TEST AS TO WHAT CONSTITUTES “SAME SERIES OF ACTS OR TRANSACTIONS”
Each of the individuals joined for trial need not be charged in each of the substantive counts of an indictment where all of the substantive offenses arose out of the same conspiracy. Shaffer v. US, 362 US 511 (1960); Wangron v. US, 399 F.2d 106 (8th Cir.), cert. denied, 393 US
“Transaction” has been held to be a flexible term implying some logical connection between the offenses, rather than any temporal immediacy between the acts. For example, concealment activities have been held to be properly joined under Rule 8 such as where obstruction of justice charges relate to efforts to conceal evidence of the underlying conspiracy and substantive counts. US v. Carmichael, 685 F.2d 903 (4th Cir. 1982).
COMMON DEFENDANTS ALONE INSUFFICIENT:
However, it is not sufficient for joinder under Rule 8(b) for the “sole connection between the offenses” to be “the presence” of several common defendants. US v. Levine, 546 F.2d 658 (5th Cir. 1977).
“Especially when, as here, the nexus between the separate groups is the defendants common to each and the mutual identity [similarity] of the counts charged, the transference of guilt from one group of defendants to the other is inexorable. The result is an inherent prejudice that no form of limiting instructions …could absolve.” US v. Levine, Supra.
SAME TIME PERIOD OR STATUTORY VIOLATION ALONE INSUFFICIENT:
The Fifth Circuit has noted that the “suggestion that because two operations existed during the same time period and each group of defendants were charged under the same statute
…they could be joined is ludicrous and does not merit discussion”. US v. Nettles, 570 F.2d 547,
- 6 (5th Cir. 1978).
The mere showing that acts occurred at or about the same time or that such acts violated the same statute is insufficient to demonstrate that the acts constitute a series of acts or transmissions falling within the parameters of Rule 8(b); US v. Satterfield, Supra; US v. Martinez, 479 F.2d 824, 827 (1st Cir. 1973); King v. US, 355 F.2d 700, 703 (1st Cir. 1966).
OVERALL SCHEME INVOLVING ALL DEFENDANTS:
The test under Rule 8(b) has been recently stated as follows: “In order to be part of the ‘same series of acts or transactions’, acts must be part of one overall scheme about which all joined Defendants knew and in which they all participated”. US v. Bledsoe, 674 F.2d 647, 657 (8th Cir. 1982); US v. Grassi, 616 F.2d 1295 (5th Cir. 1980) [“Rule 89b0 permits joinder of defendants ‘if they are alleged to have participated in the same …series or acts or transaction…’]; US v. Grey Bear, 863 F.2d 572 (8th Cir. 1988).
And where the indictment does “…not allege, even inferentially, any connection between” one defendant and the “conduct of other defendants detailed in [other] counts: of the indictment, courts have held severance to be required under Rule 8(b). US v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982).
“[f]acts must be alleged which at least suggest the existence of an overall scheme encompassing all the defendants and all the charged offenses.” US v. Bledsoe, Supra, at P-657.
In US v. Hatcher, 680 F.2d 438, 441 (6th Cir. 1982), the Sixth Circuit noted, that “[I]n the present case, the indictment on its face alleges no connection between Monestas and the cocaine related charges against Hatcher… As a matter of law, the joinder of Monestas and Hatcher was, therefore, improper under Rule 8(b)”.
MISJOINDER WHERE DIFFERENT FACTS AND CIRCUMSTANCES MUST BE ESTABLISHED TO SUPPORT THE DIFFERENT ALLEGATIONS:
In US v. Gentile, 495 F.2d 626 (5th Cir. 1974), the Fifth Circuit recognized that the standard for determining proper joinder was that counts “cannot be properly joined in a multitude defendant trial in different facts and circumstances must be established to support the alleged violations” involving different defendants. US v. Gentile, Supra, at p. 630.
“[t]he criminal activity charged …was not part of a ‘series of acts or transactions’ under 8(b). The proof required to establish the sale of PCP on October 23 as alleged in Count 2 is entirely different from the proof required to establish the sale of LSD on November 11, as alleged in Count 3.” US v. Gentile, Supra, at p. 630. See also US v. Martin 567 F.2d 849, 853 (9th Cir. 1977).