The United States of America, through its attorneys, hereby responds to Defendants' Joint Motion for Severance of Counts. The government disputes the defendants' initial contention that Counts 1 and 2 of the indictment are improperly joined under Fed R. Crim. That rule, as set forth in defendants' motion, specifies those instances in which the government may separately charge multiple offenses in the same indictment. Here, the government followed the requirements of Rule 8 and elected to charge both defendants with Counts 1 and 2 because the offenses are of the same or similar character.
Joint trials promote judicial economy and efficiency.
However, even if joinder was improper, reversal is not required unless the misjoinder resulted in actual and substantial prejudice that influenced the determination of the jury Page 2 verdict. In those instances where prejudice is shown, the tailoring of relief is within the discretion of the trial court. Defendants' motion continues at length setting forth how the two alleged violations of 1 of the Sherman Act differ with respect to co-conspirators, objectives, market areas and time periods. All of these differences, they contend, result in a situation that warrants a severance of the counts and separate trials. It is true, as the defendants allege, that the counts differ in many particulars.