                                                                              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                           NOT FOR PUBLICATION                                 JUL 15 2011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).


                                         -3-
      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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