                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 7 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-3307
                                                             (D. Kan.)
 JAY DEE WALTERS,                                    (D.Ct. No. 99-CR-40012)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and HALL, **
Circuit Judge.



                                   INTRODUCTION

      A jury convicted Jay Dee Walters of conspiracy to manufacture a mixture

containing a detectable amount of methamphetamine in violation of 21 U.S.C.

§§ 846 and 841. The district court sentenced Mr. Walters to 121 months

      *
          This order and judgment is not binding precedent except under the doctrines of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.

      **
         The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
imprisonment and five years supervised release. On appeal, Mr. Walters argues:

(1) his sentence violates the Supreme Court’s holding in Apprendi v. New Jersey,

530 U.S. 466(2000); (2) the district court erred in determining the amount of

methamphetamine involved in the conspiracy and consequently misapplied the

United States Sentencing Guidelines; (3) prosecutorial misconduct tainted his

conviction; and (4) the district court erred in admitting polygraph evidence. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and

(2). In affirming the district court’s decision, we will address each of Mr.

Walters’ arguments in turn. 1



1.     Apprendi Error

       Mr. Walters begins by challenging his sentence. He argues his sentence of

five years supervised release exceeds the minimum of three years supervised

release required by 21 U.S.C. § 841(b)(1)(C) and, therefore, violates Apprendi.

Mr. Walters contends “[w]here a sentence exceeds the lowest or lowest mandatory

minimum sentence for which the Defendant was indicted and convicted, the

sentence must be vacated and the case remanded for sentencing.” In sum, Mr.

Walters believes, because the jury did not make any findings as to the amount of


       1
        The district court set forth the facts of this case in United States v. Walters, 89 F.
Supp. 2d 1206, 1207-10 (D. Kan. 2000).


                                             -2-
methamphetamine involved, the district court could not sentence him to a term of

supervised release longer than the statutory minimum of three years.



      We review the question of whether Mr. Walters’ sentence violates Apprendi

de novo. United States v. Thompson, 237 F.3d 1258, 1261 (10th Cir.), cert.

denied, 121 S. Ct. 1637 (2001). “In Apprendi, the Supreme Court held that

‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.’” Id. at 1261-62 (quoting Apprendi, 530

U.S. at 490). We have previously held Apprendi requires a jury to find drug

quantities if the defendant is sentenced under 21 U.S.C. § 841(b)(1)(A) or (B).

See United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). However, the

district court can impose a sentence within the range allowed under 21 U.S.C.

§ 841(b)(1)(C) even when a jury did not make a drug quantity finding. 2 Sanchez,



      2
         The structure of 21 U.S.C. § 841(b) shows why Apprendi is triggered by
sentencing under subsections (A) and (B), but not (C). Section 841(b) establishes a tiered
system of penalties for drug offenses. The length of the sentence depends on the amount
of drugs involved. Section 841(b)(1)(A) and (B) enumerate specific drug quantities
necessary to trigger their penalties. See Jones, 235 F.3d at 1236. As a result, Apprendi
requires a jury finding as to the drug quantities. Id. In contrast, § 841(b)(1)(C) is the
base level offense and does not specify a drug quantity. See United States v. Sanchez, 269
F.3d 1250 (11th Cir. 2000). Consequently, a district court can sentence a defendant under
(C) without jury findings as to the drug quantity. Id. at 1268.


                                           -3-
269 F.3d at 1268. Because the jury did not make any findings as to the amount of

methamphetamine Mr. Walters conspired to manufacture, we must determine

whether Mr. Walters’ sentence is within the range allowed under § 841(b)(1)(C).

This section states “[a]ny sentence imposing a term of imprisonment under this

paragraph shall ... impose a term of supervised release of at least 3 years.” 21

U.S.C. § 841(b)(1)(C). Because § 841(b)(1)(C) does not set a maximum term for

supervised release, 3 Mr. Walters’ sentence of five years supervised release was

within the range allowed by § 841(b)(1)(C) and did not violate Apprendi. See

Thompson, 237 F.3d 1258 (holding a five-year term of supervised release under

§ 841(b)(1)(C) was within the range of the statute and did not violate Apprendi).



