                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10046

              Plaintiff - Appellee,              D.C. No. 3:12-cr-08080-PGR-1

  v.
                                                 MEMORANDUM*
ANTHONY KEITH SWINT,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                Paul G. Rosenblatt, Senior District Judge, Presiding

                       Argued and Submitted March 11, 2014
                            San Francisco, California

Before: THOMAS, FISHER, and BERZON, Circuit Judges.

       Anthony Keith Swint appeals his conviction for two counts of assault on a

federal officer under 18 U.S.C. §§ 7 and 111(a)(1). We have jurisdiction under 28

U.S.C. § 1291. We affirm. Because the parties are familiar with the history of this

case, we need not recount it here.



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

      The district court did not err in refusing to instruct the jury on self-defense

because Swint failed to make out a prima facie case of self-defense. Both Officers

JC and DR testified that all of the force exerted upon Swint during his arrest and

booking in the Grand Canyon was necessary to meet Swint’s resistance. Officer JC

testified that he never placed his fingers in Swint’s mouth. There was no credible

testimony to the contrary, by Swint or anyone else. The videotape of the booking

episode does not demonstrate excessive force.

                                            II

      The district court did not commit reversible error in its evidentiary rulings.

Assuming, without deciding, that the district court erred in admitting the evidence

tendered under Federal Rule of Evidence 404(b), see United States v. Bettencourt,

614 F.2d 214, 217-18 (9th Cir. 1980), the error was harmless. An erroneous

decision to admit evidence – even if it amounted to an abuse of discretion – will be

reversed only if it is “more likely than not that there is a fair assurance that the

error did not substantially sway the verdict.” United States v. Jimenez, 214 F.3d

1095, 1099 (9th Cir. 2000) (internal quotation marks omitted). Given the strength

of the government’s case, and the implausibility of Swint’s self-defense claim, we

cannot conclude that admission of the 404(b) evidence affected the verdict.


                                            2
AFFIRMED.




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