John N. DAVIS, a/k/a James E. Porter, Appellant, v. UNITED STATES, Appellee. Morris J. WARREN, a/k/a Morris Saunders, Appellant, v. UNITED STATES, Appellee.
Nos. 8004, 8020
District of Columbia Court of Appeals
Argued Oct. 9, 1975. Decided Dec. 30, 1976.
Mildred Matesich, Public Defender Service, Washington, D. C., for appellee Warren.
Paul N. Murphy, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Raymond Banoun, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before KELLY, KERN and GALLAGHER, Associate Judges.
KERN, Associate Judge:
A dozen women during a period of some eight months in 1972 and 1973 were ab
Specifically, appellants were charged in a forty-four count indictment with kidnapping while armed,1 armed robbery,2 armed rape,3 sodomy,4 assault with a dangerous weapon,5 and various lesser included offenses arising out of eight incidents involving eight women in the District of Columbia.6 Appellant Warren was convicted of four counts of armed kidnapping, three counts of armed rape, two counts of armed robbery, and one count each of assault with a deadly weapon and armed assault with intent to commit sodomy. Appellant Davis was convicted of six counts of armed kidnapping, five counts of armed rape, two counts of armed robbery and one count each of assault with a deadly weapon and armed assault with intent to commit sodomy, and was acquitted on six counts.
I. INTRODUCTION
On this appeal, appellants raise several issues relating to joinder of defendants for trial, the reasonableness of the officers’ stopping appellant Davis, and other assertions of error before and during the trial. Before taking up the joinder issues, we describe briefly the form and content of the government proof at trial.
In essence, each of the seven victims took the stand and described to the jury the circumstances of the crimes committed against her, including the date and the place and method of abduction, and the person or persons, if she knew, who had committed those crimes. Other witnesses testified for the government in corroboration of each of the victims’ testimony as to what she had done in each case immediately after the criminal attack. These non-victim witnesses were of course unable to make identification of any of the perpetrators. Thus each of the cases proved was in a sense a self-contained and separate account of a sordid event; there was virtual
| Date | Time | Victim | Place of Abduction | Method of Abduction | Weapons Used | Assailants |
|---|---|---|---|---|---|---|
| 6/19/72 | 11:30 p.m. | W. | 14th St. & Rhode Island Ave., N.E. | Offer of ride in green sports car resembling a Pinto | Knife | Davis; Warren |
| 11/12/72 | Midnight | M. | 4100 Wisconsin Ave., N.W. | Offer of ride in a green Vega | Revolver | Davis; Two unidentified males |
| 11/13/72 | 11 p.m. | T. | Howard University | Forced at gunpoint into car, a green Vega or Toyota | Revolver | Davis; One unidentified male |
| 11/20/72 | 6:30 p.m. | Wi. | Upper Wisconsin Ave., N.W. | Forced at gunpoint into car, a green Vega | Revolver | Davis; Warren; Two unidentified males |
| 11/20/72 | 11:30 p.m. | R. | Georgia Ave. & Sheridan St., N.W. | Offer of ride in a green Vega | Revolver | Davis; Warren; One unidentified male |
| 12/7/72 | 8 p.m. | J. | Wisconsin Ave. in Maryland | Offer of ride in a two-door car resembling a Mustang | Knife | Davis; Warren |
| 1/23/73 | Midnight | H. | East Capitol & 56th St., N.E. | Forced at gunpoint into car, a green Vega | Revolver | Davis |
It may be seen that the government charged in the indictment and presented evidence to the jury that appellant Davis alone had been responsible for crimes against the person of one victim; that an unidentified man or men participated with
From the above chart summarizing the government evidence in the seven criminal assaults resulting in guilty verdicts, it is clear that the perpetrators of the offenses employed a remarkably similar modus operandi: Each incident commenced between 6:30 p. m. and 12:15 a. m.; the complainants were all offered rides to their destinations, and then either entered the car voluntarily or were forced to enter; and a knife or gun was used in every incident. We further note that five of the victims described the vehicle as a green Chevrolet Vega with black interior, while one described it as a small light green sports car with black interior and another described it as a two-door automobile with bucket seats and a dark interior. Finally, most of the complainants, according to the record testimony, were returned either to their homes or to the areas from which they had been abducted.
