UNITED STATES OF AMERICA, Plаintiff - Appellee, v. CLAUD R. KOERBER, Defendant - Appellant.
No. 19-4147
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
August 26, 2021
PUBLISH. FILED United States Court of Appeals Tenth Circuit August 26, 2021 Christopher M. Wolpert Clerk of Court. Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CR-00037-FB-1)
Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.
PHILLIPS, Circuit Judge.
To his investors, Claud “Rick” Koerber seemed to have it all: more money than he knew what to do with, lavish cars, and a thriving real-estate business. And for envious onlookers, good news was waiting—Koerber claimed to have found the key to financial success and promised to help them do the same. The secret, or so he said,
It started in the early 2000s with a seemingly benign business model of buying undervalued real estate and selling it at a profit. Investors, believing that the investments were backed by real estate, saw this as a safe opportunity. And a lucrative one at that. According to Koerber, investors would receive high returns on their investments—even upwards of five percent a month. Unsurprisingly, investors quickly lined up.
But if it seemed too good to be true, it‘s because it was. Koerber‘s business was hemorrhaging money and his liabilities were growing. And without enough real-estate assets to satisfy his ever-increasing needs, his operation spiraled into the ground. What money Koerber did have coming in was being used to satisfy earlier obligations to other investors or to fund Koerber‘s façade of wealth. In total, his scheme cost victims roughly $45 million.
In 2009, after the nature of his venture was finally exposed, a grand jury indicted him for wire fraud, tax fraud, and mail fraud. A superseding indictment added to his wire fraud and tax еvasion counts, charging him with additional counts for securities fraud, wire fraud, money laundering, and tax evasion. Yet more than five years passed without a trial, resulting in the district court‘s dismissing the case with prejudice under the Speedy Trial Act. On the government‘s appeal of that decision, this court reversed the district court‘s dismissal-with-prejudice order, identifying errors in its application of the Speedy Trial Act factors. On remand, after
On appeal, Koerber challenges his prosecution and conviction. His asserted violations range from evidentiary rulings, to trial-management issues, to asserted statutory and constitutional violations. After reviewing the briefing, the record, and the relevant law, and exercising jurisdiction under
BACKGROUND
I. Koerber‘s Equity Mill
“You don‘t need to ever be a landlord to make a fortune in real estate,” Koerber touted to potential investors at his business seminars. R. vol. 54 at 11777. In the early 2000s, Koerber developed a process he coined the “Equity Mill,” id. at 11768, in which Koerber-controlled companies would buy undervalued properties and sell them at a profit to “preferred buyer[s],” reserving an option to repurchase the properties in the future, id. vol. 55 at 11909–12. Meanwhile, another of Koerber‘s companies would lease the properties, thereby “min[ing] the [properties‘] equity.” Id. vol. 54 at 11769–70. Founders Capital—one of the involved Koerber-owned companies that received investment funds directly—served as the lender or the “bank” of the whole operation. Id. vol. 57 at 12622; id. vol. 58 at 12864–65.
Koerber soothed any investor anxieties by representing that he was buying real estate with the investment money. But in fact, only about twenty-one percent of Koerber‘s incoming investments were used for real-estate purchases, with forty-seven percent being funneled back to earlier investors, one percent being spent on educational endeavors, and thirty-one percent being used to finance Koerber‘s lifestyle and pet projects—including luxury cars, a horror-movie production, a fast-food restaurant, minted coins, and more.
Further, Koerber represented to investors that he was running a profitable organization. In support, Koerber proudly advertised his personal earnings, describing at his seminars how the zeros in his bank account were quickly growing. He spoke of other companies that were “s[o]wing the seeds of their own financial destruction,” by “spending all of their investors’ money buying big houses, buying big cars, [etc.]” Id. vol. 58 at 12731–32. Describing those companies as “doomed to failure because they didn‘t know how to generate a profit,” Koerber assured his
II. 2009 Indictment (Koerber I)
In May 2009, a federal grand jury sitting in the District of Utah indicted Koerber on three counts: mail fraud, wire fraud, and tax evasion. A superseding indictment in 2011 charged additional counts relating to securities fraud in violation of
III. Suppression Motion
In April 2012, Koerber filed a motion to suppress statements that he made during two ex-parte law-enforcement interviews in February 2009, as well as evidence later obtained using those statements. Two federal agents—an IRS agent and an FBI agent—had interviewed Koerber before his indictment and without his counsel present. The kicker, as Koerber alleged, was that federal prosecutors “oversaw [the] illegal effort to circumvent counsel and interrogate [Koerber] ex
The government responded by noting that Koerber was unindicted at the time of the interviews, and that federal prosecutors hadn‘t arranged for or “script[ed]” the interviews. Id. vol. 5 at 1010 n.2, 1017. It further argued that state legal-ethics rules permitted the interviews because, though Koerber had counsel on other matters, federal prosecutors had been informed that he no longer had counsel in his criminal investigation.
Judge Clark Waddoups rejected the government‘s argument and granted Koerber‘s motion to suppress. He found that though federal prosecutors “apparently believed” that Koerber was no longer represented, this belief wasn‘t reasonable. Id. vol. 6 at 1526, 1533. Judge Waddoups ruled that the prosecutors had thus violated Utah‘s legal-ethics rules by their conduct related to the interviews, which also amounted to a McDade Act violation for which suppression was the proper remedy.
IV. Speedy Trial Act Dismissal with Prejudice
In April 2014, after the court set the trial for June 13, 2014, Koerber moved to dismiss the case with prejudice, asserting multiple grounds—two of which are pertinent here. First, he claimed that the government‘s delay violated the time limits set out in the Speedy Trial Act (STA),
After noting the government‘s concession of an STA violation, Judge Waddoups dismissed the case with prejudice.2 In doing so, he relied primarily on the government‘s “dilatory conduct and pattern of neglect” in moving the case forward, including its neglect in failing to prepare two ends-of-justice orders, a proper ends-
On appeal, this court determined that the district court had abused its discretion in two ways: (1) in failing to properly consider the seriousness of Koerber‘s offense and (2) in failing to consider Koerber‘s responsibility for some of the delay. United States v. Koerber, 813 F.3d 1262, 1274–75, 1284 (10th Cir. 2016). On the first point, we ruled that the district court had “slighted” the seriousness-of-offense factor by not weighing it in favor of a dismissal without prejudice. Id. at 1274–75. We noted that the district court had abused its discretion by considering improper factors in weighing this factor, namely, the indictment‘s allegations rather than charges, and the presumption of innocence. Id. On the second point, we ruled that the district court had failed to consider Koerber‘s own disregard of deadlines, his failure to proactively assert his STA rights, and his acquiescence to continuances and trial postponements. Id. at 1284. This court remanded with instructions to reevaluate these factors as part of the overall prejudice determination. Id. at 1286–87.
