David Epstein
Wednesday May 28th, 2008

SAN FRANCISCO -- Just after noon Pacific Time on Wednesday, Judge Susan Illston briefly reconvened Courtroom 10 on the 19th floor of the U.S. District Court to answer a telling question from the jury: "There's a question from the jury regarding the definition of materiality," Illston informed lawyers for track coach Trevor Graham, and the U.S. attorneys prosecuting him for false statements he allegedly made to IRS investigators Jeff Novitzky and Erwin Rogers in 2004 when he was interviewed about performance-enhancing drug dealer Angel "Memo" Heredia.

Much of Tuesday's closing statements revolved around the issue of materiality, or whether Graham's statements impacted the investigation into performance-enhancing drug distributors. The government contends that Graham lied about obtaining drugs from Heredia, and lied when he said he never met Heredia face to face and hadn't called him since 1997. In the trial, which began last week, the prosecution produced a picture of Graham and Heredia together, and phone records showing more than 100 calls from Graham to Heredia between 1998 and 2000.

For Graham to be found guilty, however, the jury has to find that Graham not only lied, but that his lies were also "material" to the IRS investigation. The definition of a material statement that Illston gave to jurors on Tuesday was one that "could have influenced the [IRS's] decisions or activities."

With the jury not in the room, Illston informed the lawyers for both sides that the jury wanted more clarification. The definition is "crystal clear," said assistant U.S. attorney Jeffrey Finigan. "On its face, it's an easy definition." To which Illston responded that "it's not crystal clear to [the jury]." Supplementary instructions can only be given to the jurors if lawyers for both sides agree on them, which, in this case, they could not.

William Keane, Graham's lawyer, argued on Tuesday that because Heredia was never charged, and because none of the athletes who said Graham referred them to Heredia were charged for using drugs, that Graham's statements did not impact ongoing investigations. On Wednesday Keane told Illston in the brief meeting regarding the jury question that he is worried that the jury will be "speculating whether something could have influenced the agency," he said. "Anything could have influenced whether an agent took a left or right turn at the next intersection ... but it has to be proven."

Ultimately, Finigan got his wish, which was that the jury simply be re-read the original instructions. After the jury was called in and Illston re-read the definition, she told them "that's the best we can give you."

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