CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits as to whether a misjoinder under Rule 8 of the Federal
James Lane and three partners opened the El Toro Restaurant in Amarillo, Texas, in the summer of 1978. The business never operated at a profit, however, and sales began to decline that fall. In November, Lane purchased fire insurance covering the building's contents and improvements and any related business losses. Simultaneously, he hired Sidney Heard, a professional arsonist, to burn the building in order to escape the lease and partnership. On February 27, 1979, Heard set a fire that caused smoke damage to the building's contents. Lane first settled with the insurer on the contents and improvements. He then submitted an income statement that falsely indicated the restaurant had operated at a profit. After the insurance adjuster mailed the statement to the insurer's headquarters, Lane settled his business interruption claim.
Thereafter, on three occasions Dennis Lane signed proof-of-loss claims for repairs and submitted them to an insurance adjuster, who issued drafts in return totaling $12,000.
The Lanes and Lawson met with Heard several weeks after the duplex fire to discuss a proposal to establish and burn a flower shop in Lubbock, Texas. Heard and Dennis Lane picked out a suitable building in July 1980, and an accomplice of Heard's, William Lankford, prepared ficticious invoices for merchandise and delivered some artificial flowers to the building later in August. In November, James Lane insured the contents for $50,000. Heard, however, was later arrested for an unrelated crime, and the planned arson never took place.
In March 1981, an Amarillo newspaper article connected Dennis Lane with a scheme to burn the flower shop with Heard; that same day, James Lane canceled the insurance policy. On May 12, 1981, Dennis Lane appeared before a
James Lane and Dennis Lane were indicted in multiple counts for mail fraud in violation of 18 U. S. C. § 1341, conspiracy in violation of 18 U. S. C. § 371, and perjury in violation of 18 U. S. C. § 1623. Count 1 charged James Lane with mail fraud with regard to the El Toro Restaurant fire. Counts 2 through 4 charged both Lanes with mail fraud related to the duplex fire, and Count 5 charged them with conspiracy to commit mail fraud in connection with the flower shop arson plan. In Count 6, Dennis Lane was charged with perjury before the grand jury.
Prior to trial in the District Court for the Northern District of Texas, the Lanes filed motions for severance contending that the charged offenses were misjoined in violation of Federal Rule of Criminal Procedure 8(b), but the motions were denied and the trial proceeded jointly before a jury. When evidence relating to the El Toro Restaurant fire was admitted, the trial court instructed the jury not to consider that evidence against Dennis Lane. App. 21. The trial judge repeated this instruction in the final charge, together with an instruction regarding the separate consideration to be given each defendant and each count. Ibid. The Lanes renewed their severance motions at the end of the Government's evidence and at the close of all evidence, but the motions were again denied. The jury returned convictions on all counts.
On appeal, the Lanes argued that misjoinder under Rule 8(b) had occurred.
At the same time, the Court of Appeals rejected the Lanes' contention that there was insufficient evidence to support convictions for mail fraud under Counts 2 through 4 because each charged mailing occurred after each related payment had been received, and thus after each scheme had reached fruition.
The court found sufficient evidence for the properly instructed jury to "infer that the mailings were intended to and did have a lulling effect" because they helped persuade the insurer that "the claims were legitimate." Id., at 808. It emphasized that had the proof-of-loss forms not been mailed shortly after issuance of the insurance drafts, the insurer might have been alerted to the possibility of a fraud. Ibid.
The Government's petition for rehearing was denied. 741 F.2d 1381 (1984). We granted certiorari, 469 U.S. 1206 (1985). We reverse in part and affirm in part.
The Court of Appeals held that misjoinder "is inherently prejudicial."
McElroy, however, was decided long before the adoption of Federal Rules of Criminal Procedure 8 and 52, and prior to the enactment of the harmless-error statute, 28 U. S. C. § 2111, which provides that on appeal we are to ignore "errors or defects which do not affect the substantial rights of the parties." Under Rule 52(a), we are similarly instructed that any error "which does not affect substantial rights shall be disregarded."
