                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4019


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL LLOYD STEVENS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:09-cr-00222-11)


Submitted:   November 21, 2011            Decided:   November 29, 2011


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia, for Appellant.     R. Booth Goodwin, II, United
States Attorney, Steven I. Loew, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Michael Lloyd Stevens appeals his conviction following

a jury trial on one count of conspiracy to retaliate against a

person     cooperating       with     law       enforcement,       in     violation      of

18 U.S.C.A. § 1513(b)(2), (f) (West Supp. 2011).                           He argues on

appeal that the district court erred in allowing the Government

to introduce as evidence in its case-in-chief a stipulation of

facts establishing that he and his confederates believed the

intended    victim     of    their    planned        retaliation     was    cooperating

with federal law enforcement officials.                   We affirm.

            Following his indictment, Stevens entered into a plea

agreement    with    the     Government,        in    which   he     agreed       to   plead

guilty to the conspiracy charge.                 Attached to the plea agreement

was a stipulation of facts indicating that Stevens had conspired

with   others   to   retaliate        against        an   intended      victim     for   his

cooperation     with        federal    authorities          concerning        a    federal

offense by assaulting him.

            The plea agreement also contains a provision waiving

Stevens’ rights under Fed. R. Evid. 410.                      Specifically, Stevens

agreed that if he withdrew from the plea agreement or proceeded

to trial on the conspiracy charge, the Government was permitted

to use the stipulation of facts as evidence in its case-in-

chief.     Stevens ultimately proceeded to a jury trial.                          In turn,

the Government introduced the stipulation of facts as evidence

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against    Stevens    in     its    case-in-chief          at   trial.        On    appeal,

Stevens argues that the district court erred in allowing such

admission.

            Rule 410 of the Federal Rules of Evidence provides

that any statements made by a defendant in the course of plea

discussions that do not result in a guilty plea are thereafter

not admissible against him.                Fed. R. Evid. 410.             Because Rule

410 is an exception to the general principle that all relevant

evidence    is    admissible       at    trial,      its   limitations        are     to   be

construed narrowly.           United States v. Roberts, ___ F.3d ___,

No. 10–1230–cr, 2011 WL 4489813, at *5 (2d Cir. Sept. 29, 2011).

Moreover,     its    protections         are       waivable.      United       States      v.

Mezzanatto, 513 U.S. 195, 205 (1995) (holding that Rule 410, in

effect, creates “a privilege of the defendant, and, like other

evidentiary privileges, this one may be waived or varied at the

defendant’s       request”    (internal            quotation    marks    and       citation

omitted));       accord    United       States      v.   Mitchell,      633    F.3d     997,

1001-06 (10th Cir. 2011) (upholding validity of Rule 410 waiver

and allowing defendant’s plea statements into evidence as part

of the Government’s case-in-chief); United States v. Sylvester,

583 F.3d 285, 289-91 (5th Cir. 2009) (same and citing decisions

from the Eighth and District of Columbia Circuits supporting the

proposition that statements made during plea negotiations can be



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waived    for   use    as    affirmative        evidence        of   the    defendant’s

guilt).

            Whether     a    valid      waiver    of     rights      occurred       is     a

question of law reviewed de novo.                 United States v. Young, 223

F.3d 905, 909 (8th Cir. 2000) (addressing a waiver under Rule

410); accord United States v. Singleton, 107 F.3d 1091, 1097 n.3

(4th Cir. 1997) (stating that waiver of the right to counsel is

a question of law reviewed de novo).                     We review the district

court’s    evidentiary       ruling    admitting       statements      into    evidence

for abuse of discretion.             United States v. Blake, 571 F.3d 331,

350    (4th Cir.    2009).      A     district     court    does      not    abuse       its

discretion unless its decision to admit evidence is arbitrary or

irrational.         United     States     v.     Weaver,    282      F.3d     302,       313

(4th Cir. 2002).

            Absent fraud, coercion, or some affirmative indication

that      the   agreement        was      entered        into        unknowingly          or

involuntarily, an agreement to waive the exclusionary provisions

of Rule 410 is valid and enforceable.                    Mezzanatto, 513 U.S. at

210.     On appeal, Stevens does not suggest the presence of any

fraud or coercion and makes no claim that he entered into the

plea   agreement      involuntarily.           Rather,     he    suggests     that       his

agreement to waive Rule 410 was not made knowingly because he

did not know at the time he entered into the plea agreement that

the    Government     would     be     required     to     prove      that    the        law

                                          4
enforcement       officials       with    whom    the    victim       cooperated      were

federal officials.

            We reject this argument because Stevens utterly fails

to explain how any such lack of knowledge affected his ability

to enter into the plea agreement in a knowing fashion.                                  We

further     reject     as       without     merit       Stevens’         assertion     that

information       about     the     federal       character         of    the   victim’s

cooperation was unknown to him at the time he entered into the

plea agreement.

            Because       the    waiver     was   valid       and   enforceable,       the

district court properly allowed to Government to introduce the

stipulation       of   facts       as     evidence       in     its       case-in-chief.

Mitchell, 633 F.3d at 1001-06; Sylvester, 583 F.3d at 289-91.

We reject Stevens’ assertion that the stipulation served “no

fact finding purpose,” as it was relevant to and probative of

Stevens’    criminal      culpability       on    the    conspiracy        charge.      As

such, its admission into evidence enhanced the reliability of

the fact-finding process.                See Sylvester, 583 F.3d at 294 (“If

anything,    to    ignore       relevant     evidence      of   culpability          simply

because that evidence was discovered during the course of plea

negotiations would arguably undermine the truth-seeking function

of our criminal justice system.”).

            Stevens also asserts that the stipulation “improperly

prejudiced the jury” against him.                 Insofar as Stevens is making

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an argument under Fed. R. Evid. 403, it, too, is without merit.

“Rule 403 only requires suppression of evidence that results in

unfair   prejudice     —   prejudice    that    damages     an   opponent   for

reasons other than its probative value, for instance, an appeal

to emotion, and only when that unfair prejudice substantially

outweighs the probative value of the evidence.”                  United States

v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (emphasis added)

(internal   quotation      marks,   emphasis,   and   alteration     omitted).

Stevens, however, fails to point to anything in the record to

support the conclusion that the admission of the stipulation of

facts was unfairly prejudicial.

            Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument     because    the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                      AFFIRMED




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