FILED

United States Court of Appeals

Tenth Circuit

March 10, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 12-3325

SCOTT FONSECA,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(D.C. No. 2:10-CR-20093-CM-1)

Timothy C. Kingston, Law Office of Tim Kingston LLC, Cheyenne, Wyoming, for
DefendantAppellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, Kansas, for PlaintiffAppellee.

Before LUCERO, McKAY, and MATHESON, Circuit Judges.

McKAY, Circuit Judge.

Defendant Scott Fonseca was convicted of possessing stolen firearms in violation

of 18 U.S.C. 922(j) and 924(a)(2) and was sentenced to seventy months

imprisonment. On appeal, Defendant raises two challenges to his conviction.1 First, he

argues the district court erred in denying his motion to suppress evidence of the stolen
firearms because they were found as the result of a detention that exceeded the
permissible scope of a Terry stop. Second, he contends reversible error occurred when
the government introduced testimonycontrary to the district courts grant of
Defendants earlier motion in limine, but without a concurrent objection by
Defendantthat he had previously sold several guns that were stolen at the same time as
the eight firearms found as a result of the Terry stop.
BACKGROUND
Defendants girlfriend, Amanda White, testified at trial that she and Defendant
decided to burglarize a gun store in Springfield, Missouri, because they needed some
money to pay their bills. A few days before the burglary, Defendant took his three- or
four-year-old son with him to case out a specific gun shop. Then, early in the morning of
May 28, 2010, while Ms. White acted as the lookout and getaway driver, Defendant broke
into the store and stole thirty-six handguns. A few hours later, Defendant and Ms. White
left Missouri and drove to Kansas City, Kansas, to sell the guns. They stayed in Kansas
City for a few days and sold most of the stolen firearms, using the money to pay for their
hotel room and to buy food and illegal drugs.

