*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 7 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

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

____________________________ 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 m anufacture a mixture containing a detectable amount of methamphetamine i n violation of 21 U.S.C. §§ 846 and 841. The district court sentenced Mr. W alters to 121 months1 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- imprisonment and five years supervised release. On appeal, Mr. Walters argues: (1) his sentence violates the Supreme Court’s holdi ng 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 cons equently misapplied the United States Sentencing Guidelines; (3) prosecutor ial misconduct tainted his conviction; and (4) the district court erred in adm itting 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, w e will address each of Mr. Walters’ arguments in turn. 1

1. ApprendiError Mr. Walters begins by challenging his sentence. He argues his sentence of five years supervised release exceeds the minimum o f three years supervised release required by 21 U.S.C. § 841(b)(1)(C) and, t herefore, violates Apprendi

. Mr. Walters contends “[w]here a sentence exceeds th e lowest or lowest mandatory minimum sentence for which the Defendant was indict ed 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 of2The 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- methamphetamine involved, the district court could not sentence him to a term of supervised release longer than the statutory minimu m of three years.

We review the question of whether Mr. Walters’ sent ence 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 f act that increases the penalty for a crime beyond the prescribed statutory maximum mus t 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 Apprendirequires 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, t he district court can impose a sentence within the ran ge allowed under 21 U.S.C. § 841(b)(1)(C) even when a jury did not make a drug quantity finding. 2 Sanchez,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- 269 F.3d at 1268. Because the jury did not make any findings as to the amount of methamphetamine Mr. Walters conspired to manufactur e, we must determine whether Mr. Walters’ sentence is within the range a llowed 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 rel ease 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 rel ease 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 superv ised release under § 841(b)(1)(C) was within the range of the statute and did not violate Apprendi ).

Mr. Walters would have us extend Apprendito 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 ho lding in United States v. Ramirez , 242 F.3d 348 (6th Cir. 2001). Ramirezis not factually analogous to the-5-

case before us. In Ramirez , the jury did not find a specific drug quantity, b ut the district court sentenced the defendant to twenty ye ars 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 senten ce was excessive, but required by the statute. Id . On appeal, the Sixth Circuit held the district c ourt should have sentenced the defendant under § 841(b)(1)(C) becaus e 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 d ue 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 methampheta mine. 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 supe rvised release does not violate Apprendi

.

2. Determination of Drug Quantity Mr. Walters also disputes his sentence because he b elieves the district court erred in determining the amount of methamphetamine involved in the conspiracy and consequently erred in applying the United State s Sentencing Guidelines. Mr. Walters contends the district court (1) should have applied a standard more stringent than preponderance of the evidence in eva luating the drug quantity-6-

evidence, (2) did not have sufficient evidence to s upport the amount of methamphetamine attributed to Mr. Walters, and (3) should not have relied on theoretical yields to determine the amount of metha mphetamine attributable Mr. Walters.

“We review the district court’s interpretation of t he 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 t he facts.” United States v. Davis , 182 F.3d 1201, 1202 (10th Cir. 1999) (citations omi tted). 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 prep onderance of the evidence standard and adopt the heightened evidentiary stand ard 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 dispr oportionate effect on the length of a defendant’s sentence.” Id . at 498 (quotation marks and citation omitted).-7-

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 sen tence ought to be subject to a higher standard of proof,” we held Tenth Circuit pr ecedent precluded the court from adopting a “higher than a preponderance standa rd” 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 re peatedly 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 ove rrule 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 t he district court properly applied the preponderance o f evidence standard for determining the quantity of methamphetamine involve d.-8-

B. Sufficiency of the Evidence Next, Mr. Walters argues that even if the preponder ance of evidence standard is used, there is not sufficient evidence to prove the quantity of methamphetamine involved. In order to calculate th e amount of methamphetamine Mr. Walters conspired to manufactur e, 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 b y other co-conspirators to Mr. Walters, and (3) using a ninety percent yield r atio 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 qu antities 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 t he Sentencing Guidelines de

novo . United States v. Wacker , 72 F.3d 1453, 1477 (10th Cir. 1996). “The sentencing court may estimate [drug] quantities att ributable to the defendant, so long as the information relied upon has ‘some basis of support in the facts of the-9-

particular case’ and bears ‘sufficient indicia of r eliability.’” 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 we re unreliable and should not have been considered. We have previously held a di strict court can consider a coconspirator’s statements in determining the appropr iate 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 fac t, the evidence of the drug quantities is supported by Mr. Walters’ own stateme nts. As the district court explained, “[Mr. Walters] told the government that he and his wife did ‘grocery shopping’ for [the co-conspirator] and admitted pur chasing starting fluid, antihistamine pills, liquid heat, lithium batteries and rock salt.” In addition, Mr. Walters admitted he knew co-conspirators were manuf acturing methamphetamine4Mr. 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- with the items Mr. Walters and his wife purchased. 4 Because the co-conspirator’s statements were corroborated by Mr. Walters’ statem ents, we conclude the district court properly considered the co-conspirator’s stat ements.

