After reviewing all of the facts and the legal arguments from both sides, on Thursday, August 14, 2014 a federal judge finally dismissed the entire case against me, with prejudice. As part of his ruling, Judge Waddoups concluded that he could not ignore “the sordid history of this case, where…the government intentionally intruded [upon Mr. Koerber’s] constitutional rights…to secure an indictment in the first instance.”
[ I’m including a link to the actual court ruling – so that honest and interested readers can see the conclusions for themselves.]
Most of the media coverage, and certainly Francine Giani, has missed this point entirely. While it took us five years to prove it, as a legal matter, it is now established that the government’s entire effort to indict me in the first place – was wrong and unlawful. This is both unusual and significant. The point is that this entire prosecution has been illegitimate from the beginning. Even worse, they knew it. During the course of the legal proceedings, for example, we discovered a “confidential” government memorandum that outlined how they knew that they “did not have proof” and that their theory was “long on conclusions, but short on facts.” Even the government’s own internal attorneys admitted “proof is not there.” Yet, the same strategy memo states that they “needed to hurry up” and “do whatever it takes to file” in order to make “information public and urge investors to choose between cooperating or allying with Koerber” and cooperating with the government.
This is consistent with what I said at the outset, when the lead government investigator admitted in a recorded conversation that there “was no evidence” that I had “broken any law” and in another recorded conversation, how the motivation of the government was really based upon me having gone “on the radio and criticized” certain bureaucrats and their departments.
When I was first indicted, Francine Giani of the Utah Department of Commerce took center stage and told the media that she had encouraged this case “no matter what the costs.” That appears to be true. Yet, Judge Waddoups, after presiding over this matter for the last five years concluded that these costs included the tampling “ethical rules, federal law, and the Constitution.” In fact, though the media virtually ignored this finding, as far back as September 11, 2012 the court acknowledged that there was “troubling” evidence of “an internal scheme to prejudice” me and any chance of me receiving a fair trial.
Even beyond all of the above, the court’s August 14, 2014 ruling also makes clear that the allegations in all three indictments over the past five years were questionable, and if this had been a civil case – the indictments would have been dismissed on their face, for failing to state a claim. In addition, five years after Ms. Giani’s public statements, it has now been proven that she lied to support this ill-conceived prosecution, from the beginning. When former Utah Attorney General Mark Shurtleff stated years ago that the reason I was not prosecuted by the State of Utah, was that there was insufficient evidence to show that I had done anything illegal (a fact now admitted by the government in the federal proceedings – but still denied by Ms. Giani) Ms. Giani indisputably lied – and did it publicly – when she falsely claimed to have produced a so-called mountain of evidence of more than “20 boxes” of materials. But, as the case progressed, the lead FBI investigator was forced to admit, after reviewing these boxes, that a tremendous amount of that material produced by Francine Giana, had nothing to do with me, except that someone had placed false labels on some of the boxes with my name on it. (See the image below showing investigator’s hand-written notes.) In fact, despite Ms. Giani’s doubling down on her claimed indignation, all she is doing is counting on the public never reading the court’s decision. On this point the court explicitly agreed that by “dumping hundreds of thousands of irrelevant pages of so-called discovery in a defendant’s lap” the government unfairly and purposefully prolonged the pre-trial proceedings, “virtually indefinitely.” The court further agreed that “[t]his is precisely what happened here. The 20 boxes of evidence proved largely irrelevant, gave the government a headline referring to a “mountain” of evidence (Dkt 222), and resulted in at least a year of delays before it certified that its document production was complete.” This kind of behavior characterized the whole case from the beginning to the end. In fact, according to the court’s August 14, 2014 ruling – it even got worse over the last few years.
While it is hardly news today, that the federal government – including the IRS – over the last five years has increasingly targeted businessmen and businesswomen whose ideas and political philosophy supports liberty, limited government and free enterprise capitalism – it is news that in a very rare and “peculiar” case, a federal court has here essentially convicted the prosecutors, rather than the businessman. In fact, Judge Waddoups candidly alluded to prosecutors in this case acting like “a recalcitrant schoolboy, [who] fails to learn oft-repeated lessons” where there is a pattern of “intentional dilatory conduct” and “widespread and continuous misconduct.”