      Mr. Walters would have us extend Apprendi to require the jury to find drug

quantities if the defendant receives a sentence in excess of the minimum penalty

required under § 841(b)(1)(C). During oral argument, counsel for Mr. Walters

repeatedly asked us to adopt the Sixth Circuit’s holding in United States v.

Ramirez, 242 F.3d 348 (6th Cir. 2001). Ramirez is not factually analogous to the


      3
         In some portions of his brief, Mr. Walters argues the three year term of
supervised release allowed under § 841(b)(1)(C) is the maximum term of supervised
release allowed. This argument is contrary to the statutory language providing the term of
supervised release is “at least 3 years.” 21 U.S.C. § 841(b)(1)(C); see United States v.
Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (holding the maximum sentence of
supervised release under § 841(b)(1)(C) is life), cert. denied, 531 U.S. 1026 (2000).


                                           -4-
case before us. In Ramirez, the jury did not find a specific drug quantity, but the

district court sentenced the defendant to twenty years imprisonment – the

minimum allowed under 21 U.S.C. § 841(b)(1)(A). Ramirez, 242 F.3d at 350.

The district court indicated the twenty-year sentence was excessive, but required

by the statute. Id. On appeal, the Sixth Circuit held the district court should have

sentenced the defendant under § 841(b)(1)(C) because the jury had not found a

specific drug quantity. See Ramirez, 242 F.3d at 352. In contrast, Mr. Walters’

sentence of five years supervised release was not due to the district court’s

incorrect application of § 841(b)(1)(A) or § 841(b)(1)(B) – subsections that

require proof of a specific quantity of methamphetamine. Rather, the district

court correctly sentenced Mr. Walters under § 841(b)(1)(C). For this reason, we

decline to apply Ramirez. We hold Mr. Walters’ sentence of five years supervised

release does not violate Apprendi.



2.    Determination of Drug Quantity

      Mr. Walters also disputes his sentence because he believes the district court

erred in determining the amount of methamphetamine involved in the conspiracy

and consequently erred in applying the United States Sentencing Guidelines. Mr.

Walters contends the district court (1) should have applied a standard more

stringent than preponderance of the evidence in evaluating the drug quantity


                                         -5-
evidence, (2) did not have sufficient evidence to support the amount of

methamphetamine attributed to Mr. Walters, and (3) should not have relied on

theoretical yields to determine the amount of methamphetamine attributable Mr.

Walters.



      “We review the district court’s interpretation of the Sentencing Guidelines

de novo and its factual findings for clear error. We give due deference to the

district court’s application of the Guidelines to the facts.” United States v. Davis,

182 F.3d 1201, 1202 (10th Cir. 1999) (citations omitted). Under this standard of

review, we affirm the district court’s decision.



      A.     Preponderance of Evidence Standard

      Initially, Mr. Walters urges us to discard the preponderance of the evidence

standard and adopt the heightened evidentiary standard for determining drug

quantities as outlined by the Ninth Circuit in United States v. Scheele, 231 F.3d

492 (9th Cir. 2000). In Scheele, the court held “the Due Process Clause requires

the application of a clear and convincing evidence standard when an enhancement

based upon uncharged conduct has an extremely disproportionate effect on the

length of a defendant’s sentence.” Id. at 498 (quotation marks and citation

omitted).


                                         -6-
      We considered and rejected a similar argument in United States v.

Washington, 11 F.3d 1510, 1515-16 (10th Cir. 1993), cert. denied, 511 U.S. 1020

(1994). In Washington, the defendant argued “because the additional drug

quantities effectively resulted in a life sentence a higher standard of proof should

be required.” Id. at 1515. Although “[w]e recognize[d] the strong arguments that

relevant conduct causing a dramatic increase in sentence ought to be subject to a

higher standard of proof,” we held Tenth Circuit precedent precluded the court

from adopting a “higher than a preponderance standard” when making calculation

under the Sentencing Guidelines. Id. at 1516; see also United States v. Segien,

114 F.3d 1014, 1020 (10th Cir. 1997) (“[W]e have repeatedly held proof of drug

quantities resulting in vastly increased sentences via the Sentencing Guidelines ...

need only be by a preponderance of the evidence.”), cert. denied, 523 U.S. 1024

(1998). We are similarly restrained from adopting a new standard of proof. See

In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We cannot overrule the judgment

of another panel of this court. We are bound by the precedent of prior panels

absent en banc reconsideration or a superseding contrary decision by the Supreme

Court.”), cert. denied, 513 U.S. 807 (1994). Consequently, we conclude the

district court properly applied the preponderance of evidence standard for

determining the quantity of methamphetamine involved.




