United States v. Koerber

• Decision Date: 15 August 2013
• Docket Number: Case No. 2:09–cr–00302.
• Parties: UNITED STATES, Plaintiff, v. Claud R. KOERBER, Defendant.
• Court: U.S. District Court — District of Utah

966 F.Supp.2d 1207

UNITED STATES, Plaintiff,

v.Claud R. KOERBER, Defendant.

Case No. 2:09–cr–00302.

United States District Court,

D. Utah,

Central Division.

Aug. 15, 2013.

Barbara Bearnson, Gregory C. Diamond, Stewart C. Walz, Paige M. Petersen, U.S. Attorney's Office, Salt Lake City, UT, for Plaintiff.

Marcus R. Mumford, Mumford PC, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING MOTION TO SUPPRESS

CLARK WADDOUPS, District Judge.

Defendant filed his Motion to Suppress (Dkt. No. 258) on April 13, 2012. The court heard three days of evidence on the Motion to Suppress on November 8, 14, and 28, 2012, and oral argument on April 18, 2013. The parties filed lengthy post-hearing briefs on the Motion to Suppress, including supplemental memoranda relating to a specific legal issue raised during oral argument. In response to material in the Government's Response to Defendant's Supplemental Authorities and Briefing (Dkt. No. 338), Defendant moved to reopen the evidentiary hearing on the Motion to Suppress to question certain witnesses about information and guidance that the Government had obtained from Department of Justice (“DOJ”) ethics advisors or the U.S. Attorney's Office's internal professional responsibility liaison—material as to which Defendant argued the Government had now waived privilege as asserted at the earlier evidentiary hearings. ( See Def.'s Mot. Reopen Ev. Hrg. [Dkt. No. 340].) After Defendant's Motion to Reopen was fully briefed, the court granted the motion on May 31, 2013. (Dkt. No. 345.) The Government moved to reconsider. (Dkt. No. 349.) With the Motion for Reconsideration fully briefed, the court now disposes of that Motion together with the Motion to Suppress, denying the Motion for Reconsideration (Dkt. No. 349) but nevertheless vacating as moot its Order (Dkt. No. 345) and granting the Motion to Suppress (Dkt. No 258). The court also therefore vacates as moot Defendant's Motion to Compel (Dkt. No. 346) and terminates the Government's Motion in Limine (Dkt. No. 292) as moot.

I. MOTION FOR RECONSIDERATION

The court granted Defendant's Motion to Reopen Evidentiary Hearing (Dkt. No. 340) on May 31, 2013 (the “Order”). (Dkt. No. 345.) On June 21, 2013, after Defendant filed a Motion to Compel the information the court required the Government to produce in the Order (Dkt. No. 346), the Government filed a Motion for Reconsideration of Order Reopening Evidentiary Hearing and Production of Discovery on Defendant's Motion to Suppress. (Dkt. No. 349.) The court has carefully reviewed the briefing relating to the Government's Motion for Reconsideration and has concluded that it is without merit, though it also vacates its May 31, 2013 Order as moot, in the interest of judicial economy, because it is ready to rule on the Motion to Suppress (Dkt. No. 258) based on the extensive briefing, transcripts, and oral arguments.

A. Background

In his Motion to Reopen Evidentiary Hearing (Dkt. No. 340), Defendant provided substantive argumentation of law and fact on the issue of whether the Government had waived privilege under the “sword and shield” doctrine. Previously, during the evidentiary hearing on Defendant's Motion to Suppress (Dkt. No. 258), the Government had objected to Defendant's questions surrounding the context of an email used to refresh the recollection of Jennifer Korb, a Government witness who is a former Special Assistant United States Attorney, based on the attorney-client privilege, work product doctrine, and deliberative process privilege. Although the court initially overruled the objection, the Government only produced one page containing the undated email that Ms. Korb had written in December 2008 to the U.S. Attorney's Office's internal liaison for ethics and professional responsibility queries, Ms. Elizabethann Stevens, arguing that this page alone had refreshed Ms. Korb's recollection. The email related to the “Rule 4.2 issue” prosecutors had apparently identified in their preparation to instruct investigators to contact Defendant directly about the subject matter of their investigation. Later in the evidentiary hearing, Defendant was again denied the opportunity to inquire into the substance of any response or opinion received from the DOJ ethics advisors or professional responsibility experts based on the Government's assertion of privilege.

