People v. Marshall, 2014 COA 42

Marshall was indicted in 2009 in the first case for securities fraud, theft, conspiracy, and organized crime (the latter later dismissed).
In 2012 the prosecution filed a second case by information with similar counts; the two cases were joined by the prosecution but the defendant objected.
The trial court denied the joinder; in the first case the jury acquitted Marshall.
Marshall then moved to dismiss the second case, arguing mandatory joinder required the cases to be tried together and that dismissal was proper.
The trial court dismissed the second case, citing that joinder was mandatory but the joinder motion had been denied and that due process concerns were present.
On appeal, the court held that Marshall’s successful objection to joinder barred the prosecution from pursuing the second case and reversed to reinstate the charges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether objection to joinder bars later dismissal for lack of joinder	Marshall waived joinder by opposing it	Joinder failed and would have prejudiced Marshall	Yes; waiver forecloses dismissal for non-joinder

Jeffrey v. Dist. Court, 626 P.2d 631 (Colo. 1981) (mandatory joinder aims to protect the accused and conserve resources; waiver upon opposing joinder)
Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522 (Pa. 1978) (defendant’s opposition to joinder waives joinder rights)
Stewart, 493 Pa. 24, 425 A.2d 346 (Pa. 1981) (joinder rights waiver when opposing joinder)
Failor, 564 Pa. 642, 770 A.2d 310 (Pa. 2001) (joinder and severance considerations in multiple prosecutions)
Haga, 735 P.2d 44, 47 (Utah 1987) (defendant’s opposition to joinder waived joinder rights)
Riordan, 86 N.M. 92, 519 P.2d 1029 (N.M. Ct. App. 1974) (defendant’s motion for severance waived joinder rights)
Gimbara, 835 A.2d 371 (Pa. Super. Ct. 2003) (joinder rule’s purposes served by proper application; not a shield against proper prosecutions)