Defendant raised a third issue in his opening brief on appeal, but in his reply brief
he conceded his argument was based on a mistaken factual premise. He accordingly
informed this court both in his reply brief and at oral argument he was electing not to
pursue this issue on appeal.
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At some point during the night of May 31 or the early morning of June 1,
Defendant and Ms. White got into a disagreement after dropping the Defendants son off
with the childs mother. According to Ms. White, Defendant was upset because he
thought Ms. White was trying to take advantage of [the situation] and just get all the
money and use it for drugs. (R. Vol. 2 at 291.) He was also angry because Ms. White
had sold two of the guns for only $100 apiece and another gun was apparently missing.
As a result of this argument, Defendant left the vehicle and walked off on his own, taking
with him a black laptop bag that contained their remaining eight firearms. Ms. White
drove away and spent the next few hours doing drugs with two individuals identified in
the record as Kaylin and C.J. Ms. White then received a phone call from Defendant,
and she and the other two individuals left in her vehicle to go pick him up.
That same night, Officer Jason Reynolds was patrolling the 6100 block of Merriam
Drive in Merriam, Kansas. This is an industrial area with no residencesnothing but
closed businesses down there late at nightand as a result there had been a rash of auto
burglaries at several car businesses in the area. (Id. at 348.) Officer Reynolds parked his
patrol car and stood in a parking lot watching for suspicious activity. At approximately
2:45 am, Officer Reynolds saw Defendant walking past the parking lot, carrying a dark
bag. Officer Reynolds told dispatch he was doing a pedestrian check, activated the body
camera on his police vest, and walked towards Defendant. As he approached Defendant,
Officer Reynolds shined his flashlight in Defendants direction, identified himself as a
police officer, and asked if he could speak with him. Defendant walked a little bit farther,
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placed the black bag on the ground approximately twenty-five or thirty feet from Officer
Reynolds, and walked back toward the officer. Officer Reynolds thought Defendant
appeared to be trying to distance himself from the bag. Officer Reynolds also saw that
Defendant was talking to someone on his cell phone and seemed pretty emphatic about
trying to get whoever was on the phone to come pick him up. (Id. at 20.) While
Defendant was on the phone, Officer Reynolds asked if he could take a look at
Defendants identification, but Defendant stated he didnt have identification with him.
Defendant continued talking on the phone for the next few minutes until Ms.
Whites vehicle arrived, immediately followed by another police car. The two officers in
this carOfficers Lewis and Sinellihad set out for Officer Reynolds location when he
told dispatch he was doing a pedestrian check, and they noticed on their way that Ms.
Whites vehicle was heading in that direction too. After Defendant told Ms. White over
the phone that attempting to speed off would just result in being pulled over, her car came
to a stop near Defendants location, and its occupants immediately exited. The other
officers parked directly behind Ms. Whites vehicle and began speaking with Kaylin and
C.J., while Ms. White and Defendant had a short conversation. Officer Reynolds then
asked Defendant to come back and talk to him, and he asked Ms. White to please return
to the vicinity of her car. Ms. White testified at trial that while she was standing by her
car and Defendant was standing by the officer, she observed Defendant lip[] to [her], put
the bag in the car. (Id. at 295.) She accordingly picked up the black bag from the
ground where Defendant had left it and placed it in the back seat of her vehicle. Officer
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Reynolds did not notice this interaction, and he continued questioning Defendant about
what was going on that night.
In response to Officer Reynolds questions, Defendant stated he was out walking
in this neighborhood because his girlfriend had dropped him off earlier and then had a
hard time locating him after he called for a ride. When Officer Reynolds pressed him for
more details, Defendant stated that he was walking because Ms. White wanted to go hang
out with her friend and he decided to walk instead. He stated: We werent arguing,
fighting, nothing. She wanted to go hang out, I was going to gowalkgo this way, and
thats what we did. (Supplemental R. Vol. I, Video Recording at 6:416:47.) While
speaking with Defendant, Officer Reynolds asked Defendant several times if he could
search him, but Defendant refused consent, and Officer Reynolds did not carry out a
search. After a few minutes of conversationapproximately eight and a half minutes
after Officer Reynolds first activated his body camera and initiated the stopDefendant
told the officer his name and birthdate but again said he did not have any identification on
him.
Shortly thereafter, Officer Reynolds walked away from Defendant and noticed that
the bag Defendant had been carrying earlier was no longer on the ground where
Defendant had left it. Officer Reynolds asked Ms. White about the bag, and she told him
she had placed it in the car. However, she falsely identified the bag she had placed in the
car as a blue denim handbag that actually belonged to her friend Kaylin. Officer
Reynolds brought the blue denim bag over to Defendant and asked if it was his, and
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Defendant denied ownership, first stating that it was just a bag that [he] was carrying for
the girl and then stating that he d[id]nt know whose bag it is. (Id. at 12:10-12:35.)
Kaylin indicated that this bag belonged to her, and Officer Reynolds obtained her consent
to search it. Officer Reynolds spent a few minutes searching the blue denim bag and
asking Kaylin about its contents, none of which were illegal. When he asked Kaylin why
Defendant was carrying her bag, she paused and then replied, I dont know. (Id. at
12:5312:57.) After Officer Reynolds finished looking through the bag and speaking
with Kaylin, at approximately sixteen and a half minutes after he first initiated the stop,
Officer Reynolds asked Ms. White about Defendants identity, and she provided him with
the same name and birthdate Defendant had given. She stated that Defendant was
walking because he had become angry and left the car after they had an argument earlier
that night.
When he finished speaking with Ms. White, Officer Reynolds called dispatch to
verify the name and birthdate Defendant had given him. Less than two minutes later,
dispatch confirmed Defendants identity and indicated Defendant had a current warrant
out of Olathe, Kansas.2 At this point, approximately twenty-one minutes had passed since
Officer Reynolds first activated his body camera and initiated the stop. Officer Reynolds
asked dispatch to obtain confirmation from the agency that issued the warrant and to send
an additional backup officer. After confirmation had been obtained and the backup