II. JOINDER ISSUES
Appellant Warren argues that the prosecution‘s joinder of (1) the counts which charged appellant Davis, either by himself or with others never identified, for criminal assaults on three complainants in the same indictment with (2) all the counts charging Warren and Davis jointly with criminal assaults on four victims constitutes misjoinder under
Joinder of two or more defendants and multiple offenses in one indictment for trial is authorized by Rule 8(b)8 which provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.9 [Emphasis added.]
The issue we must decide is whether, within the meaning of Rule 8(b), Davis and Warren “are alleged to have participated . . . in the same series of acts or transactions constituting an offense or offenses.”
In its brief, the government now characterizes the Davis-only offenses as “integral elements in a seven-month campaign of kidnappings and rapes waged in concert by both appellants” (Brief at 37; emphasis added) and claims that “appellants [Davis and Warren] acted in concert in a continuing series of related sex offenses” (Brief at 39; emphasis added). These statements
Further, we must reject the government‘s contention that the similarity of modus operandi in each of the crimes charged against the appellants jointly, as well as Davis and others and Davis alone, fulfills Rule 8(b)‘s requirement that both defendants be charged with having participated in “a series of acts or transactions” within the meaning of the Rule. Rule 8(a) allows joinder of offenses “of the same or similar character,” but Rule 8(b) does not. See 8 J. Moore Federal Practice ¶ 8.06 [1] (2d ed. 1975). The series of acts envisioned by the drafters of Rule 8(b) is one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly-charged offenses, or that the government otherwise will benefit without further prejudicing the defendant. See United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); King v. United States, 355 F.2d 700 (1st Cir. 1966). Here, each offense charged occurred at a different time of day and at a different place, each complaining witness had her unique story to recount, and as a group, the seven offenses spanned a period from June to January.12
We are not persuaded that the situation in the instant case is analogous to and should be decided upon the basis of cases, including several cited by the government in its brief, where joinder of defendants
Joinder and Severance 15-17 (Approved
In the instant case, we can discern no specific or unitary goal toward which all the acts alleged in the indictment were directed, since each offense was committed independently on different dates commencing in June and ending in January and none depended for its furtherance or success on any of the others. Moreover, there is here no logical development of or relationship between the offenses because no crime necessarily led to or caused the subsequent offenses. And finally, in this case, there is no substantial overlap of proof of the various crimes; rather, each occurred and was proved at trial separate from the others.
Accordingly, we believe that the counts charging Davis alone and with others unidentified were misjoined with the counts charging Davis and Warren jointly. Unlike the decisions by the Ninth Circuit in United States v. Friedman, 445 F.2d 1076 (9th Cir.) cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971), and United States v. Roselli, supra at 901, we cannot agree that the misjoinder was harmless under
First, joinder of defendants “involves a presumptive possibility of prejudice to the defendant.” King v. United States, supra at 703. Such joinder is allowed despite this possibility of prejudice due to the cumulation of evidence against defendants, because it will “promote economy and efficiency and . . . avoid a multiplicity of trials.” Daley v. United States, 231 F.2d 123, 125 (1st Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956). Since the proof of each crime did not overlap, there was no such “economy and efficiency” served in this case by the joinder of the various counts against Davis and Warren with the counts against Davis alone and with others.
Second, we are constrained to note the prejudice to appellant Warren here was greatly increased since evidence of crimes neither charged against him nor related to him was introduced at his trial under circumstances that inevitably would lead the jury to consider him in fact a participant. Specifically, the jury heard, to Warren‘s obvious prejudice, that Davis and one other male, never identified, abducted and raped the victim T.; and that Davis and two other males, never identified, abducted and raped the victim M. The court in King v. United States, supra at 705 n.6, pointed out the special prejudice inherent in a situation where one defendant is joined with another defendant, who is alleged to have committed certain offenses with unidentified third parties:
The government agent was unsuccessful in learning who was [defendant] McKenney‘s man on the other occasions. It seems to us that it might be natural for the jury to fill this void with King [a defendant]. If it did, the government was thereby showing other offenses by King not included in the indictment, the very thing it could not properly do. Macdonald v. United States, [264 F. 733 (1st Cir. 1920)] and of which in fact it had no evidence even warranting the inference.