Mr. Walters next argues that because he shopped formethamphetamine ingredients on only a couple of occasions, the dist rict court should only have attributed a small amount of methamphetamine ingred ients to him. Mr. Walters’ argument ignores the well-settled principle that “i n 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-conspi rator] was manufacturing methamphetamine at the Walters’ residence ... and t hat [Mr. Walters] knowingly purchased or stole [methamphetamine ingredients] al ong with his wife ... to assist [the co-conspirator] in manufacturing methamphetami ne.” The district court therefore concluded “it is appropriate to include t he precursors purchased by the defendant’s wife in the calculated amount of methamphetamine attributable to the-11-

defendant.” The district court’s conclusion is sup ported by Mr. Walters’ statements to the government regarding his wife’s s hopping trips. Consequently, we affirm the district court’s conclusion that meth amphetamine ingredients Mrs. Walters purchased should be attributed to Mr. Walte rs.

Mr. Walters also argues because he was using “‘shak e 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 ma nufacture the methamphetamine. Rather than using the twenty-five percent advocated by Mr. Walters, the district court used a ninety percent y ield. The district court based its use of the ninety percent yield on Kansas Bureau of Investigation Forensic Scientist James Schiefereck’s testimony. Mr. Schie fereck testified the theoretical yield of a different methamphetamine laboratory ope rated by Mr. Walters’ coconspirator was “well over 90 percent” and describe d 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. H owever, Mr. Walters did not present any testimony either at trial or at sentenc ing to support his argument. We therefore conclude the district court was not clear ly erroneous in using a ninety5The 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- percent theoretical yield to determine the amount o f methamphetamine Mr. Walters conspired to manufacture.

In sum, we conclude the district court’s findings c oncerning the quantity of methamphetamine attributable to Mr. Walters were no t clearly erroneous. The evidence is sufficient to prove the quantity of met hamphetamine involved by a preponderance of the evidence.

C. Theoretical Yield Mr. Walters also objects to the use of a theoretica l yield concept used in the Presentence Investigation Report to calculate the a mount of methamphetamine attributable to him, calling such calculations “voo doo criminology.” Mr. Walters did not object to the use of a theoretical yield co ncept until after the completion of the Addendum to the Presentence Investigation Re port. Mr. Walters first raised his objection to the calculations in a sente ncing memorandum when he referred to the calculations as “tortured.” 5-13-

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) all ows the district court to entertain a new objection at any time before senten cing 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 Investigati on 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 hearthe 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 distri ct court did not abuse its discretion in declining to accept Mr. Walters’ obje ction to the theoretical yield calculation.

3. Prosecutorial Misconduct In addition to challenging his sentence, Mr. Walter s also disputes the validity of his conviction. He argues the districtcourt erred by not granting a mistrial or new trial to remedy two instances of pr osecutorial misconduct. Mr. Walters first argues the prosecutor violated the di strict court’s ruling on a motion-14-

in limine when he allowed a witness to testify about Mr. Wal ters’ prior drug activity. Second, Mr. Walters contends the prosecu tor made an improper comment during closing arguments.

We review the district court’s denial of a motion f or mistrial or new trial based on prosecutorial misconduct for abuse of disc retion. See United States v. Gabaldon , 91 F.3d 91, 94 (10th Cir. 1996). “We engage in atwo-step process in reviewing claims of prosecutorial misconduct. Firs t, we determine if the conduct was improper. Second, we determine if any improperconduct 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 miscond uct occurred when the prosecutor was questioning Special Agent Hupp regar ding interviews with Mr. Walters. In attempting to elicit testimony that Mr . Walters had contact with a coconspirator’s family members prior to the conspirac y, the prosecutor asked Agent Hupp about Mr. Walters’ statements concerning a co- conspirator’s nephew. Agent Hupp testified Mr. Walters “suspected [the ne phew] of ripping off some cultivated marijuana plants on his property.” At t he close of testimony on the day-15-

Agent Hupp testified, counsel for Mr. Walters made an oral motion requesting a mistrial on the grounds that Agent Hupp’s testimonywas 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 int roducing evidence concerning Mr. Walters’ past dealings with the co-c onspirator.

