The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Addressed in this Memorandum Order are DEFENDANT'S MOTION IN LIMINE # 1 PRIOR DRUG POSSESSION, USE, ETC. (Document No. 316), DEFENDANT'S MOTION IN LIMINE # 10 PERSONAL USE AND DISTRIBUTION OF COCAINE WITHOUT COMPENSATION (Document No. 325), and DEFENDANT'S MOTION IN LIMINE # 11 PRIOR BAD ACTS OF MR. AND MRS. KORBE (Document No. 326). The government has filed a response in opposition to the motions (Document No. 332), Defendant has filed a reply as to "drug evidence" (Document No. 333) and the motions are ripe for disposition.
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.
On March 19, 2009, a grand jury returned a Superseding Indictment which asserts the following charges against Christina Korbe:
Count I: that she, 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: that she 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: that she 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);
Count IV: that she 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).
Count V: from 1990-2008, that 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, that 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, that 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, that 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 -- that she knowingly possessed in and affecting interstate commerce a firearm (a Taurus revolver), in violation of 18 U.S.C. § 922(g)(3).
In Motion in Limine #1, Korbe seeks to preclude the government and its agents from introducing into evidence or "otherwise commenting in any nature or fashion whatsoever regarding any alleged prior arrest, possession or use of cocaine by Ms. Korbe." Defendant contends that but for "sharp grand jury practice" (i.e., the assertion of Counts V through IX in a Superseding Indictment), such evidence would not be admissible and she asks the Court to reconsider its opinion regarding severance of counts. In Motion in Limine # 10, Defendant seeks a somewhat narrower ruling that the government and its agents be precluded from introducing any evidence or commenting that alleged "personal use distributions" of drugs by Ms. Korbe to witnesses were made in furtherance of the alleged conspiracy. In essence, Defendant argues that the alleged sharing of small amounts of cocaine with friends indicates, at most, that Ms. Korbe was a cocaine user rather than a cocaine trafficker such that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice. In Motion in Limine # 11, Defendant seeks to prohibit the government from introducing evidence or commenting regarding any "prior bad acts" committed by Robert or Christina Korbe. Specifically, Defendant seeks to preclude the government from eliciting testimony regarding: (1) Defendant's efforts to assist her husband to avoid scrutiny and/or to escape prosecution; (2) any affirmative steps taken by Defendant, such as issuing threats, in an effort to protect cocaine distribution activities from detection and/or prosecution; (3) Defendant's warnings to Robert Korbe as to persons whom she believed were cooperating with law enforcement; (4) Defendant's repeatedly driving past the residence of a person whom she believed to be a cooperator, yelling threats; (5) evidence regarding Robert Korbe's arrest in May 2008, his altercation with law enforcement, and the use of a taser on him; (6) Robert Korbe's charges from the May 2008 incident and his guilty pleas to all state charges; (7) Robert Korbe's contacts and conversations with a private investigator; and (8) Christina Korbe's contacts and conversations with a private investigator.*fn1 Defendant argues that such evidence is irrelevant to the charges set forth in the Superseding Indictment and will serve only to inflame the jury.
The government opposes these motions, and characterizes them as an attempt to revisit Defendant's motion to sever counts. After the Court granted Defendant's motion for a Bill of Particulars as to the alleged drug conspiracy, the government provided Notice to Defendant of the type, manner and means of her alleged participation in the conspiracy (Sealed Document No. 216). The government contends that the evidence as to Defendant's use and possession of cocaine, as outlined in the Notice, is relevant and probative to the crimes charged in the Superseding Indictment, and particularly to the alleged drug conspiracy. The government argues that the crime of conspiracy can be proven by circumstantial evidence and that Defendant's agreement to join the alleged conspiracy can be inferred by her conduct. As to Defendant's argument regarding "personal use distributions" of cocaine, the government cites Third Judicial Circuit Model Criminal Jury Instruction 6.21.841-2 for the proposition that "distribution" of drugs "includes a transfer without any financial compensation, such as a gift or trade." More ...