United States v. Elven Swisher

MEMORANDUM

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.

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 Matylinsky v. Budge, 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…