UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4682
JOHN KEVIN STANLEY,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of Virginia, at Big Stone Gap.
                  James P. Jones, District Judge.
                            (CR-03-26)

                      Submitted: March 19, 2004

                       Decided: April 21, 2004

   Before WILKINSON, MICHAEL, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Gregory M. Kallen, Big Stone Gap, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Rick A. Mountcastle, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. STANLEY
                               OPINION

PER CURIAM:

   John Kevin Stanley appeals from his conviction for being a felon
in possession of a firearm. He contends that the district court erred by
permitting cross-examination of Stanley’s wife regarding an eight-
year-old domestic violence incident and by failing to insure an ade-
quate jury panel. He also challenges the district court’s order denying
his motion for release pending appeal.

   Stanley argues that the testimony of his wife, Gennie, regarding the
details of a domestic violence incident, for which Stanley was con-
victed, was unduly prejudicial under Fed. R. Evid. 403. Rule 403 pro-
vides that: "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice." Under Rule 403, "[p]rejudice . . . refers to evidence that
has an undue tendency to suggest decision on an improper basis, com-
monly, though not necessarily, an emotional one." United States v.
Queen, 

, 994 (4th Cir. 1997); see United States v. Van
Metre, 

, 351 (4th Cir. 1998) (interpreting Rule 403 to
require exclusion of evidence only in those instances where the trial
judge believes "that there is a genuine risk that the emotions of the
jury will be excited to irrational behavior, and that this risk is dispro-
portionate to the probative value of the offered evidence").

   However, decisions regarding the admission or exclusion of evi-
dence are committed to the sound discretion of the district court and
will not be reversed absent an abuse of discretion. United States v.
Lancaster, 

, 744 (4th Cir. 1996). In addition, even if the
evidence was improperly admitted, we review it for harmless error.
Fed. R. Crim. P. 52(a). An error is harmless if the appellate court can
say "with fair assurance after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was
not swayed by the error." United States v. Urbanik, 

, 698
(4th Cir. 1986). In determining whether an error substantially swayed
the verdict, this Court considers: "(1) the centrality of the issue
affected by the error; (2) the steps taken to mitigate the effects of the
error; and (3) the closeness of the case." United States v. Ince, 

, 583 (4th Cir. 1994).
                       UNITED STATES v. STANLEY                        3
   Here, the jury was instructed that Stanley’s prior convictions
should only be used to judge his credibility rather than his propensity
to commit crimes. Cautionary instructions are presumed to be effec-
tive in dispelling any unwarranted jury conclusions. See Van Metre,

at 351-52. In addition, the fact of the conviction was
already before the jury, even in the absence of Gennie’s testimony.
Moreover, the case as a whole was not a close one. Two firearms
were found in Stanley’s home. He saw at least one of them on a daily
basis, and he admitted that he had access to the entire house and that
he owned all the possessions in the house jointly with his wife.
Because constructive possession is established if it is shown "that the
[D]efendant exercised, or had the power to exercise, dominion and
control over the item," United States v. Rusher, 

, 878
(4th Cir. 1992), any error in this case was harmless. Even if the jury
was affected by the domestic violence evidence, it likely had no effect
on the final judgment.

   Stanley next argues that, after jurors were struck for cause, the
remaining jury pool of 25 jurors was inadequate. In felony cases, Fed-
eral Rule of Criminal Procedure 24(b)(2) affords the Government six
peremptory challenges and the defendant ten peremptory challenges.
The Government waived three of its challenges to ensure a proper
jury of twelve. Because a full complement of sixteen challenges
would not have left an adequate number of jurors, Stanley contends
that he was deprived of the opportunity to view and question several
jurors who might have been favorable to him.

   Peremptory challenges are "auxiliary" to the Sixth Amendment
right to an impartial jury; they are not themselves constitutionally
guaranteed. United States v. Martinez-Salazar, 

, 311
(2000). The right to peremptory challenges in federal criminal trials
is statutory and is governed by Rule 24. 

vio-
lation of Rule 24 calls for reversal. A violation of the rule constitutes
reversible error only if it affected the defendant’s rights and caused
actual prejudice. United States v. Love, 

, 601 (4th Cir.
1998).

  Rule 24(b) prescribes the number of peremptory challenges that
must be allowed in criminal trials but says nothing about the method
by which such challenges are to be exercised. United States v. Del-
4                     UNITED STATES v. STANLEY
gado, 

, 524 (6th Cir. 2003). District courts are thus free
to use any method that does not prevent defendants from intelligently
exercising the challenges to which they are entitled. 

of a defendant to "make maximum strategic use of their
peremptory challenges" does not invalidate a district court’s method
of exercising peremptories. 

Stanley’s peremptory challenges was not diluted by
the Government’s waiver of three challenges. In fact, Stanley’s own
challenges became more valuable. Instead of having ten of sixteen
challenges (63%), he had ten of only thirteen challenges (77%). See
United States v. Wilson, 

, 363 (5th Cir. 2003) (relying
on a defendant’s challenge percentage to determine whether Rule 24
was violated); see also United States v. Ricks, 

, 733 (4th
Cir. 1986) (noting that peremptory challenges become less effective
when the venire number increases). Furthermore, Stanley does not
contend that his jury lacked impartiality. Because Stanley actually
was granted more ability to shape the jury than Rule 24 anticipated,
because he makes no showing of prejudice, because Rule 24 does not
require a minimum number of jurors in the jury pool, and because
Rule 24 does not prohibit waiver, we find that his claim is without
merit.

   Finally, Stanley renews his motion for release pending appeal,
which was denied by the district court. Because, as discussed above,
his claims are not likely to result in reversal, he is not entitled to
release. See 18 U.S.C. § 3143(b) (2000).

   For the foregoing reasons, we affirm. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                         AFFIRMED