United States v. Rivero, 4:16-cr-00713

Defendant Gabriel Rivero has prior felony convictions: aggravated assault (1994), attempted kidnapping (2009), and conspiracy to possess/distribute marijuana (2009 federal conviction).
In February–March 2016 Rivero was stopped at Nogales ports of entry after a spare tire containing 5,441 rounds of ammunition was discovered; he admitted being paid to transport the ammunition into Mexico and lacked an export license.
Indictment charges: Count 1 — Smuggling Goods from the United States; Count 2 — Possession of Ammunition by a Convicted Felon.
Rivero moved to sever the felon-in-possession count from the smuggling count; government opposed, arguing a limiting instruction would suffice.
Magistrate Judge Macdonald held oral argument, found joinder proper under Rule 8, but recommended severance under Rule 14 due to high risk of prejudice from introduction of prior-felony evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether joinder of smuggling and felon-in-possession counts is proper	Joinder is proper; counts arise from same transaction	Does not contest joinder but seeks severance to avoid prejudice	Joinder is proper under Rule 8
Whether the felon-in-possession count should be severed to avoid undue prejudice	A limiting jury instruction will protect defendant from prejudice	Prior felonies would unduly prejudice jury; limiting instructions are often ineffective	Court recommended severance under Rule 14; severance preferred to avoid prejudice

United States v. Nguyen, 88 F.3d 812 (9th Cir. 1996) (expressing skepticism about efficacy of limiting instructions and preferring severance/bifurcation for felon-in-possession joinders)
United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986) (recognizing high risk of undue prejudice when joinder permits introduction of other-crimes evidence)
United States v. VonWillie, 59 F.3d 922 (9th Cir. 1995) (cautioning against consolidating felon-in-possession charges without safeguards)