*2 McGOWAN, Circuit Judge: These present consolidated appeals trou- blesome questions about the division of jurisdiction criminal between the federal and local courts District of Columbia. When alleged U.S.Code and D.C.Code viola- tions properly joined single in a indict- ment, the District Columbia Court Re- form and Criminal Act Procedure of 1970 permits all charged crimes to be tried to- gether in the United States District Court. case, however, this we decide that District Court lacked over the D.C. robbery offense in appellants’ indictment. We hold first count improperly joined was with the re- maining offenses of appellants that, accused. Alternatively, we hold even if the original it- woman was dragged District Court divested proper, approximately ten feet it go over that count when she let handbag. before of her bag self pretrial necklace, motion to sever appellants’ contained a granted topaz checkbook, identification, in order avoid the robbery charge pieces various a small eve- atmosphere single ning of a prejudicial purse belonging to Ms. possibly Nakamura’s mother, and a wallet belonging trial. to Law- *3 Gorman, rence friend. Among the the con- Accordingly, appellants’ reverse rob- we tents of the purse elder Ms. Nakamura’s Finding no infirmity conviction. bery lipstick were three of her pre- cases and a challenged by here the other convictions scription bottle belonging daughter. to her Jackson, portion we affirm that appellant Mr. Gorman’s wallet approxi- contained judgment District which re- Court’s mately in cash. $100 first jury’s appellants’ flects the verdict purse After the snatching, trial. Gorman Mr. the gold and Nakamuras chased the Chev- I rolet in their Although own car. the flee- ing managed car eventually to elude its appeals rise to giving The events these Mr. pursuers, Gorman and the Nakamuras near tavern in southwest Wash- occurred a able to obtain Chevrolet’s license morning April in the hours of ington early number, plate and to observe that its occu- A.M., women, At 1:45 two about men, pants whom, were two black one of Kirch, Kathy Tritt left the Pier Dari and driver, green was a wearing print shirt. restaurant and bar. Almost immedi- Nine proved unsuccessful, When chase ately, they by a gunpoint were accosted trio returned Pier to the Nine bar emerged just who from a late- man had police. called the gold parked the inter- model Chevrolet near V Streets. This individ- Upon receiving gold section Half and Chevrolet’s Jackson, ual, appellant Gorman, later identified as license number poliсe from Mr. the women to toward the the registration instructed walk checked and found attempt- Ms. Kirch owner Anacostia River. When car’s listed a home the 700 address in it,” Street, way ed to “talk out Jackson hit of 12th Approach- block Southeast. [her] ing squad car, her across the face with sufficient force to this Metropoli- location in his bleeding. to ground Spurlock knock her cause tan Police Lieutenant gold saw a to di- bearing The women walk in the a license proceeded Chevrolet number which their rection indicated assailant. Arriv- matched that obtained Mr. Gorman edge, they Streets, ing at water’s were ordered and Ms. Nakamura. At 12th I Southeast, comply car, disrobe. did not Lt. Spurlock stopped to When off quickly enough, ripped occupants, appellants their attacker and arrested its Jack- After had Appellant Ms. Kirch’s blouse. Ms. Kirch son and Johnson. Johnson was bra, removed Jackson’s attention wearing also her shirt like that Mr. described noise, was distracted and Ms. Kirch Gorman and the Nakamuras. The Chevro- able to wrest the sawed-off rifle from also custody. let was taken into A subse- fled, grasp. and the two wom- quent his Jackson search of the car revealed a sack of returned the Pier Nine bar and noti- en rifle ammunition of the same сaliber as the police. weapon fied which Ms. Kirch had taken from her assailant. discovered Also in the Chev- later, Nakamura, A short while Marliese handbag, rolet were Ms. Nakamura’s her mother, her and a male friend left the Pier bottle, prescription and her lip- mother’s Nine, nearby to their car. As walked stick. None of the remaining contents enter, car, they were about another purse were found. Chevrolet, man gold approached slowly. A arrest, passenger appellants’ police seat the Chevrolet Informed of grabbed brought out window Nine reached the car the Pier bar Dari Tritt and Nakamura, mother, purse. young her Marliese’s Ms. Nakamura and Gisela appel- offenses, Washington location where his appellant southeast Jackson was sen- been Ms. Tritt was apprehended. lants had tenced concurrent terms under the Youth identify appellant as the Act, unable to either 5010(b) (1970). Corrections 18 U.S.C. § forced her and Ms. Kirch ac- man who conviction, On the basis of his ap- However, him to the river bank. company pellant Johnson a prison was sentenced to Nakamura, relying Ms. primarily the elder term of twenty months to five years. pattern appellant John- on the color shirt, identify did Johnson as the driv- son’s II Appellants were еr of the Chevrolet. assignments Of numerous of er George Washington Universi- then taken us, pressed upon ror concerning those Kirch ty Hospital, gone where Ms. had the District Court’s over X-rays. recognize Ms. appel- Kirch did robbery count merit extended discussion. Johnson, identify lant but she appellant did matter, As a preliminary briefly dispose we *4 as her Jackson attacker. two other arguments of appel advanced May In a nine-count indictment filed on We police lants. believe first of all that the
22,1975, appellants
each
were
unquestionably
probable
had
cause to arrest
(26
of
possession
unregistered
an
firearm
appellants when
did. A gold Chevro
5861(d) (1970)); possession
U.S.C.
of a
§
let
prominently
reports
was mentioned
of
(26
firearm not identified
serial number
occurring
vicinity
two crimes
of the
5861(i)); robbery (22
U.S.C.
