FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA 

No. 08-10450 Plaintiff-Appellee,

D.C. No.

v.  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
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 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

UNITED STATES v. THOMAS 10481
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 performanceenhancing 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 AntiDoping 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. 

10482 UNITED STATES v. THOMAS
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.

1Thomas’s March 14, 2002 urine sample was the first time that norbolethone, 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 contained “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 substance found in Thomas’s urine. 

UNITED STATES v. THOMAS 10483
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,

10484 UNITED STATES v. THOMAS
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)

UNITED STATES v. THOMAS 10485
(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

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.” 

2Even though he did not invent it, Arnold was also the primary source

for norbolethone. 

10486 UNITED STATES v. THOMAS
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.” 

UNITED STATES v. THOMAS 10487
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

10488 UNITED STATES v. THOMAS
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.3

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.

3The government filed a notice of cross-appeal, but this cross-appeal

was later dismissed on the government’s own motion. 

UNITED STATES v. THOMAS 10489
(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).4See

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 con4We review a district court’s denial of a motion for judgment of acquittal 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 reasonable doubt. United States v. Lo, 231 F.3d 471, 475 (9th Cir. 2000). 

10490 UNITED STATES v. THOMAS
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 International 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 truthfulness but unresponsively addressed his answer to the company’s assets and not to his own—thereby implying that he had

no personal Swiss bank account at the relevant time.” Id. at

355. 

UNITED STATES v. THOMAS 10491
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 responsive 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 material 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 “responsibility 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 underpins 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

10492 UNITED STATES v. THOMAS
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 understanding 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 defendant 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 perjurious statement must begin with an appreciation of the context in which the statement was offered,” because “[t]he

practice of lifting statements uttered by a witness out of context can serve no useful purpose in advancing the truthseeking role of the perjury statutes.” Id. “Consequently, we

must look to the context of the defendant’s statement to determine 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 testimony:

Q: Do you know where Mr. Rasmussen got that

money?

A: No.

UNITED STATES v. THOMAS 10493
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 physically 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 statement 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 question 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 presented 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

10494 UNITED STATES v. THOMAS
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 interpretation 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 question upon which we entertain[ed] great doubt.” Id. at 444 n.2.

We then explained why Matthews could not prevail on his literal truth challenge to his perjury conviction:

Here . . . the government’s construction of the question 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 question 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 reasonable doubt that the defendant understood the question as

did the government and that, so understood, the defendant’s

UNITED STATES v. THOMAS 10495
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 Dalton, 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 norbolethone, 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 Thomas’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 estab10496 UNITED STATES v. THOMAS
lished that all the products she received from Arnold were

either bought or bargained-for, and thus nothing was “g[iven]” 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 holidays, 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 defendant’s literal truth claim where “the question asked of [the

defendant wa]s asserted to be subject to two different meanings,” 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 conclude 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 quotation marks omitted)). 

[7] Nothing in Thomas’s grand jury testimony suggests

that either the government questioner or Thomas herself careUNITED STATES v. THOMAS 10497
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] training 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 Patrick 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 substances 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

10498 UNITED STATES v. THOMAS
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 substance, chemically and pharmacologically related to testosterone (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 norbolethone 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 norbolethone. There was ample evidence at Thomas’s trial for a

jury reasonably to conclude that Thomas understood “anabolic steroids” to include THG and/or norbolethone during

her November 2003 grand jury testimony. Three witnesses—

Dr. Catlin, Arnold, and Dalton—all testified, without contradiction, that both THG and norbolethone were anabolic steroids by their chemical structure, their pharmacological

effects, and as a matter of common understanding. Arnold testified 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.” 

UNITED STATES v. THOMAS 10499
that was its intention.” Dalton testified that both drugs Arnold

supplied to Thomas—THG and norbolethone—were undetectable anabolic steroids and that Thomas was well aware of

this fact. 

In sum, there was sufficient evidence for the jury reasonably to conclude that Thomas did not offer literally true

answers in the exchange charged in count four of the indictment.

B

Thomas also contends that the district court erred by refusing to provide to the jury a proposed jury instruction regarding 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 conviction 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; 

10500 UNITED STATES v. THOMAS
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 natural tendency to influence, or was capable of

influencing, the decision of the decisionmaking 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 failure 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 separate jury instruction on literal truth.6

 First, Thomas must show

6Although 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.”). 

UNITED STATES v. THOMAS 10501
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 literal 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 instruction. 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 evidence upon which the jury could rationally find for the defendant.” 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 questions 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

10502 UNITED STATES v. THOMAS
literally truthful, but misleading. Thomas’s literal truth arguments with respect to counts one, three, and four of her indictment (recounted in some detail in Part II-A of this opinion)

were not particularly persuasive, but neither were they completely implausible. Moreover, although the only evidence

supporting Thomas’s literal truth arguments was arguably

“weak, insufficient, inconsistent,” and “of doubtful credibility,” 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 supported 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 government’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 theory was “supported by law,” an issue we review de novo. Id.

at 995 & n.8 (internal quotation marks omitted). Thomas’s literal 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 quesUNITED STATES v. THOMAS 10503
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 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 conviction 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 approving 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 district court was not required to give a separate jury instruction

on this theory “if other instructions, in their entirety, adequately 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.

