Federal criminal cases frequently are brought against multiple defendants facing multiple charges, some of which are common to all defendants and some of which are not. Federal Rule of Criminal Procedure 8 dictates the proper joinder of offenses and defendants in an indictment. The 2nd U.S. Circuit Court of Appeals has recently clarified the application of this rule to indictments charging both tax and nontax crimes.

Rule 8(a) provides that multiple offenses may be joined in one indictment where they are: i) of the same or similar character; ii) based on the same act or transaction; or iii) connected with or constitute parts of a common scheme or plan.[FOOTNOTE 1] Rule 8(b) goes on to state that two or more defendants may be joined in the same case if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions.[FOOTNOTE 2] Thus, under Rule 8, joinder of defendants is only allowed when the defendants have participated in the same act or transaction. It is not sufficient that the alleged crimes are “of the same or similar character,” as permitted for joinder of offenses.

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