D.C.Code
§
Pier Nine bar. Appellants were observed
(1973));
assault with intent to com-
§
driving such a
general
vehicle near that
counts;
rape
(two
mit
while armed
22 D.C.
shortly
location
after the crimes were com
501, 3202);
Code
assault with intent
to
§§
Moreover,
mitted.
the license number of
counts;
(two
rape
commit
D.C.Code
appellants’ car
exactly
matched
the number
501):
dangerous weap-
and assault
awith
§
Chevrolet obtained from the
counts;
(two
on
22 D.C.Code §
victims of one of
crimes.
togeth
Taken
count,
exception
robbery
With
of
er, these circumstances surely constituted
charges against appellants
stemmed
probable cause for arrest.
involving
incident
Ms. Tritt and
Likewise, we are
persuaded by
not
consequence,
Ms. Kirch. As a
trial counsel
appellant Jackson’s contention
evi
appellants
for
sever
robbery
moved to
dence
insufficient to
count,
support his convic
alleging
improper
both
under
tion of assault
8,
with intent
to
prej-
rape
commit
Fed.R.Crim.P.
and the likelihood of
armed.
requisite
while
meaning
udice within the
of
intent need not
Fed.R.Crim.P.
proved by
evidence,
be
granted by
14. The motion was
the District
direct
may
but
be
Court,1
appellants
inferred from the totality
were tried on the
of the circum
remaining eight
presented
Here,
stances
jury.
counts
the indictment.
to the
trial,
At the conclusion of this
on November
evidence adduced
trial
tended
show
20, 1975, appellant
appellant
Johnson was
acquitted;
Jackson led Ms. Tritt and
appellant
pos-
Jackson was
gunpoint
convicted of
Ms. Kirch at
to a
spot
secluded
an unregistered
session of
firearm
two
River,
the bank of the Anacostia
and then
counts
assault
with intent
to commit
ordered them to
clothing.
remove their
rape
addition,
Apprоximately
while armed.
six
testimony indicated that Jackson
later, appellants
months
Dis-
impatiently
tried in
off
ripped
Ms. Kirch’s blouse
on the
trict Court
which had
she
when
failed to follow instructions swift
enough.
been severed. Both were
For
ly
facts,
convicted.
these
From
we believe
Subsequently,
judge
granted
1.
the district
disclosed
at a later
tion
date.
“[S]everance was
granted
“upon
finding
possible prejudice
that he had
the motion
to avoid
to the defendants
that a trial of this
. with
and assure a fair trial. The court did not find
eight
improper-
other
counts of the indictment
would
or believe the
to be
otherwise
Order,
prejudicial
ly joined.”
Order,
Opinion
the defendants.”
Decem-
Memorandum
explana-
judge
January
ber
1975. The
reiterated his
beyond
general
infer
of 1970 was
shift
jury
permissibly
could
possessed
Jackson
over D.C.Code offenses from the
doubt that
United
reasonable
Superior
States District Court to the
Court
necessary to sustain a conviction
intent
of the District of
purpose
no
Columbia.
charged. While
the offense
commentary on
be served
detailed
would
join
In order to determine whether
of a
by appellant
support
the cases cited
der of the
count with the rest of
we have examined those
contrary position,
case,
proper
the indictment was
in this
we
clearly distin-
and find them
precedents
8.2
multiple
look
Fed.R.Crim.P.
Where
case.
guishable
present
from the
involved,
8(b)
defendants are
Fed.R.Crim.P.
governs
join
both
of offenses and
Ill
certainly
der of defendants. This is
from the
apparent
substantial
of the Rule
We turn now
8(a)
namely,
itself. Rule
is entitled
presented by
appeals,
these
“Joinder of
issue
Offenses,”
8(b)
robbery convic
and Rule
is labelled
propriety
appellants’
“Joinder
outset,
Nevertheless,
we look to the lan
of Defendants.”
the weight
tion. At the
statute,
jurisdictional
authority
in this circuit and
guage of the relevant
elsewhere
502(3) (1970):
regards
providing
the sole
11 D.C.Code
stan
determining
permissibility
dard for
District Court for
United States
[T]he
joinder of offenses where more than one
has
the District
Columbia
See,
is involved.
g., Cupo
defendant
e.
[a]ny
any
offense under
law
States,
U.S.App.D.C.
United
exclusively
the District of
applicable
*5
(1966)
J.),
(Edgerton,
denied,
F.2d 990
cert.
joined
which offense is
in the
Columbia
1013,
723,
385 U.S.
87 S.Ct.
It
can
character-
in cases
propriety
that
ization of the assault
multiple
where there
parts
different
“the same
series
acts
8(b)
be tested
Rule
alone
must
or transactions”.4
8(a)
may
Rule
has no
It
application.
that
King, supra,
Judge
Chief
es-
Aldrich
well be doubted if this was
intention
poused adoption of pragmatic approach
quite possible
the draftsmen.
It
determining
multiple
may
when
offenses
be
contemplated
that
single
subsumed in a
“series
acts
8(b)
if Rule
proper
defendants would be
transactions.”
8(a)
Rule
satisfied
would
of offenses
[Joinder
under]
determining
looked to in
what
then be
proof
not limited
situations in which
might
be
the de-
other
criminal transaction would be
would
con-
fendants so named. This
goes
admissible in a
It
trial.
pattern
with the
of the Civil Rule
sistent
beyond,
others,
being
the excuse
generally to
the draftsmen seem
benefit
courts.
[T]his
have taken as their model.
possibility of benefit should explicitly ap-
Practice
Wright,
1 C.
Federal
and Proce-
pear from
indictment or from other
dure,
(1969) (footnotes
at 318-19
representations by
government
be-
omitted.)
examples
fore trial. Classic
of such a
*6
then,
8(b) gov
Rule
Assuming,
that
benefit are when there is an overlapping
issues,
erns,
robbery
as,
the
example,
count could
for
when some
count,
dissimilarity
robbery
emphasize
against appellants.
the
was
4.
between the
entered
We
appel-
purse snatching
incidents
formed the basis for
two
The victims of the
were
the
jury
Moreover,
original
that
lants’
indictment. The
found
same
attacked
women
earlier.
the
accompanied
by
and
Ms. Kirch
Ms. Tritt was
the assault
Nakamuras were
a male
rape.
Finally,
intent
No
motivated
an
evidence
friend.
a search of the record discloses
appellant
presented
appellant
partici-
Jack-
at trial indicated that
that
no evidence
Johnson
sought
pated
any way
Kirch
to rob either woman. Ms.
son
in
in
with
the encounter
Ms.
persuade
testify
that she tried to
Jackson to
testified
and
Tritt
Ms. Kirch. Ms. Kirch did
that
companion
her and her
alone.
In re-
appellant
leave
she saw the man later identified as
sponse,
emerge
Jackson did not
the
parked
demand
women’s
Jackson
from a
Chevrolet
money,
they proceed
but
insisted that
instead
the
near
Pier Nine bar. She further
testified
Indeed,
direction of the river.
the
in the
person sitting
she
“the
that
saw
form of a
in
vigorously argued
government
in
brief
However,
has
its
the driver’s seat” of that car.
neither
effectively
that the events as recounted at trial
Ms. Kirch nor Ms. Tritt
able
was
to see the face
preclude
possibility
the
that
and not
individual,
certainly
the
latter
and
neither
rape was the motive for the attack on Ms.
appellant
woman identified
as the
Johnson
Appellee
and
See Brief for
at
Kirch
Ms. Tritt.
acquit-
driver of the Chevrolet.
