08-10450.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 2009.

Filed July 22, 2010.

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Ethan A. Balogh, Coleman & Balogh LLP, San Francisco, CA, for the defendant-appellant.

Laurie Kloster Gray, Assistant U.S. Attorney, San Francisco, CA, for the plaintiff-appellee.

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.

Before A. WALLACE TASHIMA, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

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.¹

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 norbolethone. 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. ² 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...