     Case: 11-51142       Document: 00512273042         Page: 1     Date Filed: 06/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 13, 2013
                                     No. 11-51142
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN MARQUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-1450-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ruben Marquez was convicted by a jury of conspiring to possess with
intent to distribute 100 kilograms or more of marijuana. The district court
sentenced Marquez to a $5,000 fine and 78 months in prison to be followed by
five years of supervised release. Marquez now appeals his conviction and
sentence, arguing that the district court abused its discretion when it denied his
motion to strike testimony that referenced several non-custodial statements he
made. He asserts only that the testimony violated his agreed motion in limine.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 11-51142

       During the trial, Agent Felix Sauceda of the United States Border Patrol
testified regarding some statements Marquez made prior to his arrest. Marquez
complained that the testimony violated his motion in limine because the
Government did not disclose to him its intended use of those statements. The
district court refused to strike the testimony, noting that both the court’s general
order of discovery and Marquez’s motion in limine only required disclosure
pursuant to Federal Rule of Criminal Procedure 16.
       We review the district court’s denial of a properly preserved evidentiary
objection for an abuse of discretion, subject to a harmless error analysis. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 757 (5th Cir. 2008); United States v.
Crawley, 533 F.3d 349, 353 (5th Cir. 2008).               Marquez did not make a
contemporaneous objection to the introduction of the contested evidence during
Agent Sauceda’s testimony, objecting only well after the testimony came in.
Therefore, Marquez’s issue is arguably subject to plain error review. See
generally United States v. Graves, 5 F.3d 1546, 1551-53 (5th Cir. 1993) (applying
plain error review where defendant did not renew objection to introduction of
evidence at trial after having unsuccessfully opposed a motion in limine prior to
trial).1
       Contrary to Marquez’s assertion otherwise, his motion in limine was not
so broadly-worded as to require the court to strike any and all testimony about
which he had not previously been told. As the district court noted, Marquez’s
motion in limine specifically referenced Rule 16. Rule 16 provides, in relevant
part, “[u]pon a defendant’s request, the government must disclose to the
defendant the substance of any relevant oral statement made by the defendant,
before or after arrest, in response to interrogation by a person the defendant
knew was a government agent if the government intends to use the statement


       1
         The standard of review is not case-determinative because Marquez’s arguments fail
under either standard. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008);
United States v. Tannehill, 49 F.3d 1049, 1057 n.10 (5th Cir. 1995).

                                            2
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                                 No. 11-51142

at trial.” FED. R. CRIM. P. 16(a)(1)(A). Marquez concedes that he was not being
interrogated at the time he made the contested statements. Thus, the terms of
his motion in limine did not require the Government to reveal its intended use
of those statements. See United States v. Fischel, 686 F.2d 1082, 1090 (5th Cir.
1982) (noting that discovery in criminal cases is “narrowly limited” and largely
governed by the Federal Rules of Criminal Procedure). Accordingly, the district
court did not commit error when it refused to strike Agent Sauceda’s testimony
about Marquez’s statements. See Cisneros-Gutierrez, 517 F.3d at 757; Graves,
5 F.3d at 1551-53.
      The judgment of the district court is AFFIRMED.




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