Justice Black went on to note that all 50 States follow the harmless-error approach, and
Since Chapman, we have "consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hasting, 461 U.S. 499, 509 (1983). In Hasting, we again emphasized that
The applicability of harmless error to misjoinder also follows from Kotteakos v. United States, 328 U.S. 750 (1946), a case similar to the one at hand. There, some 32 defendants were charged with one conspiracy, when in fact there had been at least eight separate conspiracies. Nineteen defendants were jointly tried, and seven were convicted. The Court applied the harmless-error statute to an error resulting from a variance from the indictment, and held the error was not harmless in that case. Emphasizing the numerous conspiracies involving unrelated defendants, as well as seriously flawed jury instructions, the Kotteakos Court reversed the convictions in light of each of the 32 defendants' "right not to be tried en masse for the conglomeration of distinct and separate offenses" involved. Id., at 775.
A holding directly involving misjoinder again indicated the harmless-error rule should apply. In Schaffer v. United States, 362 U.S. 511 (1960), three different groups of defendants were charged with participating in separate criminal acts with one other group of three defendants. The indictment also charged all the defendants with one overall count of conspiracy, making joinder under Rule 8 proper. At the close of the Government's case, however, the District Court concluded there was insufficient evidence of conspiracy and dismissed that count. The court then denied a motion for severance after concluding that defendants failed to show prejudice from the joint trial; the Court of Appeals affirmed. This Court recognized that "the charge which originally justified joinder turn[ed] out to lack the support of sufficient evidence." Id., at 516. Essentially, at that point in the trial, there was a clear error of misjoinder under Rule 8 standards. Nevertheless, the Schaffer Court held that once the Rule 8 requirements were met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14, which requires a showing of prejudice. Id., at 515-516. The Court then affirmed the finding of no prejudice. Although the Court did not reach the harmless-error rule because Rule 8(b) had initially been satisfied, the Court's language surely assumed the rule was applicable.
A plain reading of these cases shows they dictate our holding. Applying the 1919 statute treated in Kotteakos, which
Schaffer discussed the current harmless-error statute, which was enacted in 1949 after Kotteakos and deleted the qualifying word "technical" regarding errors governed by the rule. See 28 U. S. C. § 2111. The Court again rejected any per se rule for joinder errors requiring reversal, refusing to "fashion a hard-and-fast formula that . . . [the] joinder [wa]s error as a matter of law." 362 U. S., at 516. Citing Kotteakos, the Court pointed out that there "[t]he dissent agreed that the test of injury resulting from joinder `depends on the special circumstances of each case.' " 362 U. S., at 517 (quoting 328 U. S., at 777 (Douglas, J., dissenting)).
Under Rule 52(a), the harmless-error rule focuses on whether the error "affect[ed] substantial rights." In Kotteakos the Court construed a harmless-error statute with similar language, and observed:
Invoking the Kotteakos test, we hold that an error involving misjoinder "affects substantial rights" and requires reversal only if the misjoinder results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict." Id., at 776. Only by so holding can we bring Rules 8 and 52(a) "into substantial harmony, not into square conflict."
In the face of overwhelming evidence of guilt shown here, we are satisfied that the claimed error was harmless. When evidence on misjoined Count 1 was introduced, the District Court provided a proper limiting instruction, and in the final charge repeated that instruction and admonished the jury to consider each count and defendant separately. Moreover, the same evidence on Count 1 would likely have been admissible on joint retrial of Counts 2 through 6 to show James Lane's intent under Federal Rule of Evidence 404(b). Any error therefore failed to have any "substantial influence" on the verdict. Kotteakos, supra, at 765.
Respondents challenge the sufficiency of the evidence to sustain their convictions. To find a violation of the mail fraud statute, 18 U. S. C. § 1341,
Only Counts 2 through 4, involving the duplex fire, are at issue. The Lanes argue that each mailing occurred after irrevocable receipt of the related payment, and thus after each scheme to defraud came to fruition.
