FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 08-10450
Plaintiff-Appellee,
v. D.C. No.
3:06-cr-00803-SI
TAMMY A. THOMAS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted
December 7, 2009—San Francisco, California
Filed July 22, 2010
Before: A. Wallace Tashima, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
10475
UNITED STATES v. THOMAS 10481
COUNSEL
Ethan A. Balogh, Coleman & Balogh LLP, San Francisco,
California, for the defendant-appellant.
Laurie Kloster Gray, Assistant U.S. Attorney, San Francisco,
California for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
Defendant-Appellant Tammy Thomas, a former profes-
sional 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 launder-
ing by persons affiliated with Burlingame, California-based
BALCO Laboratories. The investigation into BALCO began
10482 UNITED STATES v. THOMAS
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 sub-
stance. USADA documented five athletes who had tested pos-
itive 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 pub-
lic 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, voluntar-
ily answered investigators’ questions, telling agents that
BALCO distributed two substances: “the clear,” a substance
with anabolic properties, so named because it had been undet-
ectable by anti-doping testers, and “the cream,” a
testosterone-based substance. Conte and Valente indepen-
dently told investigators that “the clear” came from Patrick
Arnold. After the search, both Conte and Valente obtained
counsel and refused to cooperate further.
UNITED STATES v. THOMAS 10483
The BALCO searches yielded documentary evidence indi-
cating the distribution of illegal performance-enhancing
drugs, including doping calendars, steroid tests, invoices with
athletes’ names, and other documents suggesting a relation-
ship among BALCO, Conte, and numerous athletes in a vari-
ety 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 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 advis-
ing 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.
1
Thomas’s March 14, 2002 urine sample was the first time that norbo-
lethone, an anabolic steroid related to testosterone, had been detected in
an athlete’s urine. Dr. Catlin explained his identification of norbolethone
at Thomas’s trial, testifying that initial test results on Thomas’s urine con-
tained “many suspicious features” that “looked like an anabolic steroid”
but “didn’t match with anything we knew,” so Catlin’s lab had to “figure
out its chemical structure.” Once this was done, the chemical structure was
inputted into a database and the name “norbolethone” appeared as a
match. Further research revealed that norbolethone was developed in the
1960s and patented by Wyeth, a large pharmaceutical company, but the
substance was never sold commercially. A sample of norbolethone
obtained from Wyeth proved an identical match for the unknown sub-
stance found in Thomas’s urine.
10484 UNITED STATES v. THOMAS
The May 1, 2002 email also included an earlier exchange
between the two men regarding Dr. Catlin’s discovery of nor-
bolethone.
After the BALCO search, approximately thirty athletes,
including Tammy Thomas, were subpoenaed to testify before
a Northern District of California grand jury that was investi-
gating the illegal distribution of steroids. Most of these ath-
letes 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 posi-
tive 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 immu-
nity agreement in which she acknowledged that she under-
stood 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 coun-
sel 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,
UNITED STATES v. THOMAS 10485
Greg Anderson (a BALCO-linked trainer), and Remi Kor-
chemny (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 nor-
bolethone and THG. On May 1, 2006, Arnold pleaded guilty.
On December 14, 2006, a third Northern District of Cali-
fornia 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 know-
ingly giving Grand Jury testimony that was intentionally eva-
sive, 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 testi-
fied for the government at Thomas’s trial. Viewing the evi-
dence in the light most favorable to the jury’s verdict, see
United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)
10486 UNITED STATES v. THOMAS
(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 occa-
sions 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 inter-
ested 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 conver-
sations, Arnold discussed with Thomas his products, her per-
formance, and his recommendations for using his products.
Initially, Arnold provided Thomas with nutritional supple-
ments 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.”
2
Even though he did not invent it, Arnold was also the primary source
for norbolethone.
UNITED STATES v. THOMAS 10487
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 “facilitat-
ed” 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 med-
als 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 norbo-
lethone 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 tak-
ing 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 techni-
cally on how to do it.”
10488 UNITED STATES v. THOMAS
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 fed-
eral agent tracked me down today and subpoenaed
me to testify in front of a grand jury in San Fran-
cisco. 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 ath-
letes. 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 docu-
ments 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 submit-
ted 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 Thom-
as’s proposed literal truth instruction or any separate instruc-
tion on “literal truth.”
On April 4, 2008, the jury acquitted Thomas on counts two
and five of her indictment and convicted Thomas on counts
UNITED STATES v. THOMAS 10489
one, three, four, and six. In a special verdict form, the jury
indicated that its verdict on count six—the obstruction of jus-
tice count—rested on the statements alleged in counts one and
three, plus two additional statements appended to the indict-
ment. 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 spe-
cial assessment. Thomas timely appealed.3
II
[1] Section 1623(a) of Title 18 makes it unlawful to know-
ingly 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 convic-
tions rested on the following answers given under oath before
the grand jury:
Q: Did you ever—besides this one instance of get-
ting the 1-AD from Mr. Arnold, did you ever
get any other services from Mr. Arnold or prod-
ucts?
A: No, no other products.
(Count one of superseding indictment).
Q: Did you take anything that Patrick Arnold gave
you?
A: No.
3
The government filed a notice of cross-appeal, but this cross-appeal
was later dismissed on the government’s own motion.
10490 UNITED STATES v. THOMAS
(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” argu-
ments.
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).4 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 con-
4
We review a district court’s denial of a motion for judgment of acquit-
tal de novo, United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005),
but this review is “highly deferential to the jury’s findings,” United States
v. Bancalari, 110 F.3d 1425, 1428 (9th Cir. 1997) (internal quotation
marks omitted). A sufficiency challenge can succeed only if, viewing the
evidence in the light most favorable to the prosecution, no rational trier of
fact could have found the essential elements of the crime beyond a reason-
able doubt. United States v. Lo, 231 F.3d 471, 475 (9th Cir. 2000).
UNITED STATES v. THOMAS 10491
victed 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 ever?
A: No, sir.
Id. at 354. It was “undisputed that for a period of nearly five
years . . . [Bronston] had a personal bank account at the Inter-
national Credit Bank in Geneva, Switzerland, into which he
made deposits and upon which he drew checks.” Id. It was
“likewise undisputed that [Bronston’s] answers were literally
truthful.” Id. “The Government’s prosecution for perjury went
forward on the theory that in order to mislead his questioner,
[Bronston] answered the second question with literal truthful-
ness but unresponsively addressed his answer to the compa-
ny’s assets and not to his own—thereby implying that he had
no personal Swiss bank account at the relevant time.” Id. at
355.
10492 UNITED STATES v. THOMAS
At Bronston’s trial, the district court instructed the jury that
Bronston “could . . . be convicted if he gave an answer ‘not
literally false but when considered in the context in which it
was given, nevertheless constitute[d] a false statement.’ ” Id.
at 355 (alteration in original). Bronston was convicted of one
count of perjury, and the Second Circuit affirmed, holding,
among other things, that “an answer containing half of the
truth which also constitutes a lie by negative implication,
when the answer is intentionally given in place of the respon-
sive answer called for by a proper question, is perjury.” Id. at
356 (internal quotation marks omitted).
