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decided*fn*: January 27, 1986.



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. 453. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 465.

Author: Burger

[ 474 U.S. Page 439]

 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

[ 474 U.S. Page 440]

     Rules of Criminal Procedure is subject to the harmless-error rule,*fn1 and to determine whether there is sufficient evidence in this case to support convictions for mail fraud under 18 U. S. C. § 1341.



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.

[ 474 U.S. Page 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.*fn2 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 ficticious invoices for merchandise and delivered some artificial flowers to the building later in August. In November, James Lane insured the contents for $50,000. Heard, however, was later arrested for an unrelated crime, and the planned arson never took place.

In March 1981, an Amarillo newspaper article connected Dennis Lane with a scheme to burn the flower shop with Heard; that same day, James Lane canceled the insurance policy. On May 12, 1981, Dennis Lane appeared before a

[ 474 U.S. Page 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.*fn3 The Court of Appeals for the Fifth Circuit

[ 474 U.S. Page 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.*fn4 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.

[ 474 U.S. Page 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.


The Court of Appeals held that misjoinder "is inherently prejudicial."*fn5 735 F.2d, at 804. The Circuits are divided on the question whether misjoinder requires automatic reversal, or whether the harmless-error rule governs.*fn6 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 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."*fn7

[ 474 U.S. Page 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 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 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 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, 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 508-509.

[ 474 U.S. Page 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.*fn8 Clearly, Chapman and Hasting dictate that the harmless-error rule governs here.*fn9

The applicability of harmless error to misjoinder also follows from Kotteakos v. United States, 328 U.S. 750 (1946), a case similar to the one at hand. There, some 32 defendants were charged with one conspiracy, when in fact there had been at least eight separate conspiracies. Nineteen defendants were jointly tried, and seven were convicted. The Court applied the harmless-error statute to an error resulting from a variance from the indictment, and held the error was not harmless in that case. Emphasizing the numerous conspiracies involving unrelated defendants, as well as seriously flawed jury instructions, the Kotteakos Court reversed the convictions in light of each of the 32 defendants' "right not to be tried en masse for the conglomeration of distinct and separate offenses" involved. Id., at 775.

[ 474 U.S. Page 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.*fn10 Id., at 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 [turned] out to lack the support of sufficient evidence." Id., at 516. Essentially, at that point in the trial, there was a clear error of misjoinder under Rule 8 standards. Nevertheless, the Schaffer Court held that once the Rule 8 requirements were met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14, which requires a showing of prejudice. Id., at 515-516. The Court then affirmed the finding of no prejudice. Although the Court did not reach the harmless-error rule because Rule 8(b) had initially been satisfied, the Court's language surely assumed the rule was applicable.

A plain reading of these cases shows they dictate our holding. Applying the 1919 statute treated in Kotteakos, which

[ 474 U.S. Page 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 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 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 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 [was] error as a matter of law." 362 U.S., at 516. Citing Kotteakos, the Court pointed out that there "[the] dissent agreed that the test of injury resulting from joinder 'depends on the special circumstances of each case.'" 362 U.S., at 517 (quoting 328 U.S., at 777 (Douglas, J., dissenting)).*fn11

[ 474 U.S. Page 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, 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 "[affected] substantial rights." In Kotteakos the Court construed a harmless-error ...

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