FILED
NOT FOR PUBLICATION MAR 14 2013
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. 12-30108
Plaintiff - Appellee, D.C. No. 4:11-cr-00082-SEH
v.
MEMORANDUM *
THOMAS MONTEY MONROE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted March 7, 2013 **
Portland, Oregon
Before: CLIFTON, BEA, and TASHIMA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
Thomas Monroe appeals his conviction for assault resulting in serious bodily
injury. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. A rational jury could have convicted Monroe solely based on Running
Wolf’s testimony. Monroe did not testify, and it is the jury’s role to weigh
Running Wolf’s credibility. See United States v. Nevils, 598 F.3d 1158, 1170 (9th
Cir. 2010) (this court cannot “second-guess the jury’s credibility assessments”).
2. Running Wolf’s statement to her brother that Monroe had kicked her was
relevant only to prove that she had been attacked by Monroe. It was not admissible
as a prior consistent statement because she made it only after learning that Monroe
was seeing other women, which gave rise to her alleged motive to fabricate. See
Fed. R. Evid. 801(d)(1)(B); Tome v. United States, 513 U.S. 150, 167 (1995) (prior
consistent statements must be made before the alleged motive to fabricate arose).
Even so, admission of the hearsay statement was harmless because it was
cumulative to Running Wolf’s in-court testimony. See Guam v. Ignacio, 10 F.3d
608, 614 (9th Cir. 1993).
3. Monroe’s challenge to Dr. Wuchinich’s expert testimony also fails. Even if
the government erred by not satisfying its pretrial disclosure obligations under Fed.
R. Crim. P. 16, Monroe “has not demonstrated how or why the verdict would have
been different if he had been given notice” that the doctor would testify about the
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likely cause of Running Wolf’s injuries. See United States v. Figueroa-Lopez, 125
F.3d 1241, 1247 (9th Cir. 1997).
4. Finally, it is irrelevant whether the jury instructions Monroe offered were
accurate statements of the law and adequately supported his defense theory. The
proper question is whether the court’s instructions pass the test, which they do.
See United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000) (“The trial court
has substantial latitude so long as its instructions fairly and adequately cover the
issues presented.”).
AFFIRMED.
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