[2] The Supreme Court reversed Bronston’s conviction,
reasoning that “[t]he words of the [perjury] statute confine the
offense to the witness who ‘willfully . . . states . . . any mate-
rial matter which he does not believe to be true,’ ” and that
“the statute does not make it a criminal act for a witness to
willfully state any material matter that implies any material
matter that he does not believe to be true.” Id. at 357-58
(alterations in original). The Court emphasized the “responsi-
bility of the lawyer to probe . . . . If a witness evades, it is the
lawyer’s responsibility to recognize the evasion and to bring
the witness back to the mark, to flush out the whole truth with
the tools of adversary examination.” Id. at 358-59. The Court
also noted that it was “no answer to say that here the jury
found that petitioner intended to mislead his examiner,” as
“[a] jury should not be permitted to engage in conjecture
whether an unresponsive answer, true and complete on its
face, was intended to mislead or divert the examiner.” Id. at
359.
Although the Supreme Court’s decision in Bronston under-
pins Thomas’s “literal truth” defense, the case is not directly
on point here. Bronston’s allegedly perjurious statements
were undisputedly literally true, id. at 354, which is not the
case here. Fortunately, in the thirty-odd years since the
Supreme Court’s decision in Bronston, we have elaborated on
and interpreted that decision, providing us with guidance on
UNITED STATES v. THOMAS 10493
how Bronston applies to a case such as Thomas’s, in which
a defendant asserts that her answers were “literally true” but
the government contests the assertion.
[3] In United States v. Matthews, 589 F.2d 442 (9th Cir.
1978), and United States v. Sainz, 772 F.2d 559 (9th Cir.
1985), we addressed the relevance of Bronston to testimony
as to which “literal truth” depended on the defendant’s under-
standing of the questions he was asked. In both cases, we
emphasized the importance of context to the Bronston
inquiry. Thus, in Sainz, where the defendant raised the issue
of literal truth, we explained that, “[i]n reviewing a perjury
conviction, . . . [o]ur central task is to determine whether the
jury could conclude beyond a reasonable doubt that the defen-
dant understood the question as did the government and that,
so understood, the defendant’s answer was false.” 772 F.2d at
562 (citation and internal quotation marks omitted). We
stressed that “[o]ur inquiry into the defendant’s allegedly per-
jurious statement must begin with an appreciation of the con-
text in which the statement was offered,” because “[t]he
practice of lifting statements uttered by a witness out of con-
text can serve no useful purpose in advancing the truth-
seeking role of the perjury statutes.” Id. “Consequently, we
must look to the context of the defendant’s statement to deter-
mine whether the defendant and his questioner joined issue on
a matter of material fact to which the defendant knowingly
uttered a false declaration.” Id.
Our decision in Matthews is factually on point with the case
at bar. In Matthews, the defendant was convicted under 18
U.S.C. § 1623 for providing the following grand jury testi-
mony:
Q: Do you know where Mr. Rasmussen got that
money?
A: No.
10494 UNITED STATES v. THOMAS
589 F.2d at 443. The government contended that Matthews
testified falsely because he did, in fact, know the source of
Rasmussen’s money. Matthews, however, argued that he was
entitled to acquittal under Bronston because “the question that
he [wa]s charged with answering falsely c[ould] be construed
as an inquiry as to the person from whom Rasmussen physi-
cally received the money,” and “the government . . . presented
no evidence that the question so construed was answered
falsely.” Id. at 444. In response, “[t]he government assert[ed]
that in the light of all circumstances it must have been clear
to appellant that the question in issue sought to ascertain the
source of the money,” and that “[o]ther portions of appellant’s
testimony before the grand jury support[ed] the government’s
position.” Id.
In our decision in Matthews, we began by distinguishing
Bronston, stating:
In Bronston the answer given was perfectly true,
but it was unresponsive to the question asked . . . .
This holding, however, is of no assistance here.
The answer here was not unresponsive. It was a
forthright “no.” It was not, as in Bronston, a state-
ment of fact the truth of which could be ascertained
without reference to the question that elicited it.
Here the answer cannot be separated from the ques-
tion if the truth of the answer is to be determined. If
the “no” is to have meaning it must be read to echo
and negate the language of the question itself . . . .
The problem presented here, which was not pre-
sented in Bronston, is that the question asked of
appellant is asserted to be subject to two different
meanings.
Id. (footnote omitted).
We then turned to the specifics of Matthews’s literal truth
argument: “If language in which a question is couched is
UNITED STATES v. THOMAS 10495
plausibly subject to two interpretations, that language contains
within it two different questions.” Id. at 444. Matthews argued
—as Thomas argues—that “if the answer is to be proved false
it must be proved false as to both questions.” Id. Because
Matthew’s answer “was not proved false under the interpreta-
tion he advance[d],” he had not (in his view) “been proved
guilty of perjury.” Id.
We ultimately rejected Matthews’s argument. We first
noted that the argument “assume[d] that the interpretation
advanced by [Matthews] [wa]s a plausible one[,] . . . a ques-
tion upon which we entertain[ed] great doubt.” Id. at 444 n.2.
We then explained why Matthews could not prevail on his lit-
eral truth challenge to his perjury conviction:
Here . . . the government’s construction of the ques-
tion was plausible and a jury issue was presented as
to the defendant’s understanding of the question.
There is ample evidence from which the jury could
conclude beyond a reasonable doubt that [Matthews]
understood the question asked of him as pursuing the
same inquiry . . . that was explicitly made the subject
of other questions asked in the course of the same
interrogation. Indeed, we do not see how the ques-
tion could rationally be given any other meaning.
We conclude that appellant was not entitled to an
acquittal as [a] matter of law; that the question of
guilt remained one for the jury.
Id. at 445.
[4] The “literal truth” framework outlined in Sainz and
Matthews controls here. When a defendant claims that her
allegedly perjured testimony was literally true based on her
own purported understanding of the government’s questions,
the issue is “whether the jury could conclude beyond a rea-
sonable doubt that the defendant understood the question as
did the government and that, so understood, the defendant’s
10496 UNITED STATES v. THOMAS
answer was false.” Sainz, 772 F.2d at 562 (internal quotation
marks omitted); see also Matthews, 589 F.2d at 445. We now
apply this framework to the three statements for which
Thomas was convicted under 18 U.S.C. § 1623.
1
[5] As to Thomas’s conviction on count one—based on
Thomas’s response that she never received any “products”
other than 1-AD from Patrick Arnold—Thomas argues that
her answer was literally truthful because she believed she
received the products THG and norbolethone only from Dal-
ton, Arnold’s then-live-in-girlfriend, because Dalton was
Thomas’s primary phone contact in the Arnold household.
