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]
See n 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� opinion. I also agree that the Court of
Appeals erred in holding that misjoinder under Rule 8 of the
Federal Rules of Criminal Procedure is prejudicial
per se.
I write separately, however, because my reasons for reaching this
conclusion differ from the Court's, and because I agree with
JUSTICE STEVENS that the harmless error inquiry should be made in
the first instance by the Court of Appeals.
I
The Act of February 26, 1919 (1919 Act), 40 Stat. 1181, amended
§ 269 of the Judicial Code. It provided in part:
"On the hearing of any appeal, certiorari, writ of error, or
motion for a new trial, in any case, civil or criminal, the court
shall give judgment after an examination of the entire record
before the court, without regard to technical errors, defects, or
exceptions which do not affect the substantial rights of the
parties."
28 U.S.C. § 391 (1925-1926 ed.). 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
Page 474 U. S. 455
Notes on Fed.Rule Crim.Proc. 52(a), 18 U.S.C.App. p. 657 (Rule
is a "restatement of existing law").
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
474 U.
S. 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
Page 474 U. S. 456
into question the reliability of the result.
See, e.g.,
Connors v. United States, 158 U. S. 408,
158 U. S. 411,
158 U. S. 414
(1895);
Maish v. Arizona, 164 U.
S. 599,
164 U. S. 602
(1896);
Williams v. United States, 168 U.
S. 382,
168 U. S.
390-398 (1897);
American Surety Co. v. Pauly,
170 U. S. 133,
170 U. S. 159
(1898);
McCabe & Steen Constr. Co. v. Wilson,
209 U. S. 275,
209 U. S. 279
(1908);
Holmgren v. United States, 217 U.
S. 509,
217 U. S.
523-524 (1910). In other words, the statement that an
error did not "affect the substantial rights of the parties" was a
way of stating the conclusion that the error was not
prejudicial.
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 offence 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
164 U. S. 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
164 U. S. 81. In
other words, the
Page 474 U. S. 457
Court concluded that misjoinder is the kind of error which must
be presumed to have prejudiced the accused and, for that reason,
misjoinder affects his "substantial rights." As discussed in
474 U. S. the
irrebuttable presumption that misjoinder is prejudicial is
inconsistent with the Court's subsequent harmless error
jurisprudence, and can be overruled. For the moment, however, it is
important only to note that nothing in
McElroy suggests
that the requirement that error have "affect[ed] the substantial
rights of the parties" refers to anything other than that the error
have been prejudicial.
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,
328 U. S.
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
328 U. S.
758-759. After prolonged consideration, Congress
responded to this criticism by passing the 1919 Act. The House
Report accompanying the Act explained:
"'It is the purpose of the . . . bill to enact, insofar as the
appellate courts are concerned, that in the consideration
Page 474 U. S. 458
in an appellate court of a writ of error or an appeal judgment
shall be rendered upon the merits, without permitting reversals for
technical defects in the procedure below and
without presuming
that any error which may appear had been of necessity prejudicial
to the complaining party.'"
H.R.Rep. No. 913,
supra, at 2 (quoting H.R.Rep. No.
611,
supra, at 2) (emphasis added).
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,
Page 474 U. S. 459
what substantial rights; and what really affects the latter
hurtfully." 328 U.S. at
328 U. S. 761.
We held instead that the Act's command to disregard errors unless
they "affect the substantial rights of the parties" was a command
not to overturn a conviction unless, after examining the record as
a whole, the court concludes that an error may have had
"substantial influence" on the outcome of the proceeding.
Id. at
328 U. S. 765.
Justice Rutledge's explanation, which includes a description of the
proper analysis to apply in evaluating the effect of procedural
errors, is well worth repeating:
"It comes down on its face to a very plain admonition:"
"Do not be technical, where technicality does not really hurt
the party whose rights in the trial and in its outcome the
technicality affects. . . ."
"Easier was the command to make than it has been always to
observe. This, in part because it is general; but in part also
because the discrimination it requires is one of judgment
transcending confinement by formula or precise rule. That faculty
cannot ever be wholly imprisoned in words, much less upon such a
criterion as what are only technical, what substantial rights; and
what really affects the latter hurtfully. Judgment, the play of
impression and conviction along with intelligence, varies with
judges, and also with circumstance. What may be technical for one
is substantial for another; what minor and unimportant in one
setting crucial in another."
"
* * * *"
"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.
Necessarily, the character of the proceeding, what is at stake upon
its outcome, and the relation of the error asserted to casting the
balance
Page 474 U. S. 460
for decision on the case as a whole, are material factors in
judgment."
