UNITED STATES of America, Plaintiff-Appellee, v. Thomas Montey MONROE, Defendant-Appellant, 511 F. App'x 648

MEMORANDUM 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 Wolfs testimony. Monroe did not testify, and it is the jury’s role to weigh Running Wolfs 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 Wolfs 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, 115 S.Ct. 696, 130 L.Ed.2d 574 (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 Wolfs in-court testimony. See Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir.1993). 3. Monroe’s challenge to Dr.

Wuchi-nich’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 likely cause of Running Wolfs 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.