Moreover, the jury could reasonably have found that the scheme was not completed until the final mailing on September 18, 1980, charged in Count 4, because that mailing was intended (as were the two earlier ones) to "lull" the insurer into a false sense of security.
The judgment of the Court of Appeals, ordering a new trial based on misjoinder of Count 1 with Counts 2 through 6, is reversed in part and affirmed in part, and the action is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BRENNAN, joined by JUSTICE BLACKMUN, concurring in part and dissenting in part.
I agree that the evidence was sufficient to sustain the mail fraud convictions and therefore join Part III of the Court's
The Act of February 26, 1919 (1919 Act), 40 Stat. 1181, amended § 269 of the Judicial Code. It provided in part:
In 1949, this provision was reenacted in its current form as 28 U. S. C. § 2111, and now instructs appellate courts to "give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." The 1919 Act was also incorporated in the Federal Rules of Criminal Procedure, and Rule 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." See also, Fed. Rule Civ. Proc. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties"). Although § 2111 and Rule 52(a) refer to "errors or defects" without the qualifying word "technical," this change did not alter the substantive legal test. See H. R. Rep. No. 352, 81st Cong., 1st Sess., 18 (1949) (§ 2111 "[i]ncorporates" former harmless-error statute); Advisory Committee's
The 1919 Act, § 2111, and Rule 52(a) all provide that an error is to be disregarded unless it "affects the substantial rights of the parties." This litigation thus presents a straightforward question of statutory construction: what does the phrase "affects the substantial rights of the parties" mean? Respondents in No. 84-744 contend that the term "substantial rights" refers to a particular class of rights which are essential to a fair trial and argue that errors which "affect" these rights cannot be disregarded on appeal. According to respondents, the 1919 Act, as reenacted in § 2111 and Rule 52(a), incorporated our holding in McElroy v. United States, 164 U.S. 76 (1896), that joinder is one of these "substantial rights," so that misjoinder is per se reversible.
For the reasons which follow, I conclude that the question whether a particular error "affects the substantial rights of the parties" does not entail a process of classification, whereby some rights are deemed "substantial" and errors affecting these rights are automatically reversible. Rather, an error "affects substantial rights" only if it casts doubt on the outcome of the proceeding. In other words, subject to the exceptions discussed in Part II (most importantly the exception for constitutional errors), I read § 2111 and Rule 52(a) to require harmless-error inquiry for all procedural errors. As none of these exceptions is applicable to misjoinder in violation of Rule 8, I concur in the Court's result on this issue.
Reference to whether error "affected the substantial rights of the parties" was not invented by Congress in 1919. The phrase was commonly used by courts throughout the 19th century to express the conclusion that particular claims of error did or did not warrant reversal. However, as used by these courts, error which "affected the substantial rights of the parties" was generally understood to refer, not to errors respecting a particular class of rights, but rather to any error which affected the fairness of the trial as a whole by calling
A careful reading of McElroy demonstrates that it is consistent with this understanding of the phrase "affects the substantial rights of the parties." In McElroy, five defendants were charged in two indictments with separate assaults and in a third indictment with arson. Three of the defendants were also charged in yet a fourth indictment with another assault. After explaining these charges, the Court noted that "it is the settled rule . . . to confine the indictment to one distinct offense or restrict the evidence to one transaction" because "[i]n cases of felony, the multiplication of distinct charges has been considered so objectionable as tending to confound the accused in his defence, or to prejudice him as to his challenges . . . ." 164 U. S., at 80. The Court then stated: "Necessarily where the accused is deprived of a substantial right by the action of the trial court, such action, having been properly objected to, is revisable on error." Ibid. In context, this merely restates the common-law understanding that an error is reversible if it prejudices the defendant. The Court did not state that joinder is a "substantial right" and, for this reason, any error respecting joinder is reversible. Rather, the Court held that "[i]t cannot be said in [a case of improper joinder] that all the defendants may not have been embarrassed and prejudiced in their defence, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions." Id., at 81. In other words, the
Absent some contrary indication, then, it would seem logical to conclude that when Congress used the phrase "affect[s] the substantial rights of the parties" in the 1919 Act, Congress meant to require an inquiry into whether an error cast doubt on the verdict, not to create a class of rights as to which error was per se reversible. The legislative history of the 1919 Act confirms that this was in fact what Congress intended.
