United States v. Lane
474 U.S. 438 (1986)

Annotate this Case

U.S. Supreme Court

United States v. Lane, 474 U.S. 438 (1986)

United States v. Lane

No. 84-744

Argued October 9, 1985

Decided January 27, 1986*

474 U.S. 438

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Syllabus

James Lane and his son Dennis, respondents in No. 84-744, were indicted on counts for, inter alia, mail fraud in connection with insurance claims that were made and that insurers paid for fire damage to a restaurant and duplex that James had hired a professional arsonist to burn. The restaurant was operated by James in partnership with others. Count 1 charged James with mail fraud with regard to that fire. The duplex was owned by a different partnership, of which Dennis was one of the partners. Counts 2 through 4 charged both respondents with mail fraud related to the duplex fire. Count 5 charged both respondents with conspiracy to commit mail fraud in connection with a third arson scheme, and Count 6 charged Dennis with perjury before the grand jury. The Federal District Court denied respondents' pretrial motions for severance on the alleged ground that the charged offenses were misjoined in violation of Federal Rule of Criminal Procedure 8(b), which provides that two or more defendants may be charged in the same indictment 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 trial then proceeded jointly before a jury. When evidence relating to the restaurant fire was admitted, the court instructed the jury not to consider that evidence against Dennis, and repeated this instruction in the final charge and admonished the jury to consider each count and defendant separately. The jury returned convictions on all counts. The Court of Appeals reversed and remanded for new trials, holding that the joinder of Count 1 with the other five counts violated Rule 8(b) and that such misjoinder was prejudicial per se. The court, however, rejected respondents' contention that there was insufficient evidence to support convictions under Counts 2 through 4 because each charged mailing occurred after each related insurance payment had been received and thus after each scheme to defraud had reached fruition.

Held:

1. Misjoinder under Rule 8(b) is subject to harmless error analysis, and is not reversible error per se. An error involving misjoinder "affects

Page 474 U. S. 439

substantial rights" and requires retrial only if the misjoinder results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States,328 U. S. 750, 328 U. S. 776. It is only by such a holding that Rule 8(b) and Federal Rule of Criminal Procedure 52(a) -- which provides that any error "which does not affect substantial rights shall be disregarded" -- can be brought into substantial harmony. Here, in the face of overwhelming evidence of guilt, the claimed error was harmless. The District Court provided proper limiting jury instructions, and, moreover, the same evidence on Count 1 would likely have been admissible on joint retrial of the other counts to show James' intent under Federal Rule of Evidence 404(b). Any error therefore failed to have any "substantial influence" on the verdict. Pp. 474 U. S. 444-450.

2. There was sufficient evidence to support the convictions on Counts 2 through 4. On the evidence and under proper instructions, the jury could properly find that the mailings charged in Counts 2 and 3 took place while the overall scheme charged in the indictment was still continuing and that the scheme was not completed until after the mailing charged in Count 4, because that mailing, as were the others, was intended to "lull" the insurer into a false sense of security. Pp. 474 U. S. 451-453.

735 F.2d 799, affirmed in part, reversed in part, and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 474 U. S. 453. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 474 U. S. 465.

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

Page 474 U. S. 440

Rules of Criminal Procedure is subject to the harmless error rule, [Footnote 1] and to determine whether there is sufficient evidence in this case to support convictions for mail fraud under 18 U.S.C. § 1341.

I

A

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.

Page 474 U. S. 441

In early 1980, Lane again hired Heard to set fire to a duplex that Lane was moving to a vacant lot in Amarillo. Lane obtained a fire insurance policy on the building, listing the owner as L & L Properties, a partnership between his son Dennis Lane and Andrew Lawson. An accomplice of Heard's burned the duplex on May 1, 1980.

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. [Footnote 2] Each time, the adjuster later mailed the proof-of-loss to the insurer's headquarters. The adjuster issued a final settlement draft for $12,250 on September 16, 1980. Two days later, he mailed a memorandum to headquarters explaining why repairs had exceeded previous estimates by some $10,000. He enclosed invoices supplied by Dennis Lane listing various materials and furniture purportedly purchased to repair and refurbish the duplex. In fact, these invoices had been fabricated by James Lane, Heard, and Heard's secretary.

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 fictitious 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

Page 474 U. S. 442

federal grand jury investigating Heard. He testified that Heard had nothing to do with the flower shop or with his own dealings with Lankford.

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. [Footnote 3] The Court of Appeals for the Fifth Circuit

Page 474 U. S. 443

concluded that Counts 2 through 6 were properly joined, but agreed

"that Count 1 should not have been joined with the others because it was not part of the same series of acts or transactions as Counts 2 through 6."

735 F.2d 799, 803-804 (1984). The court refused to consider the Government's argument that the error, if any, was harmless, stating only that "Rule 8(b) misjoinder is prejudicial per se in this circuit." Id. at 806 (citing United States v. Levine, 546 F.2d 658 (CA5 1977)). The court reversed the Lanes' convictions and remanded for new trials.

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. [Footnote 4] The Court of Appeals distinguished our holding in United States v. Maze,414 U. S. 395 (1974), and instead relied on United States v. Sampson,371 U. S. 75 (1962), to hold that mailings occurring after receipt of an insurance payment may nevertheless be "in execution of fraud" as required by 18 U.S.C. § 1341 where they are "designed to lull the victims into a false sense of security and postpone investigation." 735 F.2d at 807-808.

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.

Page 474 U. S. 444

Similarly, the false invoices submitted by Dennis Lane "gave the impression of a perfectly innocent claim." 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.

II

The Court of Appeals held that misjoinder "is inherently prejudicial." [Footnote 5] 735 F.2d at 804. The Circuits are divided on the question whether misjoinder requires automatic reversal, or whether the harmless error rule governs. [Footnote 6] Most Circuits that have adopted the per se approach have relied on McElroy v. United States,164 U. S. 76 (1896), where this Court applied the joinder statute then in force and reversed convictions of jointly tried defendants after rejecting the Government's argument that there was no showing of prejudice. Id. at 164 U. S. 81.

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." [Footnote 7]

Page 474 U. S. 445

The Court's holding in Chapman v. California,386 U. S. 18 (1967), made a significant change in the law of harmless error. There, Justice Black, speaking for the Court, emphasized that even "some constitutional errors [may] be deemed harmless, not requiring the automatic reversal of the conviction." Id. at 386 U. S. 22. In rejecting the automatic reversal rule, the Court stated:

"We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. . . . We decline to adopt any such rule."

Id. at 386 U. S. 21-22 (emphasis added). Justice Black went on to note that all 50 States follow the harmless error approach, and

"the United States long ago, through its Congress, established . . . the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.' 28 U.S.C. § 2111. None of these rules, on its face, distinguishes between federal constitutional errors and errors of state law or federal statutes and rules."

Id. at 386 U. S. 22 (footnote omitted).

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, 461 U. S. 509 (1983). In Hasting, we again emphasized that,

"given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial."

Id. at 461 U. S. 508-509.

Page 474 U. S. 446

In this case, the argument for applying harmless error analysis is even stronger, because the specific joinder standards of Rule 8 are not themselves of constitutional magnitude. [Footnote 8] Clearly, Chapman and Hasting dictate that the harmless error rule governs here. [Footnote 9]

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 328 U. S. 775.

Page 474 U. S. 447

Although the Court's review in that case was from the perspective of a variance from the indictment, rather than misjoinder, the Court recognized that misjoinder was implicated, and suggested that the harmless error rule could similarly apply in that context. [Footnote 10] Id. at 328 U. S. 774-775.

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 362 U. S. 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 362 U. S. 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

Page 474 U. S. 448

governed only "technical errors," 28 U.S.C. § 391 (1946 ed.), the Court emphasized the clear intent of Congress "was simple: to substitute judgment for automatic application of rules." 328 U.S. at 328 U. S. 759-760.

"In the final analysis, judgment in each case must be influenced by conviction resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations."

Id. at 328 U. S. 762. The Court flatly rejected per se rules regarding particular errors because

"any attempt to create a generalized presumption to apply in all cases would be contrary not only to the spirit of [the statute] but also to the expressed intent of its legislative sponsors."

Id. at 328 U. S. 765.

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 362 U. S. 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 362 U. S. 517 (quoting 328 U.S. at 328 U. S. 777 (Douglas, J., dissenting)). [Footnote 11]

Page 474 U. S. 449

In common with other courts, the Court has long recognized that joint trials

"conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial."

Bruton v. United States,391 U. S. 123, 391 U. S. 134 (1968). Rule 8 accommodates these interests while protecting against prejudicial joinder. But we do not read Rule 8 to mean that prejudice results whenever its requirements have not been satisfied.

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:

"The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

328 U.S. at 328 U. S. 765.

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 328 U. S. 776. Only by so holding can we bring Rules 8 and 52(a) "into substantial harmony, not into square conflict." [Footnote 12] Id. at 328 U. S. 775.

