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.
3

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
4

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.
8

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 threeyear term of supervised release, all to run concurrently.

10

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

11

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
12

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.

13

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)).

14

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.
15

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 not be
affected by the evidence that comes in at trial. 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.

16

Consequently, we apply a three-part test to determine whether it was necessary

for an objecting party to renew the objection at trial. First, we ask whether the
matter was adequately presented to the district court. See Palmerin, 794 F.2d at
1413 (requiring that the subject of the objection be fully explored during the
hearing on the motion in limine); see also Sprynczynatyk, 771 F.2d at 1119
(noting the matter was fully briefed and argued); American Home, 753 F.2d at
324-25 (noting that the motion in limine set forth reasons, including case
citations, to support the exclusion of the evidence and that the district court
held a hearing at which it considered counsel's arguments); Sides, 944 F.2d at
1560 (suggesting that a motion in limine may preserve an objection "where
counsel diligently advances the contentions supporting a motion and fully
apprises the trial judge of the issue in an evidentiary hearing"). Here, we find
that Mejia's counsel adequately argued the issue of whether Mejia's prior foodstamp conviction was admissible under Rule 609(a)(2).

17

Second, we determine whether the issue is of the type that can be finally
decided in a pretrial hearing. That is, some evidentiary issues are akin to
questions of law, and the decision to admit such evidence is not dependent upon
the character of the other evidence admitted at trial. See e.g., Sprynczynatyk,
771 F.2d at 1118-19 (holding that motion in limine preserved objection to posthypnosis recollection and noting that "[i]t was not a typical motion in limine
situation where a hypothetical question is posed whose nature and relevance is
unclear before trial"); see also Cook, 783 F.2d at 690-91 & n. 2 (holding that
the plaintiff's motion in limine to exclude statements in medical records on
hearsay grounds preserved objection). On the other hand, some admission
decisions are very fact-bound determinations dependent upon the character of
the evidence introduced at trial. See, e.g., Palmerin, 794 F.2d at 1411-12
(distinguishing two prior Ninth Circuit cases, one in which a motion in limine
preserved an objection and one in which it did not, on the ground that in the
latter, the issue was "highly dependant upon the trial context" while in the
former "[t]he objection was adequately covered by the motion in limine");

United States v. Cobb, 588 F.2d 607, 612-13 (8th Cir.1978) (stating that a party
should ordinarily renew at trial an objection to the admission of a conviction
older than ten years under Fed.R.Evid. 609(b), because the decision to admit it
rests on "specific facts and circumstances" adduced at trial, and Fed.R.Evid.
609(b) requires a balancing of the probative value against the prejudicial effect
of the old conviction), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d
636 (1979).
18

Mejia's motion in limine presented an evidentiary issue akin to a question of

law: whether Mejia's food-stamp conviction qualified as a crime of dishonesty
under Rule 609(a)(2).2 Mejia was therefore entitled to rely on the district court's
ruling that the conviction was admissible, as long as the ruling was definitive.

19

This brings us to the third requirement for reliance on a motion in limine: that
the district court's ruling must be definitive. See e.g., Greger, 820 F.2d at 941;
Palmerin, 794 F.2d at 1413 (noting the district court's ruling was "explicit and
definitive" and that "[t]here was no hint that the ruling might be subject to
reconsideration"); Sprynczynatyk, 771 F.2d at 1118 ("The district court's denial
of the motion was not made conditionally or with the suggestion that the matter
would be reconsidered."); American Home, 753 F.2d at 325; see also Doty v.
Sewall, 908 F.2d 1053, 1056 (1st Cir.1990) (holding that "a pretrial motion in
limine is not sufficient to preserve an issue for appeal where the district court
declines to rule on the admissibility of the evidence until the evidence is
actually offered"); cf. United States v. Miles, 889 F.2d 382, 384 (2d Cir.1989)
(per curiam) (holding that a ruling made before direct examination of a witness
regarding admissibility of the witness's prior conviction did not preserve the
objection, as the district court had explicitly indicated that the ruling was not
final and should be renewed). Here, the district court unequivocally ruled that
the prior food-stamp conviction was admissible, and Mejia was entitled to rely
on that ruling.

