FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10458
Plaintiff - Appellee, D.C. No. 3:09-cr-00032-CRB-1
v.
MEMORANDUM*
DEMAURIAE NOLAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted July 12, 2011**
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
Demauriae Nolan appeals his jury conviction for being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
The district court properly denied Nolan’s mid-trial motion to suppress. In
context, his mid-interview statement that “I guess I have to, you know, get a
lawyer or something because we’re not coming to an understanding here” was not
an unequivocal request for counsel. See Davis v. United States, 512 U.S. 452, 459,
462 (1994); see also Anderson v. Terhune, 516 F.3d 781, 788 (9th Cir. 2008) (en
banc); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. 2003) (citing Burket v.
Angelone, 208 F.3d 172, 198 (4th Cir. 2000)).
The district court did not abuse its broad discretion in permitting the
government to introduce portions of Nolan’s post-arrest confession during the
rebuttal phase of trial, as the confession tended to counter much of the evidence
that Nolan offered in support of his justification defense. See United States v.
McCollum, 732 F.2d 1419, 1426 (9th Cir. 1984) (“A trial court has broad
discretion to admit or exclude rebuttal or surrebuttal evidence.”).
The district court also acted within its discretion by excluding various
defense evidence on the basis of irrelevance, hearsay, prejudice, undue
consumption of time, and juror confusion. Nolan’s proffered evidence of the
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prevalence of neighborhood gang violence in the Bayview-Hunter’s Point area, and
his personal experience with such violence, were not relevant to his justification
defense. See Fed. R. Evid. 401; United States v. Wofford, 122 F.3d 787, 789-90
(9th Cir. 1997). Nolan’s proffered evidence of the reason why he borrowed a
vehicle on the day of his arrest was inadmissible hearsay that did not qualify for
any recognized exception to the hearsay rule. See Fed. R. Evid. 801(c); 802; 803.
And Nolan’s proffered evidence of the police department’s failure to obtain a
surveillance video of the wrecking yard where his arrest occurred was irrelevant
because the propriety of the government’s investigation was not “of consequence
to the determination of the action.” See Fed. R. Evid. 401; Wofford, 122 F.3d at
789-90 .
The district court also acted within its discretion in excluding expert
testimony regarding Nolan’s mental state after he crashed his vehicle and fled from
police. Such testimony constituted “expert evidence relating to a mental disease or
defect or any other mental condition of the defendant bearing on . . . the issue of
guilt.” Fed. R. Crim. P. 12.2(b). As such, Nolan was required to notify the
government in writing of his intention to call the expert at trial. Id. Because Nolan
did not comply with this requirement, the district court acted within its authority to
exclude the expert testimony at trial. Fed. R. Crim. P. 12.2(d)(1)(A).
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Finally, we reject Nolan’s argument that the cumulative effect of the district
court’s evidentiary rulings violated his right to present a meaningful defense under
the Fifth and Sixth Amendments. Although “the Constitution . . . prohibits the
exclusion of defense evidence under rules that serve no legitimate purpose or that
are disproportionate to the ends they are asserted to promote, well-established rules
of evidence permit trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319,
326 (2006) (citing Fed. R. Evid. 403). The Constitution also “permits judges to
exclude evidence that is repetitive, only marginally relevant or poses an undue risk
of harassment, prejudice, or confusion of the issues.” Id. at 326-27 (internal
quotation marks and alterations omitted). Because the district court acted within
its discretion in excluding the evidence at issue under well established rules of
evidence and criminal procedure, no constitutional rights were violated.
AFFIRMED.
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