New Location, Same Tradition: Goldstein & Orr Has Moved Offices Learn More

Client Testimonials
  • "I have known Ms. Orr for over a decade and she is an excellent criminal defense attorney with high ethical standards." by Peer Attorney Read More
  • "I'm very impressed how Mrs. Orr handled everything, she is very professional and I recommend Mrs. Orr if your in need an attorney for a white collar case!!!" by Anonymous Former Client Read More
  • "They are next level on intelligence and understanding. My full respect to these attorneys." by Amber R. Read More
  • "They're the best, very thorough." by Doug T. Read More
  • "GGH has no equal in Texas or elsewhere. Cynthia Orr and Gerry Goldstein don't just defend their clients, they make law. I've watched them over the years take impossible cases and win." by Debra I. Read More


As set out above, Rule 8(b), F.R.CR.P., permits joinder of defendants for trial where such defendants are alleged to have participated:

  1. in the same act or transaction, or
  2. in the same series of acts or transactions constituting an offense or

2 Historically, the circuits were split on this issue. See generally US v. Turkette, 632 F.2d 896, 906 (1st Cir. 1980), rev’d on other grounds, 452 US 576 (1981); US v. Graci, 504 F.2d 411, 414 (3d Cir. 1974); US v. Bledsoe, 674 F.2d

647, 654, 657-58 (8th Cir.), cert. denied by Phillips v. US, 459 US 1040 (1982); US v. Eagleton, 417 F.2d 11,14 (10th

Cir. 1969); US v. Ellis, 709 F.2d 688, 690 (11th Cir. 1983).


Previously the determination of “prejudice” under Rule 14, F.R.CR.P., is left to the trial court’s discretion and may be overturned only upon a showing of abuse of that discretion, relief from a “misjoinder” of defendants under Rule 8(b), F.R.CR.P., has been held to be mandatory and a failure to grant a timely request is not regarded as harmless error. US v. Nettles, 570 F.2d 547 (5th Cir. 1978); US v. Eggleston, 417 F.2d 11, 14 (10th Cir. 1969); Chubert v. US, 414 F.2d

1018, 1021 (8th Cir. 1969); Cupo v. US, 359 F.2d 990, 993 (D.C. Cir. 1966) cert. denied, 385 US

1013 (1967); US v. Spector, 272 F.2d 567, 570-571 (7th Cir. 1959); US v. Sutton, 605 F.2d 260

(6th Cir. 1979), vacated on rehearing by 642 F.2d 1001 (5th Cir.1980); Tillman v. US, 406 F.2d 930 (5th Cir. 1969), vacated on other grounds as to one defendant, cert. denied as to all others,

395 US 830; US v. Bright, 630 F.2d 804 (5th Cir. 1980) [“inherently prejudicial and thus reviewable on appeal as a matter of law”]. Contra: US v. Friedman, 445 F.2d 1076 (9th Cir. 1971).


However, as outlined above, the United States Supreme Court has since held that misjoinder of defendants under Rule 8(b), is “subject to harmless error analysis and is not reversible per se”. US v. Lane, 88 L.Ed.2d 814, 815 (1986). Reversal is required only where the misjoinder results in actual prejudice having a “substantial and injurious effect or influence in determining the jury’s verdict”, quoting Kotteakos v. US, 328 US 750 (1946).

(210) 226-1463
  1. Attorneys
  2. Results
  3. Contact