                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 4, 2007
                               No. 07-10875                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 06-00259-CR-T-24-MSS

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                    versus

JIMMY LEE BOSTON,
a.k.a. McArthur Jimmy Lee Boston,

                                                   Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (October 4, 2007)

Before BIRCH, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Jimmy Lee Boston appeals his convictions for knowingly possessing a
firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1), and

knowingly possessing a firearm from which the manufacturer’s serial number had

been removed, in violation of 18 §§ 922(k), 924(a)(1)(B). Boston raises two

contentions on appeal.

                                          I.

      Boston first contends that the district court abused its discretion in denying

his motion in limine to exclude evidence that he used the firearm in question

during an incident two months before the arrest that led to the firearm possession

charges. He argues that although the same firearm was allegedly in his possession

two months before his arrest, evidence of his earlier possession was improperly

admitted because it is inadmissible under Federal Rule of Evidence 404(b), it is not

otherwise admissible as extrinsic evidence, and its prejudicial effect substantially

outweighs its probative value.

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006), cert. denied, 127 S.

Ct. 1305 (2007). “[W]hen employing an abuse-of-discretion standard, we must

affirm unless we find that the district court has made a clear error of judgment, or

has applied the wrong legal standard.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc) (citation omitted).



                                           2
      Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident . . . .” Fed. R. Evid. 404(b). For evidence of another crime or

extrinsic act to be admissible under Rule 404(b): (1) it must be relevant to an issue

other than the defendant’s character; (2) there must be sufficient proof to enable a

jury to find by a preponderance of the evidence that the defendant committed the

act in question; and (3) its probative value cannot be substantially outweighed by

the danger of unfair prejudice. United States v. Chavez, 204 F.3d 1305, 1317 (11th

Cir. 2000). Whether the probative value is substantially outweighed by unfair

prejudice is a “determination [that] lies within the discretion of the district court

and calls for a common sense assessment of all the circumstances surrounding the

extrinsic offense, including prosecutorial need, overall similarity between the

extrinsic act and the charged offense, as well as temporal remoteness.” United

States v. Perez, 443 F.3d 772, 780 (11th Cir. 2006) (citation and quotation marks

omitted).

      Not all evidence of other acts or crimes, however, falls within the ambit of

Rule 404(b). In United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007),



                                            3
we explained that:

       [E]vidence of criminal activity other than the charged offense is not
       extrinsic under Rule 404(b), and thus falls outside the scope of the
       Rule, when it is (1) an uncharged offense which arose out of the same
       transaction or series of transactions as the charged offense, (2)
       necessary to complete the story of the crime, or (3) inextricably
       intertwined with the evidence regarding the charged offense.
       Evidence, not part of the crime charged but pertaining to the chain of
       events explaining the context, motive[,] and set-up of the crime, is
       properly admitted if linked in time and circumstances with the
       charged crime, or forms an integral and natural part of an account of
       the crime, or is necessary to complete the story of the crime for the
       jury. . . . [E]vidence of criminal activity other than the charged
       offense, whether inside or outside the scope of Rule 404(b), must still
       satisfy the requirements of Rule 403.

Id. (citations, quotation marks, and emphasis omitted) (second alteration in

original).

       Here, we need not decide whether the evidence regarding the previous

shooting would be admissible under Rule 404(b) because, consistent with the rule

set forth in Edouard, it is not extrinsic for Rule 404(b) purposes. The evidence

presented at trial completed the story of the crime. It explained the context and set-

up of the crime because it showed why Boston would be in possession of the

firearm when he was arrested—because it either belonged to him or he had

previously used it. Evidence that Boston used or possessed the same firearm two

months before his arrest in this case is evidence from which a jury could conclude

that he knowingly possessed the firearm at the time of his arrest. Accordingly, we

                                          4
are not persuaded that the district court abused its discretion in Boston’s motion to

exclude that evidence.

