                       FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 15-10260
           Plaintiff-Appellee,
                                                D.C. No.
                  v.                      2:13-cr-01363-GMS-1

 TERANCE TAYLOR PRIGGE,
        Defendant-Appellant.                     OPINION


        Appeal from the United States District Court
                 for the District of Arizona
         G. Murray Snow, District Judge, Presiding

                    Submitted July 21, 2016*
                    San Francisco, California

                        Filed July 29, 2016

 Before: Susan P. Graber and Richard C. Tallman, Circuit
       Judges, and Jed S. Rakoff,** District Judge.

                   Opinion by Judge Tallman



  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
  **
     The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2                   UNITED STATES V. PRIGGE

                           SUMMARY***


                           Criminal Law

    The panel affirmed a conviction in a case in which the
defendant alleged two errors: (1) the district court’s failure in
advance of trial to preclude the government from impeaching
the defendant with his fourteen-year-old prior conviction if he
testified; and (2) the district court’s refusal to sever three
counts from the five-count indictment.

    The panel held that the holding in Luce v. United States,
469 U.S. 38 (1984) (in order to raise and preserve for review
a claim of improper impeachment with a prior conviction, a
defendant must testify), applies to in limine rulings under
Fed. R. Evid. 404(b) – that is, in order to appeal a Rule
404(b) pretrial ruling, the evidence subject to that ruling must
be presented at trial. The panel held that because the
defendant did not testify, his first assignment of error is
unreviewable.

    The panel held that the district court did not err in
denying the defendant’s motion to sever counts because the
defendant cannot show prejudice from the joinder.




  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. PRIGGE                     3

                         COUNSEL

Robert J. McWhirter, ASU Alumni Law Group, Phoenix,
Arizona, for Defendant-Appellant.

Alexander W. Samuels, Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; John S.
Leonardo, United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.


                         OPINION

TALLMAN, Circuit Judge:

     Terance Taylor Prigge appeals his conviction by jury trial
for various drug trafficking and money laundering offenses.
Prigge asks that we reverse his conviction because of two
alleged errors: (1) the district court’s failure in advance of
trial to preclude the government from impeaching Prigge with
his fourteen-year-old prior conviction if he testified; and
(2) the district court’s refusal to sever three counts from the
five-count indictment. We hold that Prigge’s first assignment
of error is unreviewable on appeal because he did not testify
and that the district court did not err in denying Prigge’s
motion to sever counts because Prigge cannot show prejudice
from joinder. We affirm.

                               I

   The evidence at trial showed that Prigge engaged in a
multi-year effort, involving his co-defendant, Matthew
Gruender, prosecution witness Shane Grafman, and others, to
move large quantities of Central American cocaine to
4                   UNITED STATES V. PRIGGE

Chicago by a common modus operandi—chartering private
planes to land at outlying suburban airports to evade close
law enforcement scrutiny. Although various players entered
and exited the conspiracy during this period, the goals and
methods of the conspiracy remained the same. The operative
indictment charged Prigge with five counts, spanning conduct
from April 2010 to September 2013. While some counts in
the indictment focused on Prigge’s operations in 2013 with
Gruender, other counts focused more on his 2010 conduct
with Grafman. Count One, however, charged Prigge with an
overarching Conspiracy to Possess with Intent to Distribute
throughout this time period, including his deals with
Gruender and other individuals such as Grafman. Prigge did
not testify at trial and was ultimately convicted of all five
counts charged in the indictment.

                                   II

    Because he did not testify, Prigge did not preserve his
claim that the district court erred in failing to preclude
evidence of his prior conviction. Before trial the government
informed the court that, if Prigge testified, it might seek to
use Prigge’s prior felony conviction1 on cross-examination or
rebuttal. Importantly, the government sought to introduce
Prigge’s prior conviction under Federal Rule of Evidence
404(b), which allows evidence of prior acts for non-character
purposes.2 Prigge responded by moving in limine to preclude


    1
     Prigge’s prior conviction was for a state drug-trafficking offense.
Prigge served approximately seven years for that conviction and was
released in 2001.
  2
    The government stated, however, that it would use Prigge’s prior
conviction only if Prigge took the stand and denied knowledge or intent.
                    UNITED STATES V. PRIGGE                              5

the use of his prior conviction for any purpose because of its
age. The district court declined to make the in limine ruling
in a vacuum, and instead reserved the issue for trial, where it
would have more context on which to rely in making an
evidentiary ruling. Below and on appeal, Prigge does not
argue that admission of his prior conviction would be
improper under Rule 404(b), but rather that the timing
requirements and balancing test from Federal Rule of
Evidence 609(b) apply to any conviction introduced under
Rule 404(b) that is more than ten years old. We decline to
reach this argument and instead hold that Prigge’s claim is
barred on appeal by Luce v. United States, 469 U.S. 38
(1984).3

