e.g., Rosenwasser, 550 F.2d at 880; Egan, 501 F. Supp at 1262.
In the case at bar, the Court finds that Mrs. Abcasis has not made the requisite showing of substantial prejudice to warrant a severance. Similarly, Ms. Abcasis' vague proffer that her cultural background will prevent her from testifying in front of her husband and son is insufficient to justify a severance. See United States v. Sasso, 78 F.R.D. 292, 294 (S.D.N.Y. 1977). Therefore, the Court denies this motion.
(iii) Simon Abcasis' Severance Motion.
Simon Abcasis seeks a severance from Ralph Abcasis in the event the latter's post-arrest statements are admitted into evidence. As mentioned, the Court will hold a hearing on February 18, 1991 at 10:00 A.M. to determine whether Ralph Abcasis' motion for the suppression of his post-arrest statements will be granted. Therefore, the Court reserves decision on Simon Abcasis' severance motion pending the outcome of the hearing. At that time, if necessary, the Court will apply the principles enunciated in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) to determine whether the admission of Ralph Abcasis' post-arrest statements will violate Simon Abcasis' sixth amendment right of confrontation.
I. Motions Without Objection
The Defendants move for inspection of the original body wire tapes. The government does not object to such an inspection. The Court thus grants the motion for inspection and orders that it be executed under circumstances designed to preserve the integrity of the tapes.
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." The government does not object to such discovery, with the qualification that it opposes the discovery of documents which do not relate to Ralph and Simon Abcasis' cooperation and which contain sensitive material regarding DEA operations and other informants. The Court grants this motion subject to the government's qualification. The Court also orders that the government secure any corresponding files from the Office of the Special Narcotics Prosecutor, subject to the same qualification.
Defendants seek to interview the informants prior to trial. The government has agreed to make the informants available prior to trial. Thus, the government does not contest that the informants' identities be disclosed to the defense. Under such circumstances, the Court orders that, consistent with its obligations under United States v. Saa, 859 F.2d 1067, 1074 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 103 L. Ed. 2d 858, 109 S. Ct. 1555 (1989), the government make the informants available for Defendants to interview prior to trial.
The Court will hold a hearing on February 18, 1991 at 10:00 A.M. on Ralph Abcasis' motion to suppress post-arrest statements and physical evidence seized pursuant to a search of his apartment.
The Court denies Defendants' motions for (a) an order declaring Federal Rule of Criminal Procedure 12.3 unconstitutional, both on its face and as applied; (b) an order permitting Defendants to inspect the grand jury minutes; and (c) an order for a severance for Rebecca Abcasis from her co-defendants.
The Court reserves decision on Simon Abcasis' motion for a severance from Ralph Abcasis pending the February 18 hearing. The Court reserves decision on Ralph Abcasis' severance motion pending the disposition of the government's 404(b) motion and the government's possible motion to exclude Defendants' authorization defense.
The Court grants the following of Defendants' motions: (a) the motion for inspection of the original body wire tapes; (b) discovery of Simon and Ralph Abcasis' "informant files" as well as the government files for the cases in which they were informants; and (c) the motion to make the informants available prior to trial in accordance with United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 103 L. Ed. 2d 858, 109 S. Ct. 1555 (1989).
Dated: Brooklyn, New York
January 28, 1992
DENIS R. HURLEY
United States District Judge