|  Rule 8(b) of the Federal Rules of Criminal Procedure entitled "Joinder of Defendants" provides that:
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 the defendants need not be charged in each count. The dictates of Rule 8(b) must be met before joinder of defendants in a criminal trial is proper. Moreover, if the dictates of Rule 8(b) are not met, Rule 8(b) requires severance as a matter of law based upon the pleadings. United States v. Nettles, 570 F.2d 547, 551 (5th Cir. 1978). See also Federal Practice and Procedure at 145, pg. 527. Significantly, "[t]he propriety of joinder under Rule 8 is determined on the basis of allegations in the indictment." United States v. Faulkner, 17 F.3d 745, 758 (5th Cir.), cert. denied, 115 S.Ct. 193 (1994), citing Kaufman, 858 F.2d at 1003 (5th Cir. 1988) and Harrelson, 754 F.2d at 1176 (5th Cir.). Thus, joinder is proper under Rule 8(b) only if the indictment alleges offenses comprising the "same series of acts or transactions." Usually this will be shown by an overarching conspiracy comprised of all the defendants from which stems substantive counts against one or more of the defendants. See Faulkner, 17 F.3d at 758. Significantly, there is no conspiracy charge in the instant case. The phrase "same series of acts or transactions" is defined as "a single plan or scheme." Id., quoting, United States v. Lane, 735 F.2d 799, 804-05 (5th Cir. 1984), rev'd in part on other grounds, 474 U.S. 438 (1986). It has been further defined as requiring substantial identity of facts or participants between two offenses. Nettles, 570 F.2d at 552; United States v. Levine, 546 F.2d 658, 662 (5th Cir. 1977); United States v. Marionneaux, 514 F.2d 1244, 1248-49 (5th Cir. 1974). What is important to note is that a "series of acts or transactions" is something more than just similar acts by different defendants. United States v. Diaz-Munoz, 632 F.2d 1330, 1336 (5th Cir. 1980); Marionneaux, 514 F.2d at 1248. In the instant case, there is absolutely no allegation contained in the indictment of "a single plan or scheme" between Mr. XXXX and Ms. Monti. As noted above, there is no allegation whatsoever that Mr. XXXX was aware of or participated in Ms. Monti's alleged activities or that Ms. Monti was aware of or participated in Mr. XXXX's alleged activities. In point of fact, all that is alleged is that Ms. Monti and Mr. XXXX allegedly defrauded the same debtor's estate through arguably "similar acts" in violation of 18 U.S.C. ¤ 152. However, "similar acts" without more is insufficient to sustain joinder under Fed. R. Crim. P. 8(b). Diaz-Munoz, 632 F.2d at 1336; Marionneaux, 514 F.2d at 1248. Almost the exact same fact scenario that confronts this Court was confronted by the United States Court of Appeals for the Ninth Circuit many years ago. In United States v. Metheany, 365 F.2d 90; 91-92 (9th Cir. 1990) (attached hereto as Exhibit A), Dotson was the sole defendant named in five counts of a six count indictment and Metheany was the sole defendant named in the remaining count. Count one charged Dotson with concealing funds from a bankruptcy estate in violation of 18 U.S.C. ¤ 152 and count two charged Metheany with concealing different funds from the same bankruptcy estate also in violation of 18 U.S.C. ¤ 152. Id. at 91-92. The District Court denied Metheany's motion for severance from the joint trial and the Court of Appeals reversed holding that joinder was not proper under Fed. R. Crim. P. 8(b). Here, as appears from the face of the indictment, the appellant [Metheany] and Dotson were not charged with participation in the same acts nor can it be concluded from the fact that separate but similar allegations were made with respect to one type of offense with which each was severally charged that appellant and Dotson were engaged in the "same series of acts." Id. at 94. The Metheany case is almost identical to this case. Based upon Metheany, as well as the binding precedent in Diaz-Munoz and Marionneaux, it is clear that there is misjoinder in this case under Fed. R. Crim. P. 8(b). Therefore, a severance is mandatory. Nettles, 570 F.2d at 551. In any event, when unrelated transactions involving several defendants are joined together, "[i]t cannot be said...that all the defendants [would not be]...embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon the distinct and independent transactions." United States v. Bova, 493 F.2d 33, 36 (5th Cir. 1974), quoting, McElroy v. United States, 164 U.S. 76, 81, 17 S.Ct. 31, 33, 41 L.Ed.2d 355 (1986). In this case, Mr. XXXX is likely to be prejudiced by allegations that his fellow director and former girlfriend defrauded the same bankruptcy estate that he is accused of defrauding. Therefore, even assuming that a severance is not required pursuant to Fed. R. Crim. P. 8(b), this Court should exercise its discretion and grant a severance pursuant to Fed. R. Crim. P. 14. |