20

McEwen v. City of Norman, 926 F.2d 1539 (10th Cir.1991), is not inconsistent
with our holding today that an adequately presented motion in limine may
preserve an objection if it concerns an issue that can be and is definitively ruled
upon in a pretrial hearing. In McEwen, the district court expressly reserved
ruling on the plaintiff's motion in limine until trial. Id. at 1543. When the court
finally ruled at trial that the objected-to expert testimony would be admitted,
the plaintiff failed to renew the objection--even though the district court invited
the plaintiff to make a record on the ruling. Id. The only contemporaneous
objection the plaintiff made during the expert's testimony was unrelated to the
objection raised on appeal. See id. at 1543, 1544. Because the district court in
McEwen expressly declined to issue a definitive pretrial ruling, the plaintiff

was required under the test we have enunciated today to renew the objection at
trial.3
21

Despite our holding today, we stress that "[u]nder the best of circumstances,
counsel must exercise caution in relying exclusively upon rulings made in
connection with pretrial motions in limine as the basis for preserving claims of
error in the admission and exclusion of evidence." Sides, 944 F.2d at 1559
(citation omitted). Prudent counsel will renew objections at trial, because the
three-part test we enunciate today carries with it the inherent risk that the
appellate court might find that the objection was of the type that must be
renewed and that the party, by relying on the motion in limine, has waived the
objection. Indeed, most objections will prove to be dependent on trial context
and will be determined to be waived if not renewed at trial.

22

B. Admissibility of the Food-Stamp Conviction

23

Having decided that Mejia properly preserved his claim, we now address the
merits. We hold that the district court erred in admitting the food-stamp
conviction under Federal Rule of Evidence 609(a)(2). Mejia was convicted of
acquiring and possessing food coupons having a value of $500 in a manner not
authorized by law.4 He committed the crime by selling four chrome pick-up
truck wheels to an undercover Department of Agriculture agent. This foodstamp conviction simply does not qualify as a crime of dishonesty or false
statement under this Circuit's construction of Rule 609(a)(2).

24

Rule 609(a)(2) permits the admission of prior convictions for crimes involving
dishonesty or false statement for the purpose of attacking the credibility of a
witness.5 We have narrowly defined the term "dishonesty and false statement"
as used in Rule 609(a)(2). As we have previously noted, the adoption of Rule
609 was the culmination of a trend in judicial decisions toward restricting the
use of prior convictions for impeachment purposes. United States v. Wolf, 561
F.2d 1376, 1380 (10th Cir.1977). "Although it may be argued that any willful
violation of the law ... evinces a lack of character and a disregard for all legal
duties, including the obligations of an oath, Congress has not accepted that
expansive legal theory" and "has 'narrowly defined' the offenses comprehended
by Rule 609(a)(2)." United States v. Millings, 535 F.2d 121, 123
(D.C.Cir.1976). The Conference Committee Report on the rule specified the
type of crimes contemplated by the rule:

25

By the phrase "dishonesty and false statement" the Conference means crimes
such as perjury or subordination of perjury, false statement, criminal fraud,

embezzlement, or false pretense, or any other offense in the nature of crimen

falsi, the commission of which involves some element of deceit, untruthfulness,
or falsification bearing on the accused's propensity to testify truthfully.
26

H.R.Conf.Rep. No. 1597, 93d Cong., 2d Sess. 9, reprinted in 1974

U.S.C.C.A.N. pp. 7051, 7098, 7103. Nor do we believe that the inclusion of the
term "crimen falsi" in the Conference Committee Report broadens the category
of crimes admissible under Rule 609(a)(2). As the District of Columbia Circuit
has noted, even in its broadest sense, the term "crimen falsi" has encompassed
only those crimes characterized by an element of deceit or deliberate
interference with the truth. United States v. Smith, 551 F.2d 348, 362-63 & n.
26 (D.C.Cir.1976). Thus, relying on the Conference Committee Report, we
have held that to be admissible under Rule 609(a)(2), the prior conviction must
involve "some element of deceit, untruthfulness, or falsification which would
tend to show that an accused would be likely to testify untruthfully."6 United
States v. Seamster, 568 F.2d 188, 190 (10th Cir.1978).

