United States v. Soren Korzybski

FILED
NOT FOR PUBLICATION JUL 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30356
Plaintiff - Appellee, D.C. No. 3:09-cr-00132-BR-1
v.
MEMORANDUM*
SOREN DAVIS KORZYBSKI,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted July 10, 2012
Portland, Oregon
Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.
Defendant-Appellant Soren Davis Korzybski (“Korzybski”) was convicted
of one count of bank robbery in violation of 18 U.S.C. § 2113(a) and sentenced to
132 months imprisonment. He appeals his conviction and sentence. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm Korzybski’s conviction
and sentence. We address his arguments in turn.1
1. Korzybski argues that the district court erred in denying his motion to
suppress the “fruits” of his March 24, 2009 arrest by his probation officer.
Specifically, Korzybski contends that his probation officer lacked probable cause
to arrest him for failing to comply with a term of his supervised release, and that
subsequent custodial statements Korzybski made to an FBI agent as well as
evidence seized from his home were the “fruit” of the “unlawful” arrest.
Even if Korzybski’s probation officer lacked probable cause to arrest him for
a supervised release violation, the evidence Korzybski seeks to suppress is still
admissible. At the time Korzybski made the statements at issue, FBI agents had
probable cause to arrest Korzybski for bank robbery. See United States v.
Crawford, 372 F.3d 1048, 1056 (9th Cir. 2004) (en banc) (“[T]he presence of
probable cause to arrest has proved dispositive when deciding whether the
exclusionary rule applies to evidence or statements obtained after the defendant is
placed in custody.”). Moreover, the evidence obtained from the search of
Korzybski’s home is sufficiently attenuated from the arrest by his probation officer
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
so as to dissipate any taint from the arrest. See Brown v. Illinois, 422 U.S. 590,
598-99 (1975).
2. Korzybski argues, for the first time on appeal, that a bank teller’s pre-trial
identification of Korzybski as the robber violated Korzybski’s right to due process
of law. Because Korzybski has not established “cause” and “prejudice” for his
failure to raise this issue below, we decline to consider it for the first time on
appeal. See United States v. Atcheson, 94 F.3d 1237, 1246 (9th Cir. 1996);
Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990).
3. Korzybski’s right to due process of law was not violated by Korzybski’s
probation officer identifying Korzybski as the robber in bank surveillance photos
and a surveillance video. To prevail on a due process challenge to a witness’s in-
court identification, the defendant must establish that, under the “totality of the
circumstances,” the witness’s identification was unreliable. Neil v. Biggers, 409
U.S. 188, 199 (1972). Here, there is nothing in the record to suggest that the
probation officer’s perceptions were unreliable. Further, under our case law
Korzybski’s probation officer was sufficiently familiar with Korzybski to offer a
proper lay opinion on whether the robber depicted in the photos and video was
Korzybski. See United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)
(holding that testimony by the defendant’s probation officer identifying the
3
defendant as the robber in surveillance photos was a proper lay opinion under the
Federal Rules of Evidence).
4. The district court did not abuse its discretion when it permitted the
government to offer evidence of Korzybski’s financial circumstances at the time of
the robbery. The government’s evidence focused on Korzybski’s sudden influx of
cash shortly after the robbery. This was proper circumstantial evidence of
Korzybski’s involvement in the robbery. See United States v. Mitchell, 172 F.3d
1104, 1108-09 (9th Cir. 1999). Moreover, because the government’s evidence
regarding Korzybski’s financial circumstances focused on Korzybski’s sudden
influx of cash after the robbery, the district court did not abuse its discretion when
it declined to give Korzybski’s proposed limiting instruction on this issue. A
defendant’s proposed jury instruction should be given only when “there is a
foundation [for the instruction] in the evidence.” United States v. Tabacca, 924
F.2d 906, 912 (9th Cir. 1991).
5. Korzybski argues that the district court erred when it precluded him from
testifying during the trial about his “plans and goals for the future.” Because this
evidence had minimal probative value on the relevant issues in the case, the district
court did not abuse its discretion in excluding this evidence under Federal Rule of
Evidence 403. When “evidence is of very slight (if any) probative value, even a
4
modest likelihood of unfair prejudice or a small risk of misleading the jury will
justify excluding [the] evidence.” United States v. Espinoza-Baza, 647 F.3d 1182,
1189 (9th Cir. 2011) (internal marks and quotation marks omitted).
6. The district court did not err in finding that Korzybski’s prior conviction
for residential burglary, in violation of Wash. Rev. Code § 9A.52.025(1), qualified
him as a career offender under U.S.S.G. § 4B1.1(a)(3). Under the modified
categorical approach, the documents submitted by the government establish that
Korzybski’s conviction for residential burglary was for the burglary of a “structure
designed for occupancy that is intended for use in one place.” United States v.
Grisel, 488 F.3d 844, 848 (9th Cir. 2007) (en banc).
AFFIRMED.
5