On remand, the case was reassigned to Judge Jill Parrish. Koerber again moved to dismiss with prejudice. After further briefing and argument, Judge Parrish reevaluated the prejudice factors in accordance with the remand and dismissed the case without prejudice. In doing so, she concluded that the parties’ culpabilities in creating delays effectively canceled each other out. Judge Parrish further concluded that a “strong public interest” justified having Koerber‘s multi-million-dollar fraud charges “adjudicated on the merits.” R. vol. 9 at 2347–48.
In her order, Judge Parrish rejected Koerber‘s alternative argument, that the trial delays violated his Sixth Amendment right to a speedy trial. Though the length of the delay exceeded a year, and thus was presumptively prejudicial, she determined that Koerber was responsible for much of that delay and that he had failed to timely assert his Sixth Amendment speedy-trial right. She signed the order in August 2016.
VI. 2017 Indictment (Koerber II)
In January 2017, a federal grand jury reindicted Koerber, renewing the government‘s charges of securities fraud, wire fraud, money laundering, and tax evasion. Judge Robert Shelby was assigned the case.
VII. Renewed Motions to Judge Shelby
After remand, Koerber argued that the doctrine of issue preclusion bound Judge Shelby to enforce Judge Waddoups‘s order suppressing Koerber‘s statements made during the 2009 law-enforcement interviews, as well as evidence derived from those statements. After receiving additional briefing on the issue, Judge Shelby ruled
Koerber also challenged Judge Parrish‘s rejection of his Sixth Amendment speedy-trial claims. In ruling on this issue, Judge Shelby noted that Judge Parrish‘s decision rejecting Koerber‘s Sixth Amendment claims likely bound him. And even if it didn‘t, he declined to dismiss Koerber‘s conviction on Sixth Amendment grounds, determining, as had Judge Parrish, that Koerber‘s role in the delays weighed “heavily against him.” Id. vol. 13 at 3314.
Finally, Judge Shelby rejected Koerber‘s argument that the 2017 indictment was filed after the limitations period expired. Though acknowledging that the original statute of limitations had run before the 2017 indictment, Judge Shelby ruled that
In October 2017, Koerber‘s trial ended in a hung jury, and the court declared a mistrial. And after every judge on the District of Utah recused from the case, Judge Frederic Block, from the Eastern District of New York, was assigned the case.
IX. Renewed and Additional Motions to Judge Block
After Judge Block‘s appointment, Koerber renewed several of his motions—including his motion to suppress the 2009 law-enforcement interviews and his motion to dismiss the indictment as being beyond the limitations period. Judge Block denied both motions, “agree[ing] with and adopt[ing] Judge Shelby‘s conclusions.” Id. vol. 15 at 3925.
In addition to his renewed motions, Koerber filed several other motions. For instance, he moved to suppress QuickBooks4 files that the government had introduced at the first trial during the testimony of Koerber‘s former bookkeeper, Forrest Allen. In September 2007, Allen copied the files at work, soon before quitting his job. He later voluntarily provided those files to a government agent. Koerber didn‘t object to the government‘s use of these files at his first trial. Judge Block denied his motion to suppress, relying on the inevitable-discovery doctrine. He noted
In addition, Koerber filed a motion to limit testimony and еvidence at his second trial to those activities “directly connected” to Founders Capital. Id. vol. 16 at 3980. This, he argued, was necessary to prevent a constructive amendment of the indictment during trial. Judge Block denied the motion and allowed the government to show the variety of ways that Koerber had raised the $100,000,000 mentioned in
X. Koerber‘s Second Trial
In 2018, Koerber was tried a second time. At the outset, Judge Block informed jurors that he might “interrupt a witness” or ask questions of a witness, but that this shouldn‘t make the jurors believe that he had a particular “view of the case.” Id.
The jury convicted Koerber on all counts except for the two tax-evasion counts. At sentencing, the judge described Koerber‘s scheme as one that “Bernie Madoff would probably have been proud of.” Id. vol. 64 at 14202. The judge sentenced Koerber to 170 months’ imprisonment, 3 years’ supervised release, and $45 million in restitution. This appeal followed.
DISCUSSION
On appeal, Koerber raises seven arguments for reversal. First, he argues that the district court erred in not enforcing its earlier suppression order under the doctrine of issue preclusion. Second, he argues that the court erred in not dismissing his case with prejudice based on the government‘s STA violations. Third, he argues that the court erred in denying his Sixth Amendment right to a speedy trial. Fourth, he argues that the court erred in not ruling that his 2017 indictment was time-barred. Fifth, he argues that the court violated his Fourth Amendment rights by not suppressing certain QuickBooks files. Sixth, he argues that the court erred by allowing the government to constructively amend his indictment to encompаss investments from feeder funds. Seventh, he argues that Judge Block abused his discretion by interfering at trial and imposing his personal views on the jury. We address each issue in turn, finding that none of them merit reversal.
Koerber maintains that Judge Shelby erred in concluding that he wasn‘t bound by Judge Waddoups‘s order suppressing evidence from the two 2009 law-enforcement interviews of Koerber.7 Judge Shelby determined that the question of issue preclusion “turn[ed] on” the requirement that the suppression order be “essential to or necessary to the outcome of [a] prior proceeding.” Id. vol. 31 at 7289 (citing Bobby v. Bies, 556 U.S. 825, 834 (2009)). But because Judge Waddoups‘s order “played no role whatsoever in the final disposition of Koerber I“—that is, Judge Parrish‘s order dismissing without prejudice—the order had no preclusive effect. Id. at 7287, 7290. Koerber challenges that conclusion. “We review de novo the district court‘s conclusions of law on the applicability of issue and claim preclusion.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (citation omitted).
“The doctrine of issue preclusion prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit.” In re Corey, 583 F.3d 1249, 1251 (10th Cir. 2009). Put differently, issue preclusion prevents a litigant from taking two bites at the apple, thus conserving judicial resources and providing consistent decisions. Id.
First, the parties dispute what elements Koerber must prove to prevail on issue preclusion. The government contends that the issue to be precluded must have been “essential to the judgment.” Appellee‘s Br. at 27 (citing Bies, 556 U.S. at 834). Koerber argues that essentiality isn‘t a requirement, and that even if it is, it is satisfied here. In applying the issue-preclusion analysis, we acknowledge that Koerber‘s case is an unusual one in that he seeks to preclude revisiting a pretrial motion decided in a criminal prosecution that was dismissed and thеn later recommenced with a reindictment.
