                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     December 7, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff-Appellee,                       No. 05-5193
          v.                                    (Case No. 04-CR-182-002-TCK)
 JAM ES LEE W ATSON,                                     (N .D. Okla.)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously to honor the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered

submitted without oral argument.

      Appellant James Lee W atson brings this direct criminal appeal following

his conviction for multiple counts of armed robbery and related firearms charges.

Appellant challenges certain district court evidentiary rulings as well as that

court’s denial of his motion for a new trial.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      First, Appellant argues that the district court incorrectly denied his motion

to suppress an incriminating statement made to police detectives. Appellant

asserts that the administration of morphine in conjunction with a medical

procedure the day before the interview placed him in a weakened condition, and

that subjecting him to a police interview therefore violated his Fifth Amendment

right against self-incrimination and Fourteenth Amendment right to due process.

      In reviewing the grant or denial of a motion to suppress, we accept the

district court’s factual findings unless clearly erroneous and consider the evidence

in the light most favorable to the district court’s determination. United States v.

Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006). W e conduct de novo review on the

ultimate issue of whether a statement was voluntary, “taking into account the

totality of the circumstances surrounding the confession.” Id. (quotation

omitted). The Government bears the burden of showing, by a preponderance of

the evidence, that a confession is voluntary. M issouri v. Seibert, 542 U.S. 600,

608 n.1 (2004). “W aiver of one’s Fifth A mendment privilege against

self-incrimination requires that the individual ‘voluntarily, knowingly and

intelligently’ waive his constitutional privilege.” United States v. M orris, 287

F.3d 985, 988 (10th Cir. 2002) (quoting M iranda v. Arizona, 384 U.S. 436, 444

(1966)).

      The district court conducted a suppression hearing, at which the

interviewing detective and Appellant testified, and reviewed a videotape of the

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interview. The district court found that Appellant knowingly signed a M iranda

waiver after reading portions of the waiver out loud, that Appellant was alert and

understood the nature of the interview, and that Appellant ended the interview by

refusing to talk further and by requesting a lawyer. The district court concluded

that these facts show ed that Appellant waived his M iranda rights w ith “‘full

awareness both of the nature of the [rights] being abandoned and the

consequences of the decision to abandon [them].’” Order, Case No. 04-CR-182-

K, at 4 (N.D. Okla. Feb. 23, 2005) (quoting M orris, 287 F.3d at 989). Based on

the totality of the circumstances, we agree. See M orris, 287 F.3d at 989 (finding

no mental impairment where physician said medication would have no effect on

faculties and defendant’s actions demonstrated comprehension of his rights); see

also United States v. Curtis, 344 F.3d 1057, 1066 (10th Cir. 2003) (concluding

that defendant was lucid and aware of his rights after district court reviewed

videotape of interview and heard testimony from interview ing officer).

      Second, Appellant contends that the district court permitted the jury to

view the surveillance video of one the armed robberies in clear contravention of

Fed. R. Evid. 403. “W e review a district court’s evidentiary rulings for abuse of

discretion.” Curtis, 344 F.3d at 1067. “As has been stated many times, Rule 403

does not protect a party from all prejudice, only unfair prejudice.” Deters v.

Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000). The

district court determined that the videotapes were directly relevant to the crimes

                                         -3-
alleged, were not unfairly prejudicial, and corroborated witness testimony. W e do

not believe the district court abused its discretion when it determined that the

video’s probative value outweighed any potential prejudicial impact.

      Third, Appellant challenges the admission of and playing of audiotaped

telephone conversations in which Appellant attempted to fabricate a false alibi

with the coerced cooperation of third parties. Appellant argues that (1) the

government’s notice requesting admission of this evidence was filed after the

motion deadline, (2) Fed. R. Crim. P. 12.1(f) prohibits admission following

Appellant’s w ithdrawal of his alibi defense, (3) the evidence was not relevant,

and (4) the evidence was unduly prejudicial.

      Admission of evidence under Fed. R. Evid. 404(b) is reviewed for abuse of

discretion. United States v. M ares, 441 F.3d 1152, 1156 (10th Cir. 2006). W e do

not reverse a district court’s ruling “if ‘it fall[s] within the bounds of permissible

choice in the circumstances’ and is not ‘arbitrary, capricious or whimsical.’” Id.

(alteration in original) (quoting United States v. Shumway, 112 F.3d 1413, 1419

(10th Cir. 1997)). Rule 404(b) governs the admission of “other crimes, wrongs,

or acts,” and a ruling on Rule 404(b) admissibility requires that we examine the

following four factors: “(1) whether the evidence is offered for a proper purpose,

(2) its relevancy, (3) that the probative value of the evidence is not substantially

outweighed by its prejudicial effect, and (4) a limiting instruction is given if the

defendant so requests.” Id. (citing Huddleston v. United States, 485 U.S. 681,

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691 (1988)).

      The district court found that the government, after learning about these

conversations, promptly filed its motion to admit the evidence. Also, the district

court determined that Rule 12.1(f) did not bar admission of this evidence to prove

consciousness of guilt. The audiotapes w ere offered for the permissible purpose

of establishing consciousness of guilt and were not overly prejudicial compared to

the relevant probative purpose. The district court did, however, require redaction

of Appellant’s threats to kill the witnesses and/or their family members if they

failed to cooperate. In addition, the district court instructed the jury that it could

not consider this evidence as proof of the acts charged but rather only as proof of

Appellant’s state of mind. W e find the district court’s ruling entirely appropriate.

      Finally, Appellant argues that the district court erroneously denied his

motion for a new trial based on newly discovered evidence. Specifically,

Appellant contends his rights were prejudiced by a violation of the rule of

sequestration. Fed. R. Crim. P. 33 authorizes district courts to grant new trials “if

required in the interest of justice.” However, “motion[s] for a new trial based on

newly discovered evidence [are] generally disfavored and ‘should be granted only

with great caution.’” United States v. Gwathney, No. 05-2165, 2006 W L

2734108, at *7 (10th Cir. Sept. 26, 2006) (quoting United States v. Combs, 267

F.3d 1167, 1176 (10th Cir. 2001)). A district court’s denial of a motion for a new

trial is reviewed under the abuse of discretion standard. Id.

                                           -5-
      After hearing testimony on the nature of the sequestration violation, the

district court determined not only that “[a]ny hypertechnical violation of the Rule

of Sequestration was not prejudical,” but also that “[i]t was a waste of this

Court’s time to hear” the motion since the evidence was in no way material to the

principal issues involved and no harmful prejudice could have resulted from the

violation. (Hr’g Tr. at 52-53, Aug. 31, 2005.) After reviewing the nature of the

violation, we agree that the violation was, at best, “minor,” “hypertechnical,” and

“harmless.” (Id.)

      AFFIRM ED.

                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




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