"
* * * *"
"If, when all is said and done, the conviction is sure that the
error did not influence the jury, or had but very slight effect,
the verdict and the judgment should stand, except perhaps where the
departure is from a constitutional norm or a specific command of
Congress. But if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by
the error, it is impossible to conclude that substantial rights
were not affected. 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."
Id. at
328 U. S.
760-765 (citations and footnotes omitted). [
Footnote 2/1]
II
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
386 U. S. 24
(prosecution must establish that the error
Page 474 U. S. 461
was "harmless beyond a reasonable doubt"),
with
Kotteakos, 328 U.S. at
328 U. S. 765
(error is harmless unless it had "substantial influence" on the
outcome or leaves one in "grave doubt" as to whether it had such
effect). [
Footnote 2/2] In
addition, Congress may, of course, expressly provide that a
particular right is excluded from the operation of the harmless
error rule. Neither of these exceptions applies to misjoinder in
violation of Rule 8, however. Misjoinder does not ordinarily rise
to the level of a constitutional violation, [
Footnote 2/3] and nothing in the language or
Page 474 U. S. 462
history of either the statutory harmless error provisions or
Rule 8 indicates that Congress chose to except misjoinder from
harmless error scrutiny. [
Footnote
2/4]
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 U. S. 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
164 U. S. 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 U. S. 474,
n. 15 (quoting Rose v. Lundy, 455 U.
S. 509, 455 U. S. 544
(1982) (STEVENS, J., dissenting)).
Page 474 U. S. 463
The exception for errors as to which the prejudicial effect
cannot be measured with precision requires closer consideration. As
previously noted,
McElroy held that misjoinder is
per
se reversible because a court can never safely conclude that
it was not prejudicial. 164 U.S. at
164 U. S. 81.
However, trial courts routinely inquire into possible prejudice
from joint trials when considering motions for severance under
Federal Rule of Criminal Procedure 14, and appellate courts just as
routinely perform that inquiry in reviewing Rule 14 rulings.
[
Footnote 2/5] To be sure, problems
of jury confusion arising from misjoinder may be substantial. It is
also quite easy for the jury to be prejudiced by evidence of other
crimes or by inferences from an accused's association with other
defendants. Thus, it may be that, once the proper test for harmless
error is applied, most misjoinders will in fact result in reversal.
However, the prejudice that may result from misjoinder is not so
difficult to ascertain that it must always be presumed to be
present. Whatever force the holding in
McElroy may once
have had, its precedential force has been greatly eroded by the
1919 Act, whose legislative history disapproves of such
presumptions,
supra, at
474 U. S.
457-458, and by subsequent decisions such as
Kotteakos. [
Footnote 2/6]
Today, adherence to the view that misjoinder is
per se
prejudicial would stand out as a stark and unjustified anomaly,
leading to just the sort of unnecessary reversals that inspired
enactment of the
Page 474 U. S. 464
1919 Act. To the extent that
McElroy states a contrary
holding, I would overrule it.
III
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
474 U. S. 476.
See United States v. Hasting, 461 U.S. at
461 U. S. 520,
n. 2 (opinion of BRENNAN, J.);
see also Connecticut v.
Johnson, 460 U. S. 73,
460 U. S. 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
474 U. S. 450.
But where is the "examination of the proceedings in their entirety"
called for by
Kotteakos? See 328 U.S. at
328 U. S. 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
328 U. S. 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
328 U. S. 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
474 U. S. 450.
However, as I thought
Page 474 U. S. 465
Kotteakos made clear, that is irrelevant. The crucial
thing is the effect the error had in the proceedings which actually
took place, not whether the same thing could have been done in
hypothetical proceedings.
See 328 U.S. at
328 U. S.
762-765. Harmless error analysis is not an excuse for
overlooking error because the reviewing court is itself convinced
of the defendant's guilt. The determination of guilt is for the
jury to make, and the reviewing court is concerned solely with
whether the error may have had a "substantial effect" upon that
body.
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
461 U. S.
516-518 (STEVENS, J., concurring in judgment). I would
remand the cases for the Court of Appeals to undertake the
task.
[
Footnote 2/1]
It scarcely needs repeating that, since correction may come from
the legislature, considerations of
stare decisis are at
their strongest when this Court confronts its previous
constructions of a statute.
Cf. Burnet v. Coronado Oil &
Gas Co., 285 U. S. 393,
285 U. S.
406-407 (1932) (Brandeis, J., dissenting).
