                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APR 10, 2009
                             No. 08-10989                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 07-00002-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KELVIN LEVOID SMITH,
a.k.a. Frog,

                                                         Defendant-Appellant.


                       ________________________

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

                             (April 10, 2009)

Before EDMONDSON, Chief Judge, BIRCH and HULL, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Kelvin Levoid Smith appeals his conviction for being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1). No reversible error has

been shown; we affirm.

       On appeal, Smith argues that the district court erred in denying his motions

to suppress (1) guns discovered in his car because no exception applied to the

warrantless search, (2) statements he made before his arrest because he had not

received Miranda1 warnings, and (3) his post-arrest statements because he did not,

in the light of his intoxication, voluntarily waive his Miranda rights. In

considering the district court’s denial of a motion to suppress, we review fact

determinations for clear error and application of law to the facts de novo.2 United

States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). And we construe all facts

in the light most favorable to the prevailing party. Id.

       Smith was involved in a car accident in the parking lot of a gas station late at

night. A police officer who approached Smith immediately after the accident

noticed that he was agitated and smelled strongly of alcohol. Smith later had



       1
           Miranda v. Arizona, 86 S.Ct. 1602 (1966).
       2
        Smith objected to fact-findings in the magistrate judge’s report and recommendation
about the suppression motions only by noting that “certain facts stated within the report and
recommendation [were] not correct.” See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983) (we review for plain error when a party fails to “specifically identify [the fact] findings to
which he objects” in the magistrate’s report). But as we explain, under either plain or clear error
review, Smith’s arguments fail.

                                                  2
difficulty performing field sobriety tests and eventually refused to continue the

tests. Smith was then placed under arrest for driving under the influence (“DUI”).

Officers searched Smith’s car after his arrest, and the search yielded two loaded

guns.

        Based on these facts, the warrantless search of Smith’s car was permissible

as a search incident to a lawful arrest. The Fourth Amendment permitted the

officers to search Smith and his car to look for weapons that could be used to

injure police officers and to collect and preserve evidence. United States v.

Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (officers lawfully arresting a car

occupant may search the passenger area of the car as a contemporaneous incident

of the arrest). Smith does not contest that his DUI arrest was lawful.

        We also conclude that the district court committed no error in failing to

suppress Smith’s statements. The officer who initially approached Smith after the

accident asked him -- without giving him Miranda warnings -- if he had any

weapons on him. Smith responded that he had a gun in his car. The officer’s

question was permissible under the public safety exception to Miranda. See United

States v. Newsome, 475 F.3d 1221, 1224-25 (11th Cir. 2007) (explaining that

Miranda’s public safety exception allows officers to question a suspect without

first Mirandizing him when necessary to protect either themselves or the general



                                            3
public). It was reasonable for the officer to ask Smith about weapons to protect his

own safety and that of others in the area based on Smith’s agitation and his strong

odor of alcohol.

       About Smith’s post-arrest statements when he told officers there was a gun

in his car and that he had been drinking, we conclude that he voluntarily waived his

Miranda rights. A waiver of Miranda rights must be knowing and voluntary; and

whether a defendant has waived his Miranda rights is evaluated based on the

totality of the circumstances. United States v. Barbour, 70 F.3d 580, 584-85 (11th

Cir. 1995). Smith was given Miranda warnings upon his arrest and again at the jail

before questioning began. While Smith did not execute a formal waiver, he

voluntarily spoke to officers and made consistent statements, both at the scene and

at the jail. Although Smith had been intoxicated, at least three hours elapsed

between the car accident and the start of the jail interview. And at the interview,

Smith noted that officers had already read his rights to him, appropriately

responded to questions, and even acknowledged that he was sober during the

questioning. Based on the totality of these circumstances, the district court made

no error in determining that the passage of time and Smith’s demeanor during

questioning rendered his waiver of Miranda rights knowing and voluntary.3


       3
        Smith also contends that he was denied his right to counsel because he asked for a
lawyer during questioning at the jail but officers continued to question him. That Smith did not

                                                4
       Smith next argues that the district court erred in admitting evidence of prior

bad acts -- his DUI arrest, the presence of a large amount of cash on his person,

and a powdery white substance in his car -- because this evidence was irrelevant to

the felon-in-possession charge and served only to prejudice him and confuse the

jury. We review a district court’s admission of prior crimes or bad acts under

Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Ellisor, 522 F.3d

1255, 1267 (11th Cir. 2008).