Johnson was
15b, 27.
charges
appellants’
ted of all
in
first trial. This
contrast,
clearly
court has no basis in the record
it
By
gain
before
for
the
financial
assuming
implicated
purpose
purse snatching.
Johnson was
in
that
the later
sole
for
and,
rape,
proof
moving
accomplished
assault with intent to
from the
crime was
That
record,
prosecution
involved,
weapons
adduced
that
were
and
automobile. No
little,
government
fact,
appear
of force was
would
have had
if
the barest minimum
occurred,
any,
most,
assuming so
assault
basis for
at
the time the
At
technical
used.
assault,
independent
no
indictment was
and
returned.
charged
transporting
Secondly,
are
with
F.2d
defendants
Government
maintained
“the
charged
in interstate commerce and
crimes
are
goods
stolen
so
that it
impossible
interrelated
would be
charged
receiving
with
others are
adequately prove one
incidentally
without
when
transported,
so stоlen and
goods,
proving the
Opposition
other.”
to Defend-
charged
conspiracy
are
with
ants’ Motion for Severance at 4.
part of their num-
to conceal a crime that
committing.
ber
prongs
Both
of the
position
Government’s
Where, however,
presump-
there are no
expounded
in thoroughly eonclusory
joint proof of facts
tive benefits from
point
terms.5 At no
did the Government
transactions,
to all the acts or
relevant
facts,
indicate what
apart from defendants’
“series,”
Rule
comes to an
there is no
presence
approximate
at the
time
place
and
end,
impermissible.
crimes,
of the two
would be amenable to
joint proof. Under the First Circuit’s test
(footnote
citations
F.2d
King,
very
limited benefits to be
omitted).
derived in this case
opportunity
from the
case,
on
in this
appeal
In its brief
present
joint proof might well be thought
scant attention to the
devotes
Government
to be insufficient to counterbalance the risk
appellants.
joinder point
raised
improper
prejudice
by joinder
created
of the as-
brief,
IV,
section of the
Part
The relevant
the robbery.
sault and
page,
than one
occupies little more
hand,
On the other
the Commentary to
capsule
solely
summary
consists
of a
ABA
Standаrds on Joinder and Sever-
facts,
8(b),
reproduction
a'
reports
ance
permit
common to
“[i]t
pro-
that the
assertion
“circumstances
bare
joinder of offenses
at approxi-
committed
adequate grounds
join-
for
vide more than
mately
place.”
the same time
Ap-
Appellee
Brief for
at 35.
der.”
proved
Project
Draft of ABA
on Minimum
opposition
In its
to defendants’ motion
for
Standards
Criminal Justice at 12. Un-
court,
severance in the trial
Govern-
fortunately
purposes,
for our
this statement
greater
ment did discuss the matter in
de-
cannot be taken at face value. As exam-
States,
Drew v.
Relying
tail.
United
rule,
ples
general
the ABA Commen-
(1964),
A
the nature of
primary
distinc-
tion between
Commentary
(a)
(b)
is that it focuses on
subdivisions
the ABA
dis-
cussed in
preceding paragraph,
8(a),
8(b).
specula-
than
language
of Rule
rather
tion
8(b)’s
has arisen that Rule
phrase, “the
involved,
only
single
defendant
Where
same
transactions,”
series of acts or
may be
8(a)
Rule
would allow
essentially coterminous with
wording
are
employed in the last portion
8(a),
of Rule
or similar character or are
of the same
“two or more acts or transactions connected
or
based on the same act
transaction or
together
constituting parts
or
of a common
two more acts or transactions con-
or
scheme
plan.”
or
Professor Wright has
constituting
or
together
parts
nected
of a
argument
stated the
cogently:
plan.
common scheme or
8(b)
Rule
does not define what is meant
major
The
distinction between subdivisions
by “the same series of acts or transac-
(a)
(b)
lies in their treatment of of-
tions.”
It
is a
meaningful phrase
less
fenses “of the same or similar character.”
8(a)
than is used in Rule
where the
concerned,
long
As
one defendant is
phrase is “two or more acts or transac-
offenses,
8(a) permits joinder of such
Rule
tions connected together or constituting
they
entirely
even if
unrelated to each
parts of a common
plan.”
scheme or
Re-
hand,
the other
in the multiple
other. On
dictionary
sort to the
permit
would
any
context,
8(b)
join-
Rule
defendant
forbids
set of acts to
regarded
“series,”
as a
der,
crimes,
even of identical
unless those
done,
but if this were
the purported limi-
part
crimes are
of “the same series of acts
imposed
8(b)
tation
Rule
would be
As
or transactions.”
this court has ex-
meaningless. One possibility would be to
plained,
read “series” in Rule
as if it meant
When similar but unrelated offenses are
the kind of relation more specifically de-
defendant,
jointly charged
single
to a
8(a).
scribed in Rule
Thus if acts were
results,
prejudice
necessarily
part
some
almost
of a common scheme
plan,
or
together,
connected
and the same is true when several de-
could be regard-
ed as a series. Such a
jointly charged
single
reading
fendants are
with a
would not
be inconsistent with the results
8(a)
offense or related offenses. Rule
reached
in the cases.7
permits
prejudice
the first sort of
8(b) the
second. But the Rules do
1 Wright,
C.
Federal Practice and Proce-
permit
prejudice by
cumulation of
dure,
(1969).
at 322
See also 8
charging several dеfendants with similar
8-24;
Moore’s Federal
1806[1],
Practice
but unrelated offenses.
8.06[2],
Id.
(2d
at 8-37
ed.
H
Cupo, supra
(footnote omitted).
Unhappily,
at 993
resort to the
In-
of Rule
8(a),
compatible
even if
deed,
precedent
differentiating
courts
between
subdi-
intent,
the draftsmen’s
brings us no
(a)
(b)
closer
invariably
visions
almost
do so in
to resolution of the controversy before us.
response
prosecutorial
attempts to indict
For the fundamental question remains: Are
together
two or more defendants
for simi-
crimes
committed
persons
same
lar,
unrelated,
See,
g.,
crimes.
e.
but
Unit-
around the
place
same
and around the same
Whitehead,
(4th
ed
v.
