Friday, October 14, 2011
In Context: 5th Circuit Finds Specific Ground For Rule 404(b) Objection Was Apparent From The Context
Federal Rule of Evidence 103(a)(1) provides that
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....
You don't find many cases in which an appellate court finds that the specific ground of an objection is "apparent from the context...." The recent opinion of the Fifth Circuit in United States v. Mireles, 2011 WL 4584763 (5th Cir. 2011), is an exception.In Mireles, Merlin Mireles was convicted of transporting illegal aliens and harboring illegal aliens. At trial, defense counsel objected to the prosecution's attempt to introduce the testimony of several of Mireles' coworkers, and the prosecution countered that the testimony was relevant
because [Mireles's Attorney had] argued to the jury in his opening statement that it didn't make sense, and that's a quote, for him to have harbored an illegal, but when you look at his work record, he violated on repeated occasions, like, the code of conduct. There was an instance where he actually solicited, asked for a date of a woman coming across the border.
Now, I think he opened the door to that by suggesting that this guy, that he had no reason, but he continually, he was continually late. He was caught sleeping. This guy just simply, he didn't care about his job, so it made perfect, it made perfect sense for him to do this because there are instances where he didn't, he didn't honor his code. He didn't honor the regulations.
The district court then asked the prosecution if this evidence was "Rule 404(b)" evidence, which the prosecution denied. Defense counsel then reiterated his objection, stating that the proffered evidence was "character assassination. That's all it is. It's just character evidence." The district court, however, overruled this objection as to the majority of the prosecution's proffered evidence.
After Mireles was convicted, he appealed, claiming, inter alia, that the coworkers' testimony was inadmissible character evidence under Federal Rule of Evidence 404(b). The government countered that Mireles did not preserve this issue for appellate review because "Mireles only objected to 'character evidence' under Rule 404(a)."
It therefore argues that this court should review for plain error. See Williams, 620 F.2d at 488–89. We disagree. The Fifth Circuit disagreed, concluding that
To preserve an evidentiary error for review, the movant must make "a timely objection or motion to strike ... stating the specific ground of objection, if the specific ground was not apparent from the context." FED.R.EVID. 103(a)(1). For two reasons, it was apparent from the context that Mireles's attorney was making a Rule 404(b) objection. First, the district court had specifically asked the Government if it was attempting to introduce Rule 404(b) evidence. Second, Mireles's attorney began the colloquy with his concern about "incidents that occurred at work, not crimes that he's ever been convicted of." These statements clearly show that Mireles's attorney was objecting to "other acts"character evidence under Rule 404(b). Mireles properly preserved his objection, and we review the district court's admission of the alleged 404(b) evidence for abuse of discretion.