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UNITED STATES v. ABCASIS

January 28, 1992

UNITED STATES OF AMERICA, Plaintiff, against SIMON ABCASIS, a/k/a "HACHAM," RALPH ABCASIS and REBECCA ABCASIS, Defendants.


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 This case is before the Court to decide numerous pre-trial motions submitted by the three remaining defendants *fn1" in the above-captioned prosecution. Counts 1 and 2 of the superseding indictment charge defendants Simon Abcasis, Ralph Abcasis, and Rebecca Abcasis, (collectively, the "Defendants") with conspiring to and attempting to import heroin into the United States in violation of 21 U.S.C. § 52(a); Count 3 charges Ralph Abcasis with using and carrying a .380 semi-automatic pistol in connection with the crimes charged in Counts 1 and 2, in violation of 18 U.S.C. §§ 924(c); Counts 4 and 5 charge Ralph Abcasis with distributing heroin in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C); and Count 6 charges Rebecca Abcasis with using the telephone to further the above-referenced heroin importation conspiracy in violation of 21 U.S.C. §§ 843(b) and (c).

 Defendants Simon and Rebecca Abcasis join in Ralph Abcasis' motions for the following relief: an order declaring Federal Rules of Criminal Procedure 12.3(a)(1) and (2) unconstitutional both on their face and as applied to defendants; and an order permitting Defendants to inspect the grand jury minutes. Rebecca Abcasis joins in Ralph Abcasis' motion for an order permitting Defendants to have an expert inspect the original body wire tape recordings. Ralph Abcasis joins in Rebecca's motion to permit defense counsel to interview the confidential informant prior to trial. Finally, Ralph and Simon Abcasis move for discovery of the government files of the cases in which they were informants as well as their "informant files."

 Ralph Abcasis also seeks the following relief on his own behalf: an order suppressing his post-arrest statements and the fruits derived therefrom as taken in violation of his constitutional rights; an order suppressing physical evidence and all the fruits derived therefrom as obtained in violation of his constitutional rights; and severance of Counts 4 and 5 of the Superseding Indictment.

 Rebecca Abcasis seeks an order for a severance from her co-defendants. Simon Abcasis seeks an order for a severance from Ralph Abcasis.

 Finally, the government moves for an in limine exclusion of Defendants' anticipated defense of public authority and has expressed its intention to file a motion pursuant to Federal Rules of Evidence 404(b) to admit certain evidence.

 FACTUAL BACKGROUND

 The Court will limit discussion of the factual background to those facts necessary to decide the motions at issue. Inasmuch as the remainder of the outstanding motions require a factual determination which cannot be made from the papers alone, the Court will conduct a hearing on February 18, 1991 at 10:00 A.M.

 According to the government's papers, for a period of time prior to April, 1990, Ralph and Simon Abcasis were registered informants for the New York Drug Enforcement Task Force. In April 1990, their status as informants was officially terminated. In or about September 1990, the Drug Enforcement Administration (the "DEA") received intelligence information that Ralph and Simon Abcasis were planning a heroin importation into the United States. The DEA thus initiated an investigation of Simon and Ralph Abcasis in or about February 1991 and continued it through April 5, 1991.

 The investigation apparently revealed that Defendants and Kevin Shalicar enlisted a confidential informant ("CI-1") to assist them in importing 1400 and 2100 grams of heroin from Thailand into the United States. According to the plan formulated by Defendants and Shalicar, a courier, David Mohammed Givenchi, was to travel to Thailand with CI-1. CI-1 would then purchase the heroin, secrete it in a suitcase, and give the suitcase to Givenchi. Givenchi would return to the United States with the suitcase and deliver the heroin to the Abcasis and Shalicar. CI-1 led Defendants to believe that he would fly from Thailand to Canada with an additional 250 grams of heroin. (In reality, CI-1 was not to bring any heroin back to the United States.) Ralph and Simon Abcasis agreed to have CI-1 smuggled into the United States from Canada.

 On or about March 8, 1991, Givenchi left for Thailand. CI-1 followed about two days later. Over the next two week period, CI-1 and Givenchi allegedly had numerous conversations with Defendants and Shalicar regarding the fact that Defendants had not given CI-1 enough money to purchase the heroin. Ultimately, Ralph and Simon Abcasis provided Shalicar with an additional sum of money which he sent via Federal Express to CI-1.