This turned out to be a bench warrant for non-payment of child support, although
it does not appear that Officer Reynolds was aware of these details at the time.
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officer had arrived, Defendant was placed in custody based on his outstanding warrant.
Defendants arrest occurred approximately thirty-one minutes after the initial contact
occurred.
Following Defendants arrest, Officer Lewis told Officer Reynolds that the bag
Ms. White had placed in the car was a black computer bag, not the blue handbag she had
earlier identified. Officer Lewis had noticed Ms. White placing the bag in the car earlier,
but he did not do much to follow up on her actions at that time because he and Officer
Sinellia new officer he was training that nightwere busy talking to the other two
[individuals], one of whom was lying about who he was, kind of giving [the officers]
some problems. (R. Vol. 2 at 440.) When Officer Reynolds confronted Ms. White with
Officer Lewis observations, Ms. White admitted she had lied about which bag Defendant
was carrying, and she gave Officer Reynolds consent to search her vehicle. Upon walking
over to the vehicle, Officer Reynolds saw the black computer bag sitting on the back seat
of the car with the end of a handgun sticking out of the bag. He called Officer Lewis
over, and Officer Lewis similarly observed two pistol grips sticking out of the bags
partially open side pocket. Officer Lewis searched the bag, finding eight firearms inside.
The two firearms he had seen sticking out of the side pocket were loaded, and one of
them had a bullet inside the chamber. The officers were able to trace all eight firearms
back to the burglarized store in Missouri. The officers also found $2,035 in cash on
Defendants person when they searched him incident to his arrest.
Defendant was indicted in the United States District Court for the District of
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Kansas on one count of possessing stolen firearms. Defense counsel then filed a motion
to suppress statements Defendant made to Officer Reynolds both during the initial
encounter and after his arrest. The district court held a suppression hearing at which it
heard testimony from Officer Reynolds and viewed the video recording from Officer
Reynolds body camera. The court granted the motion to suppress the statements
Defendant made after he was handcuffed and taken into custody, but the court denied the
motion as to the statements Defendant made prior to his arrest. Defendant subsequently
elected to represent himself, and he filed a pro se motion to suppress evidence of the guns
themselves, arguing that the stop and search of the car was improper. The district court
held another suppression hearing at which it heard testimony from Ms. White. At the end
of this hearing, the court denied the pro se motion to suppress.
The case proceeded to trial, and the attorney who had been acting as standby
counsel for Defendant stepped back in to represent him. Just prior to the start of the trial,
defense counsel made an oral motion in limine to exclude certain types of evidence,
including evidence regarding possible sales of guns to one or two, maybe more
individuals. In particular, theres an individual that has the nickname of Weezie. (Id. at
180-81.) After hearing arguments from both sides, the court ruled: Regarding the sale
of the guns that the governmentdefendant indicates the government may be trying to
present, in regards to that, the court is going to find after consideration that as relates to
the governments direct examination, defendants oral motion in limine is granted. (Id.
at 189.) The court then warned defense counsel that the government was free to re-argue
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this issue later if it believed a door was opened during cross-examination.