This argument lacks merit, as there was ample testimony at
Thomas’s trial for a reasonable jury to conclude that Thomas
had, indeed, “g[otten] any other [products besides 1-AD] from
Mr. Arnold.” Most importantly, Arnold testified that he “for
sure” sent Thomas THG—a “product”—after Arnold and
Dalton had split up. This direct testimony was bolstered by
circumstantial evidence at Thomas’s trial. For example,
Arnold testified that Thomas first contacted him in 2000 and
that the two spoke on the phone approximately five times
after the initial contact. After Thomas tested positive for nor-
bolethone, she and Arnold “brainstormed” a “cover story”—
“a false story to cover up the truth”—to deal with the positive
test. Arnold and Thomas also exchanged emails regarding
Thomas’s receipt of a grand jury subpoena. The jury could
reasonably have concluded from all this testimony that Thom-
as’s grand jury testimony that she never received any “other
products” from Arnold was not literally true.
2
Thomas was convicted on count three of the indictment for
answering “No” to the question, “Did you take anything that
Patrick Arnold gave you?” Thomas argues that her answer to
this question was literally true because trial testimony estab-
UNITED STATES v. THOMAS 10497
lished that all the products she received from Arnold were
either bought or bargained-for, and thus nothing was “g[i-
ven]” to Thomas in the sense that “give” can mean “to confer
the ownership of without receiving a return.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 959 (1993).
[6] “Give,” however, is commonly used and understood in
a variety of ways, many if not most of which do not require
that an object be exchanged without consideration. Dictionary
definitions of “give” include “to put into the possession of
another for his use,” id., “to yield possession of by way of
exchange,” id. at 960, and “to dispose of for a price,” id.
Thus, we commonly speak of “giving” gifts on certain holi-
days, although we may also describe this as an “exchange.”
And it is common usage to say that a doctor “gives” us a shot,
even though we have paid the appropriate co-pay.
The Matthews case, in which we rejected a perjury defen-
dant’s literal truth claim where “the question asked of [the
defendant wa]s asserted to be subject to two different mean-
ings,” 589 F.2d at 444, squarely controls here. In Matthews,
we emphasized that where “the government’s construction of
the question [i]s plausible[,] a jury issue [i]s presented as to
the defendant’s understanding of the question,” and where
“[t]here is ample evidence from which the jury could con-
clude beyond a reasonable doubt that appellant understood the
question asked of him as pursuing the same inquiry . . . that
was explicitly made the subject of other questions asked in the
course of the same interrogation[,] . . . the question of guilt
remain[s] one for the jury.” Id. at 445; see also Sainz, 772
F.2d at 562 (“Our central task is to determine whether the jury
could conclude beyond a reasonable doubt that the defendant
understood the question as did the government and that, so
understood, the defendant’s answer was false.” (internal quo-
tation marks omitted)).
[7] Nothing in Thomas’s grand jury testimony suggests
that either the government questioner or Thomas herself care-
10498 UNITED STATES v. THOMAS
fully distinguished between “gave” in the sense of “made a
present” and “gave” in the sense of “put into the possession
of another for h[er] use” or “yield[ed] possession of by way
of exchange.” Indeed, the grand jury transcript reveals that the
government attorney questioning Thomas repeatedly used
general verbs such as “get” and “give” to indicate acquisition
through unspecified means. For example, directly before
being asked whether she had ever taken anything Arnold
“gave” her, Thomas was asked whether she ever “g[o]t an
anabolic steroid from anybody in connection with [her] train-
ing up to the time of March 2002” and whether she “ever
t[ook] one, at least knowingly, anyway.” Thomas responded
that in 1998 and 1999 she “had been given some testosterone
without [her] knowledge.” Thomas was then asked, “did Pat-
rick Arnold ever give you anything that was a steroid,” and
then immediately asked whether she “t[ook] anything that
Patrick Arnold gave [her].” There is simply no indication
from the grand jury transcript that, in light of the tenor and
context of the government attorney’s questions and his use of
the general verbs “get” and “give,” Thomas understood the
attorney to be asking only if Arnold had “made a gift” of sub-
stances such as THG and norbolethone to Thomas. Perhaps
the government’s questions could have been phrased to avoid
any ambiguity, but the phrasing actually used was not only
plausible, but well within the bounds of ordinary construction.
A reasonable jury could conclude beyond a reasonable doubt
that Thomas understood the question in count three of the
indictment as the government understood it and that she
answered falsely based on this understanding. Thus, Thomas
is not entitled to a judgment of acquittal on count three. See
Matthews, 589 F.2d at 445.
3
Thomas’s final sufficiency challenge targets her conviction
on count four for answering “No” to the question, “as you sit
here now, and before this grand jury today, have you ever
taken anabolic steroids?” Thomas claims that her answer to
UNITED STATES v. THOMAS 10499
this question was literally true because, although Thomas
unquestionably “took” THG and norbolethone, neither of
those substances was specifically listed under the definition of
“anabolic steroids” in 21 U.S.C. § 802(41)(A) (2003) (“The
term ‘anabolic steroid’ means any drug or hormonal sub-
stance, chemically and pharmacologically related to testoster-
one (other than estrogens, progestins, and corticosteroids) that
promotes muscle growth, and includes [certain enumerated
substances].”) at the time of Thomas’s grand jury testimony,5
and the government failed to present any evidence that THG
and norbolethone were not excluded “progestins.”
[8] Thomas’s argument on this issue is unavailing. The
government was not required to prove that THG and/or nor-
bolethone were statutorily prohibited under 21 U.S.C.
§§ 802(41)(A) and 841 at the time of Thomas’s testimony,
and no one had suggested during Thomas’s questioning
before the grand jury that “anabolic steroids” referred only to
the statutory definition. Rather, the government was required
to prove only that Thomas lied in stating that she had never
“taken anabolic steroids.” Under Sainz and Matthews, this
means that the government had to prove that when Thomas
testified that she had never “taken anabolic steroids,” Thomas
understood “anabolic steroids” to include THG and/or norbo-
lethone. There was ample evidence at Thomas’s trial for a
jury reasonably to conclude that Thomas understood “ana-
bolic steroids” to include THG and/or norbolethone during
her November 2003 grand jury testimony. Three witnesses—
Dr. Catlin, Arnold, and Dalton—all testified, without contra-
diction, that both THG and norbolethone were anabolic ste-
roids by their chemical structure, their pharmacological
effects, and as a matter of common understanding. Arnold tes-
tified that Thomas contacted him because she wanted steroids,
which is why Arnold sent her THG. Arnold also testified that
“Thomas understood full well that this was undetectable and
5
In 2004, Congress amended 21 U.S.C. § 802(41)(A) to include THG
and norbolethone as enumerated “anabolic steroids.”
10500 UNITED STATES v. THOMAS
that was its intention.” Dalton testified that both drugs Arnold
supplied to Thomas—THG and norbolethone—were undetec-
table anabolic steroids and that Thomas was well aware of
this fact.
In sum, there was sufficient evidence for the jury reason-
ably to conclude that Thomas did not offer literally true
answers in the exchange charged in count four of the indict-
ment.
B
Thomas also contends that the district court erred by refus-
ing to provide to the jury a proposed jury instruction regard-
ing literal truth. “Defendant’s Proposed Jury Instruction
Number 10” stated:
You are not permitted to convict the defendant of the
charges in the indictment based on any testimony
that was literally true. In other words, testimony that
is literally true, even if it has an especially strong
tendency to be misleading, cannot support a convic-
tion for making material false statements to the
grand jury or for obstructing justice. If you find that
any answer to any question charged in the indictment
is literally true, you must acquit the defendant of the
charge presented by her literally truthful answer.