 As of March 24 and 25, 1991, CI-1 and Givenchi were in Thailand, at Defendants' behest, attempting to purchase the heroin. According to the government, on March 25, CI-1 told Ralph Abcasis that he would be arriving in Toronto, Canada on March 27 or 28 and that Givenchi would be arriving in the United States by March 30.

 On or about March 25, Simon and Ralph Abcasis called two of their former controlling officers, Sergeant Frank Colavito and Detective Gary Anderson of the New York Drug Enforcement Task Force (the "NYDETF"). They allegedly told the officers, in a series of communications, that CI-1 would be entering Canada between March 27 and 28 with 3 and 4 kilograms of heroin. The government contends that the Abcasis did not mention Givenchi, nor did they mention Shalicar's participation in the scheme.

 By March 28, an undercover Thai police officer had purchased 1400 grams of heroin with Defendants' money. CI-1 then delivered the heroin to Givenchi, as planned. On March 28, Givenchi attempted to leave Thailand but was arrested for attempting to export the 1400 grams of heroin. CI-1 left Thailand for the United States on the same day. The following week, Ralph Abcasis again called the NYDETF officers and informed them of what he claimed was CI-1's new anticipated arrival date, but according to the government did not mention Givenchi or Shalicar.

 The government intends to prove that Defendants never received authorization to engage in any narcotics-related activity. Defendants apparently are prepared to testify that they had multiple contacts with NYDETF agents and received actual authorization to engage in the charged conduct. Accordingly, Defendants may rely on a defense of public authority.

 A. The Constitutionality of Rule 12.3(a)(1)

 Defendants assert that Rule 12.3(a)(1), which prescribes that a defendant relying on an authorization defense provide pre-trial notice to the government, violates the fifth amendment's guarantee against self-incrimination, both on its face and as applied to Defendants. Defendants assert that the notice provision will "forge links in a chain of facts imperiling [the accused] with conviction of a federal crime." Defendant Ralph Abcasis' Memo of Law at 6, citing Hoffman v. United States, 341 U.S. 479, 488, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). Contrary to defendants' contention, the Court finds that 12.3(a)(1) is constitutional, both on its face, and as applied to defendants.

 Rule 12.3(a)(1) provides that:

 "[a] defendant intending to claim a defense of actual or believed exercise of public authority on behalf of a law enforcement or Federal intelligence agency at the time of the alleged offense shall . . . serve upon the attorney for the government a written notice of such intention. . . . Such notice shall identify the law enforcement or Federal intelligence agency and any member of such agency on behalf of which and the period of time in which the defendant claims the actual or believed exercise of public authority occurred. . . ."

 Before turning to the merits of Defendants' contention, the Court notes that it is a well-established principle of jurisprudence that "federal statutes are to be construed so as to avoid serious doubts as to their constitutionality." Communications Workers of America v. Beck, 487 U.S. 735, 762, 101 L. Ed. 2d 634, 108 S. Ct. 2641 (1988) (citations omitted). When presented with such doubts, "the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid." Id. (citations omitted). Further, the burden of showing that a statute is unconstitutional is on the challenging party. New York State Club Ass'n v. City of New York, 487 U.S. 1, 17, 101 L. Ed. 2d 1, 108 S. Ct. 2225 (1988). With these principles in mind, the Court turns to the constitutionality of Federal Rule of Criminal Procedure 12.3(a)(1).

 (i) The Court Finds That Williams v. Florida Is Controlling

 The Court finds that for the purpose of constitutional analysis, Federal Rule of Criminal Procedure 12.1 is analogous to 12.3, the notice of alibi provision. 12.1 provides for pretrial notice to the government of the defendant's intention to offer a defense of alibi. Such notice must state the specific place at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish the alibi. This mandate resembles that of Rule 12.3(a)(1), which calls for notice of a defendant's intention to offer an authorization defense, including an identification of the law enforcement agency and the relevant time period of the authorization. Further, both 12.3 and 12.1 ...


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