Given the testimony indicating that Davis and Warren acted together criminally in some instances and Davis and others unknown acted criminally in other instances, it is but a small step for the jury to infer that these unidentified attackers were in fact Warren. Such an inference contains
The dissent (Op. at p. 1271, n. 3), citing Baker v. United States, 131 U.S.App.D.C. 7, 22-23, 401 F.2d 958, 973-74 (1968); United States v. Granello, 365 F.2d 990 (2d Cir.), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967); and United States v. Roselli, supra, suggests that misjoinder “can be harmless error.” While this may be true as a general proposition, those cases are inapposite to our situation here. In United States v. Baker, supra, 131 U.S.App.D.C., at 21, 401 F.2d at 972, the court specifically noted that evidence of larceny was “a necessary part of the proof of the 1962 tax evasion charge.” (Emphasis added.) As described above, evidence of the Davis-alone and Davis-and-others’ crimes was not necessary to the proof of the Davis-Warren charges. In United States v. Granello, supra at 995, the court expressly concluded that had the defendants there received separate trials the government could still have offered “the same proof that it offered at the joint [trial].” Clearly, proof relating to the Davis-alone and Davis-and-others crimes could not have been introduced at the separate trial of the Davis-Warren charges. Finally, in United States v. Roselli, supra, the disparate crimes charged against the defendants were linked together by an allegation of conspiracy.
We can only conclude that there was prejudice to Warren by joining the Davis-only and Davis-and-others counts with the Warren-Davis counts in the same indictment. Accordingly, appellant Warren‘s convictions must be reversed for misjoinder.16
Appellant Davis has raised an issue on appeal relating to severance which he did not raise at trial, viz., that the trial court erred in refusing to sever for trial the seven offenses and 39 counts contained in the indictment because the cumulative effect of the evidence introduced to prove all these counts made a fair trial impossible, and that the trial court‘s failure to sever these counts deprived him of his right to a fair trial.17 But the trial court here did not have an opportunity to rule on appellant Davis’ request for severance since he made no motions either before or during trial, nor did he join in codefendant Warren‘s motions. Even on appeal Davis has made no allegation of any prejudice that was not anticipated before trial but that developed or was increased during the trial to such an extent that the court sua sponte should have ordered a severance under Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). We believe that appellant Davis was aware of all the facts comprising his claim of prejudice before trial, and consequently the issue should have been raised at that time rather than on appeal. See 8 J. Moore Federal Practice ¶ 14.02[2] (2d ed. 1975).18
III. IDENTIFICATION OF APPELLANT WARREN
Although our decision that the defendants were misjoined requires that appellant Warren‘s case be remanded and disposes of his appeal, one issue raised in his brief is likely to recur if he is retried and consequently we will address it briefly. See Clemons v. United States, 133 U.S.App.D.C. 27, 35, 408 F.2d 1230, 1238 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).
Warren argues that the trial court committed reversible error in refusing to suppress the photographic, lineup, and in-court identifications made by complainant R.19 R. identified Warren as the third of three men who assaulted her after looking at an array of nine black and white photographs. She had previously described this third man as a Negro, about 24 years old, five feet ten or eleven inches in height, medium build, dark complexion, clean-shaven with a short Afro haircut, and with pimples on his face; he also had a gap between his upper teeth and a chipped front tooth, and was wearing a maroon dashiki with gold and black markings at the time of the offense. The group of photographs shown to R. contained only one picture of a man wearing a dashiki, and complainant identified that individual, appellant Warren, as the third man who assaulted her.
