United States v. Koerber

• Decision Date: 21 January 2016
• Docket Number: No. 14–4107.,14–4107.
• Citation: 813 F.3d 1262
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Claud R. KOERBER, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

813 F.3d 1262

UNITED STATES of America, Plaintiff–Appellant,

v.Claud R. KOERBER, Defendant–Appellee.

No. 14–4107.

United States Court of Appeals, Tenth Circuit.

Jan. 21, 2016.

Dave Backman, Assistant United States Attorney (Carlie Christensen, United States Attorney, with him on the briefs) District of Utah, Salt Lake City, UT, for Plaintiff–Appellant.

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

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.

PHILLIPS

, Circuit Judge.

In May 2009, a federal grand jury indicted Claud Koerber on one count each of mail fraud, wire fraud, and tax evasion. In November 2009 and September 2011, the grand jury returned two additional superseding indictments, ultimately charging Koerber with 20 counts related to his alleged Ponzi scheme. All told, Koerber's case remained pending for more than five years without ever reaching trial. In August 2014, on Koerber's motion, the district court found a violation of the Speedy Trial Act (STA), 18 U.S.C. §§ 3161

–3174, which requires the government to commence trial within 70 days (not counting time excluded under § 3161(h) ) "from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). After finding an STA violation, the district court exercised its discretion under § 3162(a)(2) and dismissed Koerber's case with prejudice.

The government appeals. It contends that the district court abused its discretion in dismissing the case with prejudice. Although we disagree with most of the government's arguments, we conclude that the district court abused its discretion in two respects: (1) by including improper factors in its consideration of the seriousness-of-the-offense factor, and (2) by failing to fully consider Koerber's own actions that may have contributed to the speedy-trial delay.

Exercising jurisdiction under 18 U.S.C. § 3731

and 28 U.S.C. § 1291, we reverse the district court's order dismissing the case with prejudice, and we remand for reconsideration in accordance with our opinion.

BACKGROUND

Both Koerber and the government agree that trial did not commence within the STA's 70–day time limit. In focusing on whether the district court properly dismissed the indictment with prejudice, we now summarize the lengthy proceedings, highlighting events that led to the STA violation and to nearly five years passing without trial commencing.

I. May–December 2009: The First Indictment and Discovery

By late 2007, the government¹ had begun investigating Koerber for operating a Ponzi scheme. The government alleged that, through his companies, Koerber had made presentations to investors inducing them to pour money into his companies by promising monthly returns between one and five percent. As alleged, Koerber did not invest the money at all. Instead, Koerber purportedly used funds obtained from new investors to satisfy his obligations to earlier investors and spent most of the investment funds for his own purposes: among other expenditures, Koerber spent $850,000 buying restaurants, over $1,000,000 buying cars, about $5,000,000 making a movie, and about $425,000 minting coins. The grand jury charged that investors ultimately lost more than $50,000,000.

In February 2009, three months before seeking an indictment, federal prosecutors authorized IRS Agent Ronald Marker and FBI Agent Cameron Saxey to interview Koerber twice. By this point, according to the district court, the government knew that Koerber had retained counsel but still scheduled Koerber's interviews without even notifying his counsel. The two federal agents acted at the prosecutors' behest as follows:

In the second interview, the agents posed half a dozen scripted questions provided by the prosecutors, including questions designed to induce [Koerber], who was the target of their investigation and whom prosecutors intended to indict, to waive attorney-client privilege and to reveal potential trial strategy such as whether he intended to rely on an "advice of counsel" defense at trial, though he was as yet unindicted.

Appellant's App. vol. I at 257.

On May 26, 2009, a federal grand jury indicted Koerber on three counts—mail fraud, wire fraud, and tax evasion. At Koerber's June 19, 2009 arraignment, the district court² briefly addressed the STA calculations (without specifically addressing any of its provisions), directing that "[a]ll time is to be excluded pursuant to the [STA], [Assistant United States Attorney (AUSA) Stewart] Walz to prepare an order."³ Id. at 6. AUSA Walz never did.

