SUCH JOINDER IS NEITHER EFFICIENT NOR ECONOMICAL
Further, the “customary justification” for joinder of offenses “of the same or similar character” disappears when the offenses arise out of separate, unrelated transactions. US v. Halper, 590 F.2d 422 (2d Cir. 1979). In Halper, where the defendant was convicted in the same trial of unrelated crimes of fraud and income tax evasion, the Second Circuit reversed both convictions, holding that their joinder was prejudicial error. US v. Halper, Supra, at p. 431. The Court noted that neither time nor money is saved in trying offenses “of the same or similar character” together:
“When all that can be said of two separate offenses is that they are of the ‘same or similar character,’ the customary justifications for joinder (efficiency or economy) largely disappear. Whereas the joinder of offenses ‘based on the same act or transaction’ or of offenses based ’on two or more acts or transactions connected together or constituting parts of a common scheme or plan’ is reasonable and desirable both from the government’s and the
1 In fact, the Fifth Circuit has held that misjoinder of offenses under Rule 8(a) is “inherently prejudicial”; US v. Bova, 493 F.2d 33 (5th Cir. 1974).
defendant’s perspective, the same cannot be said for joinder of offenses of the ‘same or similar character.’ In the former situations, the government should not be put to the task of proving what is essentially the same, or at least connected, charges. See: United States v. McGrath, supra, 558 F.2d at 1106. In the later circumstance, however, the only time likely saved by joinder of ‘same or similar character’ offenses is the time spent selecting a jury, and perhaps the time spent examining character witnesses. On the whole, however, the ‘trials’ on the joined charges are distinct. See: 9 Moore’s, Federal Practice, §8.05(2), at 8-19. At the same time, the risk to the defendant in such circumstances is considerable.” US v. Halper, Supra, at 590 F.2d at p.430.
It has been described as “paradoxical” that Rule 8(a) permits joinder of “similar” offenses “while on the practical level the more similar the offenses the greater the chance that the jury will confuse them”, Moore’s, Federal Practice- Criminal Rules, §14.03