We do not agree that the photographic identification procedure in this case was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and deny appellant Warren due process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see Conyers v. United States, D.C.App., 309 A.2d 309, 311 (1973). R. had ample opportunity to observe her attackers during the course of the abduction,20 and she described appellant Warren correctly and in detail. Her selection of his photograph was immediate and unequivocal; she wrote on the back that she was “positive” he was the third attacker. Furthermore, at trial R. was unable even to recall whether the man in the photograph was wearing a dashiki.21
IV. STOP AND ARREST OF APPELLANT DAVIS
Appellant Davis argues that his stop by two police officers at 2:30 a. m. on February 11, 1973, was not based on probable cause to arrest or on articulable factors allowing a brief detention and investigation under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ac
Prior to the stop of Davis’ automobile in February 1973, the District of Columbia police possessed a quantity of evidence showing similarity of the modus operandi in some dozen rapes22 that had been committed during the preceding eight months. Around the end of January 1973, this evidence was compiled in a police flyer which described in some detail the time and place of each offense, the number and physical description of the assailants, and the description of the automobile used. Of the twelve incidents described, eight involved a Negro male driving a late model green Chevrolet Vega with a dark interior. Some of the more elaborate descriptions reported that the car also had bucket seats, two doors, a stick shift, clear plastic seatcovers, and blue and white license plates like Maryland plates, ending with the digits “91“. A similar modus operandi for the eight “green Vega” rapes was described. Attached to the police flyer were composite drawings of a driver and passenger involved in several of the rapes.
These flyers and sketches were disseminated to Metropolitan Police officers early in February. In addition, on February 7, 1973, a teletype lookout was prepared, read at all police roll calls, and posted in all police stations alerting the officers to watch for a green Chevrolet Vega with blue and white license plates and a black interior. Officers Rich and Robinson, who arrested Davis on February 11, 1973, were in possession of all this information.
According to their testimony at the suppression hearing23 in September 1973, they stopped Davis in his car “due to the fact that we were looking for a green Vega and we knew there were Negro males involved in these rapes.” Officer Robinson testified that he “observed a green Vega, two-door, with Maryland license plates, plastic seat covers.” His partner stated he was able to see the car itself, a late model green Chevrolet Vega with black interior, the blue and white license tags, and the Negro male who was operating it. Although the license plates did not contain the numbers “91“, neither officer professed familiarity with this alleged characteristic.
While the Fourth Amendment clearly extends its protection to stops such as this, probable cause is not required. See Terry v. Ohio, supra; Wise v. Murphy, D.C.App., 275 A.2d 205, 212 (1971) (en banc). Instead the key is the reasonableness of the police activity, and the issue for determination is “whether the officer‘s conduct under all the circumstances is reasonable, so as to comply with the fourth amendment requirement of reasonableness.” Stephenson v. United States, D.C.App., 296 A.2d 606, 608 (1972), cert. denied, 411 U.S. 907, 93 S.Ct. 1535, 36 L.Ed.2d 197 (1973) (emphasis in original); see Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. 1868.
We are persuaded that the facts described above, which were known to the arresting officers at the time of Davis’ stop, were sufficient to justify the limited
Moreover, the intrusion in this case was quite limited. See Terry v. Ohio, supra, 392 U.S. at 19-20, 88 S.Ct. 1868. The officers testified that they stopped Davis’ car in order to check its interior for additional characteristics matching the descriptions in the flyer. After approaching the car, Officer Robinson observed the black interior and the plastic covers on the seats and then asked Davis for some identification. The pictures on these pieces of identification he gave the officers were then compared to the composite sketches attached to the police flyer. Davis was not frisked or interrogated at this stage, nor was he even removed from his car. Cf. Palmore v. United States, D.C.App., 290 A.2d 573, 583 n.25 (1972), aff‘d, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1974); Davis v. Mississippi, supra, 394 U.S. at 727, 89 S.Ct. 1394.
We conclude, therefore, that not only was the initial stop justified under the Terry doctrine of reasonableness, but the intrusion which resulted from stopping Davis’ car “was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879; see Cupp v. Murphy, 412 U.S. 291, 294-96, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).
