United States v. Thomas ( 2010 )

FILED
NOT FOR PUBLICATION JUL 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10450
Plaintiff - Appellee, D.C. No. 3:06-cr-00803-SI
v.
MEMORANDUM *
TAMMY A. THOMAS,
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
Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendant-appellant Tammy Thomas appeals 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. § 1503.1 We affirm.
Thomas argues that her entire trial was tainted by the introduction of
evidence of Thomas’s alleged ingestion of testosterone and of alleged physical
effects, including hirsutism, resulting from this ingestion. However, evidence of
the physical effects of Thomas’s alleged testosterone ingestion was highly material
to the issue of whether Thomas knowingly used steroids, and thus knowingly lied
to the grand jury when she testified to the contrary. Moreover, the physical effects
evidence, which did not include photographs, was carefully and expressly limited
by the district court, and was not unduly prejudicial under Federal Rule of
Evidence 403.
Thomas claims that her Sixth Amendment rights to a fair trial and to call
witnesses in her defense were violated when the district court denied her attempt to
recall as a witness Jeffrey Novitzky, the lead case agent in the government’s case-
in-chief. The record reveals that Thomas’s attorney cross-examined Novitzky for
several hours and was never cut off by the court in his cross-examination. Thomas
1
The facts underlying Thomas’s appeal are well known to the parties and
are detailed in United States v. Thomas, __ F.3d ___ (9th Cir. 2010). We do not
repeat them here.
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sought to recall Novitzky later in the trial to cross-examine him on wholly
collateral issues, but the district court did not abuse its discretion in declining to
allow defendant a second bite at the cross-examination apple to delve into largely
irrelevant collateral issues that would have served only to confuse the jury. See
F ED. R ULE E VID. 403; United States v. Geston, 299 F.3d 1130, 1137 (9th Cir.
2002).
Thomas argues that the district court erroneously allowed the prosecutor
who questioned Thomas before the grand jury to enter the case and defend his
conduct while acting as the government’s advocate at trial, in violation of the
advocate-witness rule and the rules against government vouching. Thomas also
argues that the government improperly vouched for its case and committed other
misconduct during its rebuttal argument. These arguments do not warrant a new
trial. The advocate-witness rule prohibits an attorney from appearing as both a
witness and an advocate in the same litigation. United States v. Pantril, 764 F.2d
548, 552-53 (9th Cir. 1985). Moreover, in certain cases, a prosecutor’s credibility
may be so intertwined with a case that he or she cannot fairly serve as trial counsel
even if he or she does not testify. United States v. Edwards, 154 F.3d 915, 921-23
(9th Cir. 1998). Even assuming that the trial jury was told, or could infer, that one
of the prosecutors at Thomas’s trial was also the prosecutor who questioned
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Thomas before the grand jury, any error would have been harmless because the
prosecutor’s credibility was not an issue at trial. Moreover, because the subjective
understanding and goals of the grand jury questioner had no bearing on whether
Thomas perjured herself or obstructed justice during her grand jury testimony,
Thomas could not have properly called the grand jury prosecutor as a witness at
trial, whether or not he was serving on the government’s trial team.
There was no Brady violation requiring a new trial. To establish a Brady
violation, a defendant must demonstrate: (1) that the evidence in question was
exculpatory or impeachment evidence favorable to defendant; (2) that the
prosecution willfully or inadvertently suppressed the evidence; and (3) that the
non-disclosure prejudiced the defendant. Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.
2006). Thomas’s due process argument based on Brady fails both the second and
third prongs of the Raley test.
First, Thomas has not shown that the government “suppressed” the alleged
Brady evidence—twenty-two exhibits to a report of the Treasury Inspector General
for Tax Administration (“TIGTA”)—at all. The government provided the defense
with a summary of the exhibits on which the TIGTA Report was based, and this
summary specifically referenced the exhibits by number and named all witnesses
who had been interviewed in connection with the TIGTA Report. Thomas,
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however, never requested the referenced exhibits or sought to interview any of the
witnesses identified in the report. Where a “defendant has enough information to
be able to ascertain the supposed Brady material on his own, there is no
suppression.” United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991); see also
United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (defendant cannot claim
a Brady violation where she was “aware of the essential facts enabling [her] to take
advantage of any exculpatory evidence” (internal quotation marks omitted)).
Thomas’s Brady claim also fails on prejudice grounds, as the disclosure of
the TIGTA exhibits to the defense would not have created a “reasonable
probability that . . . the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985) (internal quotation marks
omitted). The putative Brady evidence related only to Barry Bonds, and there was
no evidence—tenuous or otherwise—in the TIGTA exhibits tending to show any
bias on the part of Special Agent Novitzky towards Thomas. More importantly,
the most damning testimony against Thomas did not come from Novitzky. The
testimony of Arnold, Dalton, and the USADA testers created an extremely strong
case against Thomas, all without one word of Novitzky’s testimony. Finally,
because “[t]he test for prejudice for a Mooney-Napue claim is the same as that for
materiality in a Brady claim,” Morris v. Ylst, 447 F.3d 735, 745 (9th Cir. 2006),
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Thomas’s argument that she is entitled to a new trial based on alleged perjury by
Novitzky in light of the TIGTA exhibits fails on lack of prejudice grounds.
Lastly, Thomas argues that the cumulative effect of the district court’s
alleged errors requires a new trial. Most of the alleged errors at Thomas’s trial
were not, in fact, errors at all. Moreover, even taking into account decisions on
which the district court arguably erred, there is no reasonable likelihood that the
jury would have acquitted Thomas. See United States v. Frederick, 78 F.3d 1370,
1381 (9th Cir. 1996).
AFFIRMED.
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