U.S. v. Mejia-Alarcon

• Decision Date: 07 June 1993
• Docket Number: D,MEJIA-ALARCO,No. 91-2048,91-2048
• Citation: 995 F.2d 982
• Parties: 38 Fed. R. Evid. Serv. 1459 UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 982

995 F.2d 982

38 Fed. R. Evid. Serv. 1459

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Jesus MEJIA-ALARCON, Defendant-Appellant.

No. 91-2048.

United States Court of Appeals Tenth Circuit.

June 7, 1993.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

Don J. Svet, U.S. Atty., Albuquerque, NM, and Judith A. Patton, Asst. U.S. Atty., Las Cruces, NM, for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges. ^*

EBEL, Circuit Judge.

On December 5, 1990, a jury found the defendant-appellant, Lorenzo Jesus Mejia-Alarcon (Mejia), guilty of one count of conspiracy to possess with intent to distribute heroin, one count of possession of heroin with intent to distribute, and one count of carrying or using a firearm in relation to a drug-trafficking crime. The counts arose from an undercover operation conducted by the Drug Enforcement Administration and the Las Cruces-Dona Ana County Metro Narcotics Unit. During the investigation, Agent Frank Ruiz negotiated three purchases of heroin from Mejia's co-defendant, Carlos Galaviz.

On direct appeal, Mejia contends that the district court erred (1) in permitting the prosecution to impeach him with a prior conviction and (2) in failing to ascertain on the record whether Mejia voluntarily and knowingly consented to a stipulation entered by his counsel that admitted that the substance found in Mejia's car was heroin and that the weights in the laboratory reports were accurate. In addition, Mejia filed a supplemental pro se brief in which he contended that he had been denied his Sixth Amendment right to effective assistance of counsel at trial.

As to the first contention, we hold that although the district court erred in admitting the prior conviction, the error was harmless. As to the second contention, we hold that the district court did not err in failing to provide more explicitly on the record that Mejia entered the stipulation knowingly and voluntarily. Last, we hold that Mejia's ineffective assistance of counsel claim fails as to the errors he has alleged on direct appeal.

I. FACTS

Agent Ruiz of the Las Cruces-Dona Ana County Metro Narcotics Unit was working undercover in the summer of 1990 in a heroin-trafficking investigation conducted by his narcotics unit and the United States Drug Enforcement Agency. While undercover, Agent Ruiz arranged to purchase heroin from Mejia's co-defendant, Carlos Galaviz, on three occasions.

During the first transaction, Galaviz told Agent Ruiz that a man named "Lorenzo" was involved in the heroin trafficking scheme. Agent Ruiz understood Galaviz to be saying that Lorenzo was the "main man." "Lorenzo" is Mejia's first name.

Mejia drove Galaviz to the second transaction, which took place on August 23, 1990. The buy took place at the Desert Sun Lounge in Las Cruces, New Mexico. While Galaviz and Agent Ruiz completed the purchase in Agent Ruiz's car, Mejia waited inside the lounge. When Agent Ruiz asked Galaviz who was with him, Galaviz responded that it was "Lorenzo." Although Galaviz denied that it was the Lorenzo who was the "main man," he did say that Mejia knew "what's going on." Agent Ruiz testified that drug traffickers typically do not readily identify their suppliers. Once inside Agent Ruiz's car, Galaviz told Agent Ruiz that he had "the stuff" in the car he had come in, but that he had to get the keys from Lorenzo. He went into the bar, got the keys from Mejia, and then retrieved a package of heroin from the car.

On September 8, 1990, Mejia drove Galaviz first to Juarez, Mexico, and then to a Whataburger in Las Cruces, where the third drug transaction between Agent Ruiz and Galaviz was to take place. Agent Ruiz testified that the heroin involved was coming from Juarez. Mejia often traveled to Juarez to visit relatives and to buy cheap sodas for his wife's daycare center. Agents arrested both Mejia and Galaviz at the Whataburger. Upon an inventory search of Mejia's car after his arrest, agents found 200 grams of heroin on the floorboard of the passenger's side. On the driver's side, agents found a loaded weapon, the receipt for which they found in Mejia's wallet.

Mejia was charged in a superseding indictment on October 24, 1990, with one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), 21 U.S.C. § 846, and 18 U.S.C. § 2; one count of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2; and one count of carrying or using a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1), 21 U.S.C. § 846, and 18 U.S.C. § 2.