[
Footnote 2/2]
Until
Chapman v. California, 386 U. S.
18 (1967), harmless error analysis was considered
inapplicable to errors respecting constitutional rights.
See
id. at
386 U. S. 42-44
(Stewart, J., concurring in result) ("[I]n a long line of cases,
involving a variety of constitutional claims in both state and
federal prosecutions, this Court has steadfastly rejected any
notion that constitutional violations might be disregarded on the
ground that they were
harmless'" (citing and discussing
examples)); see also Kotteakos, 328 U.S. at 328 U. S.
764-765, and n.19. In Chapman, we altered this
practice and held that
"there may be some constitutional errors which, in the setting
of a particular case, are so unimportant and insignificant that
they may, consistent with the Federal Constitution, be deemed
harmless, not requiring the automatic reversal of the
conviction."
386 U.S. at
386 U. S. 22.
Although we have since held that the
Chapman harmless
error test applies to "most constitutional violations,"
United
States v. Hasting, 461 U.S. at
461 U. S. 509,
harmless error analysis remains inapplicable to many constitutional
rights.
E.g., Vasquez v. Hillery, ante p.
474 U. S. 254
(discrimination in grand jury selection);
Connecticut v.
Johnson, 460 U. S. 73,
460 U. S. 84-88
(1983) (opinion of BLACKMUN, J.) (
Sandstrom violation);
Gideon v. Wainwright, 372 U. S. 335
(1963) (right to counsel);
Tumey v. Ohio, 273 U.
S. 510 (1927) (right to impartial tribunal).
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.
[
Footnote 2/3]
But cf. Bruton v. United States, 391 U.
S. 123 (1968). It is also possible that a particular
case of misjoinder may be so egregious as to constitute a
deprivation of due process. If this were the case, the error would
be governed by
Chapman, rather than by § 2111 or Rule
52(a).
See 474
U.S. 438fn2/4|>n. 4,
infra. Of course, a joinder of
claims or parties that was so improper as to violate the Due
Process Clause would undoubtedly also be prejudicial.
[
Footnote 2/4]
As explained above, the 1919 Act was not intended to codify a
rule of
per se reversal for particular rights, much less
for misjoinder. Similarly, as the majority points out, nothing in
the legislative history of Rule 8 indicates an intent to do
anything more then set forth the technical requirements for and
limitations on the joinder of claims or defendants.
Ante
at
474 U. S.
444-446, n. 7.
[
Footnote 2/5]
The Court correctly notes in its opinion,
see ante at
474 U. S.
449-450, n. 12, that, while the nature of the inquiry
under Rules 8 and 14 is similar, the purposes and scope of these
Rules are different.
[
Footnote 2/6]
Kotteakos rejected the argument that variance between
the indictment and proof at trial should be
per se
reversible because such errors "naturally" result in prejudice.
Relying on the legislative history of the harmless error rule, the
Court concluded that such presumptions should not lightly be
inferred. "The only permissible presumption," the Court said,
"would seem to be particular, arising from the nature of the error
and
its natural effect' for or against prejudice in the
particular setting." 328 U.S. at 328 U. S.
765-766.
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:
"Harmless Error. Any error, defect, irregularity or variance
which
does not affect substantial rights shall be
disregarded."
(Emphasis added.)
"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. [
Footnote
3/1]"
In my opinion, the Court
Page 474 U. S. 466
has answered that question incorrectly; moreover, its opinion
unfortunately confuses, rather than clarifies, the law of "harmless
error."
I
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,
164 U. S. 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.
[
Footnote 3/2] As to the other
three defendants,
Page 474 U. S. 467
the majority of the Court held that a misjoinder of offenses had
occurred, and required a new trial without any special showing of
prejudice. After reviewing the misjoinder of defendants and of
offenses, the Court concluded:
"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. 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
474 U. S.
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
474 U. S. 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
Page 474 U. S. 468
its discussion of misjoinder. [
Footnote 3/3] At the time the Federal Rules were being
considered, moreover, commentators shared the Advisory Committee's
view that the Rules merely continued the misjoinder doctrine in its
then current form, and restated existing law. [
Footnote 3/4] The principle that misjoinder
deprives the accused of "a substantial right," and therefore is
"revisable on error," thus remained the law when the Federal Rules
of Criminal Procedure became effective in 1946.