The primary impetus for the enactment of the 1919 Act was the practice in some jurisdictions of reversing convictions on appeal for any procedural error at trial, without regard to whether the error was prejudicial. See Kotteakos v. United States, 328 U.S. 750, 758-759 (1946). There was also concern over the inconsistent application of harmless-error analysis by other courts, this Court in particular. See H. R. Rep. No. 913, 65th Cong., 3d Sess., 2 (1919) (quoting H. R. Rep. No. 611, 62d Cong., 2d Sess., 2 (1912)). The large number of reversals which resulted from failure to scrutinize errors for their prejudicial effect was criticized by leaders of the legal profession, including Taft, Pound, Wigmore, and Hadley. See Kotteakos, supra, at 758-759. After prolonged consideration, Congress responded to this criticism by passing the 1919 Act. The House Report accompanying the Act explained:
The theme that reversal be limited to prejudicial errors is found throughout the legislative history. For example, the Report accompanying the first version of the bill to pass the House of Representatives explained the meaning of the requirement that error be disregarded unless it "affect[s] the substantial rights of the parties" by quoting from an article by President Taft: " `No judgment of the court below should be reversed except for an error which the court, after hearing [sic] the entire evidence, can affirmatively say would have led to a different verdict.' " H. R. Rep. No. 1949, 61st Cong., 3d Sess., 1 (1911) (quoting Taft, The Administration of Criminal Law, 15 Yale L. J. 1, 16 (1905)). The Report criticized the practice of reversing judgments for errors which "did not in the least affect the substantial rights of the parties, the real merits of the case having been properly adjudicated upon the first trial." H. R. Rep. No. 1949, supra, at 2 (emphasis added). See also, ibid. (quoting Justice O'Gorman of the New York Supreme Court to the effect that "[o]ne of the gravest faults with our present mode of trial is the ease and frequency with which judgments are reversed on technicalities which do not affect the merits of the case, and which at no stage of the case have affected the merits"); H. R. Rep. No. 1218, 63d Cong., 3d Sess. (1914); H. R. Rep. No. 264, 64th Cong., 1st Sess. (1916).
Our decision in Kotteakos v. United States, supra, forecloses any remaining questions as to the interpretation of the phrase "affects substantial rights of the parties." In Kotteakos, we expressly rejected the argument that the 1919 Act required a determination of "what are only technical,
This interpretation of § 2111 and Rule 52(a) as requiring examination of the prejudicial effect of all procedural errors is subject to several exceptions. First, and most importantly, constitutional errors are governed by the Due Process Clauses of the Fifth and Fourteenth Amendments rather than by § 2111 and Rule 52(a). See Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 U.S. 499 (1983). Thus, the test for harmless constitutional error is stricter than its statutory counterpart. Compare, Chapman, supra, at 24 (prosecution must establish that the error
JUSTICE STEVENS' partial dissent recognizes two further exceptions: (1) "when an independent value besides reliability of the outcome suggests that [harmless-error] analysis is inappropriate," and (2) "when the harmlessness of the error cannot be measured with precision." Post, at 474. Although the cases he cites to support these additional exceptions involved constitutional errors, JUSTICE STEVENS may well be correct in asserting that they also apply to errors governed by the statutory harmless-error provisions. I need not decide that question to conclude, as does JUSTICE STEVENS, that — like the first two exceptions — neither applies to misjoinder.