In his opening statement, defense counsel stated this case was not about
Defendant, but instead was about Ms. White: about a financially desperate young
woman willing to do whatever it takes, including breaking the law, in order to make a
quick buck. (Id. at 204.) Because she was in desperate need of cash, . . . she came up
with the idea of robbing a gun store (id.) and encouraged [Defendant] to engage in this
conduct (id. at 205). Defense counsel further stated that Ms. White would testify that
she argued with Defendant after the burglary: shes going to explain to you that during
that argument, she was upset about money, among other things, and that she didnt feel
like she was getting enough of the cash from these guns. (Id. at 206.)
During direct examination, the government asked Ms. White several questions
about who was involved in the process of selling the stolen guns, how many guns were
sold, and what happened with the proceeds of those sales. The government did not elicit
any testimony about whom the guns were sold to. Defense counsel never objected to the
governments questions about the gun sales. Rather, on cross-examination defense
counsel himself asked a few questions alluding to the sale of guns, asking, for instance,
whether Ms. Whites disagreement with Defendant related in part to how the proceeds
were being distributed. (Id. at 321-22.)
The jury entered a guilty verdict against Defendant. Defendant then filed a motion
for judgment of acquittal or for a new trial. Among other grounds, he argued the court
erred in failing to suppress evidence of the eight stolen firearms. He also argued he had
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raised the issue of reasonable suspicion in his pro se motion to suppress and it was not
clear whether the court had ruled on this issue.
In a memorandum and order, the district court denied Defendants motion for
judgment of acquittal or for a new trial. In response to Defendants argument about
reasonable suspicion, the court stated it had implicitly found that Defendants stop and
detention were based on reasonable suspicion, and the court noted that it was arguable
whether this issue was ever squarely before the court. The court then expressly held that
it heard more than ample evidence in the two suppression hearings to determine that
Officer Reynolds did, in fact, have reasonable suspicion to stop and detain defendant.
(R. Vol. 1 at 173.) The court further held that the scope of the detention was reasonable
based on the totality of the circumstances, including the facts that (1) defendant was
carrying a bag, set it down, and then the bag was picked up by Ms. White; (2)
defendants answers to Officer Reynolds questions were sketchy and suspicious; and
(3) defendants mannerisms and actions and the presence of Ms. Whites car added to
the suspiciousness of the situation. (Id. at 175.) The court held that its earlier mistake in
erroneously indicat[ing] that this issue had already been resolved on the record did not
entitle Defendant to a new trial, since [t]he record is clear that Officer Reynolds had
reasonable suspicion to stop and detain defendant. (Id.)
At sentencing, the government argued that a four-level gun-trafficking
enhancement should be applied pursuant to U.S.S.G. 2K2.1(b)(5) because Defendant
sold some of the stolen firearms to Ronald Williams, a/k/a Weezie, whom Defendant
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knew to be a previously convicted felon. The district court denied this requested
enhancement because Ms. Whites testimony never mentioned any specific buyer of the
firearms, much less identified Mr. Williams as a buyer. The court then imposed a
guidelines-range sentence of seventy-months imprisonment.
On appeal, Defendant challenges the denial of his motion to suppress evidence of
the eight stolen firearms. He also argues his conviction must be reversed based on the
introduction into evidence of testimony regarding his sale of the other stolen firearms.
DISCUSSION
We first consider Defendants challenge to the denial of his motion to suppress.
In reviewing a district courts ruling on a motion to suppress, this court accepts the
district courts factual findings unless clearly erroneous and views the evidence in the
light most favorable to the prevailing party, the government in this case. United States v.
Jones, 523 F.3d 1235, 1239 (10th Cir. 2008) (internal quotation marks omitted). In our
review of the evidence, we are permitted to consider evidence introduced at the
suppression hearing, as well as any evidence properly presented at trial. Id. (internal
quotation marks and brackets omitted). While the existence of reasonable suspicion is a
factual determination, the ultimate determination of the reasonableness of a search or
seizure under the Fourth Amendment is a question of law reviewed de novo. United
States v. White, 584 F.3d 935, 944 (10th Cir. 2009) (internal quotation marks and
citations omitted).
The parties appear to agree that Officer Reynolds stop of Defendant in this case
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was an investigative detention governed by the Supreme Courts opinion in Terry v. Ohio,
392 U.S. 1 (1968). A twofold inquiry determines whether a Terry stop is reasonable
under the Fourth Amendment. First, the officers action must be justified at its
inception. United States v. King, 990 F.2d 1552, 1557 (10th Cir. 1993) (quoting Terry,
392 U.S. at 20). Thus, [f]or an investigative detention, the officer must have an
articulable and reasonable suspicion that the person detained is engaged in criminal
activity. Id. Second, the officers actions must be reasonably related in scope to the
circumstances which justified the interference in the first place. Id. (quoting Terry, 392
U.S. at 20). There is no bright-line rule to determine whether the scope of police
conduct was reasonably related to the goals of the stop; rather our evaluation is guided by
common sense and ordinary human experience. United States v. Albert, 579 F.3d 1188,
1193 (10th Cir. 2009) (internal quotation marks omitted). Moreover, we should not
engage in unrealistic second-guessing of a police officers decision. United States v.
Neff, 300 F.3d 1217, 1220 (10th Cir. 2002) (quoting United States v. Sharpe, 470 U.S.
675, 686 (1985)).
In this case, Defendant concedes that the first prong of Terry was
satisfiedOfficer Reynolds could legitimately approach and question [Defendant] under
Terry. (Appellants Opening Br. at 23.) However, Defendant contends the detention
was not reasonable in scope because Officer Reynolds continued to detain Defendant
after he had answered the officers questions and had told the officer his name and
birthdate. By twelve minutes into the encounter, Defendant argues, Officer Reynolds had
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exhausted all of his legitimate questions for Defendant, and Defendants answers had not
yielded any incriminating information that would justify further detention.
(Appellants Opening Br. at 25.) Defendant argues his continued detention after this
point was unreasonable under the Fourth Amendment.
We hold that the scope of the detention was reasonable under all of the
circumstances of this case. As an initial matter, we see nothing clearly erroneous in the
district courts factual findings that Defendants answers to Officer Reynolds questions
were sketchy and suspicious and that his mannerisms and actions and the presence of
Ms. Whites car added to the suspiciousness of the situation. (R. Vol. 1 at 175.)
Defendant argues the court erred in reaching these conclusions when Officer Reynolds