In supplemental briefing surrounding a separate legal issue raised during oral argument on the Motion to Suppress—whether and to what extent courts have allowed investigators (or prosecutors through investigators as their de facto alter egos) to contact represented targets of their investigations for direct questioning in seemingly innocuous interviews (as opposed to covert or undercover contact through informants)—the Government argued that even if Rule 4.2 applied, it had not violated the Rule, and it had actually done more than required to protect Defendant's liberty interests by taking “steps not required by the Constitution, federal statutes or the rules of ethics.” (Pl.'s Resp. to Def.'s Suppl. Auth. and Brief. 9 [Dkt. No. 338].) In fact, argued the Government, “the prosecutors consulted with ethics advisors before the agent [FBI Agent Saxey] arranged the interviews.” ( Id.) Moreover, argued the Government, “[d]espite Defendant's unsupported assertion to the contrary, the only record support establishes that Agent Saxey did not take steps to arrange the interviews until prosecutors received this information and guidance from DOJ ethics advisors.” ( Id. at 9 n. 3.) In his Motion to Reopen Evidentiary Hearing, Defendant then analyzed these statements as an assertion by the Government that it had relied on the advice of counsel—on the referenced “information and guidance from DOJ ethics advisors”—in its decision to proceed with the ex parte contact and questioning of Defendant as the target of its investigation whom it intended to prosecute despite its awareness that he was represented by counsel. ( See, e.g., Def.'s Mot. Reopen Ev. Hrg. 9–11 [Dkt. No. 340].) In other words, Defendant argued that the Government was now using the DOJ guidance as an argumentative sword despite having previously invoked privilege surrounding this advice as an evidentiary shield to prevent Defendant from eliciting testimony about any response to Ms. Korb's December 2008 email to Ms. Stevens with the subject line “Rule 4.2 issue.” ( Id.)

In its Opposition, the Government filed a brief containing one sentence addressing the Motion: “Defendant made an erroneous assertion at oral argument (Tr. 4/18/13 at 22–24) and the government responded to that statement—nothing more.” (Pl.'s Resp. to Def.'s Mot. Reopen Suppr. Hrg. 1 [Dkt. No. 342].) The pinpoint citation to the hearing transcript, however, was not on point and related to discussion between the court and Defendant's counsel about the significance of Defendant's keys having been taken from him as a result of being attached to his cell phone with a carabiner. In its Motion for Reconsideration, the Government twice acknowledged that its “initial response to defendant's motion to reopen was purposefully brief.” (Pl.'s Mot. Reconsider 1–2 & n. 3 [Dkt. No. 349].)

B. Analysis

The Federal Rules of Criminal Procedure do not technically authorize a motion for reconsideration, but the Supreme Court has recognized a place for motions for reconsideration in criminal proceedings and has “noted the ‘wisdom of giving district courts the opportunity promptly to correct their own alleged errors.’ ” United States v. Randall, 666 F.3d 1238, 1241–1242 (10th Cir.2011) (quoting United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976)). Relief under this de facto procedure is discretionary, id. at 1243 n. 6, by analogy to the Federal Rules of Civil Procedure. United States v. Barajas–Chavez, 358 F.3d 1263, 1266 (10th Cir.2004) (noting that appellate review of a court's disposition of a motion for reconsideration under criminal procedure is for an “abuse of discretion” by analogy to the prevailing standard under the rules of civil procedure.) Although motions for reconsideration are also not specifically provided for under the Federal Rules of Civil Procedure, courts entertain them under Rule 54(b), if they are interlocutory, or under Rule 60(b), if they are final. See Raytheon Constructors v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.2003). In considering the merits of a motion for reconsideration in a criminal case, analogizing to analysis of such motions in civil cases also provides guidance.

The Tenth Circuit has affirmed that “revisiting” issues in a motion for reconsideration that have already been addressed in the initial briefing “is not the purpose of a motion to reconsider”; more importantly, “advancing new arguments or supporting facts which were otherwise available for presentation when the original ... motion was briefed” is “inappropriate.” Van Skiver v. United States, 952 F.2d 1241, 1242 & 1244 (10th Cir.1991) (internal quotation marks and citations omitted). The Van Skiver Court, in fact, did not address the merits of the motion to reconsider because the moving party had failed to demonstrate any basis for relief under Rule 60(b) of the Federal Rules of Civil Procedure. Id. “Relief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances” such as those listed in Rule 60(b). Id. (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.1990)).

Defendant is correct in identifying the Government's admission that its initial one paragraph response was “purposefully brief” as fatal to its Motion for Reconsideration. ( See Def.'s Opp. Mot. Reconsider 4 [Dkt. No. 358].) “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest...