United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE
Strickland has filed a Motion to Sever Defendants (Docket No.
93), to which the government has responded in opposition
(Docket No. 94).
Federal Rule of Criminal Procedure 8(b) governs the joinder
of defendants and states: The indictment or information may
charge 2 or more defendants 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. The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in
Rule 8(b), Fed. R. Crim. Proc. Rule 8(b) is generally
interpreted to require only a “logical
interrelationship” between the acts and transactions
alleged and the parties involved. United States
v. Lloyd, 10 F.3d 1197, 1214-15 (6th Cir. 1993). Rule 8
is to be construed “in favor of joinder”;
however, the court has no discretion to deny a motion to
sever in the event of misjoinder. United States v.
Hatcher, 680 F.2d 438, 440-41 (6th Cir. 1982).
contends that, in determining whether joinder is proper
pursuant to Rule 8(b), courts look only to the content of the
indictment. In support, he cites United States v.
Lewis, 363 Fed.Appx. 382, 390 (6th Cir. 2010). Yet,
critically, Lewis does not state that the Sixth
Circuit looks only to the content of the indictment.
The sentence Strickland relies upon contains no such limiting
language. See id. at 390 (“We look to the
allegations in the indictment to determine whether joinder
was proper.”). In fact, the very next sentence
elaborates that the Sixth Circuit does not only look
to the content of the indictment: “We have at other
times, however, also considered the government's proof
when assessing the propriety of joinder.” Id;
see United States v. Saleh, 875 F.2d 535, 538 (6th
Cir. 1989) (considering government's trial evidence in
Rule 8(b) analysis); United States v. Hatcher, 680
F.2d at 442 (same).
determining whether offenses are based on acts or
transactions connected together, the predominant
consideration is whether joinder would serve the goals of
trial economy and convenience; the primary purpose of this
kind of joinder is to insure that a given transaction need
only be proved once.” United States v. Franks,
511 F.2d 25, 29 (6th Cir. 1975) (internal quotation marks
omitted). Given the “preference in the federal system
for joint trials, ” Zafiro v. United States,
506 U.S. 534, 537 (1993), the court is unconvinced by
Strickland's narrow interpretation of Rule
8(b). And, upon consideration of the
government's allegations, the court finds that the
defendants were properly joined under Rule 8(b).
government alleges that the defendants engaged in a gun
battle at a market. To establish that both defendants were
illegally in possession of firearms, the government will call
witnesses who will state that they observed the defendants
holding guns during the shooting in the market. Some of these
witnesses will be called to establish that each defendant
possessed a firearm and, were severance granted, would have
to be called at separate trials to give essentially the same
testimony. These facts are thus logically interrelated so as
to make joinder proper. See United States v. Frost,
125 F.3d 346, 390 (6th Cir. 1997) (finding joinder proper
where “[s]evering either the defendants or the counts .
. . would have required the government to prove repeatedly
the same series of transactions.”).
case is distinguishable from situations where the Sixth
Circuit has found defendants misjoined. For example, in
Saleh , the court held that two men convicted of
unreported export of currency were improperly joined, despite
the fact that they traveled to the United States together and
were arrested at the airport trying to leave the country
together, each carrying an illegal amount of unreported
currency. The court found that joinder was improper because
“[i]t was not necessary to either case, and the
prosecution did not prove, that these defendants conspired or
otherwise participated jointly in any proscribed
conduct” United States v. Saleh, 875 F.2d at
538 (emphasis in original). The government plans to offer
evidence that the defendants both possessed firearms during a
gun battle in which they shot at each other. Whereas in
Saleh , “[t]he only alleged joint activity . .
. involved sitting side-by-side on airliners and traveling
together within this country-none of which was legally
offensive, ” id, the alleged joint activity
here-shooting at each other-necessarily requires that each
defendant criminally possessed a gun.
does not show that joinder was improper under Rule 8(b).
Therefore, his Motion to Sever Defendants (Docket No. 93) is
 In arriving at this conclusion, the
court notes that the Sixth Circuit has specifically held that
“[w]hether joinder was proper under Rule 8(a)
is determined by the allegations on the face of the
indictment.” United States v. Chavis, 296 F.3d
450, 456 (6th Cir. 2002) (emphasis added). That the Sixth
Circuit has made no ...