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. [
Footnote 3/5] Thus, it seems clear that the
draftsmen of the Rules regarded violations of Rule 8 as inherently
prejudicial, and recognized that even joinders that were not
prohibited by the Rule should be forbidden if a party
Page 474 U. S. 469
could demonstrate actual prejudice. This is the way Professor
Charles Wright interpreted the intent of the draftsmen in his 1969
treatise. He wrote:
"Indeed, there would be no point in having Rule 8 if the
harmless error concept were held applicable to it. If that concept
could be applied, then defendant could obtain reversal only if the
joinder were prejudicial to him. But Rule 14 provides for relief
from prejudicial joinder, and a defendant can obtain a reversal, in
theory at least, if he has been prejudiced, even though the joinder
was proper. If misjoinder can be regarded as harmless error, then
reversal could be had only for prejudice, whether the initial
joinder was proper or improper. If that were true, it would be
pointless to define in Rule 8 the limits on joinder, since it would
no longer be of significance whether those limits were complied
with, and the draftsmen would have been better advised to allow
unlimited joinder of offenses and defendants, subject to the power
of the court to give relief if the joinder were prejudicial."
1 C. Wright, Federal Practice and Procedure, § 144, p. 329
(1969). [
Footnote 3/6] 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.
[
Footnote 3/7]
Page 474 U. S. 470
Thus, a review of the state of the law of joinder at the time
the Federal Rules of Criminal Procedure were adopted, of the
Advisory Committee's intent to restate then-existing law, and of
the text of the Rules themselves requires a conclusion that a Rule
8 misjoinder violation is an error that affects the substantial
rights of the accused, and therefore requires reversal of a
conviction.
II
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
474 U. S. 444,
and by the development of a harmless error doctrine for
constitutional errors,
ante at
474 U. S. 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." [
Footnote
3/8] Since this Court had already made clear that misjoinder
affected "substantial
Page 474 U. S. 471
rights,"
McElroy, 164 U. S. 76
(1896), it is curious that the majority concludes, with no support
at all, that the passage of a statute and Rule which allowed for
correction of errors that did not affect "substantial rights"
somehow changed the legal status of a violation that had been
described in precisely those words. This view is especially curious
when it is remembered that the Rule governing joinder was viewed by
the draftsmen as a restatement of existing law.
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. [
Footnote
3/9] But it is a long leap from that recognition to a view that
the passage of the harmless error statute in 1919 -- and the
subsequent adoption of Rule 52(a) in 1946 and the passage of the
current harmless error statute in 1949 -- summarily jettisoned all
prior jurisprudence on the errors that affected "substantial
rights." Indeed, interpretations of the 1919 statute accorded it a
very different mission. As Justice Frankfurter explained in
refusing to require a showing of prejudice to justify reversal for
a statutory violation:
"Suffice it to indicate, what every student of the history
behind the Act of February 26, 1919, knows, that that Act was
intended to prevent matters concerned with the mere etiquette of
trials and with the formalities and minutiae of procedure from
touching the merits of a verdict."
Bruno v. United States, 308 U.
S. 287,
308 U. S. 294
(1939). And, while Rule 52(a) and the 1949 harmless error statute
were changed in a way that some commentators have found
significant, [
Footnote 3/10]
the
Page 474 U. S. 472
continuation of "substantial rights" as the benchmark for
assessing the harmlessness of error provides no support for the
proposition that anyone intended to change something that had been
found to affect a "substantial right" into something that did not
affect a substantial right.
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
474 U. S. 445,
is plainly misplaced. The majority observes: "Clearly,
Chapman and
Hasting dictate that the harmless
error rule governs here."
Ante at
474 U. S. 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. [
Footnote 3/11] Rather, our mission in
Page 474 U. S. 473
reviewing nonconstitutional errors is, first, to discern whether
the rule or statute which is being violated was intended to be
subject to harmless error analysis. If there is a definitive answer
to that question, our inquiry should be at an end. [
Footnote 3/12] If there is no definitive
answer, then we must try to assess the rule or statute in question
in light of the purpose of the harmless error rule and statute. We
should not, however, rewrite existing law by adopting a presumption
that, simply because a violation is nonconstitutional, it is
automatically subject to harmless error inquiry.
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, [
Footnote 3/13] particularly because the
Court has often been unclear and imprecise in its increasingly
frequent invocation of harmless
Page 474 U. S. 474
error. [
Footnote 3/14] In my
view, harmless error analysis is inappropriate in at least three
situations: (1) when it is clear that a statute or Rule was not
intended to be subject to such a rule; (2) when an independent
value besides reliability of the outcome suggests that such
analysis is inappropriate; [
Footnote
3/15] and (3) when the harmlessness of an error cannot be
measured with precision. [
Footnote
3/16] In my view, misjoinder clearly falls into the first
Page 474 U. S. 475
category. It also has elements of the second and third.