      We also conclude that the district court did not abuse its discretion in finding

that the probative value of the evidence of Boston’s previous firearm possession

outweighed its prejudicial effect. Under Rule 403, a district court may exclude

relevant evidence “if its probative value is substantially outweighed by the danger

of unfair prejudice . . . .” Fed. R. Evid. 403. Exclusion under “Rule 403 is an

extraordinary remedy[,] which should be used only sparingly.” United States v.

Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (citations and quotations omitted)

(alteration in original), cert. denied, 127 S. Ct. 990 (2007). The balance “should be

struck in favor of admissibility.” Id.

      Here, the evidence of the previous shooting was certainly prejudicial—the

witness who testified to Boston’s previous possession and use of the firearm at

issue in this case painted a grim picture. She testified that Boston was drunk,

talked about purchasing cocaine, and fired several shots in a house crowded with

people, including two children. Despite the prejudicial nature of that evidence, it

was also highly probative. The witness’ testimony, coupled with the shell casings

recovered from the scene of the earlier shooting, showed that Boston possessed and

used the gun two months before the arrest that ultimately led to the possession



                                          5
charges. Given Boston’s assertion in his statement to the ATF agent that the

firearm did not belong to him, that evidence was especially probative.

      Rule 403 requires the district court to balance the prejudicial effect of

evidence against its probative value. Only where the danger of prejudice

substantially outweighs the evidence’s probative value should the district court

exclude the evidence. Here, the district court did not abuse its discretion in

deciding that the balance favored admitting the evidence of Boston’s previous use

and possession of the firearm.

                                           II.

      Boston also contends that district court erred in admitting statements he

made during a custodial interview with an agent of the Bureau of Alcohol,

Tobacco, Firearms and Explosives. He argues that the ATF agent’s failure to

record the interview and his waiver of his rights under Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966), violates his privilege against self-incrimination,

his right to counsel, and his due process right to a fair trial. Boston concedes that

there is no basis for his contention in any decision of this Court, but asserts that

requiring law enforcement agents to record custodial interrogations would protect

the constitutional rights of individuals who make statements while in custody.

Specifically, he argues that recording statements ensures that a criminal



                                            6
defendant’s words are accurately presented at trial and that recording a defendant’s

waiver of his Miranda rights provides an additional guarantee that the waiver was

made voluntarily and intelligently. To bolster his position he points to state

exclusionary rules, imposed either by judicial decision or legislative act, that

require recording statements made during custodial interrogations. See, e.g., 725

Ill. Comp. Stat. 5/103-2.1 (2007); Tex. Code Crim. Proc. Ann. art. 38.22 § 3

(2007); Minnesota v. Scales, 518 N.W.2d 587, 591 (Minn. 1994); Stephan v.

Alaska, 711 P.2d 1156, 1162 (Alaska 1985).

      Although a rule requiring the government to record statements made during

custodial interrogations might be sound policy, we agree with other circuits that

have concluded that the Constitution does not require us to adopt such a rule. See,

e.g., United States v. Tykarsky, 446 F.3d 458, 477 (3d Cir. 2006) (“Whatever the

merits of the policy arguments in favor of requiring the recording of interrogations

may be, it is clear that such recording is not mandated by the United States

Constitution.”); United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005)

(“[The defendant] wants this Court to determine that the police failure to utilize a

written waiver form and tape-recording equipment was a bad faith denial of his

Fifth Amendment rights, and asks that we fashion a rule mandating their use in

formal interrogation settings. We decline to do so. While several states have so



                                           7
legislated, there is no indication that such laws are constitutionally required.”);

United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004) (“[N]o one has

intimated that [state laws requiring the recording of interrogations] were

constitutionally required, and we see no hint that the Supreme Court is ready to

take such a major step. We therefore decline [the defendant’s] invitation to enlarge

Miranda so as to require the electronic recording of all interrogations. ”).

Accordingly, the district court did not err in admitting the unrecorded statements

Boston made to the ATF agent after he voluntarily and intelligently waived his

Miranda rights.

      AFFIRMED.




                                           8
