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SALT LAKE CITY — Federal prosecutors say a U.S. District judge abused his discretion when he dismissed a $100 million real estate fraud case against a Utah businessman this summer.
The U.S. District Attorney's Office for Utah made the assertion in its appeal of Judge Clark Waddoups' decision Friday to the 10th Circuit Court of Appeals in Denver. Waddoups ruled that government prosecutors violated the Speedy Trial Act and engaged in a pattern of widespread misconduct in prosecuting Claud R. "Rick" Koerber.
Prosecutors contend Koerber was responsible for the delays and that they did everything they could bring the case to trial. They say Waddoups tossed the indictment based on a motion Koerber filed less than four weeks after his attorney resisted the court’s attempt to schedule a trial and almost five years into his persistent fight to file motions rather than go to trial.
"The irony in this case is that Koerber never wanted a trial, let alone a speedy trial, yet the district court dismissed this case with prejudice when Koerber did not get to trial in time," prosecutors wrote in the 56-page appeal.
The irony in this case is that Koerber never wanted a trial, let alone a speedy trial, yet the district court dismissed this case with prejudice when Koerber did not get to trial in time.
–federal prosecutors
Because Waddoups dismissed the indictment with prejudice, the government can't refile the charges.
"The government is conflating our efforts to get a fair trial with our efforts to get a speedy one," said Koerber's attorney, Marcus Mumford. "A free citizen is guaranteed both and shouldn't have to choose between the two."
Prosecutors charged Koerber in 2009 with masterminding a four-year, $100 million real estate fraud scheme in which investors lost $50 million.
Koerber said in August the case wasn't thrown out on a technicality and that he should have never been indicted. He has maintained that he defrauded no one but ran a profitable business and was singled out by bureaucrats angered by his radio show, "The Free Capitalist."
In its appeal, the government argues Waddoups failed to account for Koerber's "primary" role in the delay. Instead of requesting a trial date, Koerber resisted six court-imposed deadlines to cut off the filing of motions, according to the appeal.
"Koerber capitalized on these rolling deadlines by filing motions, one after another, until the very end of the case," prosecutors wrote.
The government also argues that the judge did not consider the seriousness of the charges against Koerber.