Assuming that the initial stop was lawful, then, we now must determine whether the subsequent arrest was based on probable cause. Judging from the totality of the circumstances, probable cause exists when an officer, “conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.” Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962). In addition to the factors described above which justified the initial stop of Davis’ car, the officers also had an opportunity to observe close-up the interior features of Davis’ car, including the black
At that point the two officers believed they had sufficient grounds to arrest Davis in connection with the string of rapes described in the flyer. Nevertheless they called in a superior officer who also compared Davis’ face to the composite sketches, agreed they were “very similar,” and instructed the officers to charge Davis in the case.
We conclude that the close likeness of appellant to the composite sketches, combined with his presence in an automobile almost identical to that described by seven rape victims, provided the officers with sufficient information reasonably to believe that a crime or crimes had been committed by Davis. Jackson v. United States, supra; cf. United States v. Poole, supra. Accordingly, we hold that the detention and subsequent transportation and photographing of Davis was lawful.27
See Cupp v. Murphy, supra, 412 U.S. at 296, 93 S.Ct. 2000.
V. MISCELLANEOUS ISSUES
Finally, we take up and dispose of various errors asserted by appellant Davis.
First, Davis alleges that there was no proof of where the rape offenses against complainants T. and H. occurred and therefore that his constitutional rights were violated. According to Professor Wright, “[a]lthough an allegation of venue is not essential to the validity of an indictment or information, venue is a fact that must be proved at trial, except where venue, or proof of venue, has been waived.” 1 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 307 at 601 (1969) (footnotes omitted). Professor Wright acknowledges that failure to prove venue may be raised by a defendant‘s general motion for judgment of acquittal at the close of all the evidence, but adds that “if defendant specifies grounds in support of a motion for acquittal, and does not mention venue, he has not preserved his objection for appeal.” Id. § 306 at 601 (footnote omitted); see United States v. Haley, 500 F.2d 302, 305 (8th Cir. 1974); United States v. Powell, 498 F.2d 890, 891 (9th Cir.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974); United States v. Rivera, 388 F.2d 545, 547-48 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396 (1968); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966).
In the instant case, Davis’ attorney made a motion for judgment of acquittal at the close of the government‘s case, and specified two grounds; the insufficient identifications of Davis by the complainants (and specifically the absence of any identification by the victim T.) and the absence of any scientific evidence such as hair or fiber analysis linking Davis to any of the crimes. As the Second Circuit ruled in United States v. Rivera, supra at 548, where the defendant “does specify grounds for the motion [for judgment of acquittal] and omits mention of venue we must conclude that he cannot be considered to have raised a question concerning the place of trial.” Thus we hold that appellant Davis has waived his right to object to the government‘s alleged failure to prove venue of two rape charges.28
We also reject appellant Davis’ contention that he suffered prejudice requiring reversal when the trial court allowed the jury to hear evidence about complainant W.‘s rape in Maryland with which Davis was not charged. We note that she described her sexual assault only briefly as part of the total incident she was recounting, and in order to explain the circumstance of the offense actually charged. See Wooten v. United States, D.C.App., 285 A.2d 308, 309-10 (1971). There were no questions that directly elicited this information, nor was the incident described in inflammatory terms or in any detail. Finally, there was substantial evidence of appellant‘s guilt of the other offenses, and the challenged testimony was only a minor portion of the evidence adduced at trial. Under these circumstances, we are not persuaded that appellant Davis’ defense was prejudiced by these revelations to such an extent that he was denied due process or a fair trial.
