US v. Koerber – A Decade of Federal Persecution
**UPDATE: On November 1, 2017, the United States Attorney’s office for the District of Utah officially decided to re-try Mr. Koerber after a mistrial and hung jury last month. See the official response from Mr. Koerber’s legal defense team here.
**UPDATE: Oct. 16, 2017 – U.S. District Court Judge David Nuffer declared a mistrial due to a deadlocked jury. Koerber’s defense attorney, Marcus Mumford, told reporters that deliberations came down 11-1 in favor of the defense.
October 15, 2017
This is another case of gross violations of the US Constitution by our federal government. US v Koerber is currently in the hands of the jury in Salt Lake City, Utah.
It has been a long road for the government to travel in their persecution of Rick Koerber. It has taken over 10 years and multiple attempts at prosecution to reach this point. The trial finally began on August 21, 2017. The jury has been deliberating for days and are showing signs of frustration.
Rick Koerber was a prominent Utah business man and well known in National politics. Free Capitalist Radio was his daily radio show where he openly criticized both Republicans and Democrats.
Jewel Skousen gives us the sordid tale of this politically motivated witch hunt (emphasis added):
Round 1: In December 2007 state regulators attempted to bring civil and administrative charges against Koerber, but the Utah Attorney General refused to bring charges after the lead investigator for Ms. Giani admitted that there was “no evidence” to support the charges, and that Giani’s efforts were “long on conclusions but short on facts.”
The blowback from the 2007 fiasco led to the “resignation” of securities director Wayne Klein, and and increased scrutiny of Giani following a scathing state audit that criticized her handling of the Utah Department of Commerce, and the political bent of her agenda. However, with the support of then-Governor Jon Huntsman, Giani referred the matter to federal prosecutors who took up the case beginning in 2008.
A sitting federal judge would later observe that from that point – until May 2009, federal prosecutors deliberately planned and schemed to violate Mr. Koerber’s constitutional rights, just to bring an indictment in the first instance.
Round 2: Mr. Koerber was charged by a federal grand jury in May 2009 with a three-count indictment.
Round 3: When Koerber declined an offer to plea bargain, federal prosecutors brought a 22- count superseding indictment. Both of these indictments centered upon the allegation that Koerber had run his businesses as a “Ponzi-scheme.” Koerber strenuously denied these allegations, initially holding a press conference of his own where he publicly attacked the charges as “absurd” and played recordings of several government regulators admitting that the allegations were bogus.
Koerber was vindicated in 2011 when the federal court ruled that prosecutors had violated ethics rules and rules of evidence when they had secretly relied upon stolen attorney-client privilege documents when presenting information to the two initial grand juries.
Round 4: Undeterred, prosecutors brought a third federal indictment in September 2011, but Koerber was again vindicated in 2013 when a federal judge described conduct by local prosecutors as that of a “recalcitrant school boy” challenging public confidence in the United States Attorney’s Office for the District of Utah.
The federal judge ultimately concluded that the entire prosecution had been based upon a “pattern of widespread” prosecutorial misconduct. The case against Koerber was dismissed with prejudice in 2014, and prosecutors had been ordered by the court to cease attempts to prosecute Mr. Koerber.
Round 5: The government appealed the court’s ruling that it had to cease prosecuting Koerber. In January 2016, while acknowledging that the federal judge had been “mostly correct”, the Tenth Circuit Court of Appeals remanded the matter for correction of two errors.
Surprisingly, the United States Attorney’s Office informed Koerber and the Court that it did not intend to advocate the issue with any further legal filings. However, shortly after it became public knowledge that Mr. Koerber and his attorneys Marcus R. Mumford and J. Morgan Philpot were together involved as the lead defense team for Ammon Bundy in another high-profile criminal case, the federal judge who had presided over Koerber’s case from 2009 until 2016 was unexplainably removed from the case.