We begin with the elements of issue preclusion in the federal common-law criminal realm. First, “the issue to be precluded must have been actually and necessarily decided in the prior case.” United States v. Arterbury, 961 F.3d 1095, 1103 (10th Cir. 2020) (citing Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988) (per curiam)). Second, the party against whom issue preclusion is invoked “must have had a full and fair opportunity in the earlier case to litigate the issue to be precluded.” Id. (citation omitted). Both parties agree on these elements. But the
In Bies, the Court declared that issues are “necessary or essential only when the final outcome hinges on it.” Id. at 835 (citing 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4421 (2d ed. 2002)). But Koerber contends that Bies‘s essentiality requirement applies only in Double Jeopardy cases, not cases involving common-law criminal issue preclusion.
For support, he points to Arterbury, 961 F.3d 1095. In Arterbury, Scott Arterbury was charged with possessing child pornography. Id. at 1097. Ruling that an out-of-district search warrant for a search of the defendant‘s computer was invalid, the court suppressed the pornography evidence found on Arterbury‘s computer. Id.. The government filed a notice of appeal but dismissed it before any briefing. Id. at 1098. Soon afterward, acting on the government‘s motion, the district court dismissed the case without prejudice. Id.. But months later, after an intervening circuit case approved the validity of the same out-of-district search warrant, the government reindicted Arterbury. Id. at 1099. Arterbury moved the court to enforce its earlier suppression motion, arguing that issue preclusion barred the government from relitigating the suppression issue. Id.. The district court denied the motion. Id.. On appeal, we reversed, holding that the district court had to enforсe its earlier suppression order. Id. at 1103–04.
This makes sense. For issue preclusion to apply, a party must have an “adequate . . . incentive to obtain a full and fair adjudication in the first proceeding.” 6 Wayne R. LaFave, Search and Seizure § 11.2(g) (6th ed. 2020) (footnote omitted). This incentive must exist for the issue to be essential to the judgment. Were it otherwise, a party would even need to appeal minor issues to avoid issue preclusion. See Loera v. United States, 714 F.3d 1025, 1030 (7th Cir. 2013) (“Not every ruling has collateral estoppel effect in a subsequent proceeding in which the issue resolved by the ruling pops up again. Considering the number of rulings that a judge is apt to make in a case, whether civil or criminal, we worry that to give every ruling
A. Essentiality
Next, we apply the elements of issue preclusion to Koerber‘s case. The government doesn‘t dispute that Judge Waddoups decided the suppression issue in Koerber I, or that it had a full and fair opportunity to litigate the issue. Instead, it argues only that Judge Waddoups‘s suppression order wasn‘t essential to the outcome of Judge Parrish‘s dismissal without prejudice (which ended Koerber I). We agree with the government.
In addressing the essentiality question, we must resolve what was the “final judgment” in Koerber I. In his Opening Brief, Koerber argues that the “final judgment” in Koerber I should be Judge Waddoups‘s dismissal with prejudice. According to Koerber, “Judge Waddoups‘[s] dismissal order demonstrated that the suppression order was necessary to the outcome because it repeatedly explained that dismissal was based on delays caused by the misconduct that gave rise to the suppression order.” Appellant‘s Opening Br. at 26. But Judge Waddoups‘s dismissal with prejudice wasn‘t the final determination of Koerber I. It didn‘t end the case. The government appealed, and we remanded for a redetermination. After evaluating our decision, Judge Parrish dismissed without prejudice. That ended the case.
Alternatively, in his Reply Brief and at oral argument, Koerber asserted a separate argument for essentiality: that the suppression issue was essential to the suppression order itself. See Appellant‘s Reply Br. at 8 (“The government‘s argument
Leaving aside Koerber‘s delay in raising this alternative argument, we disagree. Such an application would run counter to Bies, which stated that issue preclusion “bars relitigation of determinations nеcessary to the ultimate outcome of a prior proceeding.” 556 U.S. at 829 (emphasis added). And it would contradict our language in Arterbury, which treated the dismissal of the first indictment—not the suppression order itself—“as if it were a final judgment.” 961 F.3d at 1103 (citation omitted).
Here, the final determination was Judge Parrish‘s decision to dismiss without prejudice. Her without-prejudice ruling relied heavily on her finding that both the government and Koerber were responsible for the delays. In dismissing without prejudice, she mentioned the suppression issue only once—and even then, she did so in cataloging Koerber‘s own delays. In no way did her decision “hinge on” the suppression order. See Bies, 556 U.S. at 835 (citation omitted). This distinguishes Koerber‘s case from Arterbury. In Arterbury, the dismissal of the first indictment did hinge on the unfavorable suppression order. See 961 F.3d at 1098.
This is true even though the government appealed Judge Waddoups‘s suppression decision, and in doing so “certified to the court . . . that the suppressed evidence was substantial proof of material facts, as required by
Our decision today aligns with the Seventh Circuit‘s decision in Loera, 714 F.3d 1025. There, a district court had granted a criminal defendant‘s motion to suppress evidence against him. Id. at 1026. After several delays resulting in an STA violation, the court dismissed the indictment without prejudice. Id. at 1028. The defendant was reindicted and again sought to suppress the evidence, but this time, the judge denied the motion and the defendant was convicted. Id.. On appeal, Judge Posner determined that issue preclusion wasn‘t applicable, because “the grant of the motion to suppress had played no role in the dismissal of the first indictment,” and
Taking a different approach, Koerber argues that “[g]reat mischief could result if Speedy Trial Act violations serve as a safe harbor when the government loses suppression motions.” Appellant‘s Reply Br. at 6. He explains: “Under the government‘s reasoning, any time evidence is suppressed the government could simply let the STA clock run, secure a dismissal without prejudice, reindict the defendant, and relitigate the suppression issue.” Id. But this argument fails to consider procedural protections guarding against such an outcome. For instance,
What‘s more, applying issue preclusion as Koerber proposes would likely lead the government to take more interlocutory appeals from pretrial evidentiary rulings, as it is permitted to do—yet rarely does—under
B. Merits
Having determined that Koerber hasn‘t satisfied the required showings for issue preclusion, we now review whether Judge Shelby (and later, Judge Block) should have suppressed the interview evidence. Though Judge Waddoups suppressed the evidence after ruling that prosecutors violated
“In reviewing a district court‘s denial of a motion to suppress, this court considers the totality of the circumstances and views the evidence in the light most favorable to the government.” United States v. Madden, 682 F.3d 920, 924 (10th Cir. 2012) (citation omitted). We review the district court‘s factual findings for clear error
On appeal, Koerber argues that Judge Waddoups got it right. He contends that in violating Utah‘s Rule 4.2, the government violated “publicly known internal agency policies designed to protect constitutional rights,” Appellant‘s Opening Br. at 27, namely, the McDade Act, requiring that prosecutors “be subject to State laws and rules,”
But Koerber‘s briefing hardly engages with Judge Shelby‘s analysis of the interaction between Rule 4.2 and suppression, nor do the cases he cites in his briefing support vacating his conviction. See, e.g., United States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973) (“A violation of the canon of ethics as here concerned need not be remedied by a reversal of the case wherein it is violated. This does not necessarily present a constitutional question.“).
