The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is Defendant Christina Marie Korbe's MOTION FOR SEVERANCE OF COUNTS PURSUANT TO RULE 8 AND RULE 14 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE (Document No. 85), with brief in support.*fn1 The government has filed a response in opposition to the motion (Document No. 166). The Court heard oral argument on May 12, 2010. After the argument, at the request of defense counsel the Court reviewed a recording of Defendant's 911 telephone call on November 19, 2008. The Court also ordered the government to deliver to the Court for in camera review any statement(s) of Defendant that it intends to use as evidence at trial, pursuant to Fed. R. Crim. P. 14(b). The Court has completed that review and the motion for severance is ripe for disposition.
Factual and Procedural Background
This criminal case arose out of the tragic shooting of FBI special agent Samuel Hicks on November 19, 2008. On that date, Hicks and other law enforcement officers were attempting to execute an arrest warrant on Robert Ralph Korbe at the family home, which he shared with his wife, Christina Korbe ("Defendant" or "Korbe") and their two young children. Christina Korbe admits that she shot agent Hicks, but has a "strong interest in pursuing self defense and defense of her small children" regarding his death. Brief in Support of Motion for Severance at 10.
On January 8, 2009, a grand jury returned a four-count Indictment against Christina Korbe, the sole Defendant in Criminal Action No. 09-05. The Indictment charges that she: Count I: with malice aforethought, did kill Samuel Hicks, special agent of the FBI, while he was engaged in his official duties, in violation of 18 U.S.C. §§ 1111 and 1114; Count II: knowingly and by means and use of a deadly or dangerous weapon (a Taurus revolver), did forcibly assault, resist, oppose, impede, intimidate, and interfere with Samuel Hicks, special agent of the FBI, while he was engaged in his official duties, in violation of 18 U.S.C. §§ 111(a)(1) and (b);
Count III: knowingly did use and carry and discharge a firearm (a Taurus revolver), during and in relation to a crime of violence, that being the murder and assault of Samuel Hicks as alleged in Counts I and II, and knowingly did possess said firearm in furtherance of said crimes of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (iii); and Count IV: did aid and abet the possession of a firearm (a Taurus revolver), by a convicted felon, that is, her husband, Robert Ralph Korbe, in that on or about November 19, 2008, Robert Ralph Korbe, after having been convicted of three drug-related felony offenses in state court, did knowingly possess the Taurus revolver, in violation of 18 U.S.C. §§ 2, 922(g)(1) and 924(e).
On March 19, 2009, a grand jury returned a Superseding Indictment that added five additional charges against Christina Korbe, alleging that:
Count V: from 1990-2008, she conspired with persons known and unknown to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846;
Count VI: on November 19, 2008, she knowingly, intentionally and unlawfully possessed with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2;
Count VII: on November 19, 2008, she knowingly, intentionally and unlawfully possessed with intent to distribute a quantity of [powder] cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2;
Count VIII: on November 19, 2008, she knowingly used, carried and discharged a firearm (a Taurus revolver), during and in relation to a drug trafficking crime -- namely, the offenses charged in Counts 5-7, and possessed said firearm in furtherance of said drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A)(I) and (iii); and
Count IX: on November 19, 2008, as an unlawful user of a controlled substance -- namely, cocaine and vicodin -- she knowingly possessed in and affecting interstate commerce a firearm (a Taurus revolver), in violation of 18 U.S.C. § 922(g)(3). The Superseding Indictment seeks forfeiture of the Korbe family home, in addition to the forfeiture of the Taurus revolver sought in the original Indictment.
In the pending motion, Defendant argues that the offenses charged in the Superseding Indictment were improperly joined pursuant to Fed. R. Crim. P. 8(a) and, alternatively, that the Court should exercise its discretion to order separate trials pursuant to Fed. R. Crim. P. 14(a). Defendant advocates that the Court conduct three separate trials: (1) Counts I-III (the "shooting" counts); (2) Counts IV-VIII (the "drug" counts); and (3) Count IX. In essence, Defendant contends that presentation of evidence regarding the alleged eighteen (18) year drug conspiracy during the trial of the "shooting" counts would not advance judicial economy, would be unduly prejudicial, and would complicate her decision as to whether to testify. The motion states that Korbe may wish to testify regarding Counts I-III regarding self-defense and defense of her small children, but may not wish to testify regarding the drug counts V-VIII.
The government contends that the offenses were properly joined in the Superseding Indictment and that all the charges against Defendant should be determined in a single trial. The government emphasizes the inter-connected nature of the charges, in that the law enforcement officers were present at the Korbe home on November 19, 2008 to arrest Robert Korbe on drug-trafficking charges, and that Robert Korbe was attempting to destroy evidence of cocaine in the basement of the home at the time Special Agent Hicks was shot. The government argues that to disprove Defendant's claim of self-defense, it intends to introduce extensive "drug" evidence to demonstrate her knowledge, motive and intent to shoot the FBI agent pursuant to Fed. R. Evid. 404(b). Specifically, the government reasons that due to the illegal drug trafficking activities that were being conducted in and from the Korbe home, Defendant "knew full well" that agents were attempting to arrest Robert Korbe, and possibly her, on the morning of November 19, 2008. Thus, the government contends that there is a logical ...