The district court declined to issue the above instruction,
instead instructing the jurors as follows as to counts one,
three, and four:
In order for the defendant to be found guilty of
Count 1 [or 2, or 3, respectively], the government
must prove each of the following elements beyond a
reasonable doubt:
1. The defendant testified under oath
before a grand jury;
UNITED STATES v. THOMAS 10501
2. The testimony described above was
false;
3. The testimony described above was
material to the grand jury before which
she testified; and
4. The defendant knew that the testimony
described above was false and was
material to the grand jury before which
she testified.
A statement was material if it had a natu-
ral tendency to influence, or was capable of
influencing, the decision of the decision-
making body to which it is addressed.
This instruction followed the applicable Ninth Circuit Model
Instruction. See Ninth Circuit Model Criminal Jury Instruction
8.112 (False Declaration Before Grand Jury or Court, 18
U.S.C. § 1623).
[9] “A defendant is entitled to have the judge instruct the
jury on h[er] theory of defense, provided that it is supported
by law and has some foundation in the evidence.” United
States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). “A fail-
ure to give such instruction is reversible error; but it is not
reversible error to reject a defendant’s proposed instruction on
h[er] theory of the case if other instructions, in their entirety,
adequately cover that defense theory.” Id. Thus, Thomas must
satisfy three hurdles in order to prevail on her motion for a
new trial based on the district court’s refusal to give a sepa-
rate jury instruction on literal truth.6 First, Thomas must show
6
Although Thomas submitted a specific proposed instruction on the
issue of literal truth, our case law makes clear that the question here is not
whether the district court should have given Defendant’s Proposed Jury
Instruction Number 10 to the jury, but whether the district court should
have given the jury some separate instruction on defendant’s literal truth
defense. See United States v. Escobar de Bright, 742 F.2d 1196, 1198 &
n.5 (9th Cir. 1984) (“Of course, the precise phrasing of the instruction is
within the district court’s discretion.”).
10502 UNITED STATES v. THOMAS
that a literal truth jury instruction “ha[d] some foundation in
evidence.” United States v. Johnson, 459 F.3d 990, 992 (9th
Cir. 2006) (internal quotation marks omitted). Second,
Thomas must show that her literal truth theory of defense
“[wa]s supported by law.” Id. at 995 (internal quotation marks
omitted). Finally, even if Thomas’s literal truth theory had an
evidentiary foundation and was supported by law, Thomas
must show that the district court committed reversible error
by refusing to give a separate instruction on her theory where
“other instructions, in their entirety, adequately cover that
defense theory.” Mason, 902 F.2d at 1438. We address each
question in turn.
1
Before an instruction is required on Thomas’s theory of lit-
eral truth, the theory must have had some foundation in the
evidence presented at trial. We review for abuse of discretion
whether there is a factual foundation for a proposed instruc-
tion. See Johnson, 459 F.3d at 992 n.3.
We have described as “generous” the legal standard for
whether a defendant’s proposed instruction has evidentiary
foundation. United States v. Kayser, 488 F.3d 1070, 1076 (9th
Cir. 2007). A defendant “need only show that there is evi-
dence upon which the jury could rationally find for the defen-
dant.” Johnson, 459 F.3d at 993 (internal quotation marks
omitted). “We have cautioned that a mere scintilla of evidence
supporting the defendant’s theory is not sufficient to warrant
a defense instruction,” but “we have also repeatedly stated
that the defendant is entitled to h[er] proposed instruction
even if h[er] evidence is weak, insufficient, inconsistent, or of
doubtful credibility.” Id. (internal quotation marks omitted).
“[T]his standard protects the defendant’s right to have ques-
tions of evidentiary weight and credibility resolved by the
jury.” Kayser, 488 F.3d at 1076.
[10] Here, there was “some foundation in evidence” for
Thomas to claim that her allegedly perjured statements were
UNITED STATES v. THOMAS 10503
literally truthful, but misleading. Thomas’s literal truth argu-
ments with respect to counts one, three, and four of her indict-
ment (recounted in some detail in Part II-A of this opinion)
were not particularly persuasive, but neither were they com-
pletely implausible. Moreover, although the only evidence
supporting Thomas’s literal truth arguments was arguably
“weak, insufficient, inconsistent,” and “of doubtful credibili-
ty,” the evidentiary foundation for Thomas’s literal truth
defense was still more than “a mere scintilla” and supported
an instruction on literal truth under our precedent. Johnson,
459 F.3d at 993 (internal quotation marks omitted); see also
id. at 994 (even though defendant’s “story [wa]s weakly sup-
ported and suffer[ed] from various problems,” defendant was
entitled to jury instruction on his theory of defense “[i]n light
of the low evidentiary threshold [defendant] must clear”). If
the jury rejected, on credibility grounds or otherwise, large
swaths of testimony by trial witnesses such as Novitzky,
Arnold, Dalton, and the USADA testers, it rationally could
have agreed with Thomas’s literal truth defense.
[11] “In light of the low evidentiary threshold [Thomas]
must clear” in this inquiry, id. at 994, we reject the govern-
ment’s argument that there was no evidentiary foundation for
the district court to issue a literal truth instruction.
2
[12] We next consider whether Thomas’s literal truth the-
ory was “supported by law,” an issue we review de novo. Id.
at 995 & n.8 (internal quotation marks omitted). Thomas’s lit-
eral truth theory—and, indeed, her proposed jury instruction
on literal truth (insofar as the instruction dealt with Thomas’s
perjury charges)—closely resembled language from the
Supreme Court’s decision in Bronston. Compare Bronston,
409 U.S. at 352-53 (“We . . . consider . . . [an] important
question in the application of the federal perjury statute:
whether a witness may be convicted of perjury for an answer,
under oath, that is literally true but not responsive to the ques-
10504 UNITED STATES v. THOMAS
tion asked and arguably misleading by negative implication.”
(citation and footnote omitted)), with Defendant’s Proposed
Jury Instruction Number 10, supra at 10500 (“You are not
permitted to convict the defendant of the charges in the indict-
ment based on any testimony that was literally true. In other
words, testimony that is literally true, even if it has an espe-
cially strong tendency to be misleading, cannot support a con-
viction for making material false statements to the grand jury
. . . .” ). We note that Thomas’s proposed instruction deviated
from Bronston in a potentially important respect: Bronston
spoke of “arguably misleading” testimony, while Thomas’s
proposed instruction described testimony with “an especially
strong tendency to be misleading.” However, without approv-
ing the phrasing of Thomas’s proposed instruction itself,7 we
are willing to assume that her literal truth theory of defense
flows from Bronston and is therefore “supported by law.”
3
[13] Even though Thomas’s literal truth theory had “some
evidentiary foundation” and was “supported by law,” the dis-
trict court was not required to give a separate jury instruction
on this theory “if other instructions, in their entirety, ade-
quately cover[ed] that defense theory.” Mason, 902 F.2d at
1438. “We review de novo the question of whether the district
court’s instructions adequately cover the defense theory.” Id.