In any event, if the federal prosеcutors violated Rule 4.2, and violated Koerber‘s due-process rights—two questions we needn‘t resolve today—Judge Block would still have properly denied the motion because suppression wasn‘t the proper remedy. A violation of Utah‘s Rules of Professional Conduct can‘t overcome the Federal Rules of Evidence. See United States v. Sup. Ct. of N.M., 839 F.3d 888, 921 (10th Cir. 2016) (“When it comes to the admissibility of evidence in federal court, . . . [s]tate rules of professional conduct . . . cannot trump the Federal Rules of Evidence. . . . There is nothing in the language or legislative history of the [McDade]
This is true even though Congress referenced local rules in enacting the McDade Act. See
In sum, even if the prosecutors here violated Utah‘s Rule 4.2, we conclude that the violation would not result in the exclusion of Koerber‘s 2009 interviews. See United States v. Hill, 197 F.3d 436, 447 (10th Cir. 1999) (noting that a prosecutor‘s violation of Colorado Rules of Professional Conduct “would not result in the exclusion of [evidence]” (citation omitted)). So Judge Block properly dеnied Koerber‘s suppression motion.
II. Speedy Trial Act Violation
Koerber argues that Judge Parrish erred in dismissing his case without prejudice. The STA “requires that the trial of a criminal defendant commence within
Neither party disputes that Judge Parrish‘s dismissal of the indictment was proper. But they disagree on whether the district court should have dismissed with or without prejudice.10
In determining whether to dismiss a case with or without prejudice, a court must consider three factors: “[1] the seriousness of the offense; [2] the facts and circumstances of the case which led to the dismissal; and [3] the impact of a reprosecution . . . on the administration of justice.”
As Koerber tells it, Judge Parrish slighted the second STA factor—the facts and circumstances leading to dismissal—by failing to meaningfully consider the government‘s “widespread pattern of misconduct” and “tactical delay.” Appellant‘s Opening Br. at 32. He also argues that Judge Parrish exceeded this court‘s mandate
We review a district court‘s dismissal without prejudice for an abuse of discretion. See United States v. Taylor, 487 U.S. 326, 885 (1988) (citations omitted). And we accept the court‘s factual findings in a Speedy Trial Act order unless they are clearly erroneous. Abdush-Shakur, 465 F.3d at 461 (citation omitted). “When the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court‘s judgment of how opposing considerations balance should not lightly be disturbed.” Id. (alteration and citation omitted). Because Congress has determined that a court‘s decision must be governed by these factors, “appellate review is limited to ascertaining whether a district court has ignored or slighted a factor.” United States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir. 1993) (internal quotation marks and citation omitted).
Neither party disputes that dismissal of the case was proper. But they disagree on whether the district court should have dismissed with or without prejudice. We consider the second and third prejudice factors, noting that Koerber doesn‘t dispute that Judge Parrish acted within her discretion in weighing the first factor, the seriousness of the offense, in favor of dismissing without prejudice.
A. Facts and Circumstances Leading to Dismissal
Koerber argues that Judge Parrish slighted the second factor by failing to include the government‘s own delays in her analysis. Under this factor, we focus “on the culpability of the delay-producing conduct.” Saltzman, 984 F.2d at 1093 (citation
As for the years leading up to Koerber‘s trial, the government doesn‘t contest Judge Waddoups‘s finding that it engaged in “intentional dilatory conduct,” resulting in a “pattern of neglect.” R. vol. 9 at 2197 (citations omitted). The question, then, is whether Judge Parrish abused her discretion in determining that Koerber‘s own delay tactics “cancel[ed]-out” the government‘s delays. Id. at 2347. We conclude that she did not.
Koerber shares the blame for the lengthy delays. Judge Parrish cited several instances of Koerber‘s own delays throughout the case, and the record amply supports her findings. On many occasions, Koerber opposed setting a trial date. In addition, we see nothing in the record about Koerber requesting a trial date between his indictment in 2009 and 2014. The government, on the other hand, began requesting a trial date as early as 2010. Then in 2014, after Koerber‘s suppression motion was granted, Judge Waddoups asked Koerber if he wanted to set a trial date. In response, Koerber questioned why a trial date was necessary considering his pending motions. He also requested several continuances or acquiesced to the government‘s continuances. See, e.g., id. vol. 3 at 562 (Koerber‘s motion to continue
But that‘s not all. The record reveals several times when Koerber expressed his intentions to file pretrial motions but then delayed filing them until months or even years later. For example, as noted, in 2009, law-enforcement officers twice interviewed Koerber without his counsel being present. By August 2010, Koerber stated at a hearing that he anticipated filing a motion to suppress statements from these interviews. But it wasn‘t until April 2012 that he filed. Added to that, Koerber delayed in asserting his STA rights. According to Koerber‘s own calculation, by October 13, 2009, 110 unexcluded days had elapsed on the STA clock. Thus, dismissal was warranted at that time. Yet Koerber didn‘t file his speedy-trial motion until April 2014, nearly five years later.
For these reasons, we see no clear error in Judge Parrish‘s key factual finding that “Koerber intentionally delayed his case in order to try and obtain a dismissal with prejudice under the [STA].” Id. vol. 9 at 2346.
But Koerber doesn‘t contest that he contributed to the delays. Instead, he argues that Judge Parrish nonetheless erred in two ways: first, by only briefly referencing the government‘s delays and thereby failing to meaningfully consider thе
Turning to Koerber‘s first argument, Judge Parrish‘s failure to recount in detail the specific instances of government misconduct doesn‘t amount to an abuse of discretion. This court instructed that on remand, the district court “need not reevaluate (but should still include) the other facts and circumstances upon which it relied to dismiss Koerber‘s case with prejudice.” R. vol. 9 at 2251. Judge Parrish met this directive by considering those facts. She didn‘t need to relist them item by item. Judge Parrish acknowledged in her findings that the government‘s deficiencies in preparing orders were “symptomatic of [its] pattern of neglect and dilatory conduct in managing the [STA] clock in this case,” which raised “a strong inference of tactical delay . . . in its prosecution of the case.” Id. at 2345. And though she spent the bulk of her analysis evaluating Koerber‘s own delays, to do anything less would have violated the mandate from this court to “consider whether any of Koerber‘s other actions in the case contributed to the STA delay and, if so, what effect that has on the second factor.” Id. at 2246 (internal quotation marks and citation omitted). We
For his second argument, Koerber contends that the government‘s misconduct was the “root cause” of his own delay. Oral Argument at 18:22–23, 19:00–19:06 (citing United States v. Black, 830 F.3d 1099, 1120 (10th Cir. 2016)). In other words, Koerber contends that the government, not he, should be faulted because his own delays wеre simply a by-product of the government‘s delays. For support, he uses as an example the government‘s method of prolonging discovery over several years, including its delay in producing 1,400 pages of discovery and 100 disks of information, despite several certifications that its discovery was completed. And because Koerber‘s pretrial motions relied on this discovery, or so he alleges, he couldn‘t have filed these motions any earlier.
Though we don‘t condone the government‘s management of the case, nor any other of its delays in Koerber‘s trial, Koerber can‘t fault the government as the “root cause” of all his delays. As but one example, several of Koerber‘s requests for continuances or extensions resulted from his own delays in reviewing the discovery
B. Impact of Reprosecution on the Administration of Justice
Finally, the third factor considers whether reprosecution would “serve[] the administration of the Act and justice.” Id.. Koerber alleges that Judge Parrish exceeded this court‘s mandate by reevaluating the impact-of-reprosecution element. According to Koerber, Judge Parrish failed to consider Judge Waddoups‘s prior findings regarding the government‘s extreme prosecutorial misconduct when she determined that this factor was “somewhat mitigated” due to Koerber‘s share in the delay. Appellant‘s Opening Br. at 37 (quoting R. vol. 9 at 2347). We aren‘t persuaded.
Under the mandate rule, a district court must strictly comply with the mandate issued by the reviewing court. Huffman v. Saul Holdings Ltd. P‘ship, 262 F.3d 1128, 1132 (10th Cir. 2001) (citations omitted). “When reviewing the district court‘s appliсation of our mandate, we consider whether the court abused the limited discretion that our mandate left to it.” Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1125 (10th Cir. 2003) (citation omitted). But if a mandate is general, “the district court is free to decide anything not foreclosed by the mandate.” Id. (citations
Previously, on appeal, this court instructed the district court to weigh the seriousness-of-the-offense factor as supporting a dismissal without prejudice and to “include Koerber‘s role in the delay, if any, in its evaluation of the second factor.” R. vol. 9 at 2251. We also emphasized that the district court “need not reevaluate (but should still include) the other facts and circumstances upon which it relied to dismiss Koerber‘s case with prejudice,” noting that the district court “retains discretion” to determine the ultimate dismissal determination. Id.
On remand, Judge Parrish dismissed the case without prejudice after concluding that the first factor weighed heavily against Koerber, the second factor was neutral, and the third factor weighed modestly in Koerber‘s favor. In reaching this conclusion, Judge Parrish noted that under the first factor, Koerber was indicted on “serious charges” of defrauding millions of dollars. Id. at 2347. She determined that the second factor was neutral because both parties had contributed to the delay. And finally, “in light of the finding of intentional delay on Mr. Koerber‘s part,” Judge Parrish concluded that the third factor “[was] somewhat mitigated” so that it “weigh[ed] only modestly in favor of dismissal with prejudice.” Id.
Judge Parrish had discretion to consider the third factor. Even though this court didn‘t require that the district court consider the third factor on remand, we disagree with Koerber that Judge Parrish‘s evaluation of the third factor exceeded our
Though we note that the government shouldn‘t be rewarded for its serious deficiencies in this case, including its “pattern of neglect and dilatory conduct in managing the [STA] clock,” R. vol. 9 at 2345, a dismissal with prejudice “is not the only method for a court to show that violations [of the STA] must be taken seriously,” United States v. Jones, 213 F.3d 1253, 1257 (10th Cir. 2000). In the end, a dismissal without prejudice still requires the government to reindict, potentially causing the indictment to flounder on the statute of limitations. See Id. (citation omitted). For these reasons, we conclude that Judge Parrish acted within her discretion in dismissing the case without prejudice.
III. Right to Speedy Trial: Sixth Amendment
Koerber contends that the district court erred in denying his motion to dismiss in which he asserted a violation of his Sixth Amendment right to a speedy trial. According to Koerber, Judge Parrish misapplied the test for a speedy trial by neglecting several of Judge Waddoups‘s prior findings about the government‘s delay and by failing to consider the resulting prejudice to Koerber.
The
To determine whether a delay violates a defendant‘s right to a speedy trial, we apply the four-factor test from Barker v. Wingo, 407 U.S. 514 (1972). These factors are (1) the length of the delay, (2) the reason for the delay, (3) the defendant‘s
Judge Parrish determined that no Sixth Amendment violation occurred after finding as follows: (1) the length of delay favored Koerber; (2) the reasons for delay favored neither party; (3) Koerber‘s untimeliness in asserting his right favored the government; and (4) the prejudice to the defendant modestly favored Koerber. Like Judge Parrish, we reject Koerber‘s Sixth Amendment speedy-trial claim. In any event, “[i]t is unusual to find a Sixth Amendment violation when the Speedy Trial Act has been satisfied.” Abdush-Shakur, 465 F.3d at 464–65 (citation omitted).
A. Length of Delay
Under the first factor, the length of the delay, the government accepts that the seven-plus years of delay extending from May 26, 2009, the date that Koerber was first indicted, to August 25, 2016, the date that Judge Parrish denied his motion to dismiss on Sixth Amendment grounds, qualified as presumptively prejudicial. We agree and determine that the first factor weighs in favor of Koerber.
