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DISTINCTION BETWEEN RULES 8(a) AND 8(b)

OFFENSES OF “SAME OF SIMILAR CHARACTER”:

One striking difference between the offenses that may be joined pursuant to Rule 8(a) and the defendants that may be joined pursuant to Rule 8(b) is that Rule 8(a) permits joinder of offenses on the sole basis that such offenses are of the “same or similar character”, regardless of whether such offenses arise out of the same transaction, while Rule 8(b) will not allow the joinder of such “same or similar” offenses in a case where multiple defendants are involved unless such offenses arose out of the same series of acts or transactions. Matheny v. US, 365 F.2d 90, 94 (9^th Cir. 1966); Granello v. US, 365 F.2d 990, 993 (D.C. Cir. 1966); King v. US, 355

F.2d 70 (1^st Cir. 1966); US v. Spector, 326 F.2d 345; 349-351 (7^th Cir. 1963); Williamson v. US,

310 F.2d 192, 197, n. 16 (9^th Cir. 1962); US v. Roselli, 432 F.2d 879, 898 (9^th Cir. 1970), cert.

denied, 401 US 934; US v. Diaz-Munoz, 632 F.2d 330 (5^th Cir. 1980); US v. Kopitive, 690 F.2d

1289, 1312 (5^th Cir. 1982); US v. Maggit, 784 F.2d 590, 594 (5^th Cir. 1986).

 

Thus, a severance should be granted under Rule 8 on the grounds of “misjoinder” where

(1) two defendants are alleged to have committed similar offenses but the indictment does not allege that such offenses arose out of the same transaction; or (2) where the defendants are charged with offenses arising out of the same series of transactions, and one defendant is additionally charged with an unrelated but “similar offense; or (3) where the defendants are both charged out of several separate transactions, but there is no allegation that these transactions were related or part of the same series of acts or transactions, Wright, 1 Federal Practice and Procedure: Criminal Rules, §§143, 144.

 

PROPRIETY OF JOINDER VIEWED FROM FACE OF INDICTMENT:

The propriety of joinder under Rule 8 must be determined from the face of the indictment. US v. Grassi, 616 F.2d 1295, 1302 (5^th Cir. 1980). By its express terms, Rule 8(b) of the Federal Rules of Criminal procedure permits joinder of defendants only “if they are alleged to have participated” in the same transaction or series of transactions (emphasis supplied) Rule 8(b), F.R.CR.P.. See Schaffer v. US, 362 US 511 (1960); Jackson v. US, 329 A.2d 782-787

(D.C. App. 1974). Accordingly, it is appropriate to determine whether severance is required under Rule 8, by “looking to the indictment alone”. Moore’s, Federal Procedure, Par. 8.06[3], at 839. US v. Hatcher, 860 F.2d 438, 441 (6^th Cir. 1982).

In testing whether a joinder of defendants meets the test of Rule 9(b), the indictment must allege that each defendant participated in the same series of acts or transactions in which all of the other defendants participated. Moore’s, Federal Practice-Criminal Rules, §8.06(3); Williamson v. US 310 F.2d 192, 197, n. 16 (9^th Cir. 1962); US v. Gaugis, 374 F.2d 758 (7^th cir. 1967); US v. Matheny, 365 F.2d 90, 94 (9^th Cir. 1966), although it is not necessary that each defendant participated in each act or transaction in the series. US v. Gimelstob, 475 F.2d 157, 160 (3d Cir. 1973), cert. denied, 414 US 828; James v. US, 416 F.2d 467 (5^th Cir. 1969), cert. denied, 397 US 907 (1970).

 

See also:    US v. Gallo, 668 F.Supp. 736, 747 (E.D.N.Y. 1987), aff’d, 863 F.2d 185 (1988).

 

“Joinder under Rule 8(b), therefore, is automatically authorized simply through the RICO conspiracy charge, which supplies the ‘sufficient nexus’ to tie the various defendants and the diverse predicate offenses together.”

 

RULE 8(b) GOVERNS SEVERANCE OF DEFENDANTS OR OFFENSES IN MULTIPLE DEFENDANT CASES:

 

Where two or more defendants are charged, Rule 8(b) governs both joinder of offenses and defendants. US v. Jackson, 562 F.2d 789, 793 (D.C. Cir. 1977); US v. Park, 531 F.2d 754, 760, n. 4 (5^th Cir. 1976).

 

Joinder of defendants in the same indictment is permissible under Rule 8(b) if the defendants “are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting and offense. Schafer v. U.S., 362 US 511, 514 (1960). If the conspiracy count is dismissed, however, Rule 14 of the Federal Rules of Criminal Procedure states that the defendants should be severed before submitting the case to the jury. Schafer v. U.S., 362 US 511, 514 (1960). If the government fails to sever the defendants prior to submitting the issue to trial, Rule 14 provides for a new trial upon the showing that the defendants were prejudiced by the non severance. Schafer v. U.S., 362 US 511, 514 (1960)