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United States v. Korbe

November 8, 2010

UNITED STATES OF AMERICA
v.
CHRISTINA MARIE KORBE



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court for disposition is the MOTION TO PRECLUDE ARGUMENT, EXAMINATION OF WITNESSES, OR ATTEMPTS TO INTRODUCE EVIDENCE OF OFFICERS' COMPLIANCE OR NON-COMPLIANCE WITH LAW ENFORCEMENT RULES, POLICIES, OR PROTOCOLS IN THE EXECUTION OF WARRANTS filed by the government (Document No. 269), the INITIAL RESPONSE TO GOVERNMENT'S MOTION filed by Defendant, Christina Marie Korbe (Document No. 276), the MEMORANDUM OF LAW IN OPPOSITION TO GOVERNMENT'S MOTION TO PRECLUDE EVIDENCE filed by Defendant (Document No. 280), the REPLY filed by the government (Document No. 296), the RESPONSE TO GOVERNMENT'S REPLY filed by Defendant (Document No. 312), and ATTACHMENT FILED UNDER SEAL filed by Defendant (Sealed Document No. 330).

The Court acknowledges that resolution of this issue is contentious and the determination could have a significant impact on the evidence that either or both parties offer at trial. The Court appreciates the attorneys having presented and argued the issue skillfully and effectively. After due and deliberate consideration of the filings, both in support and in opposition, as well as the relevant case law and the applicable Rules of Evidence, the Court concludes that evidence of police standard operating procedures and police training or violations thereof is not relevant to the pertinent inquiry of whether Defendant acted in self defense. Moreover, even if the Court were to find that such evidence had some relevance and probative value, any such probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, and misleading the jury. The government's motion, therefore, will be granted.

Factual and Procedural Background

This criminal case arose out of the tragic shooting of FBI Special Agent Samuel Hicks ("Hicks") on November 19, 2008. Early in the morning on that date, Hicks and other law enforcement officers were attempting to execute an arrest warrant for Robert Ralph Korbe at the family home, which he shared with his wife, Christina Korbe ("Defendant" or "Korbe") and their two young children. The arrest of Robert Korbe was part of a larger, coordinated "takedown" plan, which was designed to simultaneously arrest numerous targets of a wiretap investigation. Defendant admits that she shot Hicks, but asserts self defense and defense of her small children.

The Superseding Indictment charges Defendant, inter alia, with the following crimes, which arise out of the shooting: Murder of a Federal Officer (Count One), Assault of a Federal Officer Through the Use of a Dangerous Weapon (Count Two), and Using, Carrying, and Discharging a Firearm During and in Relation to a Crime of Violence and Possessing said Firearm in Furtherance Thereof (Count Three).*fn1 According to Defendant, the "crux" of her self defense claim is that "[s]he mistook the police for malevolent intruders and fired one shot in self defense." Defendant intends, "through cross examination, presentation of substantive evidence and argument that police conduct at her home at 6:00 a.m. on a cold, dark November morning, was insufficient to warn the occupants of police presence." Memo. of Law, at 2.

Legal Analysis

The government asks the Court to enter an Order precluding counsel for Defendant from making any argument, examining witnesses and/or attempting to introduce evidence during the trial of the entry team's purported compliance and/or non-compliance with law enforcement rules, policies, or protocols in connection with the execution of the arrest warrant for Robert Korbe on November 19, 2008. Defendant strongly opposes the motion and argues that "[t]o deny her the ability to pursue the sufficiency of police conduct to warn the occupants of police presence, through an exploration of proper police practice and procedure, will deny her the right to a fair trial."

Defendant's right to a fair trial is, and always has been, paramount in the Court's rulings in this matter. However, as explained infra, the Court finds that "an exploration of proper police practice and procedure" is not relevant evidence under either Federal Rule of Evidence 401 or 702. In the alternative, if the evidence has a degree of relevance, it would still not be admissible under Federal Rule of Evidence 403 as the probative value of such evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and would mislead the jury.

A. Federal Rule of Evidence 401

During the course of the trial, it is anticipated that the government will present testimony that law enforcement officers yelled, "police, police" numerous times at the front door of the Korbe residence. Defendant seeks to offer testimony that yelling "police, police" was not sufficient to inform her of police presence and "will further rebut the government evidence by showing that under the circumstances the training and best practices relating to dynamic entries as it applied to the circumstances at the Korbe home indicated that a dynamic entry should not have been conducted and that other means were necessary, i.e., "Surround and call out," to inform the occupants of police presence." Initial Response at 2.

Federal Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The Court finds that the Defendant's proffered evidence is not relevant for the following reasons.

First, the subject matter of the testimony, the compliance and/or non-compliance by officers with law enforcement rules or protocols, would mislead the jury and create the impression that Defendant's criminal responsibility for the death of Hicks is to be contingent upon the conformity of the entry team, as well as Hicks, to standard arrest procedures. The actions of the officers may be relevant to Defendant's self-defense, but the Court finds that whether the officers followed proper police procedure during entry into the Korbe residence neither proves nor disproves any material fact at issue.

Next, Defendant cites no authority to support the admissibility of evidence relating to police procedures. In any event, the Court finds that the evidence relevant to Defendant's self-defense claim is her perception of the officers' actions that morning, not whether the officers followed proper procedure in executing ...


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