797
See,
v.
g., Haggard
e.
Unit
between the assault
joinder.
initial
and the robbery of
(8th
1966),
appellants
cert. which
States,
join-
F.2d 968
Cir.
accused. While
ed
369
single
der in a
well
1023,
1379,
may
indictment
have
18
denied,
87 S.Ct.
386 U.S.
appropriate
ordinary judi-
been
under the
(1967); and
States
461
United
L.Ed.2d
Rule,
construction of
governing
cial
one
Cir.), cert.
Friedman,
(9th
F.2d 1076
point
further
remains
regarding
to be made
958,
326, 30
denied,
92 S.Ct.
404 U.S.
peculiar
role of
joinder
issue in this
(1971). The
for this
rationale
L.Ed.2d
Typically,
invoked,
case.
when Rule 8 is
First,
is twofold.
canon of construction
problem
the court’s
is whether or not
mandatory.
not
Ini
permissive,
Rule 8 is
practical
terms,
In
to sever.10
the court
joinder
legitimate under the
may
tial
be
whether
must decide
one trial
to conduct
or
Rule,
court
nevertheless
may
the trial
but
two.
grant
severance of some
at a later
a
counts
Here, however,
joinder
resolution of the
avoid
prejudice
time in order to
to
jurisdictional
issue has
significance.
If the
(or
Government).
See Fed.R.
defendant
count was
properly
not
to
joinder
in an
Crim.P. 14.8
of offenses
Since
indictment,
rest
the District
represent
not
an irreversi
indictment does
free
Court was not
it
try
separately.
to
joint
of those of
ble commitment
trial
Rather,
the District Court would have
fenses,
convеntional wisdom has favored
jurisdiction
lacked
to try it at all. When
Moreover,
of Rule 8.9
de
reading
liberal
applied
jurisdictional
Rule 8 is thus
pur-
for
prefer
may actually
joinder
fendants
poses, the
counselling
considerations
liberal
instances;
some
in order to avoid the incon
construction of the
longer
Rule no
seem
trials
expense
venience and
successive
compelling.
Congress
Since
has determined
potential
imposition
and minimize the
generally
that D.C. offenses should
be tried
sentences,
may prefer,
of consecutive
courts, the joinder provisions
in the D.C.
seems
possibility
prejudice
where the
uphold
Rule 8 should not be strained to
slight,
simultaneously
to be tried
federal
over local crimes. We
ABA
charges pending against
them. See
that,
here,
on the
presented
join-
hold
facts
Commentary, supra, at 11.
der of the
count with the other
sum,
joinder of
in this
offenses
charges against appellants
improper,
question
case
close
presents
exceedingly
an
and therefore conferred
the District
The Government has neither
under Rule 8.
alleged
Court no
over the
D.C.
alleged
logical
nor
link
offense of
any
robbery.
demonstrated
Code
virtually
persuaded
And a denial of
8.
of the virtues of Rule
relief rests in the
Those
might
expressed
contend that
concerns
well
unreviewable discretion of the trial court.
Thus,
Judge
King, supra,
prosecutor’s
Aldrich in
are more
Chief
initial manner of fram-
appropriate
to sever
ing
likely
way
for resolution of a motion
the indictment is
to be the
application of
14 than for the initial
go
under Rule
which defendants
trial.
8.02[1],
(2d
Rule 8.
8 Moore’s Federal Practice
at 8-4
Í]
(footnote
1976)
omitted).
ed.
commentator, questioning the
9. At least one
Part of the confusion in the area stems
practical protection
Rule
has
afforded
“severance,”
single term,
misgivings
tendency
of a
the use
to de-
about the
voiced
courts’
approve
freely
joinder
relief
under Rule 8:
scribe the
available under Rule 8 and
14. See 8
Federal
Rule
Moore’s
Practice
may
said
a built-in
Rule 8
be
to contain
12;
8.02[1],
8.04[1],
at 8-4 n.
Id.
at 8-12
prejudice,
simply
standard of
means
H
1976). This,
(2d
despite
-13
ed.
the fact
any
joinder
permitted
form of
may
required
g.,
be
a matter of
severance
law
of the Rule—e.
of unrelated
terms
under Rule whereas under Rule 14 it is
several
con-
defendants —is
prejudicial.
remedy
clusively presumed
This leaves a
within the
of the trial
discretion
court.
event,
protection
misjoinder
large
outside the
of the Rule.
area
In either
under Rule
prejudicial
practical
in which
Rule 14
The area is one
relief under
under Rule
available,
availability
indictment,
to be
consequence
but such
tends
is not dismissal of the
than
ex-
theoretical
real. The usual
simply
more
pression
but
trial for the severed
See,
when a court
faced with a claim
(or
defendants).
g.,
the severed
e.
“persons
prejudice
under
14 is
Haggard, supra.
jointly
together.”
indicted should
tried
*9
tion of the District
jurisdiction
IV
Court’s
And,
arose.
as this court
in Shep-
declared
Alternatively, we assume that initial
ard, “Once the District Court swears in the
proper
count was
robbery
of the
jury, jeopardy attaches as to all counts in
8(b),
then address the Dis
under
indictment,
the
both federal and local.”
jurisdiction
over
trict Court’s retention
This court’s sustenance of District Court
pursuant
severance
robbery
count after
then,
jurisdiction
Shepard,
does not dic-
connection,
In this
the first
to Rule 14.
tate a
result
similar
in connection with the
made is that United States v.
point to be
robbery offense
issue
here.
U.S.App.D.C
515 F.2d
Shepard,
controlling.
Shepard,
is not
In
(1975),
Shepard,
In
the Government conceded
simultaneously for fed
was tried
defendant
that “the dismissal of
charges
all federal
offenses which derived from
eral and D.C.
prior
require
to trial would
the dismissal of
circumstances. At
the same factual
the remainder of the indictment as well.”
evidence,
submitting
before
but
close
799 Indeed, 402-05, the is claim. 397 F.2d at 1329. U.S. at 90 S.Ct. 1207. imply But that alone does not unequivocal. After a brief review of decision, the Rosado that the Congressional intent federal concludes, the Government “If 11 D.C.Code jurisdiction purely over should retain 502(3) courts compel does not § the trial court to disposition irrespective jurisdiction D.C. retain the [over count] charges joinder origi- whose the federal circumstances, of in these the pen- doctrine of jurisdiction over the local nally conferred jurisdiction dent clearly allows it.” Brief quali- the lack of contrary, crimes. On for Appellee at 39. 502(3) suggests Congress,
fication
§
extrapolation
This
from
ques-
Rosado is
of Columbia Court
framing
the District
tionable for at least
First,
two reasons.
