                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4643



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

           versus


LATONIA WALLACE, a/k/a Pooter,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-03-187)


Argued:   February 3, 2005                  Decided:   March 2, 2005


Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Michael Lee Keller, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellant. Andrew Jeram Katz, THE KATZ WORKING FAMILIES LAW
FIRM, L.C., Charleston, West Virginia, for Appellee. ON BRIEF:
Kasey Warner, United States Attorney, Charleston, West Virginia,
for Appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     In this case, the Government appeals the district court’s

grant of Latonia Wallace’s motion to suppress certain statements

made after Wallace entered into a plea bargain with the Government.

The district court excluded these statements under Federal Rule of

Evidence 403. For the following reasons, we find that the district

court abused its discretion in so ruling.



                                   I.

     Wallace was indicted on November 13, 2003, by the federal

grand    jury   for   the   Southern   District   of   West    Virginia   for

conspiracy to distribute 50 grams or more of cocaine base in

violation of 21 U.S.C.A. § 846 (West 1999) and for possession of

ammunition for a firearm in violation of 18 U.S.C.A. §§ 922(g)(1)

(West 2000) and 924(a)(2) (West 2000).            Wallace surrendered to

authorities in Columbus, Ohio, and was returned to West Virginia on

December 31, 2003.     On January 6, 2004, Wallace met with Detective

T.C. Bramlee and the Assistant United States Attorney (AUSA)

assigned to the case to provide information to the Government.

Wallace and the Government had not entered into a plea bargain at

that time.

        During the January 6 meeting, Wallace admitted her role in the

drug conspiracy and attributed 11.75 ounces of cocaine powder and

33.5 ounces of cocaine base to the conspiracy.                On January 13,


                                       2
2004, Wallace entered into a plea agreement with the Government.

Pursuant to the plea agreement, the Government agreed to drop the

firearm charge in exchange for Wallace’s guilty plea on the drug

conspiracy   count.    The   plea   agreement   stated   that   Wallace’s

potential term of imprisonment was ten years to life.

     On January 29, after the plea deal was signed but before

Wallace’s Federal Rule of Criminal Procedure 11 colloquy was

conducted by the district court, Wallace again met with Bramlee and

the AUSA to provide further information on the drug conspiracy.

During this later meeting, Wallace told Bramlee that her co-

conspirators were responsible for 18 ounces of cocaine powder and

69 ounces of cocaine base.    Wallace’s guilty plea was accepted by

the district court on March 3.          Shortly thereafter, Wallace’s

counsel filed a motion to withdraw and Wallace moved, pro se, to

appoint new counsel.    Wallace also moved to withdraw her plea at

that time.   After conducting a hearing, the district court granted

all three motions.

     Following the appointment of new counsel, Wallace moved to

suppress certain statements she had made.       Relevant here, Wallace

moved, pursuant to Federal Rules of Evidence 403 and 410, to

suppress the statements she gave to Bramlee and the AUSA on January

6 and January 29.1     The Government conceded before the district


     1
      Wallace also moved to suppress statements taken in July 2003
during a search of Wallace’s residence in Huntington, West
Virginia. The Government conceded that these statements were taken

                                    3
court that the statements given on January 6 were inadmissible in

its case in chief,2 and the district court ruled that, under

Federal Rule of Evidence 403, the January 29 statements were also

inadmissible.3     The Government filed a timely appeal and the

required certification under 18 U.S.C.A. § 3731 (West Supp. 2004).



                                  II.

     The sole issue in this appeal is whether Rule 403 permitted

the exclusion of the January 29 statements.        “A district court’s

evidentiary   rulings   are   reviewed   under   the   narrow   abuse   of

discretion standard.” United States v. Grimmond, 137 F.3d 823, 831

(4th Cir. 1998).     Rule 403 provides that “[a]lthough relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .”            Fed. R.

Evid. 403.    Under this rule, “damage to a defendant’s case is not

a basis for excluding probative evidence,” because “[e]vidence that


in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and were
inadmissible in its case in chief.
     2
      The Government’s concession was based on Federal Rule of
Evidence 410(4), which provides for the exclusion of “any statement
made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty or
which result in a plea of guilty later withdrawn.” Fed. R. Evid.
410(4).

     3
      The district court agreed with the Government that the
January 29 statements were not inadmissible pursuant to Rule 410.
On appeal, Wallace has not pressed Rule 410 as an alternate ground
for affirmance.