Misjoinder implicates the independent value of individual
responsibility and our deep abhorrence of the notion of "guilt by
association." Our criminal justice system has expanded considerably
in its tolerance of multiple joinders and massive conspiracy
trials. The rule against misjoinder remains, however, as an
ultimate safeguard of our cherished principle that one is tried for
one's own deeds, and not for another's. [
Footnote 3/17] The harmfulness of misjoinder is also
the type of error that has consequences that are difficult to
measure with precision. [
Footnote
3/18] These concerns may or may not outweigh the societal
interests that motivate the Court today, but they are surely strong
enough to demonstrate that the draftsmen of the Federal Rules acted
responsibly when they adhered to the time-honored rule of the
McElroy case. The misjoinder Rule that they crafted is
clear, and should be respected. [
Footnote 3/19] Misjoinder affects "substantial rights,"
and should lead to reversal.
Page 474 U. S. 476
III
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,
461 U. S.
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
474 U. S. 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. [
Footnote 3/20] The second is that,
Page 474 U. S. 477
even if it were faithfully applying the
Kotteakos
distinction between sufficiency of the evidence and harmless error,
the majority utterly fails to explain its statement about
"overwhelming evidence." A reading of
Kotteakos reveals
that only the most painstaking and thorough review of an entire
trial record can justify a conclusion that its standard has, or has
not, been met. The opinion the Court announces today contains no
indication that it has made that kind of analysis of the case
against Dennis Lane. [
Footnote
3/21]
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. [
Footnote 3/22]
Page 474 U. S. 478
Finally, the Court rather hesitantly suggests that the evidence
on Count 1 "would likely have been admissible" in a joint retrial
on Counts 2-6,
ante at
474 U. S. 450.
The Court thus assumes that a joint retrial is inevitable. Of
course, if misjoinder is found only as to Dennis Lane, as I suggest
below, then the majority's point collapses. In any event, nothing
in
Kotteakos or in our harmless error precedents suggests
that this Court should find an error harmless because of the
Court's completely untested speculations about a possible future
retrial. Not surprisingly,
Kotteakos suggests precisely
the opposite. [
Footnote 3/23]
A determination that an error was harmless is an extremely
weighty conclusion; it implicates profound notions of fairness and
justice. [
Footnote 3/24] Even if
the majority is correct that Rule 8 misjoinder should be subject to
harmless error analysis, I am convinced that the majority's summary
finding of harmless error in this case fails to give the issue the
attention it deserves. [
Footnote
3/25]
Page 474 U. S. 479
IV
I agree with the Court's conclusion that the evidence was
sufficient to sustain both convictions of mail fraud, and therefore
join
474 U. S. 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
Page 474 U. S. 480
harmless error jurisprudence, and fails to make the kind of
harmless error analysis that Rule 52(a) requires. Because I do not
consider these errors harmless, I respectfully dissent from the
judgment regarding Dennis Lane in No. 84-744.
[
Footnote 3/1]
Rule 8(b) of the Federal Rules of Criminal Procedure
provides:
"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 3/2]
"It is clear that the statute does not authorize the
consolidation of indictments in such a way that some of the
defendants may be tried at the same time with other defendants
charged with a crime different from that for which all are
tried."
"
* * * *"
"It is admitted by the government that the judgments against
Stufflebeam and Charles Hook must be reversed. . . ."
164 U.S. at
164 U. S.
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").
[
Footnote 3/3]
See 5 Federal Rules of Criminal Procedure: Documentary
History, Second Preliminary Draft, Feb.1944, Note to Rule 8, PP.
36-36 ("Since the counts of two or more indictments consolidated
for trial, under 18 U.S.C. § 557, are
put . . . in the same
category as if they were separate counts in one indictment,'
McElroy v. United State, 164 U. S. 76,
164 U. S. 77
(1896), this type of joinder is more widely practiced than is
generally realized").
[
Footnote 3/4]
See Maguire, Proposed New Federal Rules of Criminal
Procedure, 23 Ore.L.Rev. 56, 59 (1943) ("Subdivision (b) of Rule 9
provides for a joinder of defendants where they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions constituting or resulting in an offense,
and that they may be charged in one or more counts, together or
separately, in any manner indicating their respective participation
in the offense or offenses. . . . This rule merely restates the
present Federal statute . . ."). "Rule 9" became the current "Rule
8" without substantial change.