On December 5, 1990, a jury in the District of New Mexico found Mejia guilty on all three counts. Mejia was sentenced to concurrent, 70-month sentences on the drug counts and a consecutive 60-month sentence on the gun-possession count. In addition, Mejia was sentenced to two four-year terms and one three-year term of supervised release, all to run concurrently.

Mejia appeals, asserting the following errors occurred below: (1) that the district court erred in permitting the prosecution to impeach him with a prior conviction, (2) that the district court erred in failing to ascertain on the record whether Mejia voluntarily and knowingly consented to a stipulation that admitted that the substance found in Mejia's car was heroin and that the weights in the laboratory reports were accurate, and (3) that he was denied his Sixth Amendment right to effective assistance of counsel at trial. We will address each contention in turn.

II. ADMISSION OF THE PRIOR CONVICTION

At a pretrial hearing, Mejia moved in limine to exclude the admission of his prior conviction for the unauthorized acquisition and possession of food stamps. The court denied the motion in limine, ruling that the government could use the conviction to impeach Mejia if he testified, apparently on the ground that the conviction was for a crime of dishonesty or false statement under Federal Rule of Evidence 609(a)(2). At trial, Mejia made no further objection to the admission of the prior conviction. In fact, Mejia's counsel brought the conviction out on direct examination of Mejia, presumably to lessen its impact. Mejia now contends that the district court erred in admitting the conviction. We will first discuss whether Mejia waived his objection and then will assess the merits of his contention that evidence of his prior food-stamp conviction was inadmissible.

A. Waiver

As an initial matter, the government contends that Mejia's motion in limine was insufficient to preserve his objection to the prior food-stamp conviction and that we should therefore review its admission only for plain error. See generally United States v. Jordan, 890 F.2d 247, 250 (10th Cir.1989) (noting the general rule that if appellant failed to object at trial, appellate review is only for plain error). ¹ We disagree.

A pretrial motion in limine to exclude evidence will not always preserve an objection for appellate review. See United States v. Sides, 944 F.2d 1554, 1560 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 604, 116 L.Ed.2d 627 (1991). However, a motion in limine may preserve an objection when the issue (1) is fairly presented to the district court, (2) is the type of issue that can be finally decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial judge. See Greger v. Int'l Jensen, Inc., 820 F.2d 937, 941-42 (8th Cir.1987); Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1118-19 (8th Cir.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986); American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-25 (3d Cir.1985). "When counsel diligently advances the contentions supporting a motion [in limine] and fully apprises the trial judge of the issue in an evidentiary hearing, application of the rule [requiring parties to reraise objections at trial] ... make[s] little sense." Sides, 944 F.2d at 1560. In such circumstances, parties are entitled to " 'treat th[e] ruling as the law of the case' " and to rely on it. Cook v. Hoppin, 783 F.2d 684, 691 n. 2 (7th Cir.1986) (quoting United States v. Rios, 611 F.2d 1335, 1339 n. 4 (10th Cir.1979)).

Permitting motions in limine to preserve objections in such circumstances is consistent with the elimination of formal exceptions under modern procedural rules. Although Federal Rule of Evidence 103(a)(1) requires parties to make "timely" objections, this provision must be construed in light of Federal Rule of Criminal Procedure 51, which states that formal exceptions are unnecessary. Requiring a party to renew an objection when the district court has issued a definitive ruling on a matter that can be fairly decided before trial would be in the nature of a formal exception and therefore unnecessary. See American Home, 753 F.2d at 324 (applying same reasoning in the context of a civil case and Federal Rule of Civil Procedure 46); Palmerin, 794 F.2d at 1413 (same); see also Fed.R.Crim.P. 51 advisory committee's note 1 (stating that Fed.R.Crim.P. 51 and Fed.R.Civ.P. 46 are "practically identical" and "relate[ ] to a matter of trial practice which should be the same in civil and criminal cases in the interest of avoiding confusion"). Thus, as the Third Circuit notes, the question is whether an objection at trial would have been more in the nature of a formal exception or in the nature of a timely objection calling the court's attention to a matter it need consider. American Home, 753 F.2d at 324.

Furthermore, we believe that an absolute rule holding that motions in limine may never preserve an objection is a trap for the unwary, who sensibly rely on a definitive, well-thought-out pretrial ruling on a subject that will...