Consider two public officials: Smith and Jones. Each is charged with two crimes arising out of the same set of facts: Count 1 charges honest services mail fraud and Count 2 charges extortion under color of official right. The mail fraud count alleges that the defendants devised a scheme to benefit from a concealed conflict of interest, whereas the extortion count alleges that the defendants accepted bribes.
Prior to trial, Smith moves for a severance, arguing that some of the evidence introduced to prove the mail fraud count would prejudicially taint the extortion count. The trial court denies the severance motion but agrees to issue a limiting instruction. Jones, by contrast, files no severance motion. Both defendants are convicted and each appeals. While their appeals are pending, a higher court invalidates the theory of liability underlying the mail fraud counts, forcing the government to concede that those counts must be vacated. Smith and Jones then ask the appellate court to order a new trial on the extortion count, arguing that evidence introduced to prove the invalidated mail fraud count prejudicially tainted the extortion count.
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