7
The district court rejected as “argumentative” the specific literal truth
instruction proposed by Thomas. See generally United States v. Felix-
Gutierrez, 940 F.2d 1200, 1211 (9th Cir. 1991) (“[A] court is not required
to accept a proposed instruction which is manifestly intended to influence
the jury towards accepting the evidence of the defendant as against that of
the prosecution.” (quotation marks omitted)); United States v. Sarno, 73
F.3d 1470, 1485 (9th Cir. 1995) (“A defendant may not draw upon the
right to present a ‘theory of the case’ to compel a certain resolution to a
disputed question of fact.”). Because we hold that the jury instructions
adequately covered Thomas’s literal truth theory of defense, we need not
address the district court’s rejection of Thomas’s proposed instruction on
the theory that it was argumentative.
UNITED STATES v. THOMAS 10505
We hold that the district court did not err by refusing to issue
a separate instruction on literal truth.
Although we noted in Mason that “[e]xpressing the theory
of the defense in an instruction that precisely defines that the-
ory is far superior to reliance on the jury’s ability to piece the
theory together from various general instructions,” we imme-
diately qualified this statement by explaining that “[w]e . . .
look to the instructions as a whole and a refusal to give a
proper specific instruction can be remedied by other instruc-
tions that cover the subject.” Id. at 1441. “[I]n reviewing the
instructions as a whole, we must consider how they will rea-
sonably be understood by the jury in the context of the whole
trial.” Id.
[14] The model jury instruction used by the district court
explicitly required the jury to find, beyond a reasonable
doubt, that “[t]he testimony described above was false” and
further required the jury to find (again beyond a reasonable
doubt) that “defendant knew that the testimony described
above was false.” (Emphasis added.) When a statement is
proved to be false, and the witness making that statement
knows it to be false, there is no logical possibility that this
same statement could be “literally true.” This is in contrast to
a statement that is, instead of false, merely “misleading,”
“evasive,” or “deceptive.” Had the jury instructions described
“misleading,” “evasive,” or “deceptive” testimony rather than
knowingly false testimony, Thomas might well have been
entitled to a separate instruction based on her literal truth the-
ory. See Bronston, 409 U.S. at 353 (describing the testimony
at issue as “literally true but not responsive to the question
asked and arguably misleading by negative implication”). But
the jury instructions at Thomas’s trial did not refer to “mis-
leading,” “evasive,” or “deceptive” testimony; they used the
term “false,” and thus “adequately cover[ed] th[e] defense
theory” of literal truth. Mason, 902 F.2d at 1438.
We also note that defense counsel specifically argued in his
closing argument that Thomas’s allegedly perjurious state-
10506 UNITED STATES v. THOMAS
ments were “literally true” and therefore were not false. This
simply underscores our conclusion that “in the context of the
whole trial” the jury “reasonably . . . understood” the instruc-
tions on falsity to exclude statements that were literally true.
Id. at 1441.
[15] In short, it was therefore “not reversible error to reject
. . . defendant’s proposed instruction on [t]his theory.” Id. at
1438.
III
In addition to challenging her § 1623(a) convictions on the
ground that her statements before the grand jury were “liter-
ally true,” Thomas also argues that her statements were not
material because they lacked a jurisdictional nexus to the
Northern District of California. In the alternative, she argues
that the district court erred in refusing to separately instruct
the jury on her jurisdictional nexus defense. We hold that
there was sufficient evidence for a rational jury to find the
element of materiality and that the district court did not err in
declining to instruct the jury on Thomas’s jurisdictional nexus
defense.
A
[16] Thomas seeks a judgment of acquittal on her
§ 1623(a) convictions on counts one, three, and four on the
ground that there was insufficient evidence for a reasonable
jury to find that the grand jury statements underlying these
counts were material. Our “case law has established very
broad parameters for the definition of materiality.” United
States v. Dipp, 581 F.2d 1323, 1328 (9th Cir. 1978). To be
material, a false statement need only be “relevant to any sub-
sidiary issue under consideration,” and “[t]he government
need not prove that the perjured testimony actually influenced
the relevant decision-making body.” United States v.
McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (internal quota-
UNITED STATES v. THOMAS 10507
tion marks omitted). In short, we may direct a verdict for
Thomas only if, viewing the evidence in the light most favor-
able to the prosecution, no rational trier of fact could have
found her statements to the grand jury to be “relevant to any
subsidiary issue under [the grand jury’s] consideration.” Id.;
see Nevils, 598 F.3d at 1170. We conclude that Thomas is not
entitled to a judgment of acquittal under this standard.
1
Count one of the superseding indictment alleged that
Thomas made a material false statement when she told the
grand jury that she never received any products from Arnold.
Likely recognizing that Thomas’s receipt of products from
Arnold would be directly relevant to a potential indictment
against Arnold in some judicial district, Thomas argues only
that this testimony lacked any jurisdictional nexus to the
Northern District of California. We reject this argument.
Had Thomas truthfully testified that she had received prod-
ucts from Arnold, the grand jury could have inquired into the
specifics of these products, particularly whether Arnold dis-
tributed THG and norbolethone, designer steroids that were
found in only two groups of athletes around 2000-2002—
athletes with a connection to Arnold and those with a connec-
tion to BALCO. Had the grand jury heard truthful testimony
from Thomas, it might have been able to connect Arnold to
BALCO, and making this connection would have been “rele-
vant to [an] issue under [the grand jury’s] consideration.”
McKenna, 327 F.3d at 831.
[17] Critically, there was evidence at Thomas’s trial
regarding the connections between Arnold, BALCO, and
THG and norbolethone. Based on this evidence, the trial jury
could reasonably have concluded, for example, that Thomas’s
truthful response to the question underlying count one could
have helped to establish a link between BALCO and Arnold,
which could have led to Arnold’s indictment in the Northern
10508 UNITED STATES v. THOMAS
District of California for conspiracy to distribute steroids
along with BALCO-linked defendants Victor Conte, James
Valente, Greg Anderson, and Remi Korchemny. There was no
error.
2
[18] Counts three and four of the superseding indictment
alleged that Thomas made material false statements when she
testified that she never took anything Arnold gave her (count
three) and that she never took anabolic steroids (count four).
Thomas argues that this testimony was immaterial because
whether or not Thomas actually ingested steroids or other
substances she received from Arnold was only relevant to
Thomas’s potential criminality, and she could not be prose-
cuted because of her immunity agreement. We disagree with
the premise of Thomas’s argument. Whether Thomas actually
ingested Arnold’s products, and whether these products were
steroids, were relevant to any potential indictment of Arnold.
As the BALCO prosecutions show, evidence relating to an
athlete’s ingestion of steroids (e.g., a doping calendar or med-
ical records indicating allergies and blood type) can be highly
probative of a defendant’s distribution of steroids. Here, the
trial jury could reasonably have concluded that Thomas’s
statements as to whether she ingested products sent by Arnold
and/or steroids were material to whether Arnold could ulti-
mately be indicted in the Northern District of California as
part of the BALCO investigation.