Only last month, after the court announced that it would be dismissing this case, without explanation prosecutors turned over – for the first time – more than 1,400 pages of additional discovery. Apparently they hoped this would go unnoticed since the case was already slated to be dismissed. But, in these documents there were some stunning discoveries. For example, the government had been in the possession of a financial summary of my business and my personal finances, and this summary concluded that our finances were sound, profitable, and that we had successfully maintained more assets than liabilities. Of course, I said this at the outset. While I have been forced to be silent over the last five years, the media has continued to trumpet the government’s cause and demonize me at every turn. So much so that some public commenters seem to assume that my business did in fact fail to generate a profit and that we did in fact run a fraudulent scheme. But, these are allegations – that were vaguely pled, and that the government never could succeed at taking me to trial upon, let alone succeed at proving. But, then again, those who have been following this case – in substance – already see that. But, I can’t blame those who have judged me harshly, possibly believing the characterizations by the media and the misbehaving prosecutors. But, now the truth is out, and a court who has considered the matter, has plainly and unmistakably documented this situation, and determined the legal facts and conclusions. I, therefore, invite those who have been duped by the misguided and misbehaving prosecutors – to consider that the public are the “many victims” Francine Giana is likely loosing sleep over, because her false story has been repeated so often, and so persistently. Now, she and her colleagues are the ones who stand convicted of deception and unlawful conduct. Their story is legally and thoroughly discredited.
In five years, the government did not establish even one victim of the alleged scheme! They could not get this case to trial after three indictments; and in failing, they took approximately five times the legal allowable time limit under the federal Speedy Trial Act. How often has anyone seen this happen? The failure of the government – given the tilted playing field in favor of conviction in white-collar cases – should cause all honest citizens to at least pause and ask some tough questions about the deference so often shown to prosecutors and the faith so easily given to government officials. They are people too – and when caught in wrongdoing, we should be very skeptical of their own finger pointing.
As my friends have heard me say for years on the radio – time is on the side of truth. It is now time, and the court established with finality that there was no honest or fair basis to maintain the pretense or possibility of a fair trial. There is no validity to the absurd argument that either Franklin Squires or Founders Capital were operated as a ponzi-scheme. Further, to those who argue or suggest (like Tom Harvey and the Salt Lake Tribune) that this was some kind of unjust technicality – Judge Waddoups spoke directly to that issue in advance. I invite all interested citizens to do some reading for yourself. The order reads:
“Nevertheless, for the avoidance of doubt, the court notes its agreement with Defendant’s summary of the prejudice caused by the facts and circumstances of this case: The prejudice he has suffered has been legal, personal, and real. Legally, the lapse has caused the government to lose critical information (which it has admitted, and which will become an issue in future motion practice should that prove necessary)….Witness memories are already proving severely impaired… [and] [p]ersonally, Defendant has been under pre-trial release conditions for five years. This includes being deprived of his Second Amendment rights, the abridgment of his First Amendment rights to associate freely, and his general ability to live, work and raise his family. He has faced financial ruin, family issues, and health issues as a result of being subject to the abuse of process and misconduct by stewards who hold the overwhelming resources of the federal government. These are not small things and with the passage of time, the prejudice grows. The elapsed time under the [Speedy Trial] Act is not a technicality…, in this instance, [it] is another violation of law by federal prosecutors who, through the pattern and conduct of this case, have been strikingly unwilling to conf[o]rm their own conduct to the [United States] Constitution, the applicable ethical standards, rules and statutes. To allow the government a fourth chance to re-indict would be unjust, unjustified, and a tacit form of tolerating this kind of prosecutorial misconduct. (Page 15, Fn 8)
Five years ago I stated clearly and publicly that “Up until now everything done by the state and federal government has been done in the shadows, making it virtually impossible for me to fight to defend my reputation, my business, and my associates. But, I can fight an indictment full of absurd and bogus charges and that is exactly what we are gearing up to do.” This is what I have done. Further, a few months ago, my colleague and close friend Jason Vaughn was also acquitted of the charges filed against him, where the same prosecutors repeated their same flawed and dishonest theory of their case. Our good friend Gabriel Joseph, however is still being prosecuted by these same misguided and overzealous bureaucrats. His life and his family still hang in the balance.
