United States v. Elven Swisher , 360 F. App'x 784 ( 2009 )

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NOT FOR PUBLICATION DEC 23 2009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
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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
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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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