United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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).
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
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.
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.
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.
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.
Federal Rules of Criminal Procedure provides in relevant
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 ...