B
Next, Thomas argues that the district court erred in refusing
to submit to the jury her proposed instruction on immateriality
due to lack of jurisdictional nexus. Thomas’s “Proposed Jury
Instruction Number 12” stated:
A federal grand jury only has the authority to return
an indictment against an individual if the facts show
UNITED STATES v. THOMAS 10509
probable cause to believe that the individual commit-
ted a federal crime that occurred, in whole or in part,
within its jurisdiction. The jurisdiction of the federal
grand jury before which the defendant is alleged to
have testified was the Northern District of Califor-
nia, which is limited to [enumerated counties in Cali-
fornia].
Instead of Thomas’s proposed materiality instruction, the dis-
trict court provided the jury with the Ninth Circuit’s model
jury instruction on materiality, which states that “[a] state-
ment was material if it had a natural tendency to influence, or
was capable of influencing, the decision of the decision-
making body to which it is addressed.”
As explained earlier, see supra at 10501-02, we employ a
three-prong inquiry to determine whether a new trial is war-
ranted based on the district court’s refusal to instruct the jury
on a defense theory: (1) whether the theory underlying the
jury instruction has some foundation in evidence, Johnson,
459 F.3d at 992; (2) whether the theory is supported by law,
id. at 995; and (3) whether other instructions adequately cover
the defense theory, Mason, 902 F.2d at 1438. The theory
underlying Thomas’s Proposed Instruction Number 12 fails
on the first prong of this analysis, as it lacked evidentiary
foundation.
[19] The evidence at Thomas’s trial indicated that the
grand jury before which she testified was investigating a pos-
sible drug and money laundering conspiracy involving Victor
Conte and other individuals linked to BALCO Laboratories in
the Northern District of California. The trial evidence made
clear that Thomas was called to testify about her dealings with
Arnold because of Arnold’s potential involvement in the
BALCO conspiracy in the Northern District of California, not
because of any investigation into potential crimes committed
elsewhere. Importantly, there is nothing in the record—not
even “evidence [that] is weak, insufficient, inconsistent, or of
10510 UNITED STATES v. THOMAS
doubtful credibility,” Johnson, 459 F.3d at 993 (internal quo-
tation marks omitted), to contradict this view of the evidence.
There is, therefore, no “evidence upon which the jury could
rationally find” that Thomas’s false statements to the grand
jury were only relevant to crimes committed wholly outside
of the Northern District of California. Id. Accordingly, the
district court did not abuse its discretion in refusing to give
Thomas’s proposed instruction.
IV
Thomas challenges her conviction under count six of the
superseding indictment—alleging obstruction of justice under
18 U.S.C. § 1503—on three grounds, arguing that: (1) the
immunity order pursuant to which Thomas testified before the
2003 grand jury precluded the government from using her tes-
timony to prosecute her for anything other than perjury, mak-
ing material false declarations, or refusing to testify; (2) the
indictment failed to allege, and the grand jury failed to find,
all of the elements of 18 U.S.C. § 1503, namely the material-
ity of the statements through which Thomas was alleged to
have obstructed justice, and the district court failed to instruct
the jury as to the materiality requirement; and (3) the district
court erroneously permitted the government to amend the
obstruction count following the close of evidence by present-
ing for the first time four new alleged statements in support
of an obstruction finding. None of these asserted errors war-
rants reversal of Thomas’s conviction on count six.
A
Thomas testified at the 2003 grand jury hearing pursuant to
a grant of immunity under 18 U.S.C. § 6002. This immunity
order stated that her “testimony and other information com-
pelled from” her “may not be used against her in any criminal
case, except for a prosecution for perjury, false declaration, or
otherwise failing to comply with this order.”
UNITED STATES v. THOMAS 10511
[20] Thomas was ultimately indicted for obstruction of jus-
tice under 18 U.S.C. § 1503 for
corruptly influenc[ing], obstruct[ing], and imped[-
ing], and endeavor[ing] to corruptly influence,
obstruct, and impede, the due administration of jus-
tice, by knowingly giving Grand Jury testimony that
was intentionally evasive, false, and misleading,
including but not limited to the false statements
made by the defendants as charged in Counts One
through Five of this indictment.
Thomas’s immunity grant was governed by 18 U.S.C. § 6002,
which provides:
[N]o testimony or other information compelled
under the order [granting immunity] (or any infor-
mation directly or indirectly derived from such testi-
mony or other information) may be used against the
witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise
failing to comply with the order.
Thomas argues that 18 U.S.C. § 6002 bars prosecution for
obstruction of justice under 18 U.S.C. § 1503 for false and/or
misleading grand jury testimony. We disagree.
[21] Section 6002 does not strictly confine permissible
prosecutions for immunized testimony to perjury and false
declarations charges: the statute states that testimony pursuant
to a grant of immunity can be used in “a prosecution for per-
jury, giving a false statement, or otherwise failing to comply
with the [immunity] order.” Id. (emphasis added). The ques-
tion, then, becomes whether a prosecution for obstruction of
justice falls within the ambit of “otherwise failing to comply
with the [immunity] order.” Thomas urges that the “other-
wise” clause of § 6002 applies only to prosecutions for con-
tempt. See United States v. Paxson, 861 F.2d 730, 738 (D.C.
10512 UNITED STATES v. THOMAS
Cir. 1988) (noting defendant’s argument that the “otherwise”
clause of § 6002 allows only prosecutions of contempt, and
not prosecutions for obstruction of justice, but declining to
reach the issue).
[22] We have rejected the contempt-only view of the “oth-
erwise” in § 6002. In United States v. Duran, we “h[e]ld that
the final clause of § 6002 encompasses a prosecution for con-
spiracy to commit perjury.” 41 F.3d 540, 545 (9th Cir. 1994).
We explained:
A conspiracy to commit perjury is simply an agree-
ment between defendants not to comply with the
order. Such an agreement to commit perjury frus-
trates the purpose of the grant of immunity. Pillsbury
Co. v. Conboy, 459 U.S. 248, 253 (1983) (finding
the purpose of the immunity statute, which includes
§ 6002, is to provide the government with an evi-
dence gathering tool). Thus, when a person falsely
testifies under a grant of immunity, the government
may use that testimony as evidence of a conspiracy
to commit perjury.
Duran, 41 F.3d at 545.
[23] In light of Duran, we are compelled to reject a
“contempt-only” view of § 6002’s “otherwise” clause. More-
over, our reasoning in the Duran case is helpful in the case
at bar. In Duran, we reasoned that conduct that “frustrates the
purpose of the grant of immunity” can fall within the “other-
wise” clause of § 6002. Here, the immunity order compelling
Thomas’s testimony before the grand jury explained, in rele-
vant part:
1. Tammy Thomas may be called to testify before
the grand jury; and
2. In the judgment of the United States Attorney,
Tammy Thomas is likely to refuse to testify on the
UNITED STATES v. THOMAS 10513
basis of her Fifth Amendment privilege against self-
incrimination; and
3. In the judgment of the United States Attorney
the testimony and other information to be obtained
from Tammy Thomas is necessary to the public
interest . . .
IT IS THEREFORE ORDERED that TAMMY
THOMAS soon as she may be called, shall testify
under oath and provide other information including
documents in this case and in any further ancillary
proceedings . . . .