B. Reason for Delay
The second Barker factor, the reason for delay, is “[t]he flag all litigants seek to capture.” United States v. Margheim, 770 F.3d 1312, 1326 (10th Cir. 2014) (citation omitted). Our analysis under this factor mirrors what we have said above regarding the delays that Koerber created on his own accord. Judge Parrish observed
C. Defendant‘s Assertion of His Right
As to the third Barker factor, this court has emphasized that “the defendant‘s assertion of the speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Toombs, 574 F.3d at 1274 (citation omitted). Under this factor, we ask whether the defendant “actively” asserted his right, which requires more than merely “moving to dismiss after the delay has already occurred.” United States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006). That is, we consider “whether the defendant‘s behavior during the course of litigation evinces a desire to go to trial.” Id. (citations omitted). Judge Parrish concluded that this factor weighed “heavily” against Koerber because of his “extreme delay in asserting his speedy trial right” and his consistent resistance to the court‘s setting a trial date. R. vol. 9 at 2350. We agree.
By his own account, Koerber first asserted his speedy-trial right аt a status conference in August 2013. But even then, that was over four years after Koerber‘s
D. Prejudice to the Defendant
Finally, “[w]e assess prejudice in light of the particular evils the speedy trial right is intended to avert: pretrial incarceration; anxiety and concern of the accused; and the possibility that the defense will be impaired.” Id. at 1292 (internal quotation marks, ellipses, and citation omitted). Judge Parrish acknowledged that Koerber had suffered some prejudice, but she also found that “Koerber [was] culpable for much of the delay in this case,” meaning that “much of the prejudice he suffered [was] a result of . . . his own making.” R. vol. 9 at 2350. She accordingly weighed this factor only modestly in Koerber‘s favor.
Koerber primarily argues that he was prejudiced based on the length of the delay. Beyond this, he argues that the government‘s delay undermined his chances at a fair trial. But “[w]e have looked with disfavor on defendants’ hazy descriptions of
We therefore agree with the district court and hold that Koerber‘s Sixth Amendment right wasn‘t violated, because his failure to timely and forcefully assert his right heavily weighed against any delay or prejudice that he might have experienced.
IV. Reindictment and the Limitations Period
Koerber asserts that the government‘s 2017 indictment extended past the limitations period provided by the savings statute,
A court‘s dismissal of an indictment near the end of the statute-of-limitations period can defeat a reprosecution. In balancing the considerations, § 3288 provides the government additional time to reindict a defendant, even if the original limitations period has run. Under § 3288, the government may return a new indictment “within six calendar months of the date of the dismissal” “or, in the event
Addressing this question, Judge Shelby applied the six-month provision and held that the 2017 indictment was timely. Determining that the cases cited by the parties weren‘t “particularly helpful,” he concluded that Congress added the sixty-
Koerber contends that the sixty-day provision applies whenever the government appeals. He argues that it doesn‘t matter whether “the dismissal first happens on appeal rather than in the district court or if the government appeals only a prejudice determination,” because these scenarios all occur “in the event of an appeal.” Appellant‘s Opening Br. at 47. Under this reading, he argues that the 2017 indictment was too late because it was returned more than sixty days after Judge Parrish‘s dismissal without prejudice.
The government takes a different approach. Tracking Judge Shelby‘s reasoning, it argues that the reindictment was timely under the six-month provision. In the government‘s view, for the “in the event of an appeal” condition to apply, the appellate decision must affirm the dismissal of the case—leaving the district court nothing left to decide. It further argues that for cases like Koerber‘s, in which the appellate court remanded for a final decision on whether the dismissal should be with
In resolving the meaning of
Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned . . . within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment . . . becomes final.
We see a simple dichotomy. When the appellate court is responsible for a final dismissal of a case, the sixty-day limitation period applies; when the district court is responsible for a final dismissal of a case, the six-month provision applies.
Even so, we recognize that § 3288 is “reasonably susceptible to more than one interpretation.” Peabody Twentymile Mining, LLC v. Sec‘y of Lab., 931 F.3d 992, 998 (10th Cir. 2019) (citation omitted). For one, the statute could more clearly state that the appeal must affirm a dismissal without prejudice of the indictment to activate the 60-day period. See
We turn to § 3288 as enacted and amended. Originally, the statute provided for reindictment only within six months of the date of dismissal. 134 Cong. Rec. S17360-02 (daily ed. Nov. 10, 1988) (statement of then-Sen. Joseph R. Biden, Jr.). This led to an obvious problem—an appeal of a dismissal order might take longer than six months to decide. The limitations period could prevent the government from seeking another indictment if the six months ran from (1) the district court‘s dismissal without prejudice rather than the appellate court‘s affirmance, or (2) the appellate court‘s reversal of the district court‘s dismissal with prejudice.
In summary, we determine that the 2017 indictment was timely because it was returned within six months of Judge Parrish‘s order dismissing without prejudice.
V. Inevitable Discovery
Koerber argues that the district court erroneously denied his motion to suppress certain of his companies’ QuickBooks files on grounds that the government would have inevitably discovered these files. He says that without а warrant, and without authorization to seize the files, the government violated the Fourth Amendment by obtaining these records. The government counters that because a
Forrest Allen worked as the bookkeeper for several of Koerber‘s companies. In September 2017, when Allen left the accounting department, he “downloaded onto a disk all of [Koerber‘s] financial records as of that date.” R. vol. 55 at 12120. These financial records were password-protected QuickBooks files. And Allen did so without Koerber‘s permission. Later, in summer 2008, Allen voluntarily provided the documents to the government.
At Koerber‘s first trial, the government introduced several of these QuickBooks files through Allen. Koerber didn‘t object at trial. But before his second trial, he moved to suppress these files, arguing in essence that he retained a reasonable expectation of privacy in these files that Allen didn‘t have the authority to waive. The government countered that Allen had acted as a private citizen when he copied Koerber‘s electronic documents, so the Fourth Amendment didn‘t apply. In the alternative, the government contended under the inevitable-discovery doctrine that the court shouldn‘t suppress the files because IRS summonses would have obtained the same documents. Judge Block didn‘t address the government‘s first argument, but because he agreed with the government‘s second argument, that the records fell within the inevitable-discovery doctrine, he denied Koerber‘s motion to suppress.
We accept the court‘s factual findings unless they are clearly erroneous, and we view the evidence in the light most favorable to the government. United States v. Burgess, 576 F.3d 1078, 1087 (10th Cir. 2009) (сitation omitted). “The ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo.” Id. (citation omitted).