Unsurprisingly, in an alleged $50,000,000 fraud case, discovery was voluminous. According to the government, by August 2009 it believed that it had provided "approximately 95%" of its discovery to Koerber. Id. at 70. But later that month, the State of Utah provided the government an additional 20 boxes of discovery from its investigation—containing thousands of pages of documents—together with "a significant number of additional witness interviews and related documents" that the government intended to review and scan onto discs for Koerber. Id. at 71. Based on the government's need to evaluate and provide the additional discovery to Koerber, and on Koerber's need for time to study it, the government and Koerber filed a joint motion to continue a status conference scheduled for August 31, 2009. The district court⁴ granted the motion and ordered the time excluded under 18 U.S.C. § 3161(h)(7)(A) and (B)

but made no express ends-of-justice findings as § 3161(h)(7)(A) requires.

On October 23, 2009, at a status conference, the magistrate judge⁵ stated that "[a]ll time is to be excluded pursuant to the [STA]. [AUSA] Walz to prepare an order." Appellant's App. vol. I at 7. Unexplainably, the government failed to prepare this order for nearly two months, keeping the district court from entering it until December 14, 2009. When finally filed, the order purported to exclude the "period of time between October 23, 2009 and the 19th day of January, 2010," under the ends-of-justice provision of the STA, 18 U.S.C. § 3161(h)(7)(A)

, citing four reasons: (1) the case involved "voluminous" discovery; (2) the government was still copying the 20 boxes of material for Koerber; (3) "the case is complex"; and (4) Koerber had just retained new counsel. Id. at 93–94. But the order did not set forth "reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A)

; see United States v. Toombs, 574 F.3d 1262, 1270–72 (10th Cir.2009) (stating that conclusory reasons for ends-of-justice continuances are inadequate).

II. January–September 2010: Koerber's Protective–Order Motion

On January 27, 2010, the district court⁶ held a status conference to discuss discovery. In a minute entry on the docket, the district court stated that "[a]ll time is to be excluded pursuant to the [STA]. [AUSA] Walz to prepare an order." Appellant's App. vol. I at 8–9. The district court did not say what days it intended to exclude from the speedy-trial clock. On February 17, 2010, the district court entered the order, which included ends-of-justice findings, noting that "the amount of discovery in this case necessitates this continuance for this period of time which renders this case so complex that the ends of justice outweigh the best interest of the defendant and the public in a speedy trial." Id. at 188. Because the district court had not mentioned the ends-of-justice findings at the January 27, 2010 hearing, the findings necessarily were retroactive.

Also in February 2010, Koerber filed a motion for a protective order, seeking to require the government to return to him privileged documents contained within about 200,000 pages of documents he produced to comply with a 2007 IRS subpoena. Koerber alleged that, until October 2009, the government had delayed notifying him of his inadvertent disclosure and had even used some of the privileged information to help secure at least one count in the superseding indictment.

On August 31, 2010, before ruling on Koerber's motion, the district court⁷ held a status conference,⁸ again ordering "[t]he time" excluded under the STA and directing the government to prepare an order. Id. at 14–15. On September 15, 2010, the district court partially granted Koerber's protective-order motion, ordering discovery about the government's alleged intrusions into Koerber's privileged information. On September 21, 2010, the district court entered that order (based on the August 31, 2010 hearing) excluding time under the STA, 18 U.S.C. § 3161(h)(7)(A)

, after finding "that the ends of justice outweigh the best interests of [Koerber] and the public in a speedy trial" based on the voluminous discovery and Koerber's need to evaluate the discovery to determine what motions he may need to file. Appellant's App. vol. I at 192. The district court had not fully articulated those findings at the status conference, having stated only that it "want[ed] the time excluded under the [STA] and the reason for it is that the defense still needs time to prepare the motions and to file them by that time." Appellant's App. vol. III at 725–26.

III. October 2010–August 2011: Koerber's Protective Order

On October 22, 2010, the government filed a motion asking for a trial setting.

We see nothing in the appendix showing that the district court ever acted on the government's motion. On November 16, 2010, at another status conference, the district court⁹ invited Koerber to seek a continuance of the pretrial-motions deadline until all issues related to his inadvertent disclosure were completely resolved. On December 15, 2010, the motions deadline, Koerber filed a motion to continue that deadline, saying he needed more time to review the...