                                         -7-
      B.     Sufficiency of the Evidence

      Next, Mr. Walters argues that even if the preponderance of evidence

standard is used, there is not sufficient evidence to prove the quantity of

methamphetamine involved. In order to calculate the amount of

methamphetamine Mr. Walters conspired to manufacture, the district court

estimated the amount of methamphetamine that could have been manufactured

given the amount of various ingredients Mr. Walters and his wife purchased. Mr.

Walters contends the court erred in (1) considering co-conspirator statements, (2)

attributing methamphetamine ingredients purchased by other co-conspirators to

Mr. Walters, and (3) using a ninety percent yield ratio to determine the amount of

methamphetamine Mr. Walters could have manufactured from the ingredients

attributed to him.



      We review a district court’s calculation of drug quantities as a finding of

fact that we will uphold unless clearly erroneous. United States v. Green, 175

F.3d 822, 836-37 (10th Cir.), cert. denied, 528 U.S. 852 (1999). We review the

court’s interpretations of law and application of the Sentencing Guidelines de

novo. United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1996). “The

sentencing court may estimate [drug] quantities attributable to the defendant, so

long as the information relied upon has ‘some basis of support in the facts of the


                                         -8-
particular case’ and bears ‘sufficient indicia of reliability.’” Id. (citation

omitted).



      Mr. Walters argues “the only evidence to create any amount of drug

quantity is [an unindicted co-conspirator], but [he] could not be cross-examined

and he was heavily using drugs during the time [of the conspiracy].” Thus, Mr.

Walters believes the co-conspirator’s statements were unreliable and should not

have been considered. We have previously held a district court can consider a co-

conspirator’s statements in determining the appropriate sentence, provided the

statements contain sufficient indicia of reliability. United States v. Moore, 55

F.3d 1500, 1501-02 (10th Cir. 1995); United States v. Roach, 978 F.2d 573, 575-

76 (10th Cir. 1992). Although Mr. Walters contends there is no other evidence to

corroborate the co-conspirator’s statements, in fact, the evidence of the drug

quantities is supported by Mr. Walters’ own statements. As the district court

explained, “[Mr. Walters] told the government that he and his wife did ‘grocery

shopping’ for [the co-conspirator] and admitted purchasing starting fluid,

antihistamine pills, liquid heat, lithium batteries and rock salt.” In addition, Mr.

Walters admitted he knew co-conspirators were manufacturing methamphetamine




                                           -9-
with the items Mr. Walters and his wife purchased. 4 Because the co-conspirator’s

statements were corroborated by Mr. Walters’ statements, we conclude the district

court properly considered the co-conspirator’s statements.



       Mr. Walters next argues that because he shopped for methamphetamine

ingredients on only a couple of occasions, the district court should only have

attributed a small amount of methamphetamine ingredients to him. Mr. Walters’

argument ignores the well-settled principle that “in the case of a conspiracy, a

defendant is accountable for the conduct of others that is within the scope of his

agreement and reasonably foreseeable by him.” Green, 175 F.3d at 837. The

district court found Mr. Walters “knew [a co-conspirator] was manufacturing

methamphetamine at the Walters’ residence ... and that [Mr. Walters] knowingly

purchased or stole [methamphetamine ingredients] along with his wife ... to assist

[the co-conspirator] in manufacturing methamphetamine.” The district court

therefore concluded “it is appropriate to include the precursors purchased by the

defendant’s wife in the calculated amount of methamphetamine attributable to the



       4
         Mr. Walters did not object when these facts were described in the Presentence
Investigation Report. When a defendant does not object to a fact in a Presentence
Investigation Report, the defendant is generally considered to have admitted the fact for
sentencing purposes. See United States v. Shinault, 147 F.3d 1266, 1277-78 (10th Cir.),
cert. denied, 525 U.S. 988 (1998).