Five years ago I stated, “Rumors and false charges can bring a heavy toll on the innocent, and the only remedy I know is to stand up, tell the truth, and have confidence in the good people on both sides of our justice system—whose efforts, when given a chance to make the choice, almost always outweigh the shady and misguided efforts of the few abusive and overzealous government workers.” Thanks in large part to the untiring and inspired efforts of my attorney Marcus Mumford, and a federal judge who was willing to patiently hear us, and give me the opportunity to demonstrate the injustice and false basis for this prosecution – my case is over. I agree with Judge Waddoups, when he referenced that “[c]ompetent prosecution is faced by perhaps one or, at the most, two acquittals with at least every hundred criminal charges where nine out of ten are resolved by plea and the remaining trials favor conviction. Within these few cases, fairness, honesty and morality are not an undue burden on…justice.”
Tom Harvey asked me at yesterday’s press conference if I was disappointed that I could not beet the government “on the merits.” But, as my good friend Morgan Philpot pointed out to him, “there were no merits.” The government had the burden to prove that there was merit, and after five years they could not. There was no merit five years ago when Francine Giani ignored her own lawyers, department officers and investigators and common sense, and there was no merit to these absurd allegations when prosecutors falsely defamed me to the pubic – over and over again during these past five years (e.g. Stuart Young’s unprofessional, false and mean spirited rant at BYU Law school). Further, because she fails to acknowledge this basic principle of fairness, decency and liberty, Francine Giana is demented, and the fact that the governor will tolerate her irresponsible and reckless criticism of the federal bench as well as her misguided political view that any businessman who loses money is a criminal – regardless of the law and the other facts – directly calls into question even his judgement and his own agenda. The people of Utah, and especially the small business owners, entrepreneurs, and politically active citizens should finally demand Francine’s termination, and a full house cleaning of house in the Utah Department of Commerce ( see Francine’s Domain) where the corrupt demonization of innocent citizens has been masquerading as the legitimate province of government -for far too long.
To those who wonder what our next steps will be, I’ll simply say, there is still work to be done. The government and those who knowingly assisted in this false and illicit prosecution should be required to pay – especially those good people who lost money only because the government wanted to score a political victory. As far as the Free Capitalist, Jewel and I have been doing a lot of thinking and planning over the last five years. As a husband, as a father, and as a free citizen who loves the cause of liberty – I’ve got a few more things to say, and some ideas regarding the bold work that needs to be done to re-enthrone basic American principles and values – to fight for the individual citizen who faces, in many instances, unhinged government and selfish – tone deaf bureaucrats, who have forgotten or have callously disregarded what it means to represent our state and federal governments. We can either continue to excuse governmental misconduct, and corruption in high places – believing the false narrative that businessmen and private citizens are our enemy – or we can remember some of the basic principles of America. The businesses of America feed more hungry and clothe more naked and provide more opportunity to their fellow man than all government prosecutors, bureaucrats and so-called do-gooders, combined. Those who are trusted with our government – should not be immune from prosecution. We could make great progress with fewer laws, starting with the laws that protect prosecutors and bureaucrats, who use their public office to engage in intentional wrong doing. They should be subject to the same laws as the rest of us. And those in the media who have forgotten that they serve the public – as a protection against the government – need to be constantly reminded that the public is made up of individual men and women, husbands and mothers – all real people – even when they are accused! There is a difference, they must be reminded, between between accused and being guilty. Those who cannot see that difference, or who refuse to acknowledge it are the true enemies of freedom, enemies of civil society, and the real threat to peace, prosperity and happiness. Those individuals, by the way, are usually also the same individuals who case innumerable “first stones” only hoping to cover their own sins and shortcomings while persecuting the producers, capitalists, and leaders whose ideas mean something – in reality.
