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The Federal Rules of Criminal Procedure freely allow the joinder of several offenses against a single defendant, as well as several defendants for trial. The Government has a tendency to consolidate as many offenses and defendants in a single trial as is conceivably possible. While this most certainly serves the interest of judicial economy and convenience, “[few will deny that there is a positive correlation between the number of defendants and offenses accumulated within a single trial and the likelihood of conviction”. Moore’s Federal Practice-Criminal Rules, §8.02[2]. Accordingly, every effort should be made by a defendant to avoid such dangers where his desire for an acquittal outweighs his interest in the judicial convenience of a mass trial.

Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in separate counts of the same indictment or information where the offenses are:

  1. out of character,
  2. based on the same act or transaction, or
  3. based on two or more acts or transactions connected together or constituting parts of a common scheme or design.

Rule 8(b) of the Federal Rules of Criminal Procedure provides that two or more defendants may be charged in the same indictment or information where they are alleged to have participated in:

  1. the same act or transaction, or

See:                 US v. Olander, 584 F.2d 876 (9th Cir. 1978);

US v. Roell, 487 F.2d 395 (8th Cir. 1973);

US v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d, 385 US 293, 87 S.Ct. 408, 17

L.Ed.2d 374 (1966).

  1. in the same series of acts or transactions constituting an offense or

See:     US v. Santoni, 585 F.2d 667 (4th Cir.), cert. denied, 440 US 910, 99S.Ct. 1221, 59L.Ed.2d 459 (19780; US v. Velasquez, 772 F.2d 1348 (7th Cir. 1985).

Rule 13 of the Federal Rules of Criminal Procedure provides that two or more indictments or informations may be tried together if the offenses and the defendants could have been joined in a single indictment or information.

Rule 14 of the Federal Rules of Criminal Procedure provides that where it appears that prejudice will result from a joint trial of either offenses or defendants for separate trial.




While Rule 14 provides the proper remedy for prejudicial joinder of offenses or defendants, that rule presupposes that the original joinder was proper under Rule 8, F.R.CR.P.. Rule 14 provides for the severance of offenses or defendants properly joined under Rule 8, F.F.Cr.P., “where prejudice would result from their joint trial”. Moore’s Federal Practice- Criminal Rules, §14.02[1]; Drew v. US 331 F.2d 85 (D.C. Cir. 1964); Roth v. US, 339 F.2d 863 (10th Cir. 1964). The determination of “prejudice”, however, is left to the “discretion” of the trial court, and accordingly, appellate review is limited solely to abuse of that discretion. Opper v. US, 348 US 84 (1954); US v. DeSapio, 435 F.2d 272, 280 (2d Cir. 1970), cert. denied, 402 US

999 (1971); US v. Dryder, 423 F.2d 1175 (5th Cir.), cert. denied, 398 US 950 (1970).


On the other hand, where the propriety of the joinder under Rule 8, F.R.CR.P., is questioned the defendant is not saddled with the burden of demonstrating prejudice and once it is demonstrated that the joinder was improper under Rule 8, severance is mandatory. Tillman v. US, 406 F.2d 930, 933, n. 5 (5th Cir. 1969); US v. Friedman, 445 F.2d 1076 (9th Cir. 1971); US

  1. Grasso, 55 F.R.D. 288 (D.C. Pa. 1972); Moore’s, Federal Practice-Criminal Rules, 14.02[1]; 1 Wright, Federal Practice and Procedure: Criminal, 144.


Therefore, it is important for counsel to distinguish between whether the relief sought. Whether it is from “misjoinder” under Rule 8, F.F.CR.P., or from “prejudicial joinder” under Rule 14, F.R.CR.P..


However, 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).

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