    The Supreme Court held in Luce that, “to raise and
preserve for review the claim of improper impeachment with
a prior conviction, a defendant must testify.” Id. at 43. In
Luce, the defendant sought to preclude the government from
using his prior conviction for impeachment purposes under
Rule 609(a), and the district court held that the government
could introduce the conviction if the defendant testified in a
certain way. Id. at 39–40. The defendant in Luce chose not
to testify. Id. at 40. On appeal, the Supreme Court held it


  3
   We note that Prigge is confused about the relationship between Rule
404(b) and Rule 609(b). The onerous standards for admission under Rule
609(b) do not apply to convictions admitted for a non-character purpose
under Rule 404(b). See United States v. Rubio-Gonzalez, 674 F.2d 1067,
1075 (5th Cir. 1982) (“[E]vidence admitted under Rule 404(b) is not
controlled by the ten-year limit specified in Rule 609(b), which applies to
the quite different matter of admitting evidence of prior convictions to
impeach a witness.”); see also United States v. Spillone, 879 F.2d 514, 519
(9th Cir. 1989) (declining to “adopt an inflexible rule excluding evidence
of prior bad acts [under Rule 404(b)] after a certain amount of time
elapses”).
6                    UNITED STATES V. PRIGGE

could not review the impeachment issue. Id. at 43. The Luce
Court gave two primary reasons for its holding. First, trial
courts cannot be expected to rule in a vacuum and often must
have the full context of trial testimony to balance the
prejudice and probative value of the evidence offered. Id. at
41–42. And, second, any harm from the in limine ruling was
“wholly speculative” because the government might have
decided not to use the conviction or the court might have
altered its tentative ruling at trial after hearing the defendant’s
testimony. Id. The Court also explained that harmless error
review is impractical in this situation because, first, there is
no way to know whether the defendant’s decision not to
testify was based on the district court’s in limine ruling and,
second, the reviewing court cannot, in the absence of greater
context, assess the impact of any alleged harm to the
defendant. Id. at 42–43.

    A narrow reading of Luce, as urged by Prigge and two
concurring Justices in Luce, suggests that it bars only appeals
based on Rule 609(a). See id. at 43–44 (Brennan, J.,
concurring). But that narrow reading has since been rejected
by our court and others. For example, we have already
extended Luce to in limine rulings under Rule 403. United
States v. Johnson, 903 F.2d 1219, 1222 (9th Cir. 1990).4
Although we have never explicitly extended Luce to the Rule


   4
     The facts of Johnson are illustrative. In Johnson, the district court
ruled in limine that, if the defendant testified, the government would be
allowed to ask him to try on some clothing because, under Rule 403, the
probative value of that clothing demonstration outweighed any danger of
unfair prejudice. 903 F.2d at 1221–22. The Johnson defendant chose not
to testify, but then attempted to appeal the district court’s ruling. Id. We
refused to review the issue, citing Luce and holding that we could only
speculate as to the prejudicial effect of the clothing demonstration because
the defendant did not actually testify and try on the clothes. Id. at 1222.
                 UNITED STATES V. PRIGGE                     7

404(b) context, other circuits have uniformly held that Luce
applies to pretrial 404(b) decisions. United States v. Hall,
312 F.3d 1250, 1255–58 (11th Cir. 2002); United States v.
Ortiz, 857 F.2d 900, 905–06 (2d Cir. 1988); United States v.
Johnson, 767 F.2d 1259, 1270 (8th Cir. 1985).

    We join our sister circuits in holding explicitly that Luce
applies to in limine rulings under 404(b). That is, in order to
appeal a Rule 404(b) pretrial ruling, the evidence subject to
that ruling must be presented at trial. See Ortiz, 857 F.2d at
906 (“The proper method to preserve a claim of error in
similar circumstances is to take the position that leads to the
admission of the adverse evidence, in order to bring a fully
developed record to this [c]ourt.”). Extending Luce to this
situation makes sense, as the two rationales underlying Luce
apply equally in the 404(b) context. First, the district court
often needs the context of the trial to evaluate the probative
value and prejudice of Rule 404(b) evidence and to ensure it
is being used for a purpose authorized by the rule. Second,
the party seeking to introduce other act evidence under Rule
404(b) may always decide not to do so at trial, or the court
may change its mind, so any harm is speculative unless the
evidence is admitted. Here, Prigge’s prior conviction was
never introduced at trial because he chose not to testify.
Thus, we hold that Luce bars his claim on appeal.