Act, simply
Reform and Criminal Procedure
matter,
general
importation
wholesale
of
consciously
confront
the sort of
did
civil
concepts
law
into the
sphere
criminal
presented here. A search of the
problem
practice fraught
with danger. While
House, Senate, and Conference Committee
recognizing that “the doctrine
pendent
yielded
the Act
Reports accompanying
has
jurisdiction has only
applied
been
in civil
the lone comment
nothing more than
al-
cases and thus is not directly relevant in the
ready
Shepard
uncovered
court:
criminal
presently
us,”
context
before
jurisdiction
overlapping of
will in-
Some
Shepard panel did indicate that the pendent
remain,
evitably
being only
a minor
jurisdiction analogy might prove useful in
percentage
primarily arising
of cases
the interpretation
502(3).
of §
515 F.2d at
person
when the same
is accused of in-
However,
1330-31.
analogy
this
must be
fractions which are both Federal and
applied
great
with
care. As Professor
(and
purely local violations
in those cases
Moore has commented in connection with
Attorney
the United States
will handle
8,
“The civil model
...
is often
charges
procedural
with minimal
diffi-
inappropriate in criminal procedure, and no
culties).
subject
join-
illustrates this fact better than
H.R.Rep.No.91-907,
Cong.,
91st
2d
Sess.
der.” 8 Moore’s Federal Practice 118.02[1],
course,
(1970).
controversy,
This
belies
(2d
at 8-3
Efficiency
ed.
con-
—“the
of the House
optimism
Committee’s
judicial
servation
energy
and the avoid-
short,
legisla-
remark.
In
parenthetical
ance multiplicity
of litigation” may be
—
and,
history
unhelpful,
anything,
if
tive
pursued
single-minded
devotion in the
ascription
cuts
the Government’s
rules and
procedure, but,
doctrines of civil
significance
unqualified
substantial
side,
on the criminal
solicitude for efficient
502(3).
language of judicial
give
administration must sometimes
To bolster its case in
favor of
District way
protect
to the need to
rights
jurisdiction
Court’s retention of
over the
defendants.
herein,
severed
the Govern-
Secondly, and completely apart
from
ment has turned to the civil law doctrine of
broad
concerning
doubts
the transferability
jurisdiction.
pendent
particular,
concepts
arena,
of civil law
criminal
support
Government seeks to draw
the facts in Rosado made the notion of
Wyman,
Rosado v.
397 U.S.
90 S.Ct.
pendent
much more appealing
(1970). There,
plain-
L.Ed.2d
there than it is here. Justice
opin-
Harlan’s
tiffs attacked the New York Social Services
ion for the
called
Court
attention to the two
the Equal
Law as violative of
Protection
primary factors affecting the discretionary
Clause of
Fourteenth Amendment.
pendent jurisdiction:
exercise of
“the ex-
Plaintiffs also asserted that
the same state
judicial
tent of the investment of
energy
incompatible
statute was
with the federal
[pеndent]
and the character of the
claim.”
Security
Supreme
Act. The
Court
Social
jurisdiction analogy, Rosado offers little or provided in an enlarged strengthened encouragement no Government’s at- local court system. The authority con- concept reliance on the in this tempted case. by 502(3) ferred 11 D.C.Code should not § by be extended prosecutor either judge recapitulate, Shepard, To neither nor the beyond precise its limits. Upon either of 502(3), nor the doctrine of § grounds the two opinion, articulated in this jurisdiction, provides convincing pendent we find the District Court to have been support for the District Court’s retention of jurisdiction lacking in with respect jurisdiction over herein. robbery. unpersuasive light strong in of the Likewise Appellants’ robbery conviction is there- favoring Congressional policy trial of D.C. fore reversed. The remaining convictions in the D.C. courts are the various appellant Jackson are affirmed. which, spectres the Government and the warn, judicial will District Court haunt the MacKINNON, Judge, Circuit concurring triggers process lapse if severance of fed- part dissenting in in part: eral here: inevitable delay aris- join I the majority’s disposition, in Part reindict, ing possible from the need to reliti- opinion, II of its probable issues of gation preliminary already issues once appellants’ cause for arrest sufficiency courts, resolved the federal and inhibi- of the evidence support appellant to Jack- tion of the trial court’s decision on whether son’s conviction of assault with intent grant preju- severance order to avoid rape, disagree but with its conclusions re- dice. garding the district court’s over Finally, perhaps most importantly, the robbery count. the District Court should juris- not retain I diction after severance here because of the a nine-count indictment returned relationship close between Rules 8 and 14. grand jury the United States District (see explained As earlier notes 8 and 9 and Columbia, Court for the District of appel- supra), text accompanying liberal lants were with the following: generally permitted under Rule 8 because (1) unregistered Possession of an firearm trial courts know can take refuge in 5861(d) in violation of 26 U.S.C. upon showing joint § Rule 14 that a trial (1970). may prejudice defendant(s). Since sever- misjoinder ance for under Rule unques- (2) Possession of a firearm not identified tionably leaves the District Court without serial number in violation of 26 jurisdiction over the (where 5861(i) (1970). severed counts U.S.C. § allege those purely offenses), local ,(3) (6) dangerous Assault with a weapon since, prevailing practice, under sever- carnally with intent (rape) know pursuаnt ance 14 is frequently a Kathy M. Kirch Dari R. Tritt in for severance substitute under Rule 22-501, violation D.C. Code §§ District Court’s reliance here on Rule 14 (1973) (2 counts). -3202 (7) carnally exactly with intent was committed at the same (4), place Assault M. Kirch and (rape) Kathy
know where the first offenses began. The de- Tritt in violation of D.C. Dari R. fendants used the same Chevrolet car (1973) (2 counts). 22-501 Code § a staging ground for both offenses. The (8) Kathy M. Kirch and (5), Assault of offenses were similar in that they both in- dangerous Tritt with a
Dari M. volved forcible assaults women and in violation of D.C. Code weapon grand jury alleged that the same two (1973) (2 counts). 22-502 jointly committed nine al- violence and (9) By leged force and offenses. fear, by putting resistance and opinion The court’s states that *12 stealing snatching purse normally offenses under Fed.R.Crim.P. 8 is T. its contents from Marliese Naka- that this broadly, construed in case it mura, in violation of D.C. Code concludes, presents question. a “close” It (1973). 22-2901 § however, jurisdiction that because the defendants Jackson and Johnson were
