United States v. Hollis Honeycutt, Ii

specially concurring:

I concur in the majority’s holding that the district court did not abuse its discretion by denying Honeycutt’s motion for a new trial. I also concur in the majority’s holding that the district court did not abuse its discretion, under Federal Rules of Evidence 403 and 404, in denying Ho-neycutt’s motion in limine to exclude the recording of his interrogation. I write separately, however, to address an issue lurking in the background of this appeal, lest our disposition be read too broadly.

This case implicates an important question: What type of evidence may be fairly characterized as “demeanor evidence”? In the context of the Fifth Amendment’s prohibition against self-incrimination, the Supreme Court has distinguished “physical” or “demeanor” evidence, on the one hand, from “testimonial” evidence, on the *840 other. See Pennsylvania v. Muniz, 496 U.S. 582, 591-92 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990) (“We have since applied the distinction between ‘real or physical’ and ‘testimonial’ evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect.”); id. at 592 , 110 S.Ct. 2638 (discussing…

MEMORANDUM *

The recording of Honeycutt’s interrogation was relevant because it showed that Honeycutt’s description of the events leading to his purchase of the gun was inconsistent with Graham’s testimony, and also demonstrated Honeycutt’s nervous reaction when questioned by authorities. See Fed.R.Evid. 401; United States v. Hursh, 217 F.3d 761, 768 (9th Cir.2000). A district court has broad discretion to admit evidence regarding a defendant’s demeanor under interrogation. United States v. Velarde-Gomez, 269 F.3d 1023, 1030 (9th Cir.2001) (en banc). Any prejudicial effect from Honeycutt’s use of profanity did not substantially outweigh the tape’s probative value, Fed.R.Evid. 403; United States v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995), particularly in light of the trial court’s limiting instruction that the jury was not to consider such profanity. United States v. Cardenas-Mendoza, 579 F.3d 1024, 1030 (9th Cir.2009). Therefore, the district court did not abuse its discretion by denying Honeycutt’s motion in limine to exclude the recording of his interrogation.

Nor did the district court abuse its discretion by denying Honeycutt’s motion for a new trial. 1 Fed.R.Crim.P. 33;…

FILED

NOT FOR PUBLICATION AUG 05 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30022

Plaintiff - Appellee, D.C. No. 3:09-cr-00056-TMB-

JDR-

v.

HOLLIS H. HONEYCUTT, II, AKA MEMORANDUM *

Hollis Honeycutt, AKA Hollis H Honeycutt, AKA Howard Honeycutt, AKA Howie Honeycutt, AKA Howie Ziegler,

Defendant - Appellant.

Appeal from the United States District Court for the District of Alasµa Timothy M. Burgess, District Judge, Presiding

Argued and Submitted February 8, 2011 Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

The recording of Honeycutt's interrogation was relevant because it showed

that Honeycutt's description of the events leading to his purchase of the gun was

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. inconsistent with Graham's testimony, and also demonstrated Honeycutt's nervous

reaction when questioned by authorities. See Fed. R. Evid. 401;…