                                           -10-
defendant.” The district court’s conclusion is supported by Mr. Walters’

statements to the government regarding his wife’s shopping trips. Consequently,

we affirm the district court’s conclusion that methamphetamine ingredients Mrs.

Walters purchased should be attributed to Mr. Walters.



      Mr. Walters also argues because he was using “‘shake and bake cook’ the

most unreliable method of cooking [methamphetamine]” the court should have

figured the amount of methamphetamine manufactured would be twenty-five

percent of the weight of the ingredients used to manufacture the

methamphetamine. Rather than using the twenty-five percent advocated by Mr.

Walters, the district court used a ninety percent yield. The district court based its

use of the ninety percent yield on Kansas Bureau of Investigation Forensic

Scientist James Schiefereck’s testimony. Mr. Schiefereck testified the theoretical

yield of a different methamphetamine laboratory operated by Mr. Walters’ co-

conspirator was “well over 90 percent” and described the laboratory as “the best

setup [he had] ever seen.” In his brief on appeal, Mr. Walters appears to argue

the methamphetamine laboratory on his property was not as sophisticated as the

other laboratory operated by his co-conspirator. However, Mr. Walters did not

present any testimony either at trial or at sentencing to support his argument. We

therefore conclude the district court was not clearly erroneous in using a ninety


                                         -11-
percent theoretical yield to determine the amount of methamphetamine Mr.

Walters conspired to manufacture.



      In sum, we conclude the district court’s findings concerning the quantity of

methamphetamine attributable to Mr. Walters were not clearly erroneous. The

evidence is sufficient to prove the quantity of methamphetamine involved by a

preponderance of the evidence.



      C.     Theoretical Yield

      Mr. Walters also objects to the use of a theoretical yield concept used in the

Presentence Investigation Report to calculate the amount of methamphetamine

attributable to him, calling such calculations “voodoo criminology.” Mr. Walters

did not object to the use of a theoretical yield concept until after the completion

of the Addendum to the Presentence Investigation Report. Mr. Walters first

raised his objection to the calculations in a sentencing memorandum when he

referred to the calculations as “tortured.” 5




      5
         The Presentence Investigation Report was completed March 21, 2000. The
Addendum to the report was completed June 30, 2000. Mr. Walters did not object to the
use of the theoretical yield calculations until August 31, 2000. The district court
sentenced Mr. Walters on September 6, 2000.


                                          -12-
      The district court ruled “[a]s to any objection to the theoretical yield

calculations used in the [Presentence Investigation Report], the court finds such

objections to be untimely pursuant to Rule 32(b)(6)(B) and (D) of the Federal

Rules of Criminal Procedure.” Rule 32(b)(6)(D) allows the district court to

entertain a new objection at any time before sentencing if the objector shows good

cause. Fed. R. Crim. P. 32(b)(6)(D). However, the district court is not required

to hear an objection to the Presentence Investigation Report if the objection is not

raised within fourteen days of counsel’s receipt of the report. See Fed. R. Crim.

P. 32(b)(6)(B), (D); United States v. Hardwell, 80 F.3d 1471, 1500 (10th Cir.

1996). We leave the decision about whether to hear the new objection to the

sound discretion of the district court. United States v. Archuleta, 128 F.3d 1446,

1452 n.12 (10th Cir. 1997). We conclude the district court did not abuse its

discretion in declining to accept Mr. Walters’ objection to the theoretical yield

calculation.



3.    Prosecutorial Misconduct

      In addition to challenging his sentence, Mr. Walters also disputes the

validity of his conviction. He argues the district court erred by not granting a

mistrial or new trial to remedy two instances of prosecutorial misconduct. Mr.

Walters first argues the prosecutor violated the district court’s ruling on a motion


                                         -13-
in limine when he allowed a witness to testify about Mr. Walters’ prior drug

activity. Second, Mr. Walters contends the prosecutor made an improper

comment during closing arguments.



      We review the district court’s denial of a motion for mistrial or new trial

based on prosecutorial misconduct for abuse of discretion. See United States v.

Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). “We engage in a two-step process in

reviewing claims of prosecutorial misconduct. First, we determine if the conduct

was improper. Second, we determine if any improper conduct warrants reversal.”

