Joining Related Cases

Joining Related Cases

The earlier sections here follow a single charging instrument from the grand jury to the pretrial motion, but the government sometimes brings more than one indictment or information against related defendants or for related conduct. Rule 13 gives the court a tool for that situation. The court may order that separate cases be tried together as though brought in a single indictment or information, if all offenses and all defendants could have been joined in a single indictment or information.¹ The power is discretionary, because the rule says the court may act, and the order operates on the trial: the cases proceed together as though the government had charged them in one instrument.

The rule has two parts, and each has its own reason. The power to consolidate answers a problem of duplication. When related conduct is charged in separate instruments, the same witnesses would testify twice, the same exhibits would be offered twice, and two juries would hear overlapping accounts, and a joint trial removes that waste. The condition that all offenses and all defendants could have been joined originally does the subtler work of limiting the power. It asks what the government could have charged together, not what it happened to charge, so it ties consolidation to the outer boundary of a single indictment. Without that tie, the government could split offenses or defendants that may not be combined into separate indictments and then ask the court to merge them, which would accomplish through Rule 13 what one instrument could not. The condition closes that route, so consolidation saves effort without enlarging what may be tried together. The test is also cumulative, since the rule speaks of all offenses and all defendants, and one offense or one defendant that could not have been joined defeats the order for those cases. The standard for what may be charged together comes from the rules on joinder, which this chapter does not detail, and Rule 13 asks only whether the original joinder would have been permitted.

A single indictment can hold a great deal. In the federal prosecution reported as United States v. Miller, one grand jury indictment charged sixteen members of an Ohio Amish community with violating and conspiring to violate the Hate Crimes Prevention Act, and the same indictment charged four of those defendants with concealing evidence and one with making false statements to the FBI.² That instrument joined many defendants and different offenses in one document. The Rule 13 question is whether the government could have put separate cases into an instrument of that kind, and if it could, the court may combine them at trial.

The two scenes differ on the one fact the rule makes decisive, which is whether a single indictment could have held everything. Overlap in witnesses and a crowded docket appear in both, and neither moves the answer. The common error is to treat efficiency as sufficient, when the question is whether the offenses and defendants could have been joined in one instrument.

Rule 13 also connects to the pretrial-motion list covered in the preceding sections. Improper joinder appears there as a defect in the indictment or information that must be raised by pretrial motion when its basis is reasonably available,³ and severance of charges or defendants under Rule 14 appears on the same list as a request that must be raised in the same way.⁴ These motions and Rule 13 pull in opposite directions. Rule 13 combines cases that could have been charged together, an improper-joinder objection says a combination was never permitted, and a severance request asks the court to separate charges or defendants that stand together. A party who objects to how offenses or defendants have been combined therefore has to act by pretrial motion on the schedule described earlier.

Step 4 does the work on an exam, because the answer depends on what could have been charged together and not on how much time a joint trial would save.