The applicability of the exception to protect values other than reliability is easily disposed of. Rules respecting joinder are based on recognition that the multiplication of charges or defendants may confuse the jury and lead to inferences of habitual criminality or guilt by association. McElroy, 164 U. S., at 80. Apart from this, however, joinder rules do not serve "an independent value besides reliability of the outcome" justifying an exception to the harmless-error principle. Surely it cannot be maintained that misjoinder affects a right so fundamental to a fair trial that it " `infect[s] the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained.' " Post, at 474, n. 15 (quoting Rose v. Lundy, 455 U.S. 509, 544 (1982) (STEVENS, J., dissenting)).
The Court goes on to resolve the harmless-error question. I respectfully dissent. To begin with, I agree with JUSTICE STEVENS that "[u]ndertaking a harmless-error analysis is perhaps the least useful function that this Court can perform." Post, at 476. See United States v. Hasting, 461 U. S., at 520, n. 2 (opinion of BRENNAN, J.); see also, Connecticut v. Johnson, 460 U.S. 73, 102 (1983) (POWELL, J., dissenting). Having concluded that a harmless-error inquiry is required, I, like JUSTICE STEVENS, think we should remand to the Court of Appeals, which is in a better position than we are to study the complete trial record with care.
Moreover, it is apparent that the Court's perfunctory effort to evaluate the effect of this error is inadequate. The Court tells us simply that the error is harmless "[i]n the face of overwhelming evidence of guilt shown here . . . ." Ante, at 450. But where is the "examination of the proceedings in their entirety" called for by Kotteakos? See 328 U. S., at 762. Kotteakos instructs the reviewing court to "ponde[r] all that happened without stripping the erroneous action from the whole," and expressly states that "[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error." Id., at 765. Obviously, the existence of overwhelming evidence is relevant to determining the "effect the error had or reasonably may be taken to have had upon the jury's decision." Id., at 764. But I would have thought it equally obvious that, at the very least, consideration of the magnitude of the error in the context of the trial would also be called for; this the Court has not done. The Court also tells us that the error was harmless because the same evidence "would likely have been admissible" at a joint retrial of the defendants without the improper count. Ante, at 450. However, as I thought
Justice Traynor of the California Supreme Court wrote that "the evaluation of an error as harmless or prejudicial is one of the most significant tasks of an appellate court, as well as one of the most complex." R. Traynor, The Riddle of Harmless Error 80 (1970). It is a task this Court is manifestly ill-equipped to undertake. See United States v. Hasting, supra, at 516-518 (STEVENS, J., concurring in judgment). I would remand the cases for the Court of Appeals to undertake the task.
JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.
Rule 52(a) of the Federal Rules of Criminal Procedure provides:
The question presented in No. 84-744 is whether a misjoinder of defendants prohibited by Rule 8(b) is an error which affects substantial rights.
Our central task is, of course, to construe Rule 8(b) of the Federal Rules of Criminal Procedure. Thus, we must consider the history, purpose, and language of that Rule.
Prior to the adoption of the Federal Rules of Criminal Procedure, this Court decided that the misjoinder of defendants, as well as the misjoinder of offenses, was an error that deprived the accused of "a substantial right." McElroy v. United States, 164 U.S. 76, 80 (1896). McElroy concerned both kinds of misjoinder. Five defendants were charged with offenses committed on April 16, 1894, and May 1, 1894, but only three of them were charged with a separate offense committed on April 16, 1894. The two defendants who were not charged with the separate offense made essentially the same objection to their joint trial as did Dennis Lane in this case. As to those two defendants, the Government confessed error and the Court unanimously reversed and remanded for a new trial.
Thus, almost a half century before the adoption of Rule 8, the Court squarely held that protection against misjoinder was a "substantial right," and that the violation of the misjoinder rule required reversal.
