United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 9, 2004
Charles R. Fulbruge III
Clerk
No. 03-50714
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL DOMINGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-371-ALL
Before HIGGINBOTHAM, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Daniel Dominguez was indicted and convicted by a jury of two
counts of bank robbery and one count of being a felon in
possession of a firearm. The district court sentenced Dominguez
to 210 months’ imprisonment for each count to run concurrently
with each other and to three years of supervised release, and the
court ordered him to pay $4,144 in restitution. As the result of
a 28 U.S.C. § 2255 proceeding, the district courted re-entered
*
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that this opinion should not be published and is not precedent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. 03-50714
-2-
Dominguez’s judgment of conviction, and Dominguez filed a timely
notice of appeal.
Dominguez asserts that his conviction should be vacated
because the district court abused its discretion in denying his
motion to sever the felon in possession charge from the bank
robbery charges. Dominguez asserts that the denial of the motion
to sever allowed the Government to introduce prejudicial evidence
of his previous conviction that resulted in an unfair trial. The
Government responds that joinder was proper and that Dominguez
was not prejudiced by the joinder of the offenses.
This court reviews a district court’s denial of a motion to
sever for abuse of discretion. See Addington v. Farmer’s
Elevator Mutual Insurance, 650 F.2d 663, 666 (5th Cir. 1981);
United States v. Stouffer, 986 F.2d 916, 924 n.7 (5th Cir. 1993);
United States v. Inigo, 925 F.2d 641 (3rd Cir. 1991). The
initial inquiry is whether joinder was proper under Federal Rule
of Criminal Procedure 8. United States v. Holloway, 1 F.3d 307,
310 (5th Cir. 1993). Under Rule 8, offenses may be charged in
the same indictment when they are “of the same or similar
character or are based on the same act or transaction or on two
or more acts or transactions connected together or constituting
parts of a common scheme or plan.” Here, the firearm was found
with items that were linked to the first bank robbery and linked
to Dominguez. Thus, joinder was proper.
No. 03-50714
-3-
The next inquiry is whether severance was warranted under
Federal Rule of Criminal Procedure 14, because Dominguez was
prejudiced by the joinder of the charges. To demonstrate that a
severance was warranted and the district court abused its
discretion in denying the motion to sever, Dominguez bears the
burden of showing specific and compelling prejudice that resulted
in an unfair trial. See Stouffer, 986 F.2d at 924; Holloway, 1
F.3d at 311. Given the overwhelming evidence of guilt and the
curative jury instruction, Dominguez has not shown clear
prejudice. Accordingly, the district court did not abuse it
discretion in denying Dominguez’s motion to sever.
Additionally, Dominguez asserts that 18 U.S.C. § 922(g) is
unconstitutional, or, in the alternative, if the statute is
constitutional, that the Government failed to prove the requisite
nexus in his case. These issues are foreclosed by United States
v. Rawls, 85 F.3d 240, 241-43 (5th Cir. 1996).
AFFIRMED.