[24] This immunity order embodies what the Supreme
Court has described as the Constitution’s “rational accommo-
dation between the imperatives of the privilege [against self-
incrimination] and the legitimate demands of government to
compel citizens to testify.” Kastigar v. United States, 406
U.S. 441, 446 (1972); see also United States v. Tramunti, 500
F.2d 1334, 1342 (2d Cir. 1974) (“[B]y perjuring himself the
witness commits a new crime beyond the scope of the immu-
nity which was intended to protect him against his past indis-
cretions.”). The purpose of the immunity order in this case
was to compel Thomas to testify truthfully and in good faith
before the grand jury to assist it in its investigation into the
BALCO case. Indeed, the Supreme Court has explained that
18 U.S.C. § 6002 was enacted to assist law enforcement, and
was therefore intended to provide as little immunity as the
Constitution will allow. See Pillsbury Co., 459 U.S. at 253
(“The major purpose of the Organized Crime Control Act of
1970, of which § 6002 was a key provision, was to provide
the criminal justice system with the necessary legal tools to
strengthen the evidence gathering process and insure that the
evidence will then be available and admissible at trial. Con-
gress sought to make the grant of immunity more useful for
law enforcement officers . . .” (internal quotation marks, cita-
tions, ellipses, and brackets omitted)); id. at 253 n.8 (“[T]he
10514 UNITED STATES v. THOMAS
House explained that § 6002 was not to provide an ‘immunity
bath’ . . . .”). To the extent that Thomas “knowingly g[ave]
Grand Jury testimony that was intentionally evasive, false,
and misleading,” this act “frustrate[d] the purpose of the grant
of immunity,” and thus would appear to be a “fail[ure] to
comply with the [immunity] order” under our decision in
Duran.
[25] The Supreme Court has repeatedly explained that 18
U.S.C. § 6002 is grounded in the Fifth Amendment privilege
against compelled self-incrimination and “is intended to be as
broad as, but no broader than, the privilege against self-
incrimination.” United States v. Apfelbaum, 445 U.S. 115, 123
(1980) (quoting S. Rep. No. 91-167, at 145 (1969); H.R. Rep.
No. 91-1549, at 42 (1970)); see also Apfelbaum, 445 U.S. at
122 (“Congress intended the perjury and false-declarations
exception [in § 6002] to be interpreted as broadly as constitu-
tionally permissible.”). The immunity order compelling
Thomas’s testimony made clear that the basis for its grant of
§ 6002 immunity was that “Tammy Thomas is likely to refuse
to testify on the basis of her Fifth Amendment privilege
against self-incrimination.” Under Apfelbaum and Pillsbury
Co., the prosecution of Thomas under 18 U.S.C. § 1503 for
her grand jury testimony is barred by 18 U.S.C. § 6002 only
if the Fifth Amendment bars such prosecution.
[26] The Fifth Amendment provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. The Fifth Amend-
ment privilege against self-incrimination “has never been con-
strued to mean that one who invokes it cannot subsequently
be prosecuted.” Kastigar, 406 U.S. at 453. Rather, the “sole
concern” of the privilege “is to afford protection against being
forced to give testimony leading to the infliction of penalties
affixed to criminal acts.” Id. (internal quotation marks and
ellipses omitted) (emphasis added). Here, the criminal charges
against Thomas, including the obstruction of justice charge,
were not directed at compelled or forced testimony. Thomas
UNITED STATES v. THOMAS 10515
was subpoenaed to testify truthfully about past, potentially
criminal, activity relating to her alleged relationship with Pat-
rick Arnold and use of his designer performance-enhancing
drugs, and her subsequent prosecution on perjury and obstruc-
tion of justice charges did not relate to any prior actions about
which she was compelled to testify truthfully, but instead
related only to Thomas’s unforced decision to testify in an
untruthful and misleading manner.
“The principle that the Fifth Amendment privilege against
compulsory self-incrimination provides no protection for the
commission of perjury . . . [is] firmly established constitu-
tional law.” Apfelbaum, 445 U.S. at 127. This principle is
grounded in the fact that a grand jury witness is not compelled
to lie or obstruct justice. Thus, in Apfelbaum, “the Fifth
Amendment d[id] not prevent the use of [the defendant’s]
immunized testimony at his trial for false swearing because,
at the time he was granted immunity, the privilege would not
have protected him against false testimony that he later might
decide to give.” Id. at 130. As the Court had explained in
United States v. Freed, 401 U.S. 601, 606-07 (1971):
Appellees’ argument assumes the existence of a
periphery of the Self-Incrimination Clause which
protects a person against incrimination not only
against past or present transgressions but which sup-
plies insulation for a career of crime about to be
launched. We cannot give the Self-Incrimination
Clause such an expansive interpretation.
[27] The Sixth Circuit has squarely addressed the issue we
face here, and we agree with its analysis. In United States v.
Black, the court stated:
18 U.S.C. § 6002[ ] specifically exempts from the
grant of immunity a prosecution “for perjury, giving
a false statement, or otherwise failing to comply with
the order.” . . . Though the statute does not include
10516 UNITED STATES v. THOMAS
prosecutions for obstructions of justice among its
exceptions, we agree with the court in United States
v. Caron, 551 F. Supp. 662 (E.D. Va. 1982), aff’d
mem., 722 F.2d 739 (4th Cir. 1983), cert. denied,
465 U.S. 1103 (1984), . . . that § 6002 does not pro-
scribe the use of immunized testimony in a prosecu-
tion for obstruction of justice. . . . [A] grant of
immunity relates to the past, not to future conduct,
and the obstruction of justice must have occurred
after immunity had been granted. . . . [T]he excep-
tions in § 6002 are broad enough to permit the use
of immunized testimony against one who has alleg-
edly committed perjury or otherwise subverted the
functioning of a tribunal.
776 F.2d 1321, 1327 (6th Cir. 1985) (internal quotation marks
and citations omitted); accord Caron, 551 F. Supp. at 671-72
(holding that a § 1503 prosecution fell within the “otherwise”
clause of § 6002).
If Thomas, having been compelled to testify to the grand
jury, had testified that she had knowingly and intentionally
used anabolic steroids without a valid prescription, the Fifth
Amendment would bar a prosecution under 21 U.S.C.
§ 844(a) for such possession. But Thomas was not in any way
compelled to “knowingly giv[e] Grand Jury testimony that
was intentionally evasive, false, and misleading” by virtue of
her grand jury subpoena.
[28] The prosecution of Thomas under 18 U.S.C. § 1503
was “constitutionally permissible” under the Fifth Amend-
ment, and “Congress intended the perjury and false-
declarations exception [in 18 U.S.C. § 6002] to be interpreted
as broadly as constitutionally permissible.” Apfelbaum, 445
U.S. at 122. Because the obstruction of justice charge against
Thomas satisfied the immunity exception for “otherwise fail-
ing to comply with the [immunity] order,” 18 U.S.C. § 6002,
and was “constitutionally permissible,” Apfelbaum, 445 U.S.
UNITED STATES v. THOMAS 10517
at 122, Thomas’s conviction on count six was not barred by
her grant of immunity.