United States v. Gordon, 173 F.3d 761, 769 (10th Cir.) (citation omitted), cert.

denied, 528 U.S. 886 (1999).



      A.     Violation of Motion in Limine Ruling

      The first instance of alleged prosecutorial misconduct occurred when the

prosecutor was questioning Special Agent Hupp regarding interviews with Mr.

Walters. In attempting to elicit testimony that Mr. Walters had contact with a co-

conspirator’s family members prior to the conspiracy, the prosecutor asked Agent

Hupp about Mr. Walters’ statements concerning a co-conspirator’s nephew.

Agent Hupp testified Mr. Walters “suspected [the nephew] of ripping off some

cultivated marijuana plants on his property.” At the close of testimony on the day


                                        -14-
Agent Hupp testified, counsel for Mr. Walters made an oral motion requesting a

mistrial on the grounds that Agent Hupp’s testimony was prejudicial and violated

the district court’s prior ruling on a motion in limine. The ruling on the motion in

limine instructed counsel to approach the bench before introducing evidence

concerning Mr. Walters’ past dealings with the co-conspirator.



      In denying Mr. Walters’ oral request for a mistrial, the district court first

noted the prosecutor “should have informed the witness not to ... answer in that

way as to the marijuana.” However, the district court found the prosecutor’s

misconduct was not sufficient to justify granting a mistrial. After the jury

returned a verdict, Mr. Walters renewed his objection to the prosecutor’s conduct

by filing a Motion for Judgment of Acquittal, or, in the Alternative, for a New

Trial. The district court denied the motion noting “the transgression was minor

and inconsequential in the context of this trial,” and “given the weight of the

evidence against the defendant, this evidence, even if it should have been

excluded, did not deprive the defendant of a fair trial.” Walters, 89 F. Supp. 2d at

1214. We conclude the district court throughly reviewed the motions and did not

abuse its discretion in denying Mr. Walters’ requests for a mistrial and new trial.



      B.     Closing Statement


                                         -15-
      The second instance of alleged prosecutorial misconduct occurred during

closing statements. Mr. Walters argues “the prosecutor stated words to the effect

that ‘since the Grand Jury indicted the Defendant that [the jury] should take that

into consideration in reaching their verdict.’” In reality, the prosecutor’s

statement was much less egregious. During closing arguments, counsel for Mr.

Walters' wife, a co-defendant, argued Mrs. Walters had "been victimized twice,

the first time by [a co-conspirator] and again by being accused of conspiring with

him and harboring him." In response, the prosecutor argued "[t]he grand jury did

not revictimize these defendants by indicting them on these charges."



      Mr. Walters did not contemporaneously object to the prosecutor's

statement. Mr. Walters’ first mention of the prosecutor’s statement was in the

district court's chambers while the jury was deliberating. At that time, counsel for

Mr. Walters requested that the district court review the transcript of the closing

argument and possibly give an additional jury instruction. The district court

denied the request. Mr. Walters again questioned the propriety of the prosecutor's

statement in his Motion for Judgment of Acquittal, or, in the Alternative, for a

New Trial.



      In denying Mr. Walters’ motion for a new trial, the district court noted


                                         -16-
“‘[p]rosecutors have considerable latitude to respond to an argument made by

opposing counsel.’” Walters, 89 F. Supp. 2d at 1214 (quoting United States v.

Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir. 1999)). The court found,

although the prosecutor "would arguably have been better served to have

eschewed any suggestion that the grand jury's return of a superseding indictment

was in some way vindicated by the evidence presented," the comment "directly

responded to the defendants' arguments and in its context was not improper." Id.

at 1215. To mitigate any potential prejudicial effect, the district court “repeatedly

instructed the jury that the superseding indictment is merely a charge.” We affirm

the district court's well-reasoned decision.



4.    Polygraph Evidence

      Finally, Mr. Walters argues the district court erred in “permitting polygraph

evidence to enter into the case.” After conducting a hearing to assess the

admissibility of the polygraph evidence, the district court allowed a Kansas

Bureau of Investigation polygraph examiner to testify regarding a polygraph test

he performed on Mr. Walters. The court also admitted a report the examiner

prepared. Mr. Walters contends polygraph evidence is inherently unreliable and,

therefore, should not have been admitted. The district court determined Fed. R.

