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Players: Hard-fought appeal by ND Cal CJA panel member Ethan Balogh. Decision by Judge Bybee.

Facts: Thomas is yet another of the many Ninth Circuit decisions arising from the interminable steroid prosecutions in the N.D. Cal. (Comprehensive Drug Testing is another). In 2002, the IRS investigated a Northern California drug lab named BALCO. Id. at *1. As part of that investigation, Olympic bicyclist Tammy Thomas was ultimately called before a grand jury where she testified under a general immunity agreement. Id. She denied ?getting? anabolic steroids from a lead figure in the BALCO investigation, and denied ever taking ?anabolic steroids.? Id. at *2.

In the next two years, five figures associated with BALCO pleaded guilty to steroid-related

offenses. Id. In 2006, Thomas was indicted for making material false declarations before the grand jury, and for obstruction of justice under 18 USC § 1503. Id. She was convicted after a trial before the Honorable Susan Illston in the San Francisco federal district court. Id.

Issue(s): (One among many): ?Thomas . . . 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 making any false material declaration . . . 18 U.S.C. § 1503(a) contains no express materiality element. Thomas argues that two of our cases . . . hold that materiality is an implicit element of § 1503(a).? Id. at *19 (emphases in original).

Held: ?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.? Id. at *20.

Of Note: This would seem like a win: the obstruction statute requires ?materiality,? this element wasn?t plead or specifically proven as part of the obstruction charge, and the jury instructions didn?t require this element. How Judge Bybee salvages the verdict ? despite these flaws ? is a head-scratcher that requires a diagram to understand. Id. at *20. (Notably, the panel dodges the apparently central issue of the failure to include ?materiality? in the jury instructions). Id. at 20 & n.8.

The important new rule, however, is that ?materiality? should be included as a specific element in all future Ninth Circuit obstruction cases under Section 1503(a).

How to Use: Thomas is a peculiar series of apparent concessions that the defense is right, then conclusions that the verdict nonetheless stands. The obstruction issue described above is one such example; another is a ?theory of defense instruction? issue. Id. at *10-*11. Thomas submitted a defense instruction on the ?literal truth? of her grand jury testimony, which was not given. Judge Bybee concedes that there was ?some foundation in the evidence? for this instruction, and that the theory of this instruction was ?supported by law.? Id. at *12. The verdict stands, though, because ?in the context of the whole trial? and given other model instructions, this wasn?t reversible error. Id. at *13.

As disappointing as the result is, the (grudging) concession that Thomas actually earned this instruction is valuable support for future efforts to get a theory-of-defense instruction.

For Further Reading: Who were the most ardent and interested supporters of Ms. Thomas during her trial before Judge Illston? The prestigious legal team behind Barry Bonds, who may finally be going to trial before the same judge, on similar charges, in early 2011. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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