did not explicitly characterize Defendants answers or mannerisms as suspicious.
However, the court viewed the video recording of the encounter and could permissibly
make its own factual determinations regarding the suspiciousness of Defendants actions
and communications with the officer. After reviewing this recording and Officer
Reynolds testimony, we see no reason to overturn the courts factual findings.
Particularly in light of these findings, we conclude that it was not unreasonable for
Officer Reynolds to continue to detain Defendant for the approximately ten minutes that
passed after he finished questioning Defendant and before he learned of Defendants
current warrant. The detention was first prolonged by the officers efforts to track down
the bag Defendant had been carrying earlier. This conduct was reasonably related in
scope to the goals of the stop. Officer Reynolds first observed Defendant carrying a bag
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while walking alone in a high-crime industrial area in the middle of the night. After the
officer identified himself and asked to speak with Defendant, Defendant walked on a little
further and placed the bag on the ground before walking back toward the officer, and it
appeared to Officer Reynolds that Defendant was attempting to distance himself from the
bag. When the bag then disappeared from the ground where Defendant had left it, Officer
Reynolds reasonably decided to investigate where the bag had gone and what it might
contain. Contrary to Defendants assertions, reasonable suspicion did not dissipate when
Defendant claimed he did not own the blue denim bag Ms. White falsely identified as the
bag Defendant had been carrying with him that night. It was quite reasonable for Officer
Reynolds to question why Defendant was supposedly carrying around his girlfriends
friends purse as he walked alone in the high-crime area at night, and neither Defendants
nor Kaylins responses to the officers questions did anything to reduce the
suspiciousness of the situation. At this point, it was reasonable for Officer Reynolds to
spend a few minutes asking Ms. White about the events of that evening and about the
other individuals identities. We are persuaded this conduct was reasonably related in
scope to the goals of the stop.
Then, in light of the overall suspiciousness of the situation, it was not unreasonable
for Officer Reynolds to spend a few more minutes verifying with dispatch that Defendant
was who he purported to be. In United States v. Muldrow, 19 F.3d 1332, 1336 (10th Cir.
1994), we held that the police were justified in detaining a suspiciously acting man, who
said he carried no identification, near the scene of a burglary. We noted that [t]he
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detention lengthened because the Officer had to wait for the verification of Defendants
stated name and address, and we held that [u]nder these facts, the detention was
reasonably related in scope to the circumstances which justified the interference in the
first place. Id. (internal quotation marks omitted); see also United States v. Trimble, 986
F.2d 394, 398 (10th Cir. 1993) (holding that when a vehicle was stopped for having
expired license plates and a passenger attempted to walk away after throwing something
to the ground, the officer was entitled to detain him for purposes of identification in
order to ascertain whats going on). Similar reasoning applies here. Finally, once
Officer Reynolds learned that Defendant had a current warrant out for his arrest, it was
entirely reasonable for him to detain Defendant for a few more minutes while he
confirmed the warrant information before finally placing Defendant under arrest.
After reviewing all of the evidence on appeal, particularly the video recording of
the events leading up to Defendants arrest, we are persuaded that this case does not
involve any delay unnecessary to the legitimate investigation of the law enforcement
officers. Sharpe, 470 U.S. at 687. We therefore affirm the district courts denial of
Defendants motion to suppress evidence of the eight stolen firearms. Because we affirm
on this basis, we need not address the governments alternative arguments for affirming
the suppression ruling.
We turn then to Defendants argument regarding the introduction of evidence that
he sold several of the stolen firearms before the night of his Terry stop. We first must
resolve the question of the appropriate standard of review. In his opening brief,
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Defendant suggested that a plain error standard of review might apply, given his failure to
raise a contemporaneous objection when this evidence was introduced at trial. In
response, the government stated it believes a more lenient standard of review is
appropriate because Defendants pretrial motion in limine was sufficient to preserve the
issue for review under our holding in United States v. Mejia-Alarcon, 995 F.2d 982, 986
(10th Cir. 1993). Although both parties thus suggest a standard of review that is more
favorable to the opposing side, we note that the court, not the parties, must determine the
standard of review, and therefore, it cannot be waived. Worth v. Tyer, 276 F.3d 249, 262
n.4 (7th Cir. 2001); see also Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009)
(citing Worth and holding that the correct standard of review is, unlike exhaustion, an
unavoidable legal question we must ask, and answer, in every case). After
consideration, we conclude that Defendant did not preserve this issue for review and that
plain error review is therefore appropriate.
The government argues that under Mejia-Alarcon, Defendants challenge to the
evidence of the gun sales was preserved for review when the district court unequivocally
ruled on his motion to exclude this evidence. As the government points out, in MejiaAlarcon we held that 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. 995 F.2d
at 986. However, there is a crucial distinction between this case and Mejia-Alarcon. In
Mejia-Alarcon, the objected-to evidence was admitted after the district court
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unequivocally denied the motion in limine, while here the objected-to evidence was
admitted after the district court unequivocally granted the motion in limine. Our holding
in Mejia-Alarcon was premised on the notion that we should not require a party to futilely
continue making objections at trial after the district court has unequivocally rejected that
partys arguments. We reasoned: 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
makes little sense. Id. (internal quotation marks, brackets, and ellipses omitted).
Moreover, requiring the renewal of objections after a definitive ruling may be a needless
provocation to the trial judge, not to mention a distracting interruption during the trial.
Id. However, this reasoning seems inapplicable where evidence is admitted in spite of,
rather than in accordance with, a district courts ruling.
Common sense dictates against applying Mejia-Alarcons holding in such a
dissimilar circumstance. If Defendant had raised a contemporaneous objection to the
governments evidence of gun sales in this case, he would not have been futilely reraising an objection that had already been rejected. Rather, he would have been putting
the district court on notice of his current argument that the government was violating the
courts earlier evidentiary ruling by eliciting testimony that fell within the scope of this
ruling.3 See id. (noting that the question is whether an objection at trial would have been

Although Defendant argues that [t]he government failed its duty in this case by
introducing the gun sale evidence, he does not hereby state that the governments error
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more in the nature of a formal exception or in the nature of a timely objection calling the
courts attention to a matter it need consider). Our conclusion that Mejia-Alarcon does
not apply in this case is supported by the Advisory Committee Note on the 2000
amendment to Rule 103 of the Federal Rules of Evidence, which states:
Even where the courts ruling is definitive, nothing in the amendment
prohibits the court from revisiting its decision when the evidence is to be
offered. If the court changes its initial ruling, or if the opposing party
violates the terms of the initial ruling, objection must be made when the
evidence is offered to preserve the claim of error for appeal. The error,
if any, in such a situation occurs only when the evidence is offered and
admitted. United States Aviation Underwriters, Inc. v. Olympia Wings,
Inc., 896 F.2d 949, 956 (5th Cir. 1990) (objection is required to preserve
error when an opponent, or the court itself, violates a motion in limine that
was granted); United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987)
(claim of error was not preserved where the defendant failed to object at
trial to secure the benefit of a favorable advance ruling).
Fed. R. Evid. 103 advisory committees note (emphasis added). In other words, where a
ruling on a motion in limine is modified or violated, [s]ince the error is not in granting or
denying the motion in limine, but in admitting or excluding the evidence at trial, the
motion in limine does not preserve this error. 21 Charles A. Wright & Kenneth W.
Graham, Federal Practice & Procedure 5037.16 (2d ed. 2005).
We accordingly reject the contention that the district courts unequivocal ruling in
Defendants favor preserved for review his current argument that this ruling was

