                                                                           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                           NOT FOR PUBLICATION                              MAR 14 2013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


                                          2
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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