B
Thomas next argues that the government failed to plead and
prove materiality as an element of its obstruction charge.
Unlike 18 U.S.C. § 1623(a), which explicitly proscribes
“knowingly mak[ing] any false material declaration” (empha-
sis added), 18 U.S.C. § 1503(a) contains no express material-
ity element. Recognizing that § 1503, by its terms, does not
include an express materiality element, Thomas argues that
two of our cases, United States v. Rasheed, 663 F.2d 843 (9th
Cir. 1981), and United States v. Ryan, 455 F.2d 728 (9th Cir.
1972), hold that materiality is an implicit element of
§ 1503(a).
These cases—and the Ryan case in particular—support
Thomas’s argument that § 1503 implicitly requires material-
ity. In Ryan, we held that “[t]he acts complained of” as the
basis for an obstruction charge under 18 U.S.C. § 1503 “must
bear a reasonable relationship to the subject of the grand jury
inquiry,” and we reversed the defendant’s § 1503 conviction
for destroying documents where “there was no evidence that
the Grand Jury was investigating any of the[ ] matters” to
which the documents pertained. 455 F.2d at 734-35. In
Rasheed, we described materiality as the basis for our deci-
sion in Ryan, explaining that “[i]n Ryan, we reversed the
defendant’s conviction because the subpoenaed documents
were immaterial to the grand jury proceedings.” 663 F.2d at
851. In Rasheed, we actually rejected the defendant’s chal-
lenge to her § 1503 conviction based on jury instructions that
did not include an express materiality element, but in doing
so we made clear that the requisite materiality element was
included in the jury instructions as a whole, because the
instructions required the jury to “find that . . . [the defendant]
knew the grand jury was conducting an investigation, that [the
defendant] knew what documents were covered by the sub-
10518 UNITED STATES v. THOMAS
poena, and that, knowing that the particular documents were
covered by the subpoena, she willfully concealed or endeav-
ored to conceal them from the grand jury.” Id. at 852.
[29] In light of Ryan and Rasheed, we conclude that
although not expressly included in the text of § 1503, materi-
ality is a requisite element of a conviction under that statute.
Our conclusion does not, however, mandate a reversal of
Thomas’s obstruction conviction, because it is clear that the
jury found the requisite element of materiality in convicting
Thomas on count six. The jury unanimously returned a special
verdict on Thomas’s § 1503(a) charge indicating that the false
statements alleged in counts one and three of Thomas’s
indictment obstructed justice, and the jury in turn had found
Thomas guilty of making material false statements with
respect to counts one and three. By convicting Thomas of per-
jury on counts one and three, the jury necessarily found the
statements in those counts to be material. And by indicating
in a special verdict form that these statements obstructed jus-
tice, the jury necessarily found that Thomas’s obstruction
conviction was based on two material statements.8
C
Thomas’s final argument as to why her conviction on count
six should be reversed relates to a purported “amendment” of
the obstruction count of the superseding indictment at the
close of trial. Count six of the superseding indictment charged
that
On or about November 6, 2003, in the Northern Dis-
trict of California, and elsewhere, the defendant
TAMMY A. THOMAS did corruptly influence,
8
Because the special verdict forms establish that the jury necessarily
found the element of materiality in voting to convict Thomas on count six,
we need not address Thomas’s related argument that the jury instructions
for that count were erroneous in failing to include a materiality element.
UNITED STATES v. THOMAS 10519
obstruct, and impede, and endeavor to corruptly
influence, obstruct, and impede, the due administra-
tion of justice, by knowingly giving the 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.
All in violation of Title 18, United States Code, Sec-
tion 1503.
(Emphasis added.)
At trial, Thomas objected to the charging language of count
six as overbroad, and the district court asked the government
to explain its theory of obstruction. The government
responded that, in addition to the five alleged false statements
expressed in counts one through five, there “was a pattern of
evasive and misleading conduct throughout [defendant’s] tes-
timony.” However, to “cure some of the court’s concerns,”
the government agreed to “specify . . . a few specific instances
in which the defendant testified evasively, or false, or in a
misleading way above and beyond the false statements.” After
Thomas rested, the government submitted new instructions
and a new verdict form narrowing Thomas’s alleged obstruc-
tive conduct from her entire grand jury testimony to the five
specific allegations already pleaded in the indictment and four
specific instances of “evasive, false, misleading conduct.”
The district court made one amendment to the govern-
ment’s proposed jury instruction on count six, and ultimately
instructed the jury that
[i]n order for the defendant to be found guilty of
Count 6, the government must prove each of the fol-
lowing elements beyond a reasonable doubt:
1. The defendant corruptly, that is, for the purpose
of obstructing justice,
10520 UNITED STATES v. THOMAS
2. Obstructed, influenced or impeded, or endeav-
ored to influence, obstruct or impede, through
one of the below listed statements,
3. The due administration of justice.
In order for the defendant to be found guilty of Count 6, you
must all agree that one or more of the following statements
obstructed, influenced or impeded the due administration of
justice, or was made for the purpose of obstructing, influenc-
ing or impeding the due administration of justice. (All of you
must agree as to which statement or statements so qualify):
1. The statement contained in Count 1;
2. The statement contained in Count 2;
3. The statement contained in Count 3;
4. The statement contained in Count 4;
5. The statement contained in Count 5;
6. Statement A: [A portion of Thomas’s grand jury
testimony that did not appear in the superseding
indictment.]
7. Statement B: [A portion of Thomas’s grand jury
testimony that did not appear in the superseding
indictment.]
(Emphasis added.) The jury ultimately found Thomas guilty
as to count six, and “unanimously agree[d] that” four specific
statements obstructed justice: the statement contained in count
one, the statement contained in count three, and statements A
and B in count six.
[30] Thomas argues that the district court “improperly
amended” count six of the indictment at the last moment by
UNITED STATES v. THOMAS 10521
narrowing its scope from “including but not limited to the
false statements made by the defendant as charged in Counts
One through Five of this indictment” (emphasis added), to the
nine enumerated statements in the jury instructions, four of
which did not specifically appear in the indictment. Even if
Thomas were correct, she would not be entitled to reversal of
her conviction on count six. The jury instructions on this
count expressly stated that Thomas would be guilty of
obstruction of justice if “one or more of the following state-
ments obstructed, influenced or impeded the due administra-
tion of justice,” and cautioned the jurors that “[a]ll of you
must agree as to which statement or statements so qualify.”
(Emphasis added.) The jury ultimately unanimously con-
cluded that the statements contained in count one and count
three both “obstructed, influenced or impeded the due admin-
istration of justice, or were made for the purpose of obstruct-
ing, influencing or impeding the due administration of
justice,” thus supporting a guilty verdict on the obstruction of
justice count even if the district court erred in allowing the
jury to consider statement A and statement B. The jury’s
unanimous findings that statements one and three indepen-
dently supported its obstruction of justice verdict render any
error on the instructions ultimately submitted to the jury
harmless.
V
Finding no basis for reversing Thomas’s convictions, we
affirm the judgment of the district court.9
9
We dispose of other issues raised by Thomas in her appeal in an
unpublished memorandum disposition filed today.