                        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
                                   (CR H 314 01)


                             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



     *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
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.


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                                  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

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).


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       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).

       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


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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

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.




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