A new judge was assigned, and this new judge ordered the government to litigate, despite its prior repeated statements that it was declining to do so. The new judge reversed the conclusion that the prior dismissal be “with prejudice” – meaning no further prosecution was allowed – and ordered that Koerber could again be prosecuted.
Round 6: January 18, 2017, the United States Attorneys Office issued a press release that it had obtained yet another federal indictment based upon the same decade-old allegations. By this time, the Salt Lake Tribune had established as pattern of publishing stories on the case that merely repeated the allegations against Koerber, without any in-depth treatment of the “sordid history” of the case. For example, no reporting was done on the 10th Circuit Court of Appeals comment that prosecutors in this case, aside from their misconduct, were also plagued with “baffling incompetence.”
Nevertheless, Koerber was arraigned again in February 2017, this time the Court prohibited Koerber’s attorney, Marcus R. Mumford from continuing as Koerber’s appointed defense counsel. From February 2017 to August 2017, Koerber alternated between acting as his own attorney, and for a short time being represented by newly appointed defense attorneys, Greg and Rebecca Skordas.
During this time, the government re-discovered evidence it had previously insisted for more than five years was “lost” inadvertently, and permanently unavailable. Prosecutors also repeatedly refused to identify, as per federal rules, essential evidence the government intended to use at the newly scheduled trial set to begin in August 2017.
The new judge refused to be bound by any of the prior rulings regarding misconduct, or the courts prior finding that prosecutors had undermined even the “possibility” that Koerber could receive a “fair trial” going forward.
In the process the court also issued a novel ruling on statute of limitations grounds, re-interpreting decades of federal law on the point to allow prosecutors to continue, even though the statute of limitations period had long since expired.
The case proceeded to trial beginning on August 21, 2017. Mr. Mumford rejoined the case, pro-bono just before trial.
Trial and Opening Statements
Round 7: In opening arguments prosecutors alleged that Koerber had run his enterprise as a “Ponzi-scheme” but focused only on five of 30+ companies, and only about 5 of 60+ bank accounts. Prosecutors alleged that “investors” in Koerber’s business were left being owed “about $47 million” and that Koerber had inappropriately used investor funds.
During trial however, the government’s summary witness was forced to admit on cross-examination that she had only examined the companies Mr. Koerber operated which had been unprofitable, and that the government considered other business activities and other profits and assets, “irrelevant.”
Also, while prosecutors continued to allege that Koerber had not repaid victims and that his enterprise had “crashed”, prosecutors repeatedly objected to any evidence that showed Koerber’s repayment of debts after 2007, or any continuing business operations and assets remaining after 2008. These continuing operations continue to hold out promise for repayment of some investors in the future.
It was un-rebutted during trial that Koerber’s companies had acquired at least $128M in assets, including real estate equity as collateral for $30M of the remaining $28M owed to investors as of 2007. Instead prosecutors argued that the assets were “not relevant” to the allegations of a Ponzi-scheme, and that whether or not Koerber’s businesses actually collapsed, whether or not Koerber continued to repay investors, and whether or not assets continued to exist – these were also also irrelevant.
The government’s first trial witness openly admitted that he had received back more money than he invested, and still trusted Koerber to the present day. Its second trial witness admitted that he had no “ill feelings” towards Koerber and upon leaving the witness stand walked directly to the defense table and shook Mr. Koerber’s hand.
And so the government’s case continued. Read more of these details on this senseless trial here.
In his closing arguments, defense attorney Marcus Mumford accused federal prosecutors of deception, arguing that the case that had been offered against Koerber was based primarily upon short “snippets” of audio recordings that multiple witnesses identified as having been taken out of context, and a careful selection of incomplete financial records, rather than a full airing of the truth.
The jury has been deliberating since Friday, October 6th.
The prosecution has been hounding this man for a decade. It seems the federal government will not let go once it has it’s teeth in you. They have turned it into a personal vendetta.
This is quite the message for the prosecutors to send to the American citizen.
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