America is great in large part because good people, not perfect people – but good people, wake up every day to provide and produce and care for themselves, their loved ones and their neighbors. Americans do this still, despite the infiltration of our government institutions by intellectual dullards, and mischievous social engineers and advocates motivated by outmoded and discredited doctrines of collectivism and socialism. But, the time has already passed to wonder if their is a coming battle. It is upon us. Those honest minded folks who are waiting, or talking still – incessantly, must be shaken and shown that it’s time to “wake up” and “turn your brain on.” The battle is here. The fight is real. The principles of liberty cannot long survive, and are not thriving now, in a world where people like Francine Giani and misbehaving prosecutors can get away with unjustly and unfairly singling out free citizens who they disagree with or dislike, and who use their public office (including their public pay checks) to advocate for their own tyrannical world view. In fact, Francine’s public but uninformed and misguided criticism of Judge Waddoups shows her own insecurities. It is not a federal judge who had a personal issue with a federal prosecutor who kept justice from prevailing. It is the other way around. One federal judge (appointed and sustained under Article 3 of the United States Constitution), acting with principle, legal authority and integrity, is all that stood in the way of Francine’s Giani’s personal campaign against me – her false narrative that I’m some villain while she is some governmental savior, and her untruthful, unlawful, and unconstitutional efforts to muster the force of government to destroy me and my associates. She, by the way, was not elected. She has also not been held accountable for her repeatedly exposed wrong doing and maliciousness. Those who continue to defend her, to support her, and to tolerate this kind of corruption in Utah (or in any governmental position) are not worthy of any public trust – and for the sake of liberty and decency, they too must be identified and rooted out of our government. Now that this case has been dismissed, I’m glad to start anew. The solutions and opportunities ahead, are now more clear to me than ever before.
As I begin again, this time, I believe I’m wiser and can make a few needed course corrections from our past efforts. I still look back with fond memories of so many good friends who had been dedicated to our cause. Now, based significantly upon this dismissal, I am looking forward to renewing some of our acquaintances and friendships, especially since I’m no longer under court order to stay out of contact with some of the people who – in years past – I have loved the most. Make no mistake, I have not been sitting idly for the last five years. Besides my deep dedication to winning this case (which – with some amazing help – we have now done), I’ve also been preparing. I don’t know that there has been a single night that I haven’t walked through my home late in the evening, checking on my children, and wondering if I would end up spending the next few decades in federal prison. That, I have to confess, has been a constant and sobering reality that dominated my life. Now, that pattern of sober reflection motivates me.
I have prayed and worked as hard as I have ever worked at anything, to finally see this vindication. Now we can fight to correct some of these wrongs where possible, and begin to build again – but better, and stronger, and with new insights and lessons learned. To those who are interested – pay attention. We will begin again rallying those who are like minded, and who are willing to give more than words and lip service – to support of the cause of liberty. We have a very comprehensive program that we’ll be rolling out. This time – very literally – from a place that we view quite literally as Mulligan’s Valley. Self government, family government and community government – in that order. If we are to prevail, we must be willing to stand up for freedom at great cost – in fact, we must be willing to stand, no matter what the costs.
To quote a hero of mine, “it can help to save your soul, and maybe your country.”
Related Media Coverage
- Rick Aaron, ABC 4 Utah – “Vindicated” Rick Koerber Speaks Out“
- Dennis Romboy, Deseret News – Alpine Businessman Cleared Of Fraud Charges
- Tom Harvey and Robert Gehrke, Salt Lake Tribune – Koerber Lashes out after Utah “Ponzi’ Charges Dropped
- McKenzie Romero and Alex Cabero, KSL – Charges Should Have Never Been Filed
- Billy Hesterman, Daily Herald / Herald Media – Judge Throws Out Case Against Rick Koerber
- Daniel Woodruff, KUTV – Judge Dismisses Charges
- Ninevh Dinha, Fox13 – Koerber ‘Relieved’ State Official ‘Appalled’ After Charges Thrown Out
- KUTV – Giani Says Utah Won’t Refer Cases to Feds, Accuses Koerber Prosecutors of Malfeasance
Docket 472, Judge Clark Waddoups, August 14, 2014 Memorandum Decision and Order Dismissing With Prejudice For Violation of the Speedy Trial Act