27

Consequently, we have held that crimes like burglary, robbery, and theft are not
automatically admissible under Rule 609(a)(2), Seamster, 568 F.2d at 190, but
that a conviction for making false and misleading statements in the sale of
securities is, United States v. O'Connor, 635 F.2d 814, 818-19 (10th Cir.1980).
We have also held that a conviction for making false claims to the United
States government is a crime of dishonesty or false statement. Wolf, 561 F.2d at
1381. And in United States v. Mucci, 630 F.2d 737 (10th Cir.1980), we held
that issuing a bad check while knowing it will be dishonored is a crime of
dishonesty or false statement. Id. at 743; accord United States v. Kane, 944
F.2d 1406, 1412 (7th Cir.1991); United States v. Rogers, 853 F.2d 249, 252
(4th Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988);
United States v. Livingston, 816 F.2d 184, 190 (5th Cir.1987).7

28

Furthermore, we have suggested that the trial court may look beyond the
elements of an offense that is not considered a per se crime of dishonesty to
determine whether the particular conviction rested upon facts establishing
dishonesty or false statement. See United States v. Whitman, 665 F.2d 313, 320
(10th Cir.1981); Seamster, 568 F.2d at 191. For example, in Whitman, we held
that a grand larceny conviction stemming from a land fraud scheme was a
crime of dishonesty, because the larceny was committed by false pretenses
rather than by stealth. 665 F.2d at 320.

29

However, neither the elements of the offense for which Mejia was convicted
nor any evidence concerning the way it was committed support the district
court's conclusion that the conviction was admissible as a crime of dishonesty

or false statement under Rule 609(a)(2). The crime for which Mejia was
apparently convicted--unauthorized acquisition and possession of food stamps
under 7 U.S.C. 2024 8 --does not include an element of deceitfulness or
untruthfulness. 9 Nor did the government show that Mejia acquired the foodstamps in a deceitful manner: to the contrary, the Presentence Report indicated
that Mejia acquired the stamps simply by giving an undercover Department of
Agriculture agent four chrome pick-up truck wheels in exchange for the
stamps.10 Thus, Mejia's conviction for illegally acquiring and possessing food
stamps does not appear to bear on the likelihood that he would testify truthfully
any more than would a burglary conviction imposed for the illegal acquisition
of other goods. The district court therefore erred in admitting Mejia's prior
food-stamp conviction under Rule 609(a)(2).11
30

Having determined that the district court erred in admitting the prior
conviction, we must now consider whether the error was harmless. Because the
defendant alleges no constitutional error, we will apply the harmless-error
analysis of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed.
1557 (1946). Under Kotteakos, a non-constitutional error is harmless unless it
had a "substantial influence" on the outcome or leaves one in "grave doubt" as
to whether it had such effect. 328 U.S. at 765, 66 S.Ct. at 1248; United States v.
Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc). We must therefore
gauge whether the admission of Mejia's food-stamp conviction " 'substantially
influenced' the jury's verdict in the context of the entire case against him."
United States v. Short, 947 F.2d 1445, 1455 (10th Cir.1991) (citing United
States v. Williams, 923 F.2d 1397, 1401 (10th Cir.1990), cert. denied, --- U.S. ---, 111 S.Ct. 2033, 114 L.Ed.2d 118 (1991)), cert. denied, --- U.S. ----, 112
S.Ct. 1680, 118 L.Ed.2d 397 (1992).

31

We do not believe that the admission of the food-stamp conviction substantially

influenced the jury's verdict. The food-stamp conviction had only modest
impeachment value, at best. Mejia's counsel brought out the conviction during
direct examination of Mejia, without going into any detail. The food-stamp
conviction was not drug-related or weapons-related, as were the charges in the
instant case, thus reducing the potential for prejudice. The prosecutor's
reference in closing arguments to Mejia's "criminal conviction" was brief and
did not go into the details of the conviction. On the other hand, evidence of
Mejia's guilt was considerable. We therefore find that the court's admission of
the prior food-stamp conviction was harmless.