Page 474 U. S. 450

Of course, "we are not required to review records to evaluate a harmless error claim, and do so sparingly, [but] we plainly have the authority to do so." United States v. Hasting, 461 U.S. at 461 U. S. 510 (footnote omitted).

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 328 U. S. 765. [Footnote 13]

Page 474 U. S. 451

III

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, [Footnote 14] the charged, "mailings" must be "for the purpose of executing the scheme." Kann v. United States,323 U. S. 88, 323 U. S. 94 (1944). Mailings occurring after receipt of the goods obtained by fraud are within the statute if they

"were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the

Page 474 U. S. 452

authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place."

United States v. Maze, 414 U.S. at 414 U. S. 403. See United States v. Sampson,371 U. S. 75 (1962).

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. [Footnote 15] This argument misconstrues the nature of the indictment, which charged an overall scheme to defraud based on the events surrounding the duplex fire. Counts 2 through 4 merely relate to separate mailings concerning partial payments that were a part of the whole scheme. The jury could properly find the scheme, at the earliest, was not completed until receipt of the last payment on September 16, 1980, which finally settled their claim. Hence, the mailings charged in Counts 2 and 3 clearly took place while the scheme was still continuing.

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. [Footnote 16] The jury was properly instructed

Page 474 U. S. 453

that each charged mailing must have been made both "for the purpose of executing the scheme to defraud," App. 22, and prior to the scheme's completion, id. at 23, and further that mailings "which facilitate concealment of the scheme" are covered by the statute. [Footnote 17] Id. at 24.

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.

* Together with No. 84-963, Lane et al. v. United States, also on certiorari to the same court.

[Footnote 1]

Six Circuits have adopted a per se approach, holding that misjoinder is always reversible error. See United States v. Turkette, 632 F.2d 896, 906, and n. 35 (CA1 1980), rev'd on other grounds,452 U. S. 576 (1981); United States v. Graci, 504 F.2d 411, 414 (CA3 1974); United States v. Bova, 493 F.2d 33 (CA5 1974); United States v. Bledsoe, 674 F.2d 647, 654, 657-658 (CA8), cert. denied sub nom. Phillips v. United States, 459 U.S. 1040 (1982); United States v. Eagleston, 417 F.2d 11, 14 (CA10 1969); United States v. Ellis, 709 F.2d 688, 690 (CA11 1983).

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.

[Footnote 2]

Each proof-of-loss form stated that the "loss did not originate by any act, design or procurement on the part of your insured or this affiant" and that "no attempt to deceive [the] company as to the extent of the loss has been made."

[Footnote 3]

Rule 8(b) provides:

"(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."

[Footnote 4]

The Court of Appeals also rejected James Lane's challenge to the sufficiency of the evidence with regard to Count 1. That holding was not challenged in the Lanes' cross-petition.

[Footnote 5]

Although the Government continues to believe that Count 1 was properly joined with Counts 2 through 6, it does not challenge that holding here.

[Footnote 6]

Seen 1, supra.

[Footnote 7]

JUSTICE STEVENS' partial dissent argues that McElroy conclusively determined misjoinder is prejudicial per se, and that Rule 8 was intended to represent a restatement of existing law, including the "rule of the McElroy case." Post at 474 U. S. 467. Rule 8, however, is simply a procedural rule with certain technical requirements, and JUSTICE STEVENS' opinion refers to the Advisory Committee on Rules' citation of McElroy, see post at 474 U. S. 468, n. 3, making clear they were referring only to those technical requirements of prior law. Nowhere is there any indication Rule 8 was intended to enshrine any substantive "principle" of McElroy that misjoinder requires reversal, nor is there any citation of McElroy's specific holding.

[Footnote 8]

Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.

[Footnote 9]

JUSTICE STEVENS' partial dissent suggests Chapman is irrelevant to our analysis because that case involved a constitutional violation, whereas the error here is of a nonconstitutional nature. Post at 474 U. S. 472. It is difficult to see any logic in the argument that, although the harmless error rule may be applicable to constitutional violations, it should not be applied to violations of mere procedural rules. JUSTICE STEVENS recognizes that the standard for harmless error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors adopted in Kotteakos v. United States,328 U. S. 750 (1946). See post at 474 U. S. 472-473, n. 11. The heightened regard we have for constitutional protections surely warrants a conclusion that nonconstitutional provisions must be treated at least comparably, and in Hasting we emphasized even "most constitutional violations" must be ignored if they are harmless. 461 U.S. at 461 U. S. 509.

