The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with Title 28, United States Code, Section 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #8.
The defendant, Antione Callahan, is charged in five counts of a 109 count superseding indictment with violations of Title 21, United States Code, Sections 846 (conspiracy with intent to distribute and distribution of cocaine), and Title 21, United States Code, Sections 843(b) (use of a communication facility to commit drug felony). Dkt. #190.
Presently pending before this Court is defendant's motion for:
2. Discovery and Inspection;
4. Joinder on all pre-trial motions of co-defendants;
5. Impeachment Information;
9. Identity of Informants; and
10. Leave to File Other Motions.
The government has filed its response to the foregoing motions, as well as a motion for reciprocal discovery. Dkt. #333.
The defendant seeks severance of the charges against him from those of his co-defendants on the ground that evidence against his co-defendants may prejudice the jury with respect to defendant's case. Dkt. #315, pp.4-5.
The government responds that defendant has failed to demonstrate substantial prejudice resulting from a joint trial of all counts in the indictment. Dkt. #333, pp.4-8.
[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
Zafiro v. United States, 506 U.S. 534, 539 (1993). Thus, when the charges against the defendants involve a common plan or scheme, the defendants who have been indicted together will normally be tried together. United States v. Matos-Peralta, 691 F. Supp. 780, 789 (S.D.N.Y. 1988).
"The disposition of a motion for severance under Rule 14 is entrusted to the sound discretion of the trial court. See United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir. 1987)." United States v. Matos-Peralta at 788; Opper v. United States, 348 U.S. 84 (1954). The defendant maintains a "heavy burden" in establishing a right to a severance. United States v. Sotomayor, 592 F.2d 1219, 1227 (2d Cir.), cert. denied sub nom. Crespo v. United States, 442 U.S. 919 (1979). He must establish that he will be so severely prejudiced by a joint trial that he will in effect be denied a fair trial. United States v. Persico, 621 F. Supp. 842 (S.D.N.Y. 1985).
The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and ...