Both depends pro- District Court on the U.S. charged together as defendants in all nine joinder, priety of the rules on Court, however, The District counts. narrowly should be read more out of defer- to sever the granted defendants’ motions Congress ence to the claimed intent of charging steаling by force Count Ninth have D.C. offenses tried in the D.C. courts. violence. my give In view we should Rule 8 the jury acquitted trial the John- In the first reading given that it is normal all other guilty all counts but found Jackson son on instances, and we should not overlook the firearms violations and of of the federal intent of clearly expressed Congress that with intent to commit two counts of assault may when federal and D.C. offenses proper- firearm, illegal armed with the rape while ly joined neither the defendants nor the rifle.” “sawed-off subjected Government should be separate first trial of the federal and After the trials in the United States and D.C. courts. eight in the first charged D.C offenses This is an important case because of the counts, the trial court ruled it had large number of criminal cases we have remaining robbery jurisdiction try where the offenses violate both federal and count, jury In the single D.C. offense. D.C. statutes. appellants both were trial followed principal The guilty charged. as found II whether, appeal question presented Federal Rules of Criminal Proce- under the join my opinion, proper it was Congress and the statutes enacted dure robbery D.C. offense with the federal and of crimes committed in the for the trial (1973) D.C offenses. D.C. Code 11-502 § Columbia, the District of federal crimes and provides: arising charges out of the earlier D.C. jurisdiction In addition to its as a Unit- properly joined in one indict- assaults were any ed district court and States other robbery with the successive crime of ment law, jurisdiction conferred on it by force and violence. One subordinate is- United States District Court for the Dis- the two defendants can is whether sue trict of Columbia has of the joined in all the offenses properly be following: validity The trial charged. of- in the District Court of the D.C. U.S. violence de- robbery by force and
fense (3) Any any applica- offense under law upon foregoing the answers to the pends exclusively ble to the District of Colum- questions. joined bia which offense is in the same any Fed- about 10 information or indictment with was committed the first offenses ceased. It eral offense. after minutes 802 91-358, 111, 29, 1970, stituting parts Pub.L. of a common July § scheme or
Act of ” added). The lan- (emphasis Maj. plan.’ op. 477 84 Stat. ----of' 183 unequivocal. F.2d, this statute is See guage U.S.App.D.C., quoting at 796 of U.S.App.D.C. Shepard, & Wright, United States 1 C. Federal Practice Proce- 1324, (1975). 358, It 515 F.2d (1969) citing dure at 332 J. on the United States Moore, 8-24, confers Federal Practice 18.06[1] against the District of crimes District Court (2d at 8-37 ed. Whichever 8.06[2] H “joined they are when of Columbia preferred, contrary to the ma- any with feder- indictment here, same jority opinion I concludе that the D.C. added). The court’s (emphasis al offense” properly joined offense was “joined” the term opinion asserts the other federal and D.C. counts. 11-502(3) “properly means section First, (a) take subsection Rule. (Maj. op. at-of Fed.R.Crim.P.” under Are the acts involved in the crime of rob- of 562 F.2d. I U.S.App.D.C., at 793 violence, bery by force and properly must be agree. The offenses 9, “parts of common scheme and [the] they were. joined. I believe plan” alleged in counts 1 to 8 of the indict- properly joined To determine if eight ment? Six of the first to Fed.R.Crim.P. reference requires began assaults women which outside *13 joinder relates to of offenses the Pier 9 restaurant. Initially the occu- provides: This rule defendants. lay in in the pants wait car and then drove may or more offenses be (a) Two they around the area until reached an ad- indictment . charged in the same vantageous location from which in- their charged . . . are offenses if the (Tr. tended victims could be accosted acts or on . two or more based 376). obviously permitted This them to together constitu- connected transactions conceal the sawed-off rifle from their in- plan. ting parts of a common scheme tended victims until they reasonably may be (b) Two or more defendants Then, clоse to them. emerged Jackson charged in the same indictment gold from the brandishing Chevrolet a 23- alleged participated to have if rifle, inch sawed-off the possession of which of acts or in the same series is the basis for the two other counts. So all ... of- constituting transactions eight clearly of these offenses were related. fenses. emerged When Jackson from the passenger obvious, side of the car it became particu- added.) majority The has diffi- (Emphasis larly when the facts in connection with the fitting the offenses and defendants culty considered, robbery are that another person also language here within the of Rule was in the driver’s seat. disengaging the offenses difficulty has exposition from that Rule. Its of the case eight Four of the first charge an view, done, but, my law is well in the ma- carnally “intent know” the female vic- correctly apply discern or jority does not tim; (5 8) allege but two counts do not present the relevant facts of the case. rape only charge an intent simple weight dangerous assaults with a majority agrees weapon. The These obviously of the latter two counts refer authority, despite the facial rule, against one initial of offenses assaults were committed outside 8(a), governed by while the Pier 9 restaurаnt defendant which Jackson hit against face, nose, Ms. Kirch in eye controls knock- concedes, however, ing It her to the multiple ground defendants. with her nose bleed- (the 8(b)’s phrase, (Tr. 87). same series of ing that “Rule Thereafter the victims were essentially go co- forced to transactions,’ may be short distance to the river acts or in the employed bank where Jackson’s sexual wording with the motivation terminous 8(a), of Rule ‘two or more acts first itself. portion last manifested At river bank together connected or con- one of the or transactions intended victims kicked Jackson proved shins, rifle violence wrested sawed-off the evidence at trial he ran from river toward principally was moving from him that of a drag- car (Tr. ging Pier 9 a female victim held the arm of one of the against the car’s side. space of about 10 Then, the short within every That is bit as much force as that used 304, 376) from he Tr. the time (cf. minutes in the other assaults and there is nothing bank, while was river Johnson ran “technical” about it. The force was actual. Chevrolet, majority as the driving As for the assertion that no assault states, the car opinion count, “independent was en- slowly. A man approached [Jackson] against appellants,” tered no independent seat Chevrolet passenger count was necessary assault was ade- —the grabbed the car window and out reached quately charged in connection with the rob- purse. and her Ms. Nakamura bery, and that clearly encompassed a dragged approximate- young woman simple (D.C.Code unlawful assault 22- § go she let of her hand- ly feet before ten 504) as a lesser included offense. The use bag. the car in connection with the assault - Maj. U.S.App.D.C., op. also, would in my opinion, embrace the of- sped 562 F.2d. The Chevrolet then fense of dangerous assault with a weapon away driving. Jackson and with Johnson (D.C.Code 22-502). shortly were arrested thereafter Johnson Robbery by force and violence and in front of of their one gold