or the Courts error was intentional or done purposefully to deprive him of his
constitutional and legal rights (Appellants Opening Br. at 35), and he does not appear to
be asserting any kind of prosecutorial misconduct claim. Rather, he frames this issue as
an evidentiary challenge.
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subsequently violated. Rather, we hold that Defendant was required to raise a

contemporaneous objection at the time the alleged error occurredwhen the government
introduced evidence that allegedly should have been excluded pursuant to the district
courts pretrial ruling. Because Defendant did not object when this evidence was
introduced, we will review his challenge to the introduction of this evidence only for
plain error.
Under plain error review, we will notice the alleged error and grant the appellant
relief only when four requirements are met: (1) an error occurred; (2) the error is plain or
obvious; (3) the error affects substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v. Pablo,
696 F.3d 1280, 1287 (10th Cir. 2012). In this case, we conclude that Defendants
argument fails on the second prong of plain error review. We assume without deciding
that an error occurred when, despite the district courts earlier ruling on the motion in
limine, the government introduced evidence that Defendant sold several of the stolen
guns between the time of the burglary and his arrest. However, we are not persuaded/ this
error was plain or obvious. First, due to the manner in which the motion in limine was
raised and then ruled upon, it is ambiguous whether the district courts ruling extended to
all evidence that Defendant sold some of the stolen guns or whether it was instead limited
to the anticipated testimony that Defendant sold the guns to specific unsavory individuals
such as Weezie. Second, while we do not here decide whether the nonspecific gun sale
evidence should have been excluded, the answer to this question is not so clearly yes
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that the introduction of this evidence was plainly or obviously improper. We accordingly
conclude that the unobjected-to introduction of the nonspecific gun sale evidence was not
a plain or obvious error.
Additionally, even if we were persuaded that Defendant had satisfied the first two
prongs of plain error review, we would affirm his conviction based on the third
prongwhether the error affected substantial rights. Satisfying this third prong of
plain-error review usually means that the error must have affected the outcome of the
district court's proceedings. Id. at 1293 (internal quotation marks omitted). The
appellant bears the burden to make this showing. He must show a reasonable probability
that, but for the error claimed, the result of the proceeding would have been different.
Id. (internal quotation marks, brackets, and ellipses omitted). Defendant has not made
such a showing in this case. Defendant contends that the sale of stolen guns is more
serious than simple possession, and he suggests that his rights were prejudiced because
the prejudicial weight of this evidence would tend to override any other considerations
the jury might have as to [Defendants] guilt. (Appellants Opening Br. at 34.) We are
unpersuaded. The jury heard extensive, detailed testimony from Ms. White and other
witnesses that Defendant burglarized a gun store and was in possession of several
firearms stolen from this store when he encountered the police. The potential prejudice of
the gun sale evidence was limited by the fact that Ms. White never mentioned who
purchased the guns. Moreover, if the jury was not otherwise inclined to credit Ms.
Whites corroborated testimony about Defendants burglary and possession of the stolen
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firearms, it seems quite unlikely they would have believed her testimony that Defendant
sold the stolen firearms and then convicted Defendant based on the limited prejudicial
nature of this related testimony. Defendant has not met his burden of demonstrating a
reasonable probability that the results of the trial would likely have been different if the
jury had not heard Ms. Whites testimony that she and Defendant sold some firearms to
unidentified buyers. We accordingly conclude that this argument fails the third as well as
the second prong of plain error review.
CONCLUSION
For the foregoing reasons, we AFFIRM Defendants conviction and sentence.

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