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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2490
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RALPH EDWARD ESTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
( March 12, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND
Ralph Edward Estes was convicted of being a felon in
possession of a firearm and was sentenced to 180 months'
imprisonment and three years' supervised release, The Government's
chief witness was Deputy Douglas Yeager, who testified that he
stopped Estes for a traffic violation and discovered the firearm in
his possession. Prior to trial, the Government filed a motion in
limine to exclude evidence of Deputy Yeager's prior state
misdemeanor conviction for impersonating a public official. The
conviction was approximately 12 years old. The Government sought

to prevent Estes from making any reference to this conviction to
impeach Yeager. Estes argued that Federal Rule of Evidence 609(b)
gave the district court the discretion to admit the evidence. He
argued that Yeager's conviction was extremely probative of his
credibility and that its admission was necessary.
The district court's ruling on this issue is not part of the
record. Estes contends that the district court ruled on the
Government's motion in limine at the same hearing at which it
considered his motion to suppress certain other evidence. Estes
has filed a motion to supplement the record with the transcript of
the proceedings at that hearing on March 17, 1992. The district
court's minute entry for March 17 indicates that it denied the
motion to suppress, but it does not refer to a ruling on the motion
in limine. The court entered an order denying the motion to
suppress on March 30, again with no mention of the motion in
limine. Defense counsel requested the transcript of the trial
proceedings for March 17, but did not request the transcript of the
hearing, which was evidently conducted on the morning of trial.
Estes did not attempt to introduce Yeager's conviction on cross-
examination.
OPINION
Estes argues that the district court erred in refusing to
admit evidence of Yeager's prior conviction. He contends that the
district court failed to perform the balancing test required by
Fed. R. Evid. 609(b) and relied only on the age of the conviction
as a basis for excluding the evidence. He contends that this
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conviction was probative of Yeager's credibility and was critical
evidence because the evidence against him came exclusively from
Yeager. He argues that the Government has failed to show any
danger of prejudice from admission of this evidence. The
Government argues that Estes waived review by failing to include a
transcript of the court's ruling, that Estes' failure to attempt to
offer evidence of Yeager's conviction at trial limits this Court's
review to plain error, and that it was not plain error to exclude
the evidence or to fail to conduct the balancing test on the
record.
Fed. R. Evid. 609(a) allows a witness's credibility to be
impeached by evidence of prior convictions punishable by death or
imprisonment in excess of one year, provided the court determines
that the probative value of the evidence outweighs its prejudicial
effect. United States v. Turner, 960 F.2d 461, 465 (5th Cir.
1992). Fed. R. Evid. 609(b) provides that evidence of such
convictions is not admissible if the conviction is more than ten
years old, unless the court determines that the probative value of
the conviction substantially outweighs its prejudicial effect.
United States v. Cathey, 591 F.2d 268, 274-75 (5th Cir. 1979).
The district court has broad discretion in its application of
this rule. Turner, 960 F.2d at 465; and when made, the weighing of
probative value and prejudicial effect must be made on the record.
Id. This Court has stated that this requirement is mandatory
rather than discretionary. United States v. Acosta, 763 F.2d 671,
695 (5th Cir.), cert. denied, 474 U.S. 863 (1985).
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We do not know exactly why the court granted the Government's
motion in limine to exclude evidence of Yeager's conviction because
it is not a part of the record. Estes asserts that the district
court did not apply the required balancing test, which according to
Acosta, would require a remand. The Government distinguishes
Acosta based on the fact that Acosta involved the admission of a
remote conviction to impeach the defendant, while this case
involves the exclusion of a remote conviction and a third party
witness.
We read Rule 609(b) to say that the probative value of a
conviction over ten years old is outweighed by its prejudicial
effect. The general rule is inadmissibility. Cathey, 591 F.2d at
275. It is only when the court admits evidence of a conviction
over ten years old that the court must engage in a balancing test
on the record.
The Government also argues that the plain error standard of
review should apply because Estes did not attempt to offer evidence
of the conviction at trial. To preserve the admission of evidence
as error for appellate review, a defendant must make an objection
at trial. Fed. R. Evid. 103(a)(1). A motion in limine does not
meet the requirement of Rule 103. Wilson v. Waggener, 837 F.2d
220, 222 (5th Cir. 1988). "A party whose motion in limine is
overruled must renew his objection when the evidence is about to be
introduced at trial." Id.; see also Acosta, 763 F.2d at 694 n.29.
The facts of this case present the opposite situation: the
Government's motion in limine was successful in excluding the
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evidence, and the court overruled the defendant's objection to the
Government's motion in limine. However, we see no reason why the
same rule should not apply. Estes should have attempted to offer
evidence of the conviction at trial to preserve this issue for
appeal.
Finally, we have serious doubt that the conviction was
probably admissible anyway because it was not the type of
conviction allowed to be used for impeachment under Fed. R. Evid.
609. The Government stated in its motion in limine that the
conviction was a state misdemeanor for impersonating a public
official. Estes has never disputed this assertion. Rule 609(a)
provides that the conviction must be for a crime punishable by
death or imprisonment in excess of one year. The crime of
impersonating a public servant under Texas law is a Class A
misdemeanor punishable by no more than one year. See Tex. Penal
Code Ann. � 37.11 (West 1989) and � 12.21 (West Supp. 1993).
For the foregoing reasons, we AFFIRM the district court's
ruling on the motion in limine and deny appellant's motion to
supplement the record on appeal.
c:br/sa:opin:92-2490p
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