Chevrolet resistance was in the in- with 55 rounds of ammuni- homes. A sock dictment. Assault is an essential the sawed-off rifle was found element tion that fit of the offense robbery. the car “Some seat of between the violence the front (both or intimidation of which involve passenger seats. an driver and the assault) must used in the taking, or it is these It facts show is submitted merely Miller, larceny.” J. Criminal Law to use *14 plan and the Chev- common scheme (1934), 393 and cases cited at n. 14. A staging platform wantonly to rolet as a robbery is a aggravated assault, form of with force and violence as assault women and no valid distinction can be drawn be- Pier 9 from the restaurant. they emerged tween this alleged “assault” and that in six the sawed-off was not The reason rifle the other of counts. that in used the assault resulted the in Kirch it was because Ms. had taken robbery recognizes When one that the robbery he Jackson —but carried on as away from and six of eight remaining the counts did by grabbing without the rifle best he could involve originating assaults on women from with “force and violence and Ms. Nakamura restaurant, the Chevrolet at the Pier 9 resistance,” against plan- the common scheme and lie in wait —to in the Chevrolet and make wanton assaults attempts majority opinion to differ- The majority opin- on women —is obvious. The that occurred in connec- entiate the assault recognizes Commentary to ion that the from robbery tion the other as- with ABA and Standards on Joinder Severance asserting: “At most a technical saults permit joinder that is common to occurred, assault, state “[i]t and no of assault approximately of count, offenses committed was en- of independent Maj. time place.” op. same Maj. at-of against appellants.” op. at- tered U.S.App.D.C., at 795 of 562 4 U.S.App.D.C., n. 183 at 794 n. 4 of 183 F.2d. of However, majority offense, considers that it 562 is F.2d. The indictment, being apply minimized into unable to that rule here because cannot be it it is alleged technical assault.” It states “confronted dissimilar merely “a apparently Maj. crimes.” op. and Jackson used “force and unconnected that Johnson U.S.App.D.C., at--of at 795 . . . resistance 183 of violence [re- F.2d, However, original). 562 in (emphasis in fear sulting putting in] [the victims] 9). when note is (Count And “force and taken that . .” 804 But “assault,” majority App.D.C., having ad- at 794 of 562 F.2d. as the
basically an correctly question, majority stated the used the Chevrolet Jackson mits, that erroneously both the answer and overstates assault to all the approach his to mask of applies the rule to the facts this case. alleged to be was victims, Johnson claim that throughout, upon car The that majority relies decisions driver completely dis- “dissimilar” have that the term “series” in suggested are offenses 8(b) contemplates similar in that all the context of Rule some- They are appears. began thing temporal mere spa- and all on women assaults “[more than] forcible example, King tial For v. proximity.” the Pier 9 restaurant the Chevrolet from (1st States, F.2d United Cir. driving and assault- Jackson with Johnson 1966), The First Circuit stated that prop- were therefore These ing.1 no presump- . . . there are “[w]here erly joined. joint prоof tive benefits from facts rele- vant to or all the acts transactions there Ill ” meaning no ‘series’ within the of Rule the stan- majority intimates 8(b). Similarly, the Seventh Circuit difficult to 8(b) may more of Rule dards Isaacs, F.2d United v. States 8(b), 8(a). of Rule those satisfy than joinder (7th 1974), permitted Cir. of dissimi- the for- however, on its face from differs against multiple lar counts not permit it does only in that mer where evidence establish the “[t]he “similar” acts. See United solely on based pertinent proof question Roselli, (9th Cir. 432 F.2d States other counts.” Rather, joinder 8(b) depends under decisions, however, A closer look at these charged in showing that the offense a require reveals that these courts do series grew out “the same the indictment absolutely proba- the facts in count be each . constituting . . offenses.” acts Rather, they simply tive of the other. re- acts re- the same “series” of does What a quire logical sufficient connection be- is defined A “series” as: quire? tween the added the counts conve- three or more group poten- nience their offsets standing succeeding or in order events prejudice tial to the defendants. “Rule each having relationship like proof in which is not limited to situations temporal spatial or succession other: the other transaction would criminal bе ad- things persons goes beyond, missible trial. It in a Diction Third New International Webster’s others, being the excuse benefit *15 (emphasis added). The ma (1963) ary 2073 355 F.2d King, supra, the court.” at 704. recognizes 8(b) presents that Rule jority joinder based “a permits thus on tempo . mere . whether “question dependent many series of occurrences charac spatial proximity justify can ral and much immediateness upon so of their as robbery logical the assault and upon their relation- terization connection as Isaacs, 1159, ‘the acts F.2d at parts ship.” supra, quot- same series of 493 different ing Maj. op. Exchange, 183 Moore v. New York Cotton at- U.S. theory standby son’s as the driver of he obvious which the role car 1. This is the joined planned to have if in the indictment and there Jackson had available counts were escape necessary support joinder. ap- would have such became been sufficient facts were parent jury have propriety and could led to his in the indictment The try an aider and abettor to the first of the court’s conviction as determinative eight jury have The could found that therein and the fact that John- counts. counts all trial, very son, separate subsequently ac- Johnson outset used car to was in a eight rifle. conceal sawed-off The cаses quitted the first counts is not control- the 23-inch jointly, preju- ling. charges thus have been severed. The should not Had all the been tried concerning facts they charged, dice discerned from the of count the facts that was were certainty placed 9 Johnson also been before the was the aided would have eight type meaningful light and that jury evi- abetted the first in more with the eight prejudice justify John- does not severance. the first counts. Then dence on 610, 367, 371, 70 L.Ed. took away S.Ct. the rifle 270 U.S. Jackson. Accord, added). Unit (1926) (emphasis The ammunition on the front seat 922, 925 Laca, (5th 499 F.2d Cir. v. ed States also links the car to the first eight Gill, v. 490 F.2d 1974); United States offenses and there is no doubt about 1973); United (7th Cir. States 238-39 relationship its to the robbery. (7th Daddano, F.2d Cir. events, Not do closely these connect- of events 1970); (“even if each set Hobbs [a ed in time and place, fit within the diction- subsequent perjurious Act violation “series,” ary meaning of the word but the jury] be deemed a grand to a statement facts surrounding proba- each offense were transaction, we think the relation tive of particular, the other offenses. may be enough close ship is interrelationship