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JOINDER OF DEFENDANTS [Rule 8b]

As set out above, Rule 8(b), F.R.CR.P., permits joinder of defendants for trial where such defendants are alleged to have participated:

1. in the same act or transaction, or
2. in the same series of acts or transactions constituting an offense or

² Historically, the circuits were split on this issue. See generally US v. Turkette, 632 F.2d 896, 906 (1^st Cir. 1980), rev’d on other grounds, 452 US 576 (1981); US v. Graci, 504 F.2d 411, 414 (3d Cir. 1974); US v. Bledsoe, 674 F.2d

647, 654, 657-58 (8^th Cir.), cert. denied by Phillips v. US, 459 US 1040 (1982); US v. Eagleton, 417 F.2d 11,14 (10^th

Cir. 1969); US v. Ellis, 709 F.2d 688, 690 (11^th Cir. 1983).

 

Previously the determination of “prejudice” under Rule 14, F.R.CR.P., is left to the trial court’s discretion and may be overturned only upon a showing of abuse of that discretion, relief from a “misjoinder” of defendants under Rule 8(b), F.R.CR.P., has been held to be mandatory and a failure to grant a timely request is not regarded as harmless error. US v. Nettles, 570 F.2d 547 (5^th Cir. 1978); US v. Eggleston, 417 F.2d 11, 14 (10^th Cir. 1969); Chubert v. US, 414 F.2d

1018, 1021 (8^th Cir. 1969); Cupo v. US, 359 F.2d 990, 993 (D.C. Cir. 1966) cert. denied, 385 US

1013 (1967); US v. Spector, 272 F.2d 567, 570-571 (7^th Cir. 1959); US v. Sutton, 605 F.2d 260

(6^th Cir. 1979), vacated on rehearing by 642 F.2d 1001 (5th Cir.1980); Tillman v. US, 406 F.2d 930 (5^th Cir. 1969), vacated on other grounds as to one defendant, cert. denied as to all others,

395 US 830; US v. Bright, 630 F.2d 804 (5^th Cir. 1980) [“inherently prejudicial and thus reviewable on appeal as a matter of law”]. Contra: US v. Friedman, 445 F.2d 1076 (9^th Cir. 1971).

 

However, as outlined above, 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).