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The standard to be applied by the appellate court when reviewing the trial court’s denial of a motion to sever improperly joined offenses under Rule 8(a) requires reversal only when the misjoinder results in actual prejudice having a “substantial and injurious effect or influence in determining the jury’s verdict.” US v. Lane, 88 L.Ed. 2d 814, 815 (1986); see also Kotteakos v. US, 382 US 750 (1946); US v. Grey Bear, 863 F.2d 572 (8th Cir. 1988); US v. Castro, 829 F.2d 1038, 1046 (11th Cir. 1987).2


This holding has resolved the conflict among the Circuit Courts in regard to Rule 8(b). But significantly, the High Court did not extend its holding to include Rule 8(a). The argument could be advanced, therefore, that Rule 8(a) retained the more stringent “prejudicial per se” standard. This is not how federal courts in the Fifth Circuit have interpreted the holding in Lane. United States v. Williams, 2021 WL 1063068 (E.D. Louisiana 2021) (“Rule 8(b) articulates a more stringent test    [Lane] effectively overrul[ed] cases holding or implying that misjoinder under Rule 8 is inherently prejudicial.”)

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