United States v. Terance Prigge, 830 F.3d 1094

Prigge was convicted by a jury of five counts involving multi-year cocaine trafficking and money laundering (Apr 2010–Sep 2013) tied to a common modus operandi (chartering private planes to suburban airports).
Count One charged an overarching conspiracy that encompassed both Prigge’s 2010 deals (with Shane Grafman) and 2013 deals (with co-defendant Matthew Gruender); other counts targeted narrower incidents.
Before trial the government notified the court it might use Prigge’s 14-year-old state drug-trafficking conviction if Prigge testified; the government framed the proffer under Rule 404(b) for a non-character purpose.
Prigge moved in limine to exclude the old conviction because of its age; the district court reserved ruling for trial context. Prigge ultimately did not testify and was convicted on all counts.
Prigge also moved to sever Counts Two, Four, and Five (2010-related) from Counts One and Three (2013-related), arguing prejudice from joinder; the district court denied severance.

Issue	Prigge's Argument	Government's Argument	Held
Whether an in limine ruling denying preclusion of a >10-year prior conviction (proffered under Rule 404(b)) is reviewable when defendant elects not to testify	The district court erred by refusing pretrial exclusion; 609(b)’s ten-year timing/balancing should apply to such convictions even when offered under 404(b)	Luce and related precedent require defendant to testify to preserve an impeachment-improper-use claim; trial context is needed before appellate review	Affirmed: Claim unreviewable under Luce because Prigge did not testify; Ninth Circuit holds Luce extends to Rule 404(b) in limine rulings
Whether joinder of counts spanning 2010–2013 violated Rule 8(a) (or required severance under Rule 14)	Counts pertaining to the 2010 Grafman matters were distinct from the 2013 Gruender matters and prejudiced Prigge; severance should have been ordered	Counts are allied by a common scheme (Count One covers both timeframes); even if severed, the same evidence (e.g., Grafman testimony) would have been admissible	Affirmed: No abuse—Prigge failed to show actual prejudice from joinder or manifest prejudice warranting severance

Luce v. United States, 469 U.S. 38 (trial ruling to exclude impeachment with prior conviction is not reviewable on appeal if defendant does not testify)
United States v. Johnson, 903 F.2d 1219 (9th Cir. 1990) (applies Luce to in limine rulings under Rule 403)
United States v. Ortiz, 857 F.2d 900 (2d Cir. 1988) (extends Luce to Rule 404(b) in limine rulings)
United States v. Rousseau, 257 F.3d 925 (9th Cir. 2001) (reversal for misjoinder under Rule 8(a) requires a showing of actual prejudice)