Evid. 702, 703, and 403 governed the admissibility of polygraph evidence in this


                                         -17-
case. Walters, 89 F. Supp. 2d at 1209. We conclude the district court properly

admitted the polygraph evidence under these rules.



      Federal Rule of Evidence 702 governs the admissibility of expert witness

testimony. Fed. R. Evid. 702 (1999) (amended 2000). Rule 703 governs the facts

or data an expert may rely upon in forming his opinion. Fed. R. Evid. 703 (1999)

(amended 2000). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), outlines the framework a district court should use in determining whether

to admit evidence under Rule 702.

      Under Daubert, courts measure reliability of scientific evidence by
      considering (1) whether the technique can and has been tested; (2)
      whether the technique has been subjected to peer review; (3) the
      known or potential error rate of the technique; (4) the existence and
      maintenance of standards controlling the technique’s operation; and
      (5) whether the technique has gained general acceptance in the
      scientific community.

United States v. Call, 129 F.3d 1402, 1404 (10th Cir. 1997) (citing Merrell Dow,

509 U.S. at 593-95), cert. denied, 524 U.S. 906 (1988). Rule 703 allows an

expert to base his testimony on facts or data “of a type reasonably relied upon by

experts in the particular field.” Fed. R. Evid. 703 (1999) (amended 2000). “We

review de novo whether the district court properly followed the framework set

forth in Daubert.” Call, 129 F.3d at 1405 (citation omitted). If, however, the

district court correctly applied the Daubert standards, we may reverse only if we


                                       -18-
find the district court abused its discretion. Id.



      In determining whether to allow the polygraph testimony, the district court

held a hearing outside of the presence of the jury. Kansas Bureau of Investigation

polygraph examiner George Johnson testified at the hearing. The district court

found:

      [Mr. Johnson] was able to articulate with sufficient precision the
      reasons supporting his opinion that the polygraph examination
      administered to Jay Dee Walters was reliable. The polygraph
      examiner was also able to explain in substantial detail the manner in
      which the polygraph examination worked, the manner in which this
      examination had been verified by Jay Dee Walters’ post-examination
      interview, and the peer scrutiny to which that examination had been
      subjected and deemed reliable. Johnson also explained that
      polygraph examination similar to the one he performed on Jay Dee
      Walters have empirically been proved reliable.

Walters, 89 F. Supp. 2d at 1208-09. Mr. Walters did not present any testimony to

refute Mr. Johnson’s testimony. Consequently, the district court was satisfied the

polygraph evidence was admissible under Daubert and Rules 702 and 703. Id. at

1209. We conclude the district court properly applied the Daubert framework and

affirm the district court’s decision to allow the polygraph evidence under Rules

702 and 703.



      The district court then determined whether the polygraph evidence would

be unduly prejudicial and thus warrant exclusion under Fed. R. Evid. 403. Id. at

                                          -19-
1209. Rule 403 gives the district court discretion to exclude any evidence it

determines is more prejudicial than probative. Fed. R. Evid. 403; United States v.

Espinoza, 244 F.3d 1234, 1239 (10th Cir. 2001) (“We review for abuse of

discretion a [district] court’s ruling under Rule 403.”).



      The district court concluded the polygraph evidence was not more

prejudicial than probative. The court noted Mr. Walters stipulated to admission

of the polygraph results before he submitted to the polygraph. Walters, 89 F.

Supp. 2d at 1209 (citing United States v. Gilliard, 133 F.3d 809, 812 (11th Cir.

1998) (“[A] district court can admit polygraph evidence ... when the parties

stipulate in advance as to the circumstances of the test and as to the scope of its

admissibility.”)). In addition, the district court drafted a lengthy jury instruction

designed to prevent the jurors from giving undue weight to the polygraph results.

We are satisfied the district court, on the facts of this case, did not abuse its

discretion in allowing the polygraph evidence under Fed. R. Evid. 403.




                                          -20-
                        CONCLUSION

We AFFIRM Mr. Walters’ conviction and sentence.



                            Entered by the Court:

                            WADE BRORBY
                            United States Circuit Judge




                             -21-
