In a recent filing in the U.S. District Court for the District of Arizona, defense attorneys for Donald Day Jr. have urged the court to sever Count 3—a felon-in-possession-of-a-firearm charge—from the remaining charges in his criminal case. They argue that allowing the jury to hear evidence related to this count alongside other charges would unfairly prejudice Day and deprive him of a fair trial.
According to the defense, proving Count 3 would require the government to introduce evidence that Day is a convicted felon and to present potentially inflammatory testimony, including claims that he called himself an “x-con” who was “armed to the teeth” and witnesses who allegedly saw him with a gun. This type of evidence, the defense argues, would not be admissible in the trial for the other counts and would improperly color the jury’s perception of Day.
The court has already ruled that the jury may hear limited evidence about the Wieambilla shootings—a triple murder on the other side of the world that Day had no involvement in—as well as similarities between the properties of Day and the Australian attackers. The defense contends that combining all this with the felon-in-possession evidence would exceed the limits of what even the most careful jury instructions could remedy.
Rather than trying to separate one element of the felon-in-possession charge, as the government has proposed, the defense endorses the court’s idea of holding a separate trial for Count 3 immediately after the others, using the same jury. This, they argue, is both more efficient and more just.
Source: United States v. Donald Day Jr., No. CR-23-08132-PCT-JJT, Defendant’s Opposition to Government’s Motion Opposing Severance, filed May 9, 2025.