Fed. R. Evid. 103(b) Requires Renewal of Objection at Trial If Order on Motion in Limine Is Modified or Violated at Trial, Holds Fifth Circuit

In United States v. Lara, No. 20-50112 (5th Cir. Jan. 11, 2022), the Fifth Circuit grants only plain-error review on a claim of evidentiary error, when two criminal defendants – who won an exclusionary order in a pretrial motion in limine – failed to renew their objection when the government elicited the disputed testimony at trial.

“Sisters Mary Ann Lara and Melissa Lara were convicted by a jury of various drug trafficking counts after attempting to drive a pickup truck containing over 38 kilograms of methamphetamine hidden in a compartment in the truck’s tires from Mexico into the United States. They were sentenced to 288 months’ imprisonment.”

On appeal, the defendants challenged alleged “improper expert testimony from Border Patrol Intelligence Agent Gerardo Huerta. Specifically, they contend that a portion of Agent Huerta’s testimony improperly commented on the ultimate issue in the case: whether the Laras knew that there were drugs hidden in the tires of the truck.”

The Laras had previously “filed pretrial motions in limine seeking to exclude any expert testimony that would impermissibly assert an opinion with respect to their knowledge of the presence of the drugs. During a pretrial conference, the district court granted the motions in limine with respect to that objection, assuring the Laras’ attorneys that it would not allow Agent Huerta to ‘give an opinion as to your clients’ state of mind.’” Notwithstanding their pre-trial success on the motion in limine, when Agent Huerta testified that the defendants probably “they kn[e]w they’re transporting narcotics,” the defendants did not renew their objection. “None of the parties referenced any of the above testimony in their closing arguments.”

Challenging this expert testimony on appeal, the defendants contended that they preserved the issue for appeal by bringing and winning the initial motion in limine. But the Fifth Circuit, ruling on an issue of first impression since the amendment of Fed. R. Evid. 103(b) in 2000, holds that the pretrial motion was insufficient to preserve the objection.

Federal Rule of Evidence 103(b) provides that “[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” The 2000 amendment changed the prior prevailing rule in many courts that the party that lost an exclusionary motion in limine pretrial had to formally re-object at trial to preserve the objection for appeal. But the amendment did not clearly address what should happen if the district court reverses or disregards an order on a motion in limine during trial. The Advisory Committee Note to the amendment anticipated this wrinkle, stating that “[i] f 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.”

Following a Tenth Circuit opinion, United States v. Fonseca, 744 F.3d 674, 684 (10th Cir. 2014), the Fifth Circuit panel holds that “[w]hen a district court grants a party’s pretrial evidentiary objection, that party must contemporaneously object to any evidence it believes contravenes the district court’s previous ruling. If the party does not object, the admission of that evidence is reviewed for plain error.”

Applying plain error to the expert testimony in this case, the panel holds that testimony clearly and obviously violated Fed. R. Evid. 704(b): “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” As the panel summarizes, “Agent Huerta effectively testified that the Laras knew that drugs were hidden in the tires of the truck they were driving, the district court’s admission of that testimony was error under Federal Rule of Evidence 704(b).”

However, the panel concludes that the testimony did not affect the defendants’ substantial rights. “[E]ven without Agent Huerta’s testimony, considerable evidence supported the jury’s verdict. Moreover, the jury was aware that Agent Huerta had never had ‘any direct conversations’ with the Laras, and the court instructed the jury members that they should judge Agent Huerta’s testimony ‘like any other testimony’ and that they could ‘accept it or reject it,’ giving the testimony ‘as much weight as you think it deserves.’”

Nevertheless, the panel cautions the government that violating a motion in limine is serious business and the result would have changed if the defendants had objected. “[U]nder circumstances such as these, involving above all a violation of a pre-trial order, the Government would not be able to show that the error was harmless had an objection been preserved.”

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