See Orfield, Joinder in
Federal Criminal Procedure, 26 F.R.D. 23, 28-29 (1960).
[
Footnote 3/5]
Rule 14 provides, in pertinent part:
"If it appears that a defendant or the government is prejudiced
by a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court may
order an election or separate trials of counts, grant a severance
of defendants or provide whatever other relief justice
requires."
[
Footnote 3/6]
In his current edition, Professor Wright notes that a number of
federal courts have held that misjoinder may be harmless error, but
he concludes that "there remains much to be said for what was once
the almost unanimous view that misjoinder is never harmless error."
1 C. Wright, Federal Practice and Procedure: Criminal, § 145, p.
532 (2d ed.1982).
[
Footnote 3/7]
See Note, Harmless Error and Misjoinder Under the
Federal Rules of Criminal Procedure: A Narrowing Division of
Opinion, 6 Hofstra L.Rev. 533, 544, n. 65 (1978) ("Implicit in the
assertion that rule 8 sets the limits of tolerable prejudice is the
argument that, if its purpose is not to set such limits, there is
no purpose in the rule. Rule 14 would vest all questions of joinder
in the trial court. . . . As both rule 14 and rule 8 were included
in the rules, rule 8 must have been intended to establish the outer
bounds within which the trial court has discretionary power under
rule 14"). In my view, the majority's discussion of this issue,
ante at
474 U. S.
449-450, n. 12, fails to answer this straightforward
reading of Rule 8 and Rule 14.
[
Footnote 3/8]
See 28 U.S.C. § 2111 ("On the hearing of any appeal or
writ of certiorari in any case, the court shall give judgment after
an examination of the record without regard to errors or defects
which do not affect the substantial rights of the parties");
Fed.Rule Crim.Proc. 52(a) ("Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded").
[
Footnote 3/9]
For a discussion of the background of the 1919 statute,
see
Kotteakos v. United States, 328 U. S. 750,
328 U. S.
758-760 (1946).
[
Footnote 3/10]
The 1919 statute referred to "
technical errors,
defects, or exceptions which do not affect the substantial rights
of the parties." 40 Stat. 1181, 28 U.S.C. § 391 (1946 ed.)
(emphasis added). Rule 52(a) referred to "[a]ny error, defect,
irregularity or variance which does not affect substantial rights";
the 1949 statute referred to "errors or defects which do not affect
the substantial rights of the parties." 28 U.S.C. § 2111.
See Note, 6 Hofstra L.Rev.
supra, 474
U.S. 438fn3/7|>n. 7, at 540 (discussing possible
significance of change).
But cf. H.R.Rep. No. 352, 81st
Cong., 1st Sess., 18 (1949) (new harmless error statute intended to
"incorporate" former harmless error statute); Rule 52(a), Notes of
Advisory Committee on Rules, 18 U.S.C.App. p. 657 (Rule intended as
"a restatement of existing law");
Kotteakos, 328 U.S. at
328 U. S. 757,
n. 9 (citing Advisory Committee comment that Rule 52(a) was
intended as "
a restatement of existing law'").
[
Footnote 3/11]
That the Court has recognized the difference between
constitutional and nonconstitutional harmless error inquiries is
reflected in the considerable difference in the Court's standards
on these two subjects.
Compare Chapman, 386 U.S. at
386 U. S. 24
("before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond
a reasonable doubt"),
with Kotteakos v. United States, 328
U.S. at
328 U. S. 765
(in nonconstitutional cases, "[t]he inquiry . . . is . . . whether
the error itself had substantial influence"). To the extent that
the majority ultimately cites the
Kotteakos standard as
governing this case,
ante at
474 U. S. 449,
it is consistent with this distinction in our case law; to the
extent that the majority suggests that
Chapman controls
the outcome of this case, however,
ante at
474 U. S. 446,
it reveals confusion about this distinction.
[
Footnote 3/12]
Cf. 467 U. S. S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.
S. 837,
467 U. S.
842-843 (1984) ("If the intent of Congress is clear,
that is the end of the matter; for the court . . . must give effect
to the unambiguously expressed intent of Congress").
[
Footnote 3/13]
See Comment, Harmless Error: Abettor of Courtroom
Misconduct, 74 J. Crim.L. & C. 457, 475 (1983) ("The harmless
error standards, as currently applied in review of criminal trials,
are eroding the integrity of the criminal justice system by
encouraging violations of longstanding trial rules"); Goldberg,
Harmless Error: Constitutional Sneak Thief, 71 J.Crim.L. & C.
