                                                                            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                           NOT FOR PUBLICATION                               JUL 22 2010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.

                                         -2-
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,


                                         -4-
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),


                                          -5-
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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