In denying Mr. Walters’ oral request for a mistrial , the district court first noted the prosecutor “should have informed the witn ess not to ... answer in that way as to the marijuana.” However, the district co urt found the prosecutor’s misconduct was not sufficient to justify granting amistrial. After the jury returned a verdict, Mr. Walters renewed his objecti on to the prosecutor’s conduct by filing a Motion for Judgment of Acquittal, or, i n 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 t rial.” Walters , 89 F. Supp. 2d at 1214. We conclude the district court throughly rev iewed the motions and did not abuse its discretion in denying Mr. Walters’ reques ts for a mistrial and new trial.

B. Closing Statement-16-

The second instance of alleged prosecutorial miscon duct occurred during closing statements. Mr. Walters argues “the prosec utor stated words to the effect that ‘since the Grand Jury indicted the Defendant t hat [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 b eing accused of conspiring with him and harboring him." In response, the prosecuto r 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 prose cutor’s statement was in the district court's chambers while the jury was delibe rating. At that time, counsel for Mr. Walters requested that the district court revie w the transcript of the closing argument and possibly give an additional jury instr uction. The district court denied the request. Mr. Walters again questioned t he 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-17-

“‘[p]rosecutors have considerable latitude to respo nd 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 courtfound, although the prosecutor "would arguably have been b etter served to have eschewed any suggestion that the grand jury's return of a superseding indictment was in some way vindicated by the evidence presente d," the comment "directly responded to the defendants' arguments and in its c ontext was not improper." Id

. at 1215. To mitigate any potential prejudicial eff ect, the district court “repeatedly instructed the jury that the superseding indictmentis merely a charge.” We affirm the district court's well-reasoned decision.

4. Polygraph Evidence Finally, Mr. Walters argues the district court erre d in “permitting polygraph evidence to enter into the case.” After conducting a hearing to assess the admissibility of the polygraph evidence, the distri ct court allowed a Kansas Bureau of Investigation polygraph examiner to testi fy regarding a polygraph test he performed on Mr. Walters. The court also admitt ed a report the examiner prepared. Mr. Walters contends polygraph evidence is inherently unreliable and, therefore, should not have been admitted. The dist rict court determined Fed. R. Evid. 702, 703, and 403 governed the admissibility of polygraph evidence in this-18-

case. Walters , 89 F. Supp. 2d at 1209. We conclude the districtcourt properly admitted the polygraph evidence under these rules.

Federal Rule of Evidence 702 governs the admissibil ity 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 opin ion. Fed. R. Evid. 703 (1999) (amended 2000). Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), outlines the framework a district court sho uld 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 b een tested; (2) whether the technique has been subjected to peer re view; (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 accept ance 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 atype reasonably relied upon by experts in the particular field.” Fed. R. Evid. 70 3 (1999) (amended 2000). “We review de novo whether the district court properly followed the fr amework set forth in Daubert .” Call , 129 F.3d at 1405 (citation omitted). If, however , the district court correctly applied the Daubertstandards, we may reverse only if we-19-

find the district court abused its discretion. Id

.

In determining whether to allow the polygraph testi mony, 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 sufficien t precision the reasons supporting his opinion that the polygraph e xamination administered to Jay Dee Walters was reliable. The polygraph examiner was also able to explain in substantial de tail the manner in which the polygraph examination worked, the manner in which this examination had been verified by Jay Dee Walters’ p ost-examination interview, and the peer scrutiny to which that exam ination had been subjected and deemed reliable. Johnson also explai ned that polygraph examination similar to the one he perform ed on Jay Dee Walters have empirically been proved reliable. Walters , 89 F. Supp. 2d at 1208-09. Mr. Walters did not p resent any testimony to refute Mr. Johnson’s testimony. Consequently, the district court was satisfied the polygraph evidence was admissible under Daubertand Rules 702 and 703. Id . at 1209. We conclude the district court properly appl ied the Daubertframework and affirm the district court’s decision to allow the p olygraph evidence under Rules 702 and 703.

The district court then determined whether the poly graph evidence would be unduly prejudicial and thus warrant exclusion un der Fed. R. Evid. 403. Id . at-20-

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 4 03.”).

The district court concluded the polygraph evidence was not more prejudicial than probative. The court noted Mr. Wa lters 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 evid ence ... 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 courtdrafted a lengthy jury instruction designed to prevent the jurors from giving undue we ight to the polygraph results. We are satisfied the district court, on the facts o f this case, did not abuse its discretion in allowing the polygraph evidence underFed. R. Evid. 403.-21- CONCLUSION We AFFIRM Mr. Walters’ conviction and sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge