           Case: 15-12596   Date Filed: 07/06/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12596
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20381-BB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JAROD MONTRELL ALONSO,
a.k.a. Rob Dough,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                              (July 6, 2016)

Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jarod Alonso appeals his conviction for being a felon in knowing possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Alonso was

initially charged with a second count of possession of a firearm while under a

protection order, pursuant to 18 U.S.C. §§ 922(g)(8), but that count was dismissed

at trial. On appeal, Alonso argues that the district court abused its discretion in

denying his motion to sever the two charges and that misjoinder permitted the

introduction of evidence, in the form of a domestic violence protection order, that

substantially prejudiced the jury to convict him. Upon review of the parties’ briefs

and the record, we affirm.

      We first review de novo whether the initial joinder of charges under Fed. R.

Crim. P. 8(a) was proper, and then examine whether the district court abused its

discretion under Fed. R. Crim. P. 14 by denying a motion to sever. United States

v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002). If improper joinder occurred,

reversal is not required if the misjoinder was harmless error. United States v.

Dominguez, 226 F.3d 1235, 1238 (11th Cir. 2000). An improper joinder is

harmless unless it “results in actual prejudice because it had substantial and

injurious effect or influence in determining the jury’s verdict.” Id. (quotation

omitted). A denial of a severance motion will not require reversal of a conviction,

“absent a clear abuse of discretion resulting in compelling prejudice against which




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the district court offered no protection.” United States v. Dowd, 451 F.3d 1244,

1249 (11th Cir. 2006) (quotation omitted).

      Rule 8(a) allows two or more offenses to be charged in the same indictment,

in a separate count for each offense 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). Rule 8 is

broadly construed in favor of initial joinder. Dominguez, 226 F.3d at 1238. In

determining whether initial joinder is proper under Rule 8, the trial court examines,

before trial, the allegations stated on the face of the indictment. Id. When faced

with a Rule 8 motion, the prosecutor may proffer evidence that will show the

connection between the charges. Id. at 1241. If the indictment and the proffered

expected evidence do not provide a sufficient basis to justify joinder, then a

severance should be ordered. Id.

      Under Rule 14, the court may grant a motion to sever counts if their joinder

appears to prejudice the defendant. Fed. R. Crim. P. 14(a). Compelling prejudice

is assessed by determining, under the circumstances of a particular case, whether

“it is within the capacity of jurors to follow a court’s limiting instructions and

appraise the independent evidence against a defendant solely on that defendant’s

own . . . conduct in relation to the allegations contained in the indictment and

render a fair and impartial verdict.” Hersh, 297 F.3d at 1243 (quotation omitted).


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Absent evidence to the contrary, we presume that the jury was able to follow

instructions. Id. at 1244.

      “Generally, misjoinder will not be found after dismissal of a count in an

indictment during trial.” United States v. Adkinson, 135 F.3d 1363, 1374 (11th Cir.

1998). However, “[t]his rule is inapplicable where the count justifying the joinder

was not alleged by the government in good faith, i.e., with the reasonable

expectation that sufficient proof will be forthcoming at trial.” Id.

      To determine whether the dismissal of some counts warrants reversal of

convictions on remaining counts, we consider whether the convictions were the

result of prejudicial spillover. United States v. Prosperi, 201 F.3d 1335, 1345

(11th Cir. 2000). Prejudicial spillover occurs where there was “evidence (1) that

would not have been admitted but for the dismissed charges and (2) that was

improperly relied on by the jury in their consideration of the remaining charges.”

Id. As to the first prong, evidence that nevertheless would have been admissible

under Rule 404(b) does not result in prejudicial spillover. Id. at 1345-46. As to

the second prong, we consider several factors in determining whether prejudice

tainted the jury’s verdict. Id. at 1346. First, we consider whether the jury

meticulously sifted the evidence admitted for all counts. Id. “Relevant to this

inquiry is the similarity of the evidence introduced for the separate counts: distinct

evidence is less likely to result in prejudicial spillover.” Id. Second, we consider


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“whether the contested evidence was inflammatory in nature, and thus liable to

prejudice the jury.” Id. Third, we consider “whether admission of the other

evidence significantly altered the defendant’s trial strategy.” Id. Finally, we assess

the strength of the evidence against the defendant on the remaining counts. Id.

Additionally, limiting instructions to the jury may provide further assurance that

the jury did not consider improper evidence. Id. at 1347.

      The district court did not abuse its discretion in denying Alonso’s motion to

sever Counts 1 and 2 because they initially were properly joined and Alonso has

not demonstrated compelling prejudice. See Fed. R. Crim. P. 8(a); Fed. R. Crim.

P. 14; Hersh, 297 F.3d at 1243. The dismissal of Count 2, absent evidence of bad

faith, does not compel a finding of misjoinder. See Adkinson, 135 F.3d at 1374. In

this case, the Government clearly had a good faith, reasonable expectation of

obtaining a conviction on Count 2. Further, the introduction of the protection order

did not result in prejudicial spillover. Alonso arguably has satisfied the first prong

of the prejudicial spillover test because the order would not have been introduced

absent Count 2. Prosperi, 201 F.3d at 1345. However, the requirements of the

second prong of the analysis have not been met here. See id. at 1346-47. Although

it is unclear whether the jury meticulously sifted through the evidence, and

although the introduction of a domestic violence order may have been

inflammatory and prejudicial in nature, see id. at 1346, Alonso does not argue, and


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the trial records do not show, that admission of the protection order significantly

altered his trial strategy, see id. Furthermore, the only evidence that would not

have been admissible in any event was the protective order and the brief testimony

of the agent, Morales, that Alonso had notice and opportunity to participate in the

hearing with respect to the protective order. And the strength of the evidence

against Alonso on Count 1 was overwhelming. See id. Additionally, the district

court provided limiting instructions to the jury that it was only to consider the

specific crime alleged in Count 1, and absent evidence to the contrary, juries are

presumed to follow the district court’s instructions. Accordingly, we affirm.

      AFFIRMED.




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