421, 422 (1980) ("the doctrine of harmless constitutional error
destroys important constitutional and institutional values"); Note,
Harmful Use of Harmless Error in Criminal Cases, 64 Cornell L.Rev.
538, 540 (1979) ("increased use of harmless error analysis is
inherently dangerous regardless of whether the errors violate the
Constitution, statutes, or the common law") (footnotes omitted);
Cameron & Osborn, When Harmless Error Isn't Harmless, 1971 Law
& Social Order 23, 42 ("while the harmless error doctrine is an
extremely useful device . . . , it is not one that is without its
dangers").
Cf. United States v. Jackson, 429 F.2d 1368,
1373 (CA7 1970) (Clark, J., sitting by designation) ("
Harmless
error' is swarming around the 7th Circuit like bees. . . . [T]he
courts may have to act to correct a presently alarming
situation").
[
Footnote 3/14]
See Field, Assessing the Harmlessness of Federal
Constitutional Error -- A Process in Need of a Rationale, 125
U.Pa.L.Rev. 15, 32 (1976) ("In sum, the case law on the content of
the harmless error standard is less than lucid. There is some
indication that Supreme Court opinions slip back and forth from one
suggested standard to another, without explicit notice of the
change, though the change could produce different results in many
cases"); Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988
(1973) ("Chaos surrounds the standard for appellate review of
errors in criminal proceedings"); Mause, Harmless Constitutional
Error: The Implications of
Chapman v. California, 53
Minn.L.Rev. 519, 557 (1969) ("the Court, if only in an effort to
further the interest of net judicial economy, should attempt to
delineate certain well-defined classes of constitutional error
which require automatic reversal").
[
Footnote 3/15]
In the constitutional area, the Court has made clear that
certain independent values render a harmless error analysis
inappropriate.
See, e.g., Rose v. Mitchell, 443 U.
S. 545 (1979) (racial discrimination in the selection of
a grand jury is not subject to harmless error analysis);
Chapman, 386 U.S. at
386 U. S. 23
("there are some constitutional rights so basic to a fair trial
that their infraction can never be treated as harmless error").
Cf. Rose v. Lundy, 455 U. S. 509,
455 U. S. 544
(1982) (STEVENS, J., dissenting) (some constitutional errors "are
so fundamental that they infect the validity of the underlying
judgment itself, or the integrity of the process by which that
judgment was obtained").
[
Footnote 3/16]
In
Holloway v. Arkansas, 435 U.
S. 475,
435 U. S. 491
(1978), CHIEF JUSTICE BURGER explained that harmless error was
inappropriate in assessing the constitutional error of
inappropriate joint representation in part because such an inquiry
required "unguided speculation."
See also Note, 64 Cornell
L.Rev.
supra, 474
U.S. 438fn3/13|>n. 13, at 563-564 ("
Holloway's
rationale naturally extends beyond the sixth amendment: it suggests
that a rule of automatic reversal should apply to those
fundamental, pervasive errors that have uncertain prejudicial
impact. . . . The rule of automatic reversal should be extended to
all errors, whether or not pervasive or constitutional, that result
in unascertainable prejudice") (footnotes omitted).
[
Footnote 3/17]
Cf. Krulewitch v. United States, 336 U.
S. 440,
336 U. S.
457-458 (1949) (Jackson, J., concurring) ("Few
instruments of injustice can equal that of implied or presumed or
constructive crimes. The most odious of all oppressions are those
which mask as justice").
[
Footnote 3/18]
See Note, 6 Hofstra L.Rev.
supra, 474
U.S. 438fn3/7|>n. 7, at 563 (harmless error "is inaccurate
as a test for ascertaining the prejudice resulting from misjoinder
because of the impossibility of determining the extent of that
prejudice").
[
Footnote 3/19]
The majority's suggestion that two Supreme Court opinions have
held misjoinder subject to the harmless error rule is erroneous.
The majority writes: "A holding directly involving misjoinder again
indicated the harmless error rule should apply."
Ante at
474 U. S. 447.
The decision cited by the majority for this proposition,
Schaffer v. United States, 362 U.
S. 511 (1960), explicitly found no Rule 8 error, and
explicitly disavowed the type of "indication" claimed by the
majority.
