                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 23 2009

                                                                        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. 09-30016

             Plaintiff - Appellee,               D.C. No. 1:07-CR-00182-BLW-1

  v.
                                                 MEMORANDUM *
ELVEN JOE SWISHER,

             Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Elven Joe Swisher appeals his conviction for wearing unauthorized military

medals in violation of 18 U.S.C. § 704(a), false statements in violation of 18

U.S.C. § 1001(a), and theft of government funds in violation of 18 U.S.C. § 641.

We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Rebuttal witness

      We reject Swisher’s claim that the government’s failure to disclose a rebuttal

witness in a timely fashion denied him a fair trial. The district court’s decision to

permit the government’s rebuttal witness to testify is reviewed for abuse of

discretion and may be reversed only if “manifestly erroneous.” United States v.

Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). Federal Rule of Criminal Procedure

16 requires the government to disclose expert testimony it “intends to use during

its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(G). By its terms, the rule does

not apply to rebuttal witnesses. See United States v. Matylinsky, 577 F.3d 1083,

1094 (9th Cir. 2009) (“[I]n federal prosecutions, the government ordinarily need

not disclose the names of rebuttal witnesses.”).

      The record makes clear that Cox’s testimony was offered solely to rebut the

testimony of defense expert Travis King. King testified that he could “tell without

a doubt” that Captain Woodring’s signature was not digitally superimposed on the

documents Swisher had submitted to the U.S. Department of Veterans Affairs in

support of his claim for increased benefits. [SER 142] Cox testified in rebuttal that

the quality of the photocopied documents made it impossible to reach a definite

conclusion about their authenticity. [SER 156] Until King testified that he could

draw an unequivocal conclusion that the photocopied documents had not been


                                           2
altered, the government could not have known that it would need to refute such

testimony. Cox’s testimony on rebuttal was therefore proper and the district court

did not err in admitting it.

2.     The district court judge’s alleged demonstration bias

       Swisher’s contention that he was denied a fair trial because the district court

judge conveyed a negative view of the defense to the jury has no merit. “A judge’s

participation during trial warrants reversal only if the record shows actual bias or

leaves an abiding impression that the jury perceived an appearance of advocacy or

partiality.” Price v. Kramer, 200 F.3d 1237, 1252 (9th Cir. 2000) (internal

citations omitted). The comments in question were attempts by the judge to ensure

that defense counsel abided by the rules of evidence and showed no untoward

hostility or bias.

3.     Ineffective assistance of counsel

       We conclude that Swisher’s claim of ineffective assistance of counsel is not

ripe for review on direct appeal. Swisher has also raised an ineffective assistance

counsel claim in his petition under 28 U.S.C. § 2255, which has been stayed

pending the resolution of this appeal. [See SER 188-205] We will review such

claims on direct appeal only “if the factual record is sufficiently developed, or []

when the legal representation is so inadequate that it obviously denies a defendant


                                           3
his Sixth Amendment right to counsel.” United States v. Reyes-Platero, 224 F.3d

1112, 1116 (9th Cir. 2000) (citing United States v. Robinson, 967 F.3d 287, 290

(9th Cir. 1992)). Neither exception applies here.

4.    Telephonic appearance of defense witness Brockmann

      Swisher’s rights under the Confrontation Clause were not violated when the

district court judge permitted a defense witness unable to appear in person to

testify via telephone at Swisher’s request. The Sixth Amendment guarantees

Swisher’s right “to be confronted with the witnesses against him.” U.S. Const.

amend. VI. See Crawford v. Washington, 541 U.S. 36, 51 (2004) (noting that the

Confrontation clause “applies to witnesses against the accused.”). Swisher does

not contend that Brockmann’s testimony was adverse or inculpatory in any way.

The Confrontation Clause is therefore not implicated by Brockmann’s telephonic

testimony.

      Finally, as we conclude that the district court did not err in any of the above

matters, we reject Swisher’s contention that the cumulative effect of error warrants

reversal here.

      AFFIRMED.




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