Today, the Court does not dispute that McElroy required reversal for misjoinder. Instead, the Court suggests, rather obliquely, that three developments have undermined that holding: (1) the adoption of Rule 8; (2) the adoption of Rule 52(a) and the passage of the harmless-error statute; and (3) the development of a harmless-error doctrine in constitutional law. Ante, at 444-446. The reliance on the harmless-error developments will be addressed in more detail. Since we are construing Rule 8, however, the majority's bare citation to it — and apparent reliance on the history of its passage — must be first considered.
The majority seems to be of the view that the adoption of Rule 8 cast doubt on the validity of McElroy. Ante, at 444. Far from disavowing McElroy, however, the Federal Rules continued the misjoinder rule. The notes of the Advisory Committee on Rules state that both subdivisions of Rule 8 represent "substantially a restatement of existing law." Neither the text of Rule 8, nor the Advisory Committee Notes, nor the history of the Rule contains any suggestion that Rule 8 was intended to change the rule of the McElroy case. Indeed, the Advisory Committee displayed a keen awareness of the McElroy precedent by citing the opinion in
Furthermore, if one reads Rule 8 in conjunction with Rule 14, it is immediately apparent that the draftsmen of the Rules regarded every violation of Rule 8 as inherently prejudicial. For Rule 14 authorizes the Court to grant a severance, even in the absence of a Rule 8 violation, if either the defendant or the Government is prejudiced by a joinder of offenses or defendants.
Other commentators have agreed that the structure of the Federal Rules strongly supports the conclusion that the draftsmen viewed a violation of the misjoinder rule as inherently prejudicial.
In addition to its unexplained reference to the adoption of Rule 8, the Court suggests that its new misjoinder rule — that prejudice must be shown to justify reversal of a Rule 8 misjoinder error — is supported by its interpretation of developments in the law of "harmless-error." Specifically, the Court observes that the McElroy approach has been undermined by the passage of a harmless-error statute and rule, ante, at 444, and by the development of a harmless-error doctrine for constitutional errors, ante, at 445. Although the majority does not distinguish between these two categories, they require separate analysis. Neither category, however, remotely supports the majority's bald assertion that misjoinder should not be viewed as affecting "substantial rights," and thus not be viewed as inherently prejudicial.
The majority refers to the current harmless-error statute, 28 U. S. C. § 2111, and to Rule 52(a). As the majority points out, both define harmless error in terms of whether a violation affects "substantial rights."
To be sure, McElroy was decided before the first harmless-error statute was passed in 1919. That statute, a reaction to the hypertechnicality that had developed in American jurisprudence, did mark a significant change in our system's view of the effect of error.
Thus, neither the harmless-error statute, passed within a few years of the adoption of Rule 8, nor Rule 52(a), adopted at the same time as Rule 8, changed the interpretation of the misjoinder rule reflected in Rule 8.
The harmless-error statute and Rule are, however, at least relevant to the inquiry at hand. In contrast, the majority's reliance on Chapman v. California, 386 U.S. 18 (1967), ante, at 445, is plainly misplaced. The majority observes: "Clearly, Chapman and Hasting dictate that the harmless-error rule governs here." Ante, at 446. Nothing could be less clear. This case does not involve a claim of constitutional error. The harmless-error doctrine that was enunciated in Chapman thus does not settle the issue raised by this case. Simply because constitutional errors may be subject to a harmless-error inquiry does not mean that all nonconstitutional errors must be subject to harmless-error analysis, and this Court has never so held.
As the majority observes, the Court's willingness to invoke the harmless-error doctrine has expanded dramatically in recent years. This expansion is a source of considerable concern,
Undertaking a harmless-error analysis is perhaps the least useful function that this Court can perform, cf. United States v. Hasting, 461 U.S. 499, 516-518 (1983) (STEVENS, J., concurring in judgment). For that reason, a decision that a harmless-error inquiry is required should lead to a remand to the Court of Appeals, which is in a far better position than we are to study the complete trial record with care. The majority's opinion in this case confirms the general advisability of that approach.