of all of the facts al- 8(b)”). under Rule a ‘series’ deemed leged prove in the indictment tends to case, present events in the far from The identity and еxtent of ap- involvement of “dissimilar,” majority as the charac- being Johnson, pellant whose participation was them, striking in their similari- terizes apparently limited to driving the car that ties: figured centrally in each event. The car (1) began offenses all at the same These not only during driven the commission place —outside Pier Nine Restau- of the robbery, conveyed but also Jackson rant. to the scene when he made his first assaults (2) The same automobile was used in con- attempted led to the rapes. Jackson with both offenses. nection got “passenger out of the car from the side” (3) The followed assaults (Tr. 304-05, to accost Ms. Kirch Tritt ten minutes of their termina- within 364). The testimony of Ms. Nakamura tion. prove tended to that Johnson was in fact (4) principals were involved. same the driver Being car at that time. (5) involved victims Both offenses similar permitted the car had Jackson to conceal just
—women who had left the Pier the sawed-off rifle with which Jackson Nine restaurant. part threatened the women and this in ex- offenses, Federal (6) except All the two plains presence both the of the weapon and offenses, firearms involved assaults complicity Johnson’s in the firearms and the firearm was used in some of subsequent violations. The factual infer- through the assaults. Counts 3 8 al- ence is obvious that Johnson was the driver assaults, leged four with intent and waited in the car for Jackson because rape, dangerous two with a following (cf. the short fifteen minutes Tr. weapon and the ninth count 304, 376) between the time Jackson first stealing snatching “by seizure and assaulted Ms. Kirch and Tritt and the time and violence and resist- force he had returned from the river bank and putting in fear.” ance and assaulted Ms. robbery, Nakamura in the (7) It is a reasonable conclusion from all Johnson turned out to be the during driver facts that offenses involved robbery. The facts of the series of
some coordinated activities each closely crimes are thus interrelated and the *16 Johnson drove the car defendant. prosecution thus would have benefited assaulted the women. and Jackson greatly joint proof “from of facts relevant part of the to all the acts or transactions . . . .” (8) It was also common plan scheme and that Jackson and F.2d at and the events should be keep meaning Johnson would Chevro- considered a “series” within the get-away 8(b), ready by King let and available as a even as construed readily probably ammunition court. Johnson owes acquittal car with extra his they available for the rifle in case on all counts at the first trial tо the trial This facet of the court’s decision to sever the needed it. latter when Kirch from the others for trial. plan was frustrated Ms. Superior fer of D.C. counts to Court similarities these factual my opinion,
In link from federal counts en- logical probative whenever severed a sufficient form the in- This further nul- courages which such severance. activities between directing intent in properly congressional lifies the that was based dictment the result joint series of acts trials. Such should be the “same part of considered joined improperly of- the D.C. case is constituting ... where or transactions 8(b). properly cases are meaning of Rule but not where within fenses” requirements of case here. They meet all opinion. majority
law discussed majority relies too much my To mind the court separate sys- the intent to create IV au- enough not on the intent tems and of federal and D.C. of- whether, joint thorize trials is remaining question The joined. The may properly that be fenses robbery offense was severed once the D.C. crime situation in the District of serious charging the federal fire- from the counts legisla- the heart of the Columbia was at rape assault and the D.C. violations arms tion, joint trials for and the authorization of juris- offenses, Court retained the District that count, fedеral and D.C. offenses indicated or was try diction Congress types intended to insure that both possible the count for to dismiss required with the least prosecuted of offenses were grand jury the D.C. re-indictment possible. separate If trials in complications for the District Superior Court trial in the stagger- required, courts were However, my it is view that of Columbia. city might in this ing criminal docket com- jurisdiction on the Unit- Congress conferred Attorney to settle for half pel the U.S. such D.C. rob- District Court over ed States where justice many cases U.S. D.C. properly “joined in since it was bery offense Congress were concerned. That did crimes indictment with the same [a] intend, not so but instead intended to re- 11-502(3) D.C.Code § Federal offense.” staggering prosecuting duce the burden of (1973). cases in the District of criminal Columbia District the United States To hold consolidating trials where when the case was lost Court proper specific is discernible from the stat- imports into the statute considera- severed ute authorizing joint such trials and also did not see fit Congress tions the fact it retained the United Congress created the D.C. enact. While the Attorney prosecutor as the criminal States offenses, alia, it court, try inter D.C. also the federal and courts. I thus in both D.C. offenses could that U.S. and D.C. provided majority opinion incorrеctly believe that the and tried to- joined in one indictment Congress intended that concludes so as to serve the gether in the U.S. courts grand jury join authority of the defendants, Govern- convenience narrowly against join- construed should be witnesses, ment, lawyers, grand doing der whenever so would result in the juries. majority’s interpreta- petit District grant United States Court by grand jury requires re-indictment tion Instead, jurisdiction over a D.C. offense. it of the District of Superior Court Congress that the my view that intended great where a and double trials Columbia should receive the same normal rule testimony duplicat- will be deal of the same construction in such cases that it receives in dealing with identifi- particularly that ed— all cases. in different courts that cation. Two trials however, agree majority, I with the overlap every- are a burden to substantially notes, and, urging pendent jurisdiction as a basis majority opinion as the body joint criminal trials in the United may frequently benefit from States addition, courts. I would not hold for in the United States courts single trial *17 continuing jur- District Court joint rather than consecu- trials receiving concurrent Moreover, granted requiring trans- isdiction if the severance had been tive sentences. initio, illegal because the ab basis, discretionary on a
rather than
alleged prejudice. improper reasons, foregoing respectfully I
For the majori- from Parts III IV of the
dissent
ty opinion and the reversal of the
convictions. CORPORATION,
The LUBRIZOL
Petitioner,
ENVIRONMENTAL PROTECTION
AGENCY, Respondent.
No. 75-2186. Appeals,
United States Court of
District Columbia Circuit.
Argued March 1977. Aug.
Decided