                                                                           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                           NOT FOR PUBLICATION                              AUG 05 2011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-1
  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; 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; United States v. Moses, 496 F.3d 984, 992-93

(9th Cir. 2007). Credibility determinations are the province of the jury, see United

States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 2005), and we may not

revisit them, United States v. Nevils, 598 F.3d 1158, 1164 n.2 (9th Cir. 2010) (en


      1
        Because Honeycutt failed to develop any argument that the district court
erred in denying his Rule 29 motion for acquittal, he has waived this issue. United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

                                          -2-
banc). Moreover, the prosecutor's comments on Honeycutt's demeanor in his

closing argument were permissible comments on the evidence, rather than

improper vouching. See United States v. Young, 470 U.S. 1, 18 (1985).

      AFFIRMED.




                                       -3-
                                                                             FILED
United States v. Honeycutt, 10-30022                                          AUG 05 2011

                                                                         MOLLY C. DWYER, CLERK
Fletcher, B., specially concurring:                                        U.S . CO U RT OF AP PE A LS




      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 Honeycutt's motion in limine to

exclude the recording of his interrogation. I write separately, however, to address

an issue lurµing in the bacµground 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'á 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 other. See Pennsylvania v. Muniz, 496 U.S. 582,

591-92 (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 (discussing

defendant's compelled participation in a lineup or provision of a handwriting

sample or voice exemplar as acceptable forms of 'real or physical' evidence).



                                      Page 1 of 3
'Demeanor evidence often involves the admission of evidence concerning a

defendant's slurred speech, apparent nervousness, or a defendant's demeanor

during a polygraph test, even though the results [of such a test] may not be

admissible.' United States v. Velarde-Gomez, 269 F.3d 1023, 1030 (9th Cir. 2001)

(en banc) (citations and punctuation omitted).

      At issue here is an audio recording of Honeycutt's denials of wrongdoing.

The concept of 'demeanor evidence' has never been extended to such evidence,

and our panel does not reach the issue today. We must be careful to cabin what

constitutes true 'demeanor evidence,' and not permit that label to be used to

smuggle in otherwise inadmissible evidence. The admission of this type of

recording in a criminal trial where the defendant chose not to taµe the stand--as is

the case here--could raise significant Fifth Amendment problems were the

defendant to raise the proper objection: that the recording is not true 'demeanor

evidence.'1

      Defense counsel never argued that the admission of the audio recording was

error because the recording cannot be properly classified as 'demeanor



      1
         To be clear, this was not a case where the interrogating officers testified
about the defendant's demeanor during questioning. See, e.g., United States v.
Hursh, 217 F.3d 761, 768 (9th Cir. 2000). Instead, Honeycutt's recorded voice
was played for the jury during his criminal trial, at which he had decided not to
testify.
                                      Page 2 of 3
evidence'--not even on appeal. Instead, defense counsel has contended only that

the recording is inadmissible character evidence. The failure to raise the

'demeanor evidence' issue deprived us of the arguments necessary to fully

evaluate this problem. Accordingly, we do not reach the issue of the recording's

admissibility on that basis here.




                                     Page 3 of 3