The Court's conclusion that Dennis Lane suffered no prejudice is based on three cursory observations. First, the Court asserts, with no explanation, that there was "overwhelming evidence" of his guilt. Ante, at 450. There are at least two problems with this observation. The first is that the majority fails to appreciate the Kotteakos recognition that the harmless-error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry.
Second, the Court notes that the jury was properly instructed to evaluate the evidence under each count and against each defendant separately. Since that instruction should be given routinely in every case in which there is a joinder of defendants or offenses, it surely cannot be regarded as an adequate response to a claim that a misjoinder was prejudicial.
A determination that an error was harmless is an extremely weighty conclusion; it implicates profound notions of fairness and justice.
I agree with the Court's conclusion that the evidence was sufficient to sustain both convictions of mail fraud and therefore join Part III of its opinion. I also agree with the judgment insofar as it upholds the conviction of James Lane. It is perfectly clear that the violation of Rule 8(b) — the rule prohibiting the improper joinder of defendants — occasioned by the misjoinder of Count 1 did not affect James Lane because he was the defendant in Count 1. But since there is no claim that the son, Dennis Lane, took any part in Count 1 (the mail fraud regarding the 1979 El Toro Restaurant fire), I believe that his right not to be joined as a defendant in his father's trial for that felony was a "substantial right" that was adversely affected by the misjoinder.
In my view, the Court's opinion misconstrues the history and purpose of Rule 8, sows further confusion in the Court's
Six have subjected misjoinder claims to harmless-error analysis. See United States v. Ajlouny, 629 F.2d 830, 843 (CA2 1980), cert. denied, 449 U.S. 1111 (1981); United States v. Seidel, 620 F.2d 1006 (CA4 1980); United States v. Hatcher, 680 F.2d 438, 442 (CA6 1982); United States v. Varelli, 407 F.2d 735, 747-748 (CA7 1969); United States v. Martin, 567 F.2d 849, 854 (CA9 1977); Baker v. United States, 131 U. S. App. D. C. 7, 21-23, 401 F.2d 958, 972-974 (1968). Most of these courts had previously taken the view that misjoinder is prejudicial per se.
"(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."
JUSTICE STEVENS' partial dissent fails to recognize that the Rule 14 prejudice component involves a different inquiry from the Rule 8 technical requirements. Indeed, the express language of Rule 14, as well as the Advisory Committee Note, shows that Congress tolerates some Rule 8 joinders even when there is prejudice. The first hurdle in obtaining a severance under Rule 14 is a showing of prejudice, and if shown, it remains in the district court's discretion whether to grant the motion.
Nor may proper limiting instructions or jury charges never be "an adequate response" to a prejudice inquiry. Post, at 477. Contrary to the suggestion of the dissent, Blumenthal v. United States, 332 U.S. 539 (1947), provides direct support for the Court's approach in this case. There the Court recognized that, in the context of mass trials (as in Kotteakos), limiting instructions on evidence admissible only as to one defendant might in some circumstances be inadequate to prevent prejudice. 332 U. S., at 559-560. But here, as in Blumenthal, we are not faced with any trial en masse of numerous defendants and unrelated crimes.
When there are few defendants and the trial court is aware of the potential for prejudice, "the risk of transference of guilt over the border of admissibility [may be] reduced to the minimum" by carefully crafted limiting instructions with a strict charge to consider the guilt or innocence of each defendant independently. Id., at 560. We cannot necessarily "assume that the jury misunderstood or disobeyed" such instructions. Id., at 553. Indeed, this Court's conclusion in Schaffer that defendants failed to show prejudice was based directly on the fact that "the judge was acutely aware of the possibility of prejudice and was strict in his charge — not only as to the testimony the jury was not to consider, but also as to that evidence which was available in the consideration of the guilt of each [defendant] separately under the respective substantive counts." 362 U. S., at 516.
The same caution was exercised by the trial judge here, and no different result should be required. The Government initially observes that because of the similarity of each arson scheme, "only the court of appeals' narrow reading of Rule 8" led to its finding of misjoinder. At trial, Heard and Lankford — two principal actors — testified against both Lanes, who relied essentially on denials or character defenses. Moreover, the evidence as to Count 1 was distinct and easily segregated from evidence relating to Counts 2 through 6. The misjoinder error, if any, in these circumstances was harmless.