                              III

    We also affirm the district court’s denial of Prigge’s
motion to sever counts because Prigge has failed to show any
prejudice from joinder. The government charged Prigge with
five counts, spanning conduct from April 2010 to September
2013. Prigge argues that the district court erred under Federal
Rules of Criminal Procedure 8(a) and 14 by allowing Counts
8                   UNITED STATES V. PRIGGE

Two, Four, and Five to be joined with Counts One and Three.
According to Prigge, Counts One and Three involve his
dealings in 2013 with co-defendant Matthew Gruender (what
Prigge terms the “Gruender/Prigge Conspiracy”), while
Counts Two, Four, and Five involve his conduct in 2010 with
other individuals, including prosecution witness Shane
Grafman (which Prigge terms the “Grafman Conspiracy”).
Assuming that Prigge preserved an objection under both Rule
8(a) and Rule 14,5 we reject his claims for lack of prejudice.

    Counts are properly joined under Federal Rule of
Criminal Procedure 8(a) if they “are of the same or similar
character, or are based on the same act or transaction, or are
connected or constitute parts of a common scheme or plan.”
Reversal for improper joinder under Rule 8(a) is appropriate
only if the defendant can show actual prejudice. United
States v. Rousseau, 257 F.3d 925, 932 (9th Cir. 2001). Even
if counts are correctly joined initially under Rule 8(a), the
district court may still sever the counts under Rule 14 if
joinder is “manifestly prejudicial.” United States v. Johnson,
820 F.2d 1065, 1070 (9th Cir. 1987) (quoting United States
v. Seifert, 648 F.2d 557, 563 (9th Cir. 1980)). Thus, although
claims under Rule 8(a) and Rule 14 present different
questions, it is clear that there is no error under either rule if
joinder was not prejudicial. Joinder is not prejudicial where


  5
    Defendants must separately preserve Rule 8(a) objections to joinder
and Rule 14 severance motions. See United States v. Smith, 795 F.2d 841,
850 (9th Cir. 1986). Here, Prigge moved to sever Count Four before trial,
and he renewed his motion during trial, asking the district court to sever
Counts Two, Four, and Five. It appears both motions were more focused
on improper joinder under Rule 8(a), but because Prigge also discussed
prejudice (which is relevant to a Rule 14 inquiry), and because the
government has not argued waiver, we address his arguments under both
Rule 8(a) and Rule 14.
                  UNITED STATES V. PRIGGE                      9

“all of the evidence of the separate count would [still] be
admissible upon severance.” Id. We review misjoinder
under Rule 8(a) de novo and refusal to sever under Rule 14
for abuse of discretion. United States v. Jawara, 474 F.3d
565, 572 (9th Cir. 2007); Smith, 795 F.2d at 850.

    We hold that the district court did not err in refusing to
sever Counts Two, Four, and Five because Prigge has failed
to show any prejudice from their inclusion at trial. Prigge
argues that these counts improperly focus on his 2013
conduct, but he failed to argue that Count One should be
severed and Count One covers his conduct in both 2010 and
2013. Although Counts Two and Five have little to do with
co-defendant Matthew Gruender, any evidence relevant to
those counts would also have been admissible under Count
One. In other words, even if the court had granted Prigge’s
motion for severance, the trial would have looked the
same—the allegedly prejudicial testimony of prosecution
witness Shane Grafman would have been admissible to prove
up Count One. Thus, we reject Prigge’s severance and
joinder arguments under Rule 8(a) and Rule 14 because he
cannot show prejudice.

                               IV

    In an issue of first impression in the Ninth Circuit, we join
our sister circuits in holding that Luce extends to in limine
rulings under Rule 404(b), and therefore bars our
consideration of Prigge’s first issue on appeal. We affirm the
district court’s rejection of Prigge’s severance motion
because he cannot show prejudice from the joinder of Counts
Two, Four, and Five. Prigge’s conviction is therefore

    AFFIRMED.
