IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-21147 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONNELL BARTHOLOMEW FORD, also known as The Harley Davidson, also known as 32, also known as Tony,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas (H-97-CR-295) --------------------- January 5, 2000

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM 1:

Appellant Ford, has responded to this court’s order that he

does not wish to discharge his counsel and proceed on appeal pro

se. We therefore rely on counsel’s brief, which asserts the sole

claim that the trial court erred in denying Ford’s motion in

limine that would have excluded the introduction of an unfiled

1994 income tax return as subject matter for cross-examination --

if Ford had elected to testify.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-21147 - 2 -

Ford contends that the trial court’s ruling effectively

denied him the right to testify, as it would have brought into

the case evidence both prejudicial and not relevant to the

cocaine trafficking counts with which he was charged. Because

Ford did not testify, however, this point is not properly before

our appellate court. The Supreme Court has held that a defendant

must take the witness stand in order to raise and preserve for

review a trial court’s alleged errorneous ruling deeming Evidence

Rule 609 impeachment evidence admissible. Luce v. United States,

, (1984). This court has observed that Luce is

not limited to rulings footed upon Rule 609 (a). United States

v. Bounds,

(5th Cir. 1996). We join other

circuits that have also extended Luce to bar a non -testifying

defendant from raising on appeal a claim that a district court

erroneiously deemed evidence admissible under, inter alia, Fed.

R. Of Evid. 608(b). United States v. Sanderson,

(6th Cir. 1992); United States v. Weichert,

(2nd Cir.) (1986); United States v. DiMatteo,

, 832-

33 (11th Cir. 1985). Because Ford did not testify, Luce and its

progeny bar him from obtaining review in this court of the

district court’s evidentiary rulings.

The judgment of the district court is AFFIRMED.