Davis also argues that the prosecutor‘s closing argument improperly and prejudicially suggested that on the night of his arrest, when he was seen in his car talking to two women on the street,29 he was in reality looking for a new victim to rape, and that this was part of the same pattern. Although these statements may have been unnecessary and improper,30 in light of the overwhelming proof against
[20] Davis next argues that the trial court‘s instruction on corroboration, which listed a variety of factors that might be deemed corroborative of the corpus delicti, unduly emphasized the prosecution‘s theory of the case.31 Although the trial court responded to appellant‘s objection by remarking that the instruction came out stronger than he had intended, nevertheless it was a proper recitation of various factors that a jury may consider to be corroboration. See, e. g., In re W.E.P., D.C.App., 318 A.2d 286, 288-89 (1974); Moore v. United States, D.C.App., 306 A.2d 278, 280-81 (1973); Evans v. United States, D.C.App., 299 A.2d 136, 139 (1973). Even if the corroboration instruction did over-emphasize the government‘s evidence, having reviewed the instructions as a whole, we cannot say that appellant was prejudiced by this instruction. See United States v. Martin, 154 U.S.App.D.C. 359, 363, 475 F.2d 943, 947 (1973); United States v. Thurman, 135 U.S.App.D.C. 184, 185, 417 F.2d 752, 753 (1969), cert. denied, 397 U.S. 1026, 90 S.Ct. 1269, 25 L.Ed.2d 535 (1970).
Appellant Davis also argues that a reasonable juror must necessarily have had a reasonable doubt about his guilt, and therefore his motion for judgment of acquittal should have been granted. Having reviewed the evidence adduced at trial with respect to each offense and each count in the indictment, we are unable to state that there was “no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” United States v. Lumpkin, 145 U.S.App.D.C. 162, 168, 448 F.2d 1085, 1091 (1971); see Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).
Finally, appellant Davis argues that his conviction for assaulting Wi. with a deadly weapon,
VI. CONCLUSION
The convictions of appellant Davis are upheld in all respects and the judgments against him are affirmed. The convictions of appellant Warren cannot stand because they occurred after a misjoinder under Rule 8(b); and we are unable to conclude under the particular circumstances here that such misjoinder was not prejudicial. Hence, the judgments against him are reversed and his case is remanded for a new trial.
So ordered.
GALLAGHER, Associate Judge, concurring and dissenting:
I concur in the result reached in the affirmance of the convictions of appellant Davis.
I do not agree that there was a misjoinder under Rule 8(b) as to appellant Warren and dissent from the reversal of his convictions. I believe the initial joinder was proper and therefore the denial of the motion to sever may be overturned by this court only if there has been an abuse of discretion. United States v. Wilson, 140 U.S.App.D.C. 220, 226, 434 F.2d 494, 500 (1970); United States v. Franks, 511 F.2d 25, 30 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975). Rule 8(b) provides that joinder is proper when the defendants have participated in the same “series of acts or transactions.” I conclude that they were conducted in such a similar manner as to form a modus operandi and that although conspiracy was not alleged there was a continuing “common plan” in this series of rapes. See United States v. Scott, 413 F.2d 932 (7th Cir. 1969), cert. denied, 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970).
It is well-settled that joinder is improper when the crimes alleged are merely similar in character, see, e. g., United States v. Roselli, 432 F.2d 879, 898 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); C. Wright, Federal Practice and Procedure: Criminal § 144 (Supp. 1975), but this case presents a series of rapes so similar in method that it cannot reasonably be said that they were simply separate criminal acts.1 Appellants were on a continuing predatory search for victims; rather than being seven separate acts, their rampage, conducted in the time span of slightly more than seven months with four of the rapes occurring in a two-week period, was a “series of acts” within the contemplation of Rule 8(b). Conspiracy need not be alleged for Rule 8(b) to apply. C. WRIGHT, supra at § 144.
Appellant alleges that he was prejudiced by being tried with a person who was indicted on seven counts of rape when appellant was only indicted on counts involving four women. The rule specifically provides, however, that “such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.” (Emphasis added.) Although there is always a certain amount of prejudice inherent in the joining of defendants,2 I do not find that there was substantial prejudice.3 Additionally, the trial judge informed the jury,
Notes
Furthermore, I believe there was no substantial prejudice on this record and, consequently, I see no reversible error.
To the extent appellant relies on Rule 8(a) to assert that the offenses were misjoined; we must reject his argument. As we have described in detail above, the seven incidents for which appellant Davis was indicted were quite similar in several respects, most particularly in the almost identical modus operandi. Since they were “of the same or similar character,” we conclude that the counts were properly joined against him under Rule 8(a).If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires.