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 are Defendant Christina Marie Korbe's MOTION TO PRESERVE, INSPECT, EXAMINE, AND INDEPENDENTLY TEST ALL PHYSICAL EVIDENCE AND NOTICE TO PRODUCE (Document No. 96); MOTION FOR DISCLOSURE OF EXPERT WITNESSES, OPINIONS, BASES AND REASONS OF OPINIONS AND QUALIFICATIONS (Document No. 99); and DEFENDANT'S MOTION FOR RETURN OF PROPERTY (Document No. 105). The government has filed responses to the motions (Document Nos. 154, 156, 164) and they are 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. Subsequently, pursuant to search warrants, law enforcement officers seized numerous items of property at the Korbe home. On March 19, 2009, a grand jury returned a Superseding Indictment that charges Christina Korbe with shooting, drug and firearm violations and seeks forfeiture of the Korbe family home and the Taurus revolver used in the shooting. Defendant has filed numerous pretrial motions that are being addressed by separate orders. The instant motions will be addressed seriatim.
I. Motion to Preserve and Produce Physical Evidence (Doc. # 96)
Defendant acknowledges that the government has taken steps to preserve evidence and has invited defense counsel to review and inspect numerous evidentiary items at the FBI Building. Defendant states that the purpose of this motion "is to formally put the government on notice that future examination and testing may be necessary. . . ." Accordingly, the Defendant asks the Court to order the government to preserve twelve (12) specific categories of evidence. Defendant notes that the family home at 111 Woods Run Road and the Taurus revolver are subject to forfeiture allegations and asks that they be preserved in the condition they were in on November 19, 2008. The last category on Defendant's list is a broad, catch-all that seeks all other physical evidence "that relates in any way to the investigation." Somewhat confusingly, Defendant requests that the Court order the government to "ultimately" produce the itemized items "immediately." Defendant further seeks an order that permits defense experts to examine and test the items, and requires the government to make continuing disclosures of all additional items of evidence obtained during its investigation.
The government, in response, agrees that the physical evidence in this case should be preserved and that Defendant is entitled to inspect, examine and test that evidence. The government represents that it will attempt to accommodate any specific requests by Defendant for such activities. However, the government opposes the language of the precise relief requested by Defendant. The government points out, for example, that the evidence in this case includes drugs, firearms, DNA samples, etc., for which appropriate safeguards and protocols must be implemented. The government further objects to item #7 ("All notes, writings, memoranda and letters made by the state as part of the evidence in this case") as beyond the scope of pretrial discovery pursuant to Fed. R. Crim. P. 16(a)(2).*fn1 The government suggests that the Court deny Defendant's motion without prejudice, in the absence of any actual dispute.
It appears that both parties agree that evidence has been and will be preserved and that defense counsel has been and will be able to inspect and test that evidence. The government has represented that it will endeavor to accommodate Defendant's requests as they arise in the future and Defendant has acknowledged that this motion is a "formality." In light of the government's representations, the motion will be denied as moot, without prejudice to Defendant to bring specific disputes regarding these matters to the attention of the Court if and when necessary.
II. Motion For Disclosure of Expert Witnesses, Opinions, etc. (Doc. # 99)
Defendant asks the Court to order the government to provide the names of the persons it intends to offer as expert witnesses at trial, a written summary of the expert opinions, the bases and reasons for those opinions and the witnesses' qualifications, pursuant to Fed. R. Crim. P. 16(a)(1)(G). Defense counsel acknowledge that they have received some initial reports and test results. Defense counsel also represent that they will honor their reciprocal obligation to disclose expert information in compliance with Rule 16(b)(1)(C). Defendant reasons that such disclosures should be done in a time frame that enables the parties and the Court to resolve any Daubert-type or other challenges in advance of trial.
The government avers that it has already fulfilled its obligation to provide Defendant with copies of reports of numerous specific scientific tests and examinations and states that it has not yet determined which expert testimony it will use in its case in chief. Nevertheless, the government's response outlines thirteen topics which have been the subject of scientific review and may require expert testimony, and has provided a summary of its disclosures to date as to each topic.*fn2 The government recognizes the need to minimize surprise, to provide Defendant with a fair opportunity to challenge the expert testimony, and to prevent a postponement of trial. Accordingly, the government agrees to provide the disclosures required by Rule 16(a)(1)(G) "at least two (2) months prior to trial."
This motion is somewhat duplicative of Defendant's Motion for Discovery (Document No. 38), which has been ruled upon in the Court's omnibus Discovery Order filed June 10, 2010, which is incorporated herein. In addition, pursuant to its authority in Fed. R. Crim. P. 12(c) to set deadlines for pretrial motions and to schedule motions hearings, the Court will direct the following schedule for the disclosures and motions regarding expert testimony:
Description re Disclosure of Disclosure / Filing Dates Government Trial Experts Government to identify trial experts and on or before August 2, 2010 make Rule 16(a)(1)(G) disclosures Defendant to file motion(s) to challenge on or before August 12, 2010 government's expert opinion and/or qualifications Government to file response(s) to on or before August 19, 2010 defendant's challenge(s)
Description of Disclosure re Disclosure / Filing Dates Defendant's Trial Experts Defendant to identify trial experts and on or before August 23, 2010 make Rule 16(b)(1)(C) disclosures Government to file motion(s) to on or before September 2, 2010 challenge Defendant's expert opinion and/or qualifications ...