[Footnote 10]

The Court pointed out that "the problem is not merely one of variance, . . . but is also essentially one of proper joinder." 328 U.S. at 328 U. S. 774. Even so, the Court indicated the harmless error rule must apply, although perhaps with "restraint." Id. at 328 U. S. 776.

[Footnote 11]

Contrary to these clear holdings, JUSTICE STEVENS' partial dissent advocates a rule-by-rule review establishing bright-line per se rules whether to conduct harmless error analysis. Post at 474 U. S. 472-474. But on its face, Rule 52(a) admits of no broad exceptions to its applicability. Any assumption that, once a "substantial right" is implicated, it is inherently "affected" by any error begs the question raised by Rule 52(a). Assuming there is a "substantial right," the inquiry remains whether the error "affects substantial rights" requiring reversal of a conviction. That kind of inquiry requires a review of the entire record. See United States v. Hasting, 461 U.S. at 461 U. S. 509. It is simply too late in the day to argue that Congress intended to incorporate any per se rule of McElroy for misjoinder following Kotteakos, the subsequent enactment of an arguably broader statute, and this Court's prejudice inquiry in Schaffer.

[Footnote 12]

Respondents argue that application of the harmless error rule to Rule 8(b) misjoinder will eviscerate Rule 14, which provides the trial court with discretion to grant a severance even if the joinder is proper under Rule 8 when it believes the defendants or the Government may be prejudiced by a joinder. We see no conflict with our holding and the applicability of Rule 14. Rule 14's concern is to provide the trial court with some flexibility when a joint trial may appear to risk prejudice to a party; review of that decision is for an abuse of discretion. Rule 8(b), however, requires the granting of a motion for severance unless its standards are met, even in the absence of prejudice; review on appeal is for an error of law. Applying the harmless error rule to Rule 8(b) misjoinder simply goes to the additional question whether the error requires setting aside the convictions. We need not decide whether the degree of prejudice necessary to support a Rule 14 motion for severance is identical to that necessary to require reversal for a Rule 8(b) error.

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.

[Footnote 13]

We can agree with JUSTICE STEVENS' partial dissent "that the harmless error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry." Post at 474 U. S. 476; our reliance on the Kotteakos test makes that clear. See supra at 474 U. S. 449. But that does not in any sense mean that overwhelming evidence of guilt is irrelevant; the threshold of overwhelming evidence is far higher than mere sufficiency to uphold conviction.

Nor may proper limiting instructions or jury charges never be "an adequate response" to a prejudice inquiry. Post at 474 U. S. 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 332 U. S. 559-560. B ut 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 332 U. S. 560. We cannot necessarily "assume that the jury misunderstood or disobeyed" such instructions. Id. at 332 U. S. 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 362 U. S. 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.

[Footnote 14]

The statute provides in relevant part:

"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."

[Footnote 15]

The Government contends that undisputed testimony shows the insurance drafts issued to the Lanes, unlike normal business checks, were not payable on demand, but only upon authorization from the insurer's home office when they arrived at the insurer's bank for collection. If the drafts deposited by the Lanes had been dishonored by the insurer's banks, the amounts would have been charged against their account. The Lanes, therefore, may not have irrevocably received the proceeds of the fraud prior to the final mailing. See Brief for United States 30-31. The Court of Appeals, however, did not rely on this argument, and we decline to resolve this factual issue here.

[Footnote 16]

Our conclusion that the delayed mailings at issue in this action were part of an ongoing scheme to defraud is in accord with our holding in United States v. Sampson,371 U. S. 75 (1962). In that case, defendants purported to help businessmen obtain loans or sell their businesses in exchange for an "advance fee." Id. at 371 U. S. 77. Following the deposit of checks for these fees, the defendants' plan called for the mailing of a form letter assuring the victims of the fraud that they were receiving the services they paid for. Id. at 371 U. S. 78. The Court upheld defendants' convictions for mail fraud because of the "lulling effect" of the delayed mailings.

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 414 U. S. 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.

[Footnote 17]

The Lanes argue that the Government must show that the charged mailings were specifically intended to lull, rather than showing simply a general intention on their part to defraud, in order to come within Sampson's holding. We need not determine whether any such specific intent must be shown, as we agree with the Court of Appeals that there was sufficient evidence for the jury to infer specific intent to lull here under these instructions, which the Lanes did not challenge on appeal or in their cross-petition.

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 474 U. S. S. 454

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