                                   4
is highly probative invariably will be prejudicial to the defense.”

Grimmond, 137 F.3d at 833; see also 2 Jack B. Weinstein & Margaret

A. Berger, Weinstein’s Federal Evidence § 404.21(3)(b) (Joseph M.

McLaughlin, ed., 2d. ed. 2002) (noting that “[u]nfair prejudice

under Rule 403 does not mean the damage to a defendant’s case that

results from the legitimate probative force of the evidence”)

(emphasis   omitted).      “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)

(quotation marks and emphasis omitted).              Unfair prejudice “speaks

to the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged.”            Old Chief v. United States, 519

U.S. 172, 180 (1997).     In sum,

      [W]e have stated that undue prejudice occurs when there
      is “a genuine risk that the emotions of a jury will be
      excited to irrational behavior, and that this risk is
      disproportionate to the probative value of the offered
      evidence.” Because the evidence sought to be excluded
      under Rule 403 is concededly probative, the balance under
      Rule 403 should be struck in favor of admissibility, and
      evidence should be excluded only sparingly.

United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996)

(quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.

1993)).

                                        5
       The district court found that the danger of unfair prejudice

substantially outweighed the probative value of the January 29

statements.         The district court concluded that the probative value

of    the    statements         was    “substantially      diminished”    because       (1)

“Wallace [in her January 29 statements] roughly doubled the amount

of controlled substances attributed to her fellow conspirators;”

and    (2)       because   of    the    “presently       undisputed   account   of      Ms.

Wallace’s trouble with memory loss.”4                    (J.A. at 163.)   The district

court also determined that the statements were unfairly prejudicial

because “the jury will almost certainly abandon its obligation to

carefully consider all of the evidence in this case” (J.A. at 164)

once Wallace’s statements were entered into evidence.

       We believe that the district court abused its discretion in

excluding the January 29 statements under Rule 403.                        First, the

district court should not have considered Wallace’s credibility in

determining         the    probative       value    of   these   statements.       It   is

“relatively clear that in the weighing process under Rule 403 the

judge cannot consider the credibility of witnesses.”                       22 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

5214       (2d    ed.   1994).        As   we   have     previously   explained,     “the

credibility of a witness has nothing to do with whether or not his

testimony is probative with respect to the fact which it seeks to


       4
      The Pre-Sentence Report found that Wallace had been in a
serious car accident and that “[Wallace] reported having short-term
memory loss as a result of her injuries.” (J.A. at 186.)

                                                6
prove.”          United States v. Welsh, 774 F.2d 670, 672 (4th Cir. 1985)

(emphasis added).              The January 29 statements, as admissions of

guilt, were highly probative.                  Questions regarding the effect of

Wallace’s short-term memory loss and the discrepancies between the

drug amounts attributable to the conspiracy were questions of

credibility for the jury and do not diminish the statements’

probative value.

       In        addition,     although    the     statements     were       undoubtedly

prejudicial          to   Wallace,      they   were    not   unfairly     prejudicial.

Obviously, inculpatory statements are prejudicial to Wallace in

that they damage her case.                Rule 403, however, is concerned only

with unfair prejudice, that is, prejudice resulting from the

“capacity          of   some   concededly      relevant      evidence    to    lure   the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged.”                     Old Chief, 519 U.S. at 180.

Evidence is unfairly prejudicial only when there is a “genuine risk

that       the    emotions     of   a   jury    will   be    excited    to    irrational

behavior.”          United States v. Bailey, 990 F.2d 119, 123 (4th Cir.

1993).           No such risk exists in this case.5                    The inculpatory

statements made by Wallace on January 29 will not excite the

passions of the jury and lure them into convicting Wallace on a

ground irrelevant to the charges against her.


       5
      There is no suggestion that the Government intends to reveal
that these statements were made after Wallace signed a plea
agreement.

                                               7
     Rule 403 permits the exclusion of evidence when its probative

value   is   substantially   outweighed   by   its   danger   of    unfair

prejudice.   Wallace’s inculpatory statements were highly probative

and were not unfairly prejudicial.      Accordingly, we hold that the

district court abused its discretion in excluding the statements

under Rule 403.



                                 III.

     For the foregoing reasons, the ruling of the district court is

reversed.

                                                                   REVERSED




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