7The district court rejected as “argumentative” the specific literal truth

instruction proposed by Thomas. See generally United States v. FelixGutierrez, 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. 

10504 UNITED STATES v. THOMAS
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 theory is far superior to reliance on the jury’s ability to piece the

theory together from various general instructions,” we immediately 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 instructions that cover the subject.” Id. at 1441. “[I]n reviewing the

instructions as a whole, we must consider how they will reasonably 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 theory. 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 “misleading,” “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 stateUNITED STATES v. THOMAS 10505
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 instructions 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 “literally 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 subsidiary 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 quota10506 UNITED STATES v. THOMAS
tion marks omitted). In short, we may direct a verdict for

Thomas only if, viewing the evidence in the light most favorable 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 products from Arnold, the grand jury could have inquired into the

specifics of these products, particularly whether Arnold distributed 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 connection 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 “relevant 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

UNITED STATES v. THOMAS 10507
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 prosecuted 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 medical 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 ultimately 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

10508 UNITED STATES v. THOMAS
probable cause to believe that the individual committed 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 California, which is limited to [enumerated counties in California].

Instead of Thomas’s proposed materiality instruction, the district court provided the jury with the Ninth Circuit’s model

jury instruction on materiality, which states that “[a] statement was material if it had a natural tendency to influence, or

was capable of influencing, the decision of the decisionmaking 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 warranted 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 possible 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

UNITED STATES v. THOMAS 10509
doubtful credibility,” Johnson, 459 F.3d at 993 (internal quotation 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 testimony to prosecute her for anything other than perjury, making 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 materiality 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 presenting for the first time four new alleged statements in support

of an obstruction finding. None of these asserted errors warrants 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 compelled 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.” 

10510 UNITED STATES v. THOMAS
[20] Thomas was ultimately indicted for obstruction of justice 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 justice, 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 information directly or indirectly derived from such testimony 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 perjury, giving a false statement, or otherwise failing to comply

with the [immunity] order.” Id. (emphasis added). The question, 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 “otherwise” clause of § 6002 applies only to prosecutions for contempt. See United States v. Paxson, 861 F.2d 730, 738 (D.C.

UNITED STATES v. THOMAS 10511
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 “otherwise” in § 6002. In United States v. Duran, we “h[e]ld that

the final clause of § 6002 encompasses a prosecution for conspiracy to commit perjury.” 41 F.3d 540, 545 (9th Cir. 1994).

We explained:

A conspiracy to commit perjury is simply an agreement between defendants not to comply with the

order. Such an agreement to commit perjury frustrates 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 evidence 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. Moreover, 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 “otherwise” clause of § 6002. Here, the immunity order compelling

Thomas’s testimony before the grand jury explained, in relevant 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

10512 UNITED STATES v. THOMAS
basis of her Fifth Amendment privilege against selfincrimination; 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 accommodation between the imperatives of the privilege [against selfincrimination] 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 immunity which was intended to protect him against his past indiscretions.”). 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. Congress sought to make the grant of immunity more useful for

law enforcement officers . . .” (internal quotation marks, citations, ellipses, and brackets omitted)); id. at 253 n.8 (“[T]he

UNITED STATES v. THOMAS 10513
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 selfincrimination.” 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 constitutionally 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 Amendment privilege against self-incrimination “has never been construed 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

10514 UNITED STATES v. THOMAS
was subpoenaed to testify truthfully about past, potentially

criminal, activity relating to her alleged relationship with Patrick Arnold and use of his designer performance-enhancing

drugs, and her subsequent prosecution on perjury and obstruction 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 constitutional 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 supplies 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

UNITED STATES v. THOMAS 10515
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 proscribe the use of immunized testimony in a prosecution 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 exceptions in § 6002 are broad enough to permit the use

of immunized testimony against one who has allegedly 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 Amendment, and “Congress intended the perjury and falsedeclarations 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 failing to comply with the [immunity] order,” 18 U.S.C. § 6002,

and was “constitutionally permissible,” Apfelbaum, 445 U.S.

10516 UNITED STATES v. THOMAS
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” (emphasis added), 18 U.S.C. § 1503(a) contains no express materiality 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 materiality. 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 decision 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 challenge 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 subUNITED STATES v. THOMAS 10517
poena, and that, knowing that the particular documents were

covered by the subpoena, she willfully concealed or endeavored 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, materiality 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 perjury 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 justice, 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 District of California, and elsewhere, the defendant

TAMMY A. THOMAS did corruptly influence,

8Because 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.

10518 UNITED STATES v. THOMAS
obstruct, and impede, and endeavor to corruptly

influence, obstruct, and impede, the due administration 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, Section 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] testimony.” 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 obstructive 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 government’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 following elements beyond a reasonable doubt: 

1. The defendant corruptly, that is, for the purpose

of obstructing justice, 

UNITED STATES v. THOMAS 10519
2. Obstructed, influenced or impeded, or endeavored 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, influencing 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

10520 UNITED STATES v. THOMAS
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 statements obstructed, influenced or impeded the due administration 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 concluded that the statements contained in count one and count

three both “obstructed, influenced or impeded the due administration of justice, or were made for the purpose of obstructing, 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 independently 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

9We dispose of other issues raised by Thomas in her appeal in an

unpublished memorandum disposition filed today. 

UNITED STATES v. THOMAS 10521