See 362 U.S. at
362 U. S. 517
("The harmless error rule, which was the central issue in
Kotteakos, is not even reached in the instant case, since,
here, the joinder was proper under Rule 8(b), and no error was
shown"). Thus, the majority's discussion of
Schaffer, ante
at
362 U. S.
447-448, is completely beside the point. Indeed, one
year after
Schaffer was decided, it was read to support
not the majority's conclusion, but the viability of the
McElroy rule.
See Ward v. United States, 110
U.S.App.D.C. 136, 137, 289 F.2d 877, 878 (1961) (Burger, J.)
(citing
Schaffer and
McElroy to reject Government
suggestion that defendant must show prejudice to obtain reversal
after misjoinder of defendants has been established).
Similarly, the majority's claim that
Kotteakos
"suggested that the harmless error rule could similarly apply" to
misjoinder,
ante at
474 U. S. 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
328 U. S.
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
328 U. S. 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
474 U. S. 449, a conclusion that misjoinder necessarily
affects substantial rights produces the same harmony.
[
Footnote 3/20]
In
Kotteakos, the Court accepted the defendants'
concession that the evidence was not "insufficient, if considered
apart from the alleged errors relating to the proof and the
instructions at the trial." 328 U.S. at
328 U. S. 753.
The Court went on to emphasize that the harmless error analysis is
fundamentally different from the sufficiency analysis.
"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."
Id. at
328 U. S. 765.
Even though the evidence was concededly sufficient without the
errors, the Court thus found the errors not harmless, and the
convictions reversible. The majority quotes the relevant passage
from
Kotteakos, ante at
474 U. S. 449,
but fails to reflect its principle in its analysis.
[
Footnote 3/21]
The only specific evidence even mentioned by the majority -- the
testimony of Heard and Lankford,
ante at
474 U. S.
450-451, n. 13 -- represents accomplice testimony. Such
testimony is, of course, generally recognized as posing special
evidentiary problems.
See, e.g., 1 J. Weinstein & M.
Berger, Weinstein's Evidence � 107 [04], pp. 107-50 - 107-51
(1985); 3 S. Gard, Jones on Evidence § 20:60, pp. 736-77 (6th
ed.1972).
[
Footnote 3/22]
Indeed, in the year following
Kotteakos, this Court
made clear that proper jury instructions might not alleviate the
problems inherent in joint trials:
"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,
332 U. S. 559
(1947).
[
Footnote 3/23]
"The Government's theory seems to be, in ultimate logical reach,
that the error presented by the variance is insubstantial and
harmless, if the evidence offered specifically and properly to
convict each defendant would be sufficient to sustain his
conviction, if submitted in a separate trial. For reasons we have
stated and in view of the authorities cited, this is not and cannot
be the test under § 269 [the harmless error statute]."
328 U.S. at
328 U. S.
767.
[
Footnote 3/24]
See R. Traynor, The Riddle of Harmless Error 80 (1970)
("[T]he 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. Each evaluation bears upon our traditional
understanding that fair trial encompasses not only fair notice and
an adequate opportunity to be heard before the appropriate
tribunal, but also an orderly presentation of evidence and a
rational application of the law thereto").
[
Footnote 3/25]
A more searching review of the record might require the majority
to confront certain troublesome aspects of this erroneous joinder.
The majority might have to confront the fact that at least 9 of the
Government's 26 witnesses -- more than one third -- addressed the
El Toro fire, the offense for which Dennis Lane was not charged.
See Testimony of Morris Loewenstern, Tr. 33-43; Testimony
of Earl Simpson,
id. at 44-50; Testimony of Cindy Wright,
id. at 58-59; Testimony of David Lard,
id. at
62-89, 96-103; Testimony of Ben Shaw,
id. at 103-1 12;
Testimony of Jack Stotts,
id. at 113-123; Testimony of
Wayne Cox,
id. at 123-132; Testimony of Jay Messenger,
id. at 139-157; and Testimony of Sidney Heard,
id. at 230-243. It might have to confront the fact that
two of the defense witnesses similarly focused on the El Toro fire.
See Testimony of Janie Malone,
id. at 681-736;
Testimony of Jess Maddox,
id. at 891-894. It might have to
confront the fact that, in their closing arguments, both the
Government and the defense counsel devoted considerable attention
to the El Toro fire.
See Government's closing argument,
id. at 989-993; defense's closing argument,
id.
at 1008-1014. And it might, finally, have to confront the fact that
the prosecutor's closing words to the jury were that "
each
of these charges has been proved against J. C. Lane and Denni Lane
beyond a reasonable doubt."
Id. at 1051 (emphasis
added).
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.