III. FAILURE TO ASCERTAIN MEJIA'S CONSENT TO THE STIPULATION

32
33

Mejia also contends that the trial court erred in failing to determine on the

record that Mejia understood and voluntarily consented to a stipulation entered

into by his trial counsel and the government. In the stipulation, which was
discussed in open court at some length and then read into the record, Mejia's
trial counsel agreed that the substance found in Mejia's car on September 8,
1990, was heroin and that the weights in the laboratory report were accurate.
Mejia was in court during the discussion and introduction of the stipulation.
The record reflects that Mejia speaks and understands a small amount of
English and that he had an interpreter present during at least part of the trial.
Mejia never objected to the stipulation.
34

However, Mejia did not sign or in any other way expressly assent on the record
to the stipulation.12 Because Count II charged Mejia with possession of heroin
with intent to distribute, possession of heroin was a fact essential to the proof of
the crime. Mejia contends that because the stipulation constituted a waiver of
his right under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970), to have the government prove every element of the crime beyond a
reasonable doubt, the court should have determined on the record whether
Mejia understood and voluntarily entered into the stipulation.

35

Because Mejia did not object to the stipulation at trial, we review only for plain
error. United States v. Herndon, 982 F.2d 1411, 1416 (10th Cir.1992).

36

Certainly, we would prefer that a district court address the defendant directly
before accepting a stipulation that goes to one or more elements of the
government's case in order to ascertain whether the defendant understood the
stipulation and entered it voluntarily, and to determine whether the stipulation
has a factual basis. Herndon, 982 F.2d at 1418. However, we have held that a
district court's failure to do so does not constitute plain error, nor does it deprive
the defendant of due process, at least where the defendant was present in court
and represented by counsel at the time of the stipulation. Herndon, 982 F.2d at
1418. On the facts of this case, we hold that Mejia's due process rights to a fair
trial were not violated when the district court accepted the stipulation and read
it to the jury without establishing more explicitly that Mejia understood it and
agreed with it.13

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

37

Mejia filed a supplemental pro se brief raising a third issue: that his trial
counsel was constitutionally ineffective. He asks us to stay his appeal and
remand the ineffectiveness issue to the district court for factual findings on the
claim.

38

As a general matter, however, this Circuit does not stay proceedings on direct
appeal to permit the district court time to make factual findings on ineffective
assistance claims; rather, we hold that ineffective assistance of counsel claims
are ordinarily inappropriate to raise on direct appeal because the necessary fact
finding can best be done on collateral attack. See Osborn v. Shillinger, 861 F.2d
612, 623 (10th Cir.1988); Beaulieu v. United States, 930 F.2d 805, 807 (10th
Cir.1991). We therefore reject Mejia's contention that we should remand the
case to the district court for further factual findings.

39

There are, however, rare cases where the record is sufficiently complete to
enable a fair evaluation of the ineffectiveness claim on direct appeal, as where
the claim is confined to matters found in the trial record or does not merit
further factual inquiry. Beaulieu, 930 F.2d at 807. Mejia's assertion that the
failure to object at trial to the prior food-stamp conviction constituted deficient
performance is such a claim. To prove a claim of ineffective assistance of
counsel, Mejia must show that counsel's performance was deficient and
prejudicial. United States v. Clonts, 966 F.2d 1366, 1369-70 (10th Cir.1992)
(citing Strickland v. Washington, 466 U.S. 668, 687, 691-92, 104 S.Ct. 2052,
2066-67, 80 L.Ed.2d 674 (1984)). Mejia has not shown that counsel's failure to
object to the conviction was either. As we held earlier in this opinion, trial
counsel's motion in limine was sufficient to preserve the objection to the prior
conviction for appeal; thus, Mejia was not prejudiced by any waiver of the
objection. Moreover, there is no suggestion that even if counsel re-raised the
objection, the district court would have reversed its prior ruling and excluded
the conviction. We also note that Mejia's counsel made a reasonable, tactical
decision to bring the conviction in during direct examination of Mejia,
presumably to "lessen the sting." Most importantly, we held today that any
error in admitting the conviction was harmless. Consequently, we hold that
Mejia has failed to establish that his trial counsel's failure to renew the
objection was either deficient or prejudiced him. His ineffective assistance of
counsel claim on this issue therefore has no merit.