       Under Rule 404(b), evidence of uncharged crimes is not admissible to show

proof of bad character. But evidence of uncharged crimes is not extrinsic under

Rule 404(b) if it is (1) an uncharged offense that arose out of the same transaction

as the charged offense, (2) necessary to complete the story of the crime, or

(3) inextricably intertwined with the evidence about the charged offense. Ellisor,

522 F.3d at 1269. And an uncharged crime that explains the context, motive, and

set-up of the crime properly is admitted if linked in time and circumstances with

the charged crime or forms an integral and natural part of an account of the crime.

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).




unequivocally invoke his right to counsel is clear: he simply mentioned in passing that he had a
lawyer and continued to talk about the incident when officers attempted to clarify his reference
to a lawyer. See United States v. Acosta, 363 F.3d 1141, 1152 (11th Cir. 2004) (questioning
must cease when a suspect expresses a desire to consult with counsel, but request for counsel
must be unambiguous and unequivocal).

                                                5
       No abuse occurred on this record. Evidence about the DUI arrest helped

explain to the jury why officers approached Smith, detained him, and searched his

car. The evidence is intertwined and closely linked in time and circumstances with

the felon-in-possession offense: the guns forming the basis for the instant charge

were discovered during the DUI arrest. See id. When officers searched Smith and

his car, they discovered over $4000 in his pocket and a white powdery substance

that appeared to be cocaine in the glove compartment of the car.4 Smith later told

officers that the powdery substance was “candle wax.” This evidence may be

extrinsic to the charged offense, but it served to show more than Smith’s bad

character. The white powder and Smith’s characterization of it showed Smith’s

knowledge of the contents of his car, which included the guns. And the large

amount of cash showed Smith’s motive to protect himself by carrying a gun. See

Fed.R.Evid. 404(b) (listing knowledge and motive as examples of non-propensity

use of character evidence).

       Given the helpfulness of the DUI evidence in telling the jury a coherent

story and the probative value of the white powder and money in proving the felon-

in-possession offense, the district court abused no discretion in concluding that any

unfair prejudice resulting from this evidence did not outweigh substantially its


       4
         The substance later was tested and determined to be a mixture of procaine and caffeine,
a legal substance.

                                                6
probative value. See Fed.R.Evid. 403; United States v. Fortenberry, 971 F.2d 717,

721 (11th Cir. 1992) (the balance between probative value and unfair prejudice

should “be struck in favor of admissibility”).

          Smith also challenges the district court’s removal of the only African-

American on the jury. This juror was removed after the close of the evidence at the

behest of the government because she had been asleep through much of the trial.

The district court excused the juror, noting that it had seen her sleeping many times

during the brief trial. We review for an abuse of discretion a district court’s

decision to replace, before jury deliberations, a juror who is unable to perform her

duties with an alternate juror. Fed.R.Crim.P. 24(c); United States v. De La Vega,

913 F.2d 861, 868-69 (11th Cir. 1990). We will not disturb the district court’s

decision without a showing of bias or prejudice, which includes discharge of a

juror “without factual support or for a legally irrelevant reason.” Id. at 869. We

discern no abuse here as the court articulated clearly an acceptable, non-biased and

factually supported reason for excusing the juror: her inability to stay awake during

trial.5

          AFFIRMED.


          5
         On appeal, Smith does not address the court’s reasoning for removing the juror and,
instead, appears to be making a challenge based on Batson v. Kentucky, 106 S.Ct. 1712 (1986).
But Batson -- which applies to peremptory challenges -- is inapplicable to the removal of jurors
under Rule 24(c).

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