"Whoever, having devised or intending to devise any scheme or artifice to defraud, . . . for the purpose of executing such scheme or artifice . . . , places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, . . . or knowingly causes to be delivered by mail . . . any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both."
We see no conflict with our holding in United States v. Maze, 414 U.S. 395 (1974). There, use of a stolen credit card led to the mailing of charge statements to a bank. We held that the fraud was completed upon the defrauder's receipt of the goods, distinguishing Sampson because the mailing of the charge slips, rather than acting to "lull" the bank into acquiescence, instead "increased the probability that [the defrauder] would be detected and apprehended." 414 U. S., at 403. Had the Lanes failed to submit timely proof-of-loss forms here, the insurer might very well have discovered the fraud.
The Lanes contend that the Fifth Circuit's decision in this action also conflicts with United States v. Ledesma, 632 F.2d 670 (CA7), cert. denied, 449 U.S. 998 (1980), which reversed a conviction involving the mailing of a fraudulent proof-of-loss form after receipt of insurance proceeds. In that case, however, the Seventh Circuit never discussed Sampson or the possibility that the delayed mailing had any "lulling" effect.
Because the source and nature of the harmless-error test for constitutional errors does not derive from § 2111 or Rule 52(a), our cases concerning constitutional errors do not affect, and are not affected by, our decision today, which applies only to the statutory harmless-error doctrine.
"It is admitted by the government that the judgments against Stufflebeam and Charles Hook must be reversed . . . ." 164 U. S., at 80.
In confessing error, the Government seemed to concede that reversal was appropriate without any specific showing of prejudice. See Brief for United States in McElroy v. United States, O. T. 1896, No. 402, p. 6 ("It cannot be certainly affirmed that Stufflebeam and Charles Hook were not embarrassed and prejudiced, in their defense to the indictments under which they stood charged, by the fact that they were compelled to make their defense in a proceeding in which McElroy, Bland, and Hook were prosecuted for arson committed April 16, 1894, which was on the same day of the assaults and fifteen days before the arson for which they were tried").
Similarly, the majority's claim that Kotteakos "suggested that the harmless-error rule could similarly apply" to misjoinder, ante, at 447, vastly overstates the case. The Court noted that a possible joinder violation gave added weight to its conclusion that the error before it was not harmless. 328 U. S., at 774-775. The Court observed that "§ 269 [the harmless-error statute] carries the threat of overriding the requirement of § 557 for substituting separate counts in the place of separate indictments, unless the application of § 269 is made with restraint. The two sections must be construed and applied so as to bring them into substantial harmony, not into square conflict." Id., at 775. This expression of concern about the possible effect of harmless error on misjoinder, however, hardly supports the notion that Kotteakos held misjoinder subject to harmless-error analysis. And, despite the majority's view that its holding is the only way to bring harmless error and misjoinder into "substantial harmony," ante, at 449, a conclusion that misjoinder necessarily affects substantial rights produces the same harmony.
"The grave danger in this case, if any, arose not from the trial court's rulings upon admissibility or from its instructions to the jury. As we have said, these were as adequate as might reasonably be required in a joint trial. The danger rested rather in the risk that the jury, in disregard of the court's direction, would transfer, consciously or unconsciously, the effect of the excluded admissions from the case as made against Goldsmith and Weiss across the barrier of the exclusion to the other three defendants." Blumenthal v. United States, 332 U.S. 539, 559 (1947).
This is not to say that I have studied the record with sufficient care to conclude that, if misjoinder is subject to harmless-error analysis, the error here was not harmless. Rather, it is to say that I am convinced that the majority's opinion gives no indication of having wrestled with the complexities of the 1,000-page trial transcript in a manner that would permit its confident assertion that the error was harmless.