40

Similarly, we have held that there was no plain error when the district court
accepted the stipulation pertaining to the quantities and nature of the drugs
seized. Mejia has not alleged that the stipulation was involuntary in fact. In the
absence of an allegation that the stipulation was false and involuntary, Mejia
does not allege an adequate predicate for an ineffective counsel claim. It is not
clear what other claims of ineffective counsel Mejia may wish to raise, but we
limit our holding on this appeal to a ruling that Mejia is not entitled to relief for
ineffective assistance of counsel based upon the two substantive issues raised in
this appeal.

V. CONCLUSION
41

We AFFIRM Mejia's conviction. In doing so, we hold that the district court
erred in admitting Mejia's food-stamp conviction, but that the error was
harmless. We further hold that the district court did not plainly err in accepting
from Mejia's counsel the stipulation as to the identity and weight of the heroin.
Finally, we hold that Mejia has failed to sustain an ineffective counsel claim as
to the two alleged errors asserted on direct appeal.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the case
is ordered submitted without oral argument

The government asserts that Mejia waived his objection for another reason. In
asking the court to exclude the prior conviction, Mejia's counsel stated he was
"just seeking to prohibit the government from attempting to utilize that [prior
conviction] as part of their case in chief against Mr. Mejia." Vol. III at 13
(emphasis added). Therefore, the government argues, Mejia did not object to
the government's use of the prior convictions for impeachment purposes and
cannot now complain about the court's ruling permitting use of the prior
convictions to impeach Mejia. However, it is clear from the record that the
government and the district court understood that Mejia objected to the use of
the food-stamp conviction in both the prosecution's case-in-chief and for
impeachment. The prosecutor and the district court treated the issue raised by
Mejia as concerning whether the government could use the convictions "should
the defendant testify," and the prosecutor also spoke of using it for
"impeachment." Vol. III at 13. Thus, Mejia did not fail to object to the use of
his prior conviction for impeachment purposes on this ground

In contrast, we note that Mejia would not have been entitled to rely on a pretrial
ruling admitting the conviction under Rule 609(a)(1), as any final determination
as to admissibility under Rule 609(a)(1) rests on a balancing of the probative
value and prejudicial effect of the conviction--a balancing that could only
properly be performed after an assessment of the evidence that had come in up
to the point of its admission. Cf. Cobb, 588 F.2d at 612-13

We also note that, although the basis for the objection in McEwen is unclear,
the objection apparently was based on the allegedly prejudicial effect of the
proffered expert testimony. See McEwen, 926 F.2d at 1543. Consequently, the
trial court's reservation of ruling until trial is not the only reason the plaintiff

was required to renew the objection: the plaintiff also should have renewed the
objection because the issue was of the type that could only best be assessed in
light of the evidence that came in at trial. Broader dicta in McEwen suggesting
that a motion in limine may never preserve an objection is not controlling, since
that court was not faced with a case in which the motion in limine could have
preserved the objection under the three-part test we set out today. Further, the
broad dicta in McEwen is inconsistent with prior and subsequent Tenth Circuit
cases holding that a motion in limine may preserve an objection for appeal. See
United States v. Szabo, 789 F.2d 1484, 1487 (10th Cir.1986) (holding that
Confrontation Clause objection was sufficiently raised in a motion in limine);
Sides, 944 F.2d at 1560 (suggesting that had the defendant diligently advanced
his contentions supporting his motion in limine, the objection might have been
preserved by the motion); cf. United States v. Rios, 611 F.2d 1335, 1339 n. 4
(10th Cir.1979) (holding that once a defendant's hearsay objection made during
trial was overruled, the "defense counsel was entitled to treat this ruling as the
law of the case and to explain or rebut the evidence which had come in over his
protest ... without waiving his earlier objection")
4

Although the record is unclear as to which statutory provision Mejia violated, 7

U.S.C. 2024 seems to be the most likely provision. The government points to
no other relevant provision

Rule 609(a)(2) provides:

For the purpose of attacking the credibility of a witness, ... evidence that any
witness has been convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the punishment.

