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United States v. Rivero

United States District Court, D. Arizona

November 10, 2016

United States of America, Plaintiff,
v.
Gabriel Rivero, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Defendant Gabriel Rivero's Motion to Sever Felon in Possession Charge (Doc. 31). The Government has filed its Response. Govt's Response to Def's Mot. to Sever Felon in Possession Charge (Doc. 34). Defendant replied (Doc. 35).

         Pursuant to LRCrim. 5.1, this matter came before Magistrate Judge Macdonald for oral argument and a report and recommendation. On October 13, 2016, oral argument was held before Magistrate Judge Macdonald regarding Defendant's motion. Minute Entry 10/13/2016 (Doc. 41). The Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's motion.

         I. FACTUAL BACKGROUND

         A. Prior Convictions

         On February 14, 1994, Defendant Gabriel Rivero, was convicted of two counts of felony Aggravated Assault in Santa Cruz County Superior Court, Arizona, case number 93-R-275. Govt's Response (Doc. 34) at 1. On January 20, 2009, Defendant was convicted of felony Attempted Kidnapping in Santa Cruz County Superior Court, case number CR-08-215. Govt's Response (Doc. 34) at 1. On August 13, 2009, Defendant was convicted of felony Conspiracy to Possess with Intent to Distribute Approximately 273.7 Kilograms of Marijuana in the United States District Court, District of Arizona. USDC Case No. CR-08-0771-TUC-FRZ (HCE), Judgment in a Criminal Case (Doc. 106).

         B. 2016 Arrest

         On February 11, 2016, at the Mariposa Port of Entry in Nogales, Arizona, the Defendant attempted to exit the United States and enter the Republic of Mexico as the driver and sole occupant of a pickup truck. Complaint (Doc. 1) at 1. As Defendant was approximately seventy-five (75) yards from the International Boundary and within the Port of Entry, a spare tire fell from underneath the vehicle. Id. Defendant stopped, exited the vehicle, and attempted to pick up the spare tire from the ground. Id. He was unable to do so, and abandoned the spare tire and proceeded to exit the United States and enter Mexico in the vehicle. Id. United States Customs and Border Protection Officers inspected the spare tire and discovered 5, 441 rounds of pistol and rifle ammunition concealed within the tire. Id. On March 12, 2016, Defendant entered the United States at the DeConcini Port of Entry in Nogales, Arizona. Complaint (Doc. 1) at 1. He was detained and subsequently interviewed by law enforcement. Id. Defendant stated that he was to be paid $500 to transport the ammunition hidden in the spare tire from the United States into Mexico on February 11, 2016. Id. Defendant did not have a license to export the ammunition from the United States to the Republic of Mexico. Id.

         Defendant was indicted on one count of Smuggling Goods from the United States (Count 1) and one count of Possession of Ammunition by a Convicted Felon (Count 2). See Indictment (Doc. 8).

         II. ANALYSIS

         Defendant seeks severance of the smuggling charge from the felon-in-possession count. Def.'s Mot. to Sever (Doc. 31) at 3-5. The Government argues that a limiting jury instruction would sufficiently protect against any danger of undue prejudice. Govt's Response (Doc. 34) at 3.

         Rule 8, Federal Rules of Criminal Procedure provides in relevant part:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged ... are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

Fed. R. Crim. P. 8(a). Defendant was allegedly paid to smuggle the tire filled with ammunition across the border. See Indictment (Doc. 8). Moreover, Defendant does not contest the joinder. As such, the Court finds ...


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