Unlike the district court, we don‘t reach the government‘s alternative argument about the inevitable-discovery doctrine, because we conclude that the government never violated Koerber‘s Fourth Amendment rights. See United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003) (“[W]e may affirm on any grounds supported by the record.” (citation omitted)). “Subject to limited exceptions, the Fourth Amendment prohibits warrantless searches.” United States v. Benoit, 713 F.3d 1, 8 (10th Cir. 2013) (citation omitted). But “it is well-settled that the Fourth Amendment proscribes only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” Id. at 9 (alterations, internal quotation marks, and citation omitted). Otherwise stated, “Fourth Amendment concerns simply are not implicated when a private person voluntarily turns over property belonging to another and the government‘s direct or indirect participation is nonexistent or minor.” United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir. 1996) (internal quotation marks and citation omitted).
We now address a question that the district court didn‘t answer: whether Allen was acting as a government actor when he copied Koerber‘s electronic QuickBooks files. To answer this, we consider two subsidiary questions: first, “whether the government knew of and acquiesced in the individual‘s intrusive conduct,” and
Koerber doesn‘t argue that Allen acted as a government actor. And nothing in the record supports a view that the government “knew of and acquiesced in” Allen‘s retrieval of the documents, Id. (citation omitted), let alone “coerce[d], dominate[d] or direct[ed]” his actions, Id. (citation omitted). Instead, Allen had a “legitimate, independent motivation” to retrieve the files: he wanted to cover his own tracks. Smythe, 84 F.3d at 1243 (internal quotation marks and citations omitted). Indeed, at trial, when the court questioned Allen why he copied the files, he said this: “I wanted to be sure that if anything came up in the future that I had a way of showing what I had done. I wanted a snapshot.” R. vol. 55 at 12120–21.
Even so, Koerber argues that Allen lacked authority to disclose the files and that the government can‘t “skirt the Fourth Amendment by obtaining evidence from persons unauthorized to disclose it.” Appellant‘s Reply Br. at 30 (citation omitted). The government acknowledges that Allen copied the files without Koerber‘s permission. But this fact alone doesn‘t invoke Fourth Amendment protections. “When a private individual conducts a search not acting as, or in concert with, a government agent, the Fourth Amendment is not implicated, no matter how unreasonable the search.” Poe, 556 F.3d at 1123 (emphasis added) (citation omitted). And “[w]hile government agents may not circumvent the Fourth Amendment by
We conclude that Allen‘s actions didn‘t implicate Koerber‘s Fourth Amendment rights. Accordingly, we affirm the district court‘s dismissal of Koerber‘s motion to suppress.
VI. Constructive Amendment of Indictment
Koerber next claims that the government constructively amended his indictment to encompass investments from “feeder funds.” Appellant‘s Opening Br. at 54. For this, he argues that both his Fifth and Sixth Amendment rights were violated—“his Fifth Amendment right to be indicted by a grand jury on the charges against him and his Sixth Amendment right to receive notice of those charges.” Id. at 60 (quoting United States v. Miller, 891 F.3d 1220, 1237 (10th Cir. 2018)). The government disputes that any evidence regarding feeder funds extended beyond the indictment‘s parametеrs. We agree with the government.
Before trial, Koerber filed a motion in limine for an order prohibiting testimony and evidence relating to investments in companies other than Founders
“It is a fundamental precept of federal constitutional law that a court cannot permit a defendant to be tried on charges that are not made in the indictment.” United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995) (alteration, internal quotation marks, and citation omitted). And an accused has the right to be informed of the charges against him. Hunter v. State of N.M., 916 F.2d 595, 598 (10th Cir. 1990) (first citing
This court recognizes two types of variances. United States v. Sells, 477 F.3d 1226, 1237 (10th Cir. 2007). At one end of the variance spectrum is a simple variance, which occurs “when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Hunter, 916 F.2d at 598 (internal quotation marks and citations omitted). This type of variance triggers a harmless-error analysis. Id. (citation omitted).
At the other end of the spectrum is a “more severe alteration[]” known as a constructive amendment. Hunter, 916 F.2d at 599. A constructive amendment occurs when “the
At its core, Koerber asserts that he was charged with devising a fraud scheme to get people to invest in Founders Capital, but that the jury instructions and the government‘s evidence at trial allowed the jury to “convict Koerber for devising a scheme or artifice relating to money invested in other companies—so called feeder funds that Koerber did not control—without connecting those investments to Founders Capital.” Appellant‘s Opening Br. at 54. In other words, Koerber argues that the indictment was constructively amended when “[he] was convicted on evidence that a handful of the companies who invested in Founders Capital had defrauded the individuals who invested in those other companies.” Appellant‘s Reply Br. at 32. For several reasons, we find his argument unpersuasive.
First, Koerber‘s view of the indictment is much narrower than reality. Reading the indictment “as a whole and interpret[ing it] in a common-sense manner,”
Second, the evidence presented at trial didn‘t expand the scope of the indictment. Koerber contends that the government failed to connect the investments of four individuals to Founders Capital. We don‘t see it that way. Though the government didn‘t show a paper trail at trial, it did elicit testimony connecting these investments in feeder funds back to Koerber‘s companies. See, e.g., id. vol. 56 at 12363 (Jeff Goodsell testifying that he invested money in Freestyle Holdings, a company that was a “pass-through to Founders Capital“); id. at 12422–24 (Austin Westmoreland testifying that when he wired investment money to Hunters Capital, “[he] thought it was going to Rick‘s company“); id. vol. 57 at 12486–87 (Garth Allred testifying that though he invested in Vonco, a non-Koerber owned company, “[Vonco] took the money and then paid it to Rick‘s companies“); id. at 12535–38 (Frank Breitenstein testifying that he invested in Vonco, believing that his money would then be invested with Founders Capital).
Fourth, the government admitted overwhelming evidence at trial of Koerber‘s “scheme or artifice to defraud“—which included indirect investments. See
Surely this evidence is what the indictment contemplated when it described Koerber‘s scheme as one defrauding “investors and potential investors” “both directly and indirectly.” Id. vol. 10 at 2444. And it was through the testimony of Koerber‘s downstream investors that the government demonstrated how Koerber obtained the alleged $100 million in investment funds.
Fifth, the jury instructions didn‘t broaden the indictment as Koerber contends. For support, Koerber relies on a portion of the instructions stating: “It is sufficient if Mr. Koerber participated in the scheme or fraudulent conduct that involved the offer or sale of a security from Founders Capital.” Id. vol. 17 at 4280 (emphasis added). This, Koerber contends, exceeded the scope of the indictment which limited Koerber‘s charges to “fraud from investments made directly with him or his company.” Appellant‘s Opening Br. at 57. But as stated above, Koerber mischaracterizes the nature of the indictment, which alleged that Koerber made “misrepresentations and omissions to colleagues and intermediaries with the knowledge that such information would be disseminated to other investors and potential investors.” R. vol. 10 at 2444 (emphasis added).