The Advisory Committee Note added after the 1990 amendment to the rule
likewise confirms our narrow reading of both the rule and its legislative history.
The committee "concluded that the Conference Report provides sufficient
guidance to trial courts and that no amendment [to the dishonesty and false
statement provision] is necessary, notwithstanding some decisions that take an
unduly broad view of 'dishonesty,' admitting convictions such as for bank
robbery or bank larceny." Fed.R.Evid. 609 advisory committee's note
(emphasis added)

Most of the cases from other circuits reflect an understanding of deceitfulness

similar to the narrow construction we gave Rule 609(a)(2) in Seamster. See,
e.g., United States v. Brackeen, 969 F.2d 827, 829-31 (9th Cir.1992) (per
curiam) (en banc) (holding that bank robbery per se is not a crime of dishonesty
and quoting Tenth Circuit case Seamster in support of its holding); Cree v.
Hatcher, 969 F.2d 34, 37-38 (3d Cir.) (holding that conviction for willful

failure to file income tax return is not a crime of dishonesty, because under
Third Circuit case law the statute violated did not include as an element an
intent to conceal the tax liability), cert. dismissed, --- U.S. ----, 113 S.Ct. 1147,
121 L.Ed.2d 577 (1992); Coursey v. Broadhurst, 888 F.2d 338, 342 (5th
Cir.1989) (holding that cattle theft is not a crime of dishonesty); United States
v. Newman, 849 F.2d 156, 163 (5th Cir.1988) (implying that theft and felony
theft are not included in Rule 609(a)(2), but holding that theft-forgery and theft
by deception are included); United States v. Mehrmanesh, 689 F.2d 822, 833
(9th Cir.1982) (holding that a drug smuggling conviction is not per se a crime
of dishonesty); Millings, 535 F.2d at 123 (holding that convictions for
possession of narcotics and carrying a gun without a license are not crimes of
dishonesty). See generally Smith, 551 F.2d at 356-66, for an excellent
discussion of Rule 609(a)(2) and its legislative history
8

Mejia was sentenced on December 4, 1981, under 7 U.S.C. 2024, which

provided in part:
(b) Unauthorized use, transfer, acquisition, alteration, or possession of coupons
or authorization cards; restitution by convicted individuals
(1) Subject to the provisions of paragraph (2) of this subsection, whoever
knowingly ... acquires ... or possesses coupons ... in any manner not authorized
by this chapter or the regulations issued pursuant to this chapter shall, if such
coupons ... are of a value of $100 or more, be guilty of a felony
7 U.S.C. 2024 (1988).

If Mejia had negotiated the stamps, we would have to address whether that
constituted an implicit statement that he had properly acquired the stamps and
was authorized to use them, and we would then have to address the legal issue
of whether such negotiation should be deemed a crime of dishonesty and false
statement. However, there is no evidence in the record suggesting that Mejia
was convicted of negotiating (or even that he tried to negotiate) the food
stamps. We therefore do not address whether negotiation would constitute a
crime of dishonesty

10

We therefore find United States v. Mucci, 630 F.2d 737 (10th Cir.1980), and
the other bad check cases discussed above, distinguishable. In trading tires for
the food stamps, Mejia did not misrepresent his entitlement to the food stamps
or deceive the undercover Agriculture Department agents about the value of
what he traded for the stamps. He simply made an (admittedly illegal)
exchange. On the other hand, one who writes bad checks knowing they will be
dishonored misrepresents the value of the check exchanged for services or
merchandise

11

12
13

Because the government did not argue that the conviction was admissible under
Rule 609(a)(1) and because the district court did not admit it on that ground, we
do not address whether it would have been admissible under Rule 609(a)(1)
Although the stipulation is signed only by the lawyers and not by Mejia
personally, it does recite that "[t]he parties agree and stipulate...."
We note that the defendant does not assert that his stipulation was, in fact,
involuntary or unknowing. Compare Adams v. Peterson, 968 F.2d 835, 839
(9th Cir.) (rejecting the argument that a stipulation must be accompanied by onthe-record procedural protections that accompany a guilty plea under Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)),
cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1992), with Adams,
968 F.2d at 843-45 (addressing separately whether, in fact, the defendant's
waiver was knowing and voluntary and holding that it was)