We conclude that Koerber has failed to meet his burden to show that a variance of either kind occurred, let alone show that a variance was fatal. Sells, 477 F.3d at 1237 (citation omitted).
Last, Koerber asserts that Judge Block abused his discretion by interfering at trial. In his words, the district сourt “suggest[ed] to the jury that Koerber was guilty,” “persistently [took] control of questioning witnesses,” “undermin[ed] the defense‘s impeachment efforts,” and “impl[ied] the defense was not credible.” Appellant‘s Opening Br. at 60. Reviewing for an abuse of discretion, United States v. Rodebaugh, 798 F.3d 1281, 1293 (10th Cir. 2015) (citation omitted), we disagree.
This court has stated the general rule that “[a] district court has considerable discretion in running its courtroom.” Rodebaugh, 798 F.3d at 1294 (internal quotation marks and citation omitted). We review two aspects of a trial court‘s discretion: (1) its control over its courtroom procedures, including “its considerable discretion to ensure that the jury‘s time [isn‘t] wasted and that evidence [is] presented at trial efficiently,” United States v. Banks, 761 F.3d 1163, 1193 (10th Cir. 2014) (citations omitted); and (2) its power to question witnesses called by the parties, United States v. Orr, 68 F.3d 1247, 1250 (10th Cir. 1995) (citation omitted). Though a court‘s discretion isn‘t without its limits, we conclude that the district court acted within its discretion in managing Koerber‘s trial.
A. Control Over Courtroom
Under
First is Michael Isom. Isom was a government witness who was cooperating to testify against Koerber in exchange for leniency on his own fraud charges. In his testimony, Isom had underestimated by half the number of times that he previously met with the government to give information. Defense counsel attempted to refresh his memory by requesting that he count and review each of the government‘s written summaries of the meetings. The court refused to allow it, stating that defense counsel could “make a representation as an officer of thе court. And if the government . . . agree[d,] [the court could] move on.” R. vol. 55 at 11980–81. Defense counsel did so without objection and the questioning proceeded. Koerber claims that the court‘s “distracting” manner of interrupting questioning undermined the impact of Isom‘s false testimony. Appellant‘s Opening Br. at 63.
We don‘t view this conduct as improper. And we disagree that there was any substantive difference in counsel stating the number of times that Isom met with the government versus Isom counting the times himself—the former being much more efficient. See
Second, Koerber points to the court‘s handling of Jeff Goodsell‘s testimony, another government witness. At trial, the court curtailed defense‘s questioning of
Yet “[e]ven evidence which is relevant may be excluded in order to promote the administration of the judicial process.” Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987) (citation omitted). Here, we cannot conclude that the court‘s decision to limit Goodsell‘s testimony resulted in “manifest injustice” requiring that we disturb the court‘s decision. Rodebaugh, 798 F.3d at 1294 (citation omitted).
Third, Koerber claims that the court disproportionately limited the defense‘s expert-witness testimony. For support, he argues that the court permitted the government to present a 43-slide presentation, but later told the defense‘s expert witness, “I really don‘t want to go through 54 slides[;] it will take us a[ ]long time.” R. vol. 61 at 13587–88. Instead, the court asked the expert to “[t]ell the jury what conclusions [he] came to,” in order to “get right to it.” Id. at 13588. To that end, Koerber complains that the court suggested to the jury that the defense‘s expert testimony “was a waste of their time.” Appellant‘s Opening Br. at 68.
But there are no rules requiring that a judge spend an equal amount of time on each side—let alone consider an equal number of expert slides. And after the court
Fourth, Koerber takes issue with Judge Block falling asleep during the defense‘s cross-examination of an IRS agent. This isn‘t the first time that a judge has fallen asleep during trial (and likely not the last). See, e.g., United States v. Martinez, 97 F. App‘x 869, 872 (10th Cir. 2004) (unpublished). But we find it difficult to believe that this somehow demonstrated the judge‘s partiality or unfairness to the jury. In fact, in the presence of the jury, the judge explained to defense counsel: “[D]on‘t take it personally. You‘re doing a great job. It may be the elevated air in Utah.” R. vol. 58 at 12805.
We likewise find Koerber‘s challenges without merit.
B. Discretion in Questioning Witnesses
Koerber asserts that the court “failed to remain neutral” during the questioning of two witnesses. Appellant‘s Opening Br. at 61–64. First, Koerber argues that the court imputed its own narrative of the facts when it called Isom, who had previously been convicted of fraud, Koerber‘s “copycat“—in other words, implying Koerber‘s guilt. Id. at 61–62. But a closer look at the record reveals that the “copycat” comment by the court referred to the similar way in which the men structured their agreements with investors, not the deceptive nature of those agreements. And Isom was prosecuted for “[n]ot disclosing to investors the summer of 2007 [that] the interest [from Founders Capital] had stopped,” R. vol. 54 at 11862, not for the way that he structured his investor agreements. These statements by Judge Block fail to demonstrate that he crossed the line of neutrality.
Next, Koerber complains of the court‘s comments directed at Westmoreland. As Koerber tells it, Westmoreland testified on direct that he had invested with Koerber, but on cross-examination, he explained that he had actually invested in Hunters Capital, a feeder fund to Founders Capital. Defense counsel attempted to question Westmoreland further about who paid him interest on his investments. When Westmoreland said that he couldn‘t remember who put the money in his bank account, Judge Block interjected, “Santa Claus put it in?” Id. vol. 56 at 12426. Then, when Westmoreland again denied knowledge of where the money came from, Judge Block asked him whether he thought the money was coming from “these
Though we don‘t condone the judge‘s sarcasm, his questioning sought to uncover who paid the interest to Westmoreland. And if anything, the judge‘s questioning seems to support the defense‘s argument that the witness‘s failure to remember was unreasonable.
At bottom, the record doesn‘t support Koerber‘s contention that the judge treated defense counsel unfairly. At several points in the trial, the judge became impatient with government counsel, interrogated government witnesses, or cut off the government‘s questioning entirely. And we conclude that the judge took sufficient precautions to avoid the appearance of bias because he repeatedly instructed jurors that he had no opinions as to Koerber‘s guilt or innocence, and that nothing he said was meant to suggest what the jury should or shouldn‘t think. Though we don‘t support some of the court‘s tactics, we conclude that